ADJUDICATION OFFICER DECISIONS

Adjudication Reference: ADJ-00005729

Parties:

Complaints:

Date of Adjudication Hearing: 3rd May 2017, 14th and 15th November 2017 and 1st May 2018

Workplace Relations Commission Adjudication Officer: Sean Reilly

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015, Sections 30 and 31 of the Maternity Protection Act 1994, Section 77 of the Employment Equality Act 1998 and Section 8 of the Unfair Dismissals Act 1977and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant was submitting:

1. That following maternity leave she had not been allowed to return to the job she held immediately prior to her maternity leave in breach of her rights under the provisions of the Maternity Protection Act 1994
2.  
3. That she had been discriminated against by the Respondent on the grounds of gender and family status in breach of her rights under the Employment Equality Act 1997.   She further complained that she had been victimised by the Respondent on the same grounds, but that element of the complaint was not pursued at the hearing      -and-
4.  
5. That she had been constructively dismissed in breach of her rights and entitlements under the Unfair Dismissals Act 1977.

The Complainant confirmed in writing that they were not proceeding with the unfair dismissal claim under the Employment Equality Act 1998 contained on the Complaint Form submitted to the WRC.

The Respondent were denying the complaints in their entirety.

The Complainant was employed by the Respondent from 12th October 2005 to 26th October 2016 and her monthly rate of pay was €2,041.00c (which is €469.73c per week).

Summary of Complainant’s Case:

The Complainant said she began her employment with the Respondent as a Fitness Instructor in October 2005.   Her employment was successful, she was promoted to the position of Senior Fitness Co-Ordinator in September 2011 and on 7th January 2013 she was appointed to the position of Fitness Manager.

The Complainant said that she became pregnant and informed the Respondent of this in January 2015.   She had her first child in September 2015.   She commenced maternity leave on 28th August 2015.   On 28th December 2015 she informed the Respondent that she would be availing of the additional 16 weeks protected maternity leave in accordance with the Maternity Protection Act 1994.   By email of 4th January 2016, the named General Manager, informed the Complainant that her return date would be 17th June 2016, if she wished to avail of her additional maternity leave.

The Complainant said that by email of 6th June 2016, the named Operations Manager requested her to attend a ‘re-brief’ Meeting on Friday 17th June, to explain that there had been numerous changes to the Respondent’s business while the Complainant was on maternity leave.   The Operations Manager specifically noted changes to the rosters and indicated that normally the Complainant would not be rostered on Fridays or Saturdays.   In addition, the Operations Manager stated: “there will be more overlap with shifts between R… and yourself apart from a small one for you both to sit and touch base on issues that need to be discussed.”     The Complainant said that R was a Studio Co-Ordinator at all material times and prior to her taking protected leave, she was his Supervisor.

The Complainant queried the changes in rostering.   By email of 8th June 2016 the Operations Manager responded that she was entitled to change rostering and that the Complainant “was required to be flexible with her hours and shifts with changes when needed.”     By email of 9th June 2016, the Complainant asked the Operations Manager to inform her of R’s job title and role.   In response the Operations Manager stated that “job roles and titles have not changed” while the Complainant had been on maternity leave.   On 24th June 2016, the Operations Manager emailed the Complainant with an outline of her role and R’s role.   The Complainant responded to this informing the Operations Manager that her role “was dramatically different” to that proposed by the Operations Manager, the Complainant further stated that she had expected that she would have returned to the same position, Fitness Manager, upon her return to work.  

By email of 24th June 2016, the Complainant, at the request of the General Manager detailed to her a detailed list of changes to her role since her return from maternity leave.   By email of 24th June, the General Manager responded stating that the Complainant’s title, role or duties had not been changed and requested the Complainant to discuss matters. The General Manager stated the following: “Your title was Group Fitness Manager before you went on maternity leave and it still is … Group Fitness Manager is not a Gym Manager’s or Fitness Manager’s role.   A Group Fitness Manager’s role is responsible for the delivery of the …. … Classes.     The Complainant responded reiterating that her previous job title was ‘Fitness Manager’.

By email of 27th June 2016, the Complainant requested the agenda for the meeting in respect of her role upon return from maternity leave and stating that she did not feel comfortable attending any meeting without a third-party present.   In response the General Manager stated the Complainant’s position had not changed on her return from maternity leave and denying her request for a third party in attendance.   The General Manager further stated that there would be no agenda for the meeting and it would be based on the Complainant outlining her concerns about her role, in relation to her title the General Manager said:

“I will amend the title in the spreadsheet and put it down as Group Fitness Co-Ordinator.

Your title is the same as it was before you went on maternity leave.   It is Group Fitness Manager.   This is also what is written on the back of you uniform which you have worn prior to going on maternity leave and for a long time prior to that.

We do not have a Gym Manager or Fitness Manager.   If you remember correctly, LH, the previous Operations Manager was responsible for the running of the gym floor.   When he left that role transferred over to the new Ops Manager, VN.

The Complainant said she was ambushed by the General Manager when she met her on 6th July 2016 to discuss the change in job roles.   She said that at this Meeting the General Manager told her that the position of Fitness Manager had been abolished by the Respondent around 2009.   She said that when she informed the General Manager that she had been promoted to that position in January 2013, the General Manager became extremely irate and shouted at the Complainant demanding proof of this.   The Complainant said that understandably she became extremely distressed and upset about being spoken to in such an intimidating manner by a senior manager.   She said she was forced to make her excuses and leave the Meeting because of this.   The Complainant said the General Manager again requested documentary proof of her position on 8th July 2016 and by email of 9th July 2017, the General Manager confirmed her position in respect of this meeting as follows: “I said that it was my understanding that your title was Group Fitness Co-Ordinator and that your uniform reflected this title.   I then went on to say that I was not aware there was a Fitness Manager title/role as some years ago the ‘Fitness Manager’ role was made redundant in all 3 Clubs.   You told me that you have a letter stating you are a Fitness Manager but still you just do the same duties as a Group Fitness Co-Ordinator.”

The Complainant said that by email of 4th July 2016, she emailed another named Operations Manager and R about R’s recording on the time clocking system.   She said this was a responsibility that she had before going on maternity leave.   She said later the same day she was copied on an email from the General Manager to the Financial Controller and Director of the Respondent, which stated:   “Can you please change the setup on TMS so that (the Complainant) does not have access to R and R does not have access to (the Complainant).    

As line manager J is responsible for their TMS.”

In an email of 11th July 2016, the General Manager then stated:

“ (The Complainant)/ R / J                                                                                                                                    J looks after TMS for all gym staff                                                                                                                       I will look after both of yours”

By email of 13th July 2016, the General Manager accepted that the Complainant’s job title was ‘Fitness Manager’ in accordance with the letter of 10th January 2013.   Having accepted her previous error in respect of job title, the General Manager then requested the job specification and duties that were assigned to the Complainant in her role as Fitness Manager.

The Complainant said she met with the General Manager on 6th July 2016, to discuss her job title and her role as referred to above.   She said following this meeting and exchange of emails described above, the General Manager approached her in one of fitness studios where other employees and customers were present.   She said the General Manager shouted at her demanding that the Complainant never communicate with her in that manner again.  

The Complainant said she was at a loss to understand the General Manager’s complaint as at all times she had merely responded to General Manager’s requests.   She said the she attempted to explain that she had not meant to offend the General Manager and was simply seeking to establish that she was a Fitness Manager.  

She said that however the General Manager continually cut across her, angrily stating the position of Fitness Manager did not exist in the Company.   The Complainant said again she was extremely upset and intimidated by this and moreover the public manner of the General Manager’s tirade was very demeaning for her.

The Complainant said that by email of 4th January 2016, the General Manager requested her to attend a ‘CX Module’ on 30th and 31st January 2016, when she was on maternity leave. She said by further email of 6th January 2016, the General Manager informed the Complainant that if she chose to attend the module she would receive 3 days annual leave in lieu when she returned from maternity leave, the third day was to account of a day filming that was required to complete the CX Module.   The Complainant said that she attended the CX Module on 30th and 31st January and completed the video as required.

The Complainant said that by email of 12th July 2016 to the General Manager she requested that she carryover hours from her time on maternity leave.   She said that this amounted to 9 public holidays, totalling 72 hours and 3 days for the CX Module and Video, totalling 24 hours.   The General Manager responded on the same date, stating that she would organise payroll to pay the hours for the public holidays, although it appears there was an error in calculation on her part, for two days of the CX Module, but she asked how long it took the Complainant to make the Video.

The Complainant said that she responded that it had been agreed that she would get one day for the CX Video.   The General Manager responded on 13th July that she had understood the Complainant would be attending work to make the Video and therefore would continue to work out the day.   It was submitted that this could not possibly have been the General Manager’s understanding given that she was well aware the Complainant was on maternity leave and the Complainant had asked if she would be paid for the day she was in; she said there would be no reason for the Complainant to inquire about pay if there was an understanding she would work a full day.   The Complainant said that other employees who took part in CX Module were not queried on how long it took them to make the DVD or whether they subsequently remained in work.   She said that in addition the General Manager’s purported protestations and concerns about how long the Complainant attended work for while on maternity leave seem all the more hollow given that she actually undertook to pay the additional hours, i.e.: “I will pay for the outstanding days in next payroll as you have presented me with effectively 12 days holidays which after extended maternity leave makes it more difficult.”

The Complainant said from this email there was in no doubt that she would be receiving 12 days pay in the next payroll period.

The Complainant said she was certified as being unfit to work from 13th July 2016 to 24th October 2016, the date of her resignation, because of work related stress and illness.  

She said that she queried why she had been underpaid in the amount of €753.28c, by email of 29th July 2016 to the named Payroll Operator, the Payroll Operator responded on the same date stating:   “Hi (Complainant) I had to stop 64 hours on you this month per (the General Manager), sorry.   Regards J”

The Complainant said that Paragraph 3.32 of the Employee Handbook it states in relation to lodging a grievance complainant:   “The Employee should contact their Supervisor/Manager as soon as possible.   If this is inappropriate, then the Employee should contact another Manager who the Employee feels comfortable with.”

By email of 2nd August 2016, the Complainant contacted the named Accountant and Company Director, stating:

“Hi P…

I am just emailing you as I wasn’t paid correctly this month, I was underpaid by €753.28c.   I emailed J and she told me K had instructed her not to pay me for 64 hours.   Can you rectify this please?

Regrettably this is just one of many incidents of K treating me unfairly and belittling me since I have returned from my maternity leave.   She has shouted at me in front of members and staff.   She keeps referring to me as Group Fitness Co-Ordinator.   This is a position that I have never held and is a demotion from the title I held before going on maternity leave.   She has said that my job, Fitness Manager, does not exist in ….   She has changed my job completely even after I objected.   She has also suggested that me taking the further 16 weeks maternity leave made things difficult for her.   I feel as if I’m being punished for having a child and taking maternity leave. I am sorry to have to email you about this but unfortunately I do not know who else to contact as …. do not have a Human Resource Department.”

The Complainant said she contacted the Accountant because she felt comfortable with contacting him and that it was inappropriate to contact the named Area Manager for stated reasons.

The Complainant said the Accountant did not respond to her email, instead he forwarded her correspondence to the General Manager without informing her about it.   The General Manager emailed the Complainant on 3rd August.   The General Manager responded on 3rd August, copying the email to the Area Manager, stating the Respondent does not pay for sick leave, a fact that is not disputed by the Complainant and the General Manager went on to state: “I am still waiting for your response to my email of 13th July, hence the reason there was no pay put through for the outstanding public holidays hours during your maternity leave and the days for cx and filming.   If you could confirm to me the day of videoing I will organise it.

Your last paragraph is very concerning and I think it best at this juncture that you set out your grievances in line with company policy outlined in the handbook to (the Area Manager).   That way it can be investigated in line with the company procedure and fairness applied to all parties.”

The Complainant said that by email of 23rd August 2016, she raised her grievance with the named Managing Director as she believed she had a good relationship with the Managing Director who was informally recognised as a person who could resolve issues people were having.   This email stated:   (NB I refer to the General Manager as K and the Accountant as P in this quote).

“Dear B….,

I’m writing to you as I don’t know who else in W to write to.   Since returning from maternity leave I have been subjected to constant bullying by (the General Manager).   I emailed P about this but instead of dealing with it confidentially he forwarded my email to (the General Manager).   To date, it doesn’t seem like anything had been done about this.

Below is a list of some of the incidents of bullying I outlined to P in my email:

• K instructed J not to pay me for 64 hours, meaning I was underpaid by €753.28c for July.

• K continues to argue about paying me for 3 days that she agreed to pay me even though I upheld my end of the agreement.

• K has shouted at me in front of members and staff.

• K continually refers to me as Group Fitness Co-Ordinator.   This is a position that I have never held and is a demotion from the title I held before going on maternity leave.

• K has told me that my job, Fitness Manager, does not exist in W…

• K has changed my job role completely even after I objected.

• K suggested that me taking the further 16 weeks maternity leave made things more difficult for her.

I feel as if I’m being punished for having a child and taking maternity leave.”

The Complainant said that by email the Managing Director responded that the Complainant should contacted the named Area Manager.   The Complainant informed the Managing Director that the Area Manager had been aware of her complaint for the previous 3 weeks and that no action had been taken.

The Complainant said that thereafter it appears that someone probably the Managing Director referred the matter directly to the Area Manager.   She said that on 28th August 2016, the Area Manager emailed her denying that he had ever received any complaint/grievance in relation to the Complainant.   In response the Complainant informed the Area Manager that her grievance had not, despite Respondent policy, been treated confidentially but rather been forward to the person against whom the grievance was raised.   The Complainant said that moreover, it beggared belief that the Area Manager asserted he was not aware of the complaint made by the Complainant.   She said it ill behoves the Area Manager to assert that he treats all bullying complaint seriously and seek to elicit the Complainant’s views on the complaint some weeks after he was made aware of the complaint in the same or similar manner as occurred here.   The Complainant said that while the Area Manager states that he would accept any complaint by way of email or letter he appears to have operated the practice of only accepting complaints made in person to him.

The Complainant said that by email of 2nd September 2016, the Area Manager asserted he was keen to resolve any issues the Complainant was having at work.   She said, remarkably, he appeared to indicate that he would only consider grievances that were made directly to him a remarkable position to take given that the substance of the complaint was well know and the Complainant was on medical leave for stress, a point made by email of 4th August 2016 when the Area Manager stated: “I want to reassure you that any complaints/grievances I receive directly from employees are dealt by me as a matter of urgency.”

By email of 11th September 2016, the Area Manager informed the Complainant that he would investigate the complaints, despite previously indicating that no complaint had been made.     The Complainant said this was some 6 weeks after the Area Manager was originally informed of the Complainant’s grievance; the email stated:

Hi H …,

I confirm that I will be investigating your complaint.   As I’ve said to you in my previous emails I am extremely keen to get your issues dealt with as soon as possible and I am anxious to get the investigation underway so I can get any of your grievances dealt with as a matter of urgency.   Can you let me know when would be a convenient time to meet and discuss your grievances in detail.   As soon as this happens I can move them forward and fully investigate your complaint…… “

The Complainant said she was understandably upset at the fact the Respondent was only considering whether to commence an investigation some 6 weeks after the complaint was originally made.   She said in light of the complete failure of the Respondent to investigate her grievances, something that was causing her great anxiety and stress, she believed that she had no other option other than resign.   By email of 14th September 2016, to the Respondent she stated:

“I am staggered and upset that (the Respondent) are only considering starting an investigation now, six weeks after I first made them aware of the bullying I was being subjected to.   I have followed the grievance procedure every step of the way as outlined in the Company Handbook, but unfortunately (the Respondent) has not followed their own procedures, which has caused me further stress and anxiety.   The email I sent to (the Employer) on 2nd August details the numerous forms of bullying I have been subject to since my return from maternity leave.   This email was immediately sent to the perpetrator of the bullying, thus giving them 7 days to respond to the complaint as per your policy.   Six weeks later I have received nothing in regards this and your email would suggest that an investigation has not even started.

Regrettably, I do not believe that I can continue working for (the Respondent) after 11 years of exemplary service as my health is suffering due to (the Respondent’s) inaction.   Unfortunately (the Respondent) has shown a total disregard for the bullying I have suffered, have not followed their procedures to deal with it and told me my job as Fitness Manager, no longer exists.

Can you please take this email as official notice of my resignation?   I hope that you will insure that I get paid correctly for what I am due including my holiday pay, sick pay and the pay that was agreed with K.. but later withheld on her instruction.”

By email of 17th September 2016, the Area Manager requested the Complainant to withdraw her resignation, and he expressed his belief that should she withdraw her resignation the Grievance Procedure would have resolved any work issues she was having, he said:   “I am personally disappointed I will not have the opportunity to meet with you and to have the opportunity to fully investigate your grievances.   As I said in my previous emails to you I had been really eager to meet with you and discuss your grievances in full, and to get your issues with as a matter of urgency.   I had believed, and still believe, that whatever issues you were experiencing I would have solved them for you.”

The Complainant said the request by the Area Manager for her to withdraw her resignation was again made by email of 22nd September 2016, in which he also stated that he had not accepted the Complainant’s resignation, he said: “I feel that it would be right of me to just accept your resignation and not try to persuade you to change your mind.”

The Complainant said on 8th October 2016, she contacted the Area Manager by email and asked if any investigation had commenced. She stated that all the details of the bullying she was subjected to were contained in her original complaint lodged on 2nd August 2016.   She also offered to meet the Area Manager as he had requested, but she made it clear she expected an investigation to commence immediately before the meeting and that she would require approval from her Doctor to attend, she said: “I hope an investigation has already taken place, but if not I expect one to start immediately. I will once I get the all clear from my Doctor to do if meet you there is still a need.”. She said from the context she believed it was clear that this would be taken as retraction of her resignation.

The Complainant said on 10th October 2016 and before her notice period had expired, she received her P45.   By email of 14th October the Payroll Operator informed her that her P45 had been issued on the instructions of the General Manager (the Complainant accepted that this had ‘crossed in the post’ with hers of 8th October 2016).

By email of 19th October 2016, the Complainant informed the Area Manager of the negative effects the bullying and delay in investigation had caused her.   She stated:

“Dear A….

Thanks for your email of 15 October.   I have been very upset at what happened to me at W….   I had 11 very successful and happy years there before everything went wrong on my return from maternity leave.   I did not wish to resign but the delay in the investigation forces me to resign.

I am prepared to give you one last opportunity to investigate what happened to me.   I will meet you any evening this week to give you any information you need.   You might suggest a time and date.   Following this meeting I will hold off on my resignation provided I receive an outcome some time next week.   This is going on since June and has really messed me up.   The issue is really quite simple and straightforward.

I am without income over this issue and cannot wait any longer.   I look forward to hearing from you”

The Complainant said that Meeting with the Area Manager was arranged for Saturday 22nd October 2016.   The Complainant was accompanied by her husband and she said the Area Manager refused to provide seating for him and he was forced to sit on the floor.   She said the Area Manager asked her questions about her bullying complaints; she answered these questions, but explained that all the relevant information had been provided by email of 3rd August 2016.   She said that despite previously undertaking to the contrary, the Area Manager informed her that no investigation into her complaints had been commenced and that he had not even looked at the emails between the General Manager and her in relation to her job title and role.   She said remarkably, the Area Manager then stated that he would not be beginning any investigation until 2nd November 2016.

The Complainant said that by way of follow-up on this Meeting and by email of 24th October 2016 she contacted the Area Manager stating that it was unacceptable that there had been such a delay in investigating her complaints, particularly as the Respondent was aware of the deleterious effect this was having on her health and that she had not received any pay due to being on sick leave as a result of this.   This email stated:

“I am following up on our meeting on Saturday 22nd October.   You said that the investigation into my complaints had not even yet started.   You said that you had not even looked at the emails between K and I yet.   So, we are, at best, at the start of an investigation months after I initiated the complaint.   In the meantime, I am stressed and very upset and off work without pay.   I wanted to resign over this but I gave you a last chance to show me you were serious about investigating the issues.   But I know from Saturday that we are just at the beginning.

I can’t afford to have no income and wait indefinitely for a result and a decision from you.   Frankly I have no confidence that the Company is putting any importance on this.   Your lack of action is consistent with the manner I have been treated since my return from maternity leave, so I am forced to confirm my resignation effective this Wednesday and I will be lodging a complaint with the Workplace Relations Commission.

I am sorry my career with (the Respondent) is ending in this manner.”

The Complainant said that by email of 29th October 2016, the Area Manager responded essentially restating the email correspondence set out above and again requesting that she retract her resignation.   She said that significantly the Area Manager accepted that she had made an ‘informal’ complaint about the General Manager prior to the Meeting of 22nd October 2016 and he said: “We agreed to meeting at ….. We had our Meeting where you chose to make your complaint of bullying against K ….. formal rather than informal.   I assured you that I would fully investigate your complaint of bullying against K….. “

The Complainant said it is clear from this response that the Area Manager had not taken her complaints seriously and had, in reality, no intention of investigating them.   The Complainant said she was considerably distressed and without pay and could no longer tolerate this environment and treatment and considered herself constructively dismissed.

The Complainant quoted from the Unfair Dismissals Act and referred to the definition of constructive dismissal.   They quoted a number of authorities and decisions in support of their position.

The Complainant said that the objective nature of the test for constructive dismissal is of vital importance.

The Complainant said the conduct of the Respondent in not taking any steps to investigate her complaint was not fair or reasonable.   She lodged her grievance on 2nd August 2016 when she contacted the Accountant/Director.   She said that in accordance with Respondent Policy she contacted the Accountant/Director because she felt comfortable with contacting him and she felt it inappropriate go to the Area Manager and plainly it would have been manifestly inappropriate to contact the General Manager.

The Complainant said the Respondent appears to have taken the erroneous view that the grievance could only be lodged with the Area Manager and said that is an incorrect interpretation of the Respondent policy.   She said that in any event the Area Manager was made aware of the complaint on 3rd August 2016.   She said that if he took the view the grievance should have been lodged with him he should have contacted her.   She said the delay in contacting her resulted in her having to absent herself from work on medical grounds.   She said that in addition the Respondent cannot rely on any failure to lodge a grievance, where the Area Manager accepted by email of 29th October 2016, that a grievance had been lodged by her informally at some prior stage.   Accordingly, she said, even based on the Respondent’s own version of events, a grievance was lodged and should have been investigated from 3rd August 2016.

The Complainant said that she did rest on her laurels in relation to her complaint.   She raised the grievance again on 23rd August by email to the Managing Director.   She said that again this was in accordance with Respondent policy given that the previous recipients of the complaint had done nothing to investigate the complaint.   She said that however, yet again, no progress was made in investigating the complaint.   She said that she continued to correspond with the Area Manager from 23rd August and he could be in no doubt that the matter was a complaint and should have been treated as a grievance.

The Complainant said the Respondent admitted to her on 22nd October that they had not began any form of investigation into the complaint and she said this was over 2 months from the date the complaint was first notified to the Respondent and in circumstances where the Respondent was aware that workplace issues had caused her to absent herself from work on medical advice.   It was submitted that in the circumstances the delay in investigating the complaint was manifestly unreasonable when judged objectively.

In relation to the reasonableness of the Complainant terminating her own employment the Complainant said she would submit that she simply had no choice but to terminate her employment.   She was certified as medically unfit to return to work with the Respondent because of the stress of the bullying and the failure to deal with it.   She said she was, in those circumstances, receiving no wages from the Respondent.   She made that circumstance entirely clear to the Area Manager and said his failure to deal with the issue clearly demonstrated to her that the Respondent would not seek to resolve the issues expeditiously or at all.

The complaint said the Respondent’s conduct, both the bullying and harassment behaviour by the General Manager is also relied on as conduct that would reasonably justify an employee to leave their employment.

The Complainant said that the behaviour of the General Manager caused her to have issues with her diet and sleep and caused her to become emotionally unstable.   She said her symptoms led her to be diagnosed with work related stress and to be medically certified as unfit to work.

The Complainant said that there cannot be any doubt that this is not a case where she failed to exhaust the grievance procedures.   She said that she sought to avail of and comply with the Respondent’s Grievance Procedure.

She said that anticipating the Respondent will argue that the Area Manager was at all times the person to whom the complaints should be made, she submits that the Respondent’s Policy contains no such limitation.   She further refers to the fact that the Area Manager was aware of complaints from 3rd August 2016.   She said that in any event she notes that he has accepted that an informal complaint was made prior to 23rd October 2016.

The Complainant said that similarly it cannot be said that she acquiesced to the conduct of the Respondent.   She said at all times she made it clear that she wished an investigation to commence and indeed she made clear that she would only remain in the employment of the Respondent on the basis that an investigation would commence.   The Complaint submitted there was no affirmation in her case.

The Complainant quoted from the both the Maternity Protection Acts and the Employment Equality Acts.

The Complainant said that when she went on maternity leave she held the position of Fitness Manager with the Respondent.   She said when she returned the Respondent purported to change her work title to Fitness Co-Ordinator, a lesser title.   She said the Respondent also changed her working responsibilities as described in earlier submissions.   She said that she was also not returned to a position of equivalent seniority as R had received promotion despite previously being her junior.

The Complainant said the Respondent by email of 27th July 2016, expressly stated that the role of Fitness Manager was a separate role with separate responsibilities.   She said that in any event, the change of responsibilities and clear inference that she was in fact demoted demonstrates that she did not return to the same role.

The Complainant asserted that she was discriminated in relation to both her gender and her family status.

In relation to her family status the Complainant said she relies on the following:

Firstly, she was immediately returned to taking high intensity fitness classes upon her return from maternity leave.   She said this meant she was not afforded an opportunity to regain her own fitness levels before being forced into this difficult scenario.   She said she was also required to do class launches during this period despite not having been given the requisite training during this period.

Secondly, she notes that the difficulties outlined above in relation to her role only began after she returned from maternity leave.   In particular the unclearness of her role and responsibilities arose when she returned to work.

The Complainant said she also noted that she was the only employee to be singled out for the carryover of annual leave in respect of the CX Module – that is every other employee was awarded 3 days annual leave for completing the CX Module and making the Video.   On the other hand, the Respondent attempted to renege on this agreement with her.   She said that in the circumstances the clear inference is that she was discriminated against in circumstances where she earned this time-in-lieu during her maternity leave.

The Complainant said that she complained her treatment was as a result of her gender and family status, in particular her return from maternity leave.   She said that these contentions were never denied and any of her concerns in this regard were never alleviated.

The Complainant gave direct evidence and answered questions from the representatives of both parties.   Her evidence largely supported her written submissions.

The Complainant provided a detailed background to her history of employment with the Respondent   She said that she was promoted to the position of manager and became part of the management team.   She said she had a good relationship with the other managers and with other employees.   She said that before she went on maternity leave R was a Studio Co-Ordinator and reported directly to her that she was his line manager.

The Complainant said that the General Manager against whom most of her complaints were made commenced in the role of General Manager just 6 weeks.   She said that no problems arose between her and the General Manager in that 6 week period.

The Complainant gave evidence that supported her written submissions in relation the ‘CX Module’ and Public Holidays.  

The Complainant gave evidence in relation to the exchange of emails between her and VN and the detailed list of changes that she said took place in her role upon her return to work and gave evidence in relation to the elements of her job taken off her and given to R (but she accepted that some of these were not management functions).

The Complainant gave evidence in relation to her meeting with the General Manager on 6th July 2016, in respect of her complaints about changes in her job and job title upon her return to work after maternity leave.   She said the General Manager said to her “In your staff file there is no reference to Fitness Manager.”   She said the General Manager was extremely irate shouting at her and aggressively demanding proof of her role as a ‘Fitness Manager’.   She said that the General Manager was very confrontational and the Complainant felt intimidated by her and her attitude, and because of this she had to ‘make her excuses’ and leave the meeting.   She said that she was very distressed by this experience.

The Complainant gave evidence in relation to the occasion when she said she was approached by the General Manager in one of the gym’s fitness studios.   She said the General Manager loudly shouted at her in front of other employees and customers to ‘never email her like that again’ and that she would not allow herself to be treated like that again.   She said she was at a complete loss to understand what the General Manager’s complaint was complaining about as she was simply responding to questions raised by the General Manager.   She said the General Manager would not listen to her and angrily cut across her.

In response to questions the Complainant said that as a manager she received no training whatsoever in dealing with bullying and harassment.

The Complainant said that she did not make her complaints to the Area Manager as she did not report to him, she also said she did not feel comfortable dealing with him.

She said the following in relation to the meeting of 22nd October 2016 with the Area Manager.   She said she was accompanied by her husband and that the Area Manager agreed to his attendance at the Meeting.   She said that the General Manager did not provide her husband with a chair to sit on and her husband was forced to sit on the floor.   She said that the Area Manager asked her various questions about the alleged bullying and she answered those questions.   She said that she told the Area Manager that all of the information was contained in the email of 3rd August 2016 and he said that he had not seen that email.   She said she told him that all information was in the emails exchanged between her and the General Manager and she said she was surprised and disappointed that he had not even viewed those emails and said that he had no prior knowledge of these.   In response to questions the Complainant confirmed that she did not inform the Area Manager of the emails before her meeting with him.   She confirmed that the Area Manager asked her to confirm if she wished to proceed with a Formal Investigation and she told him she did.

It was put to the Complainant that the above meeting was only the first day/start of the formal investigation into her complaint of bullying and harassment, that it was necessary to meet and speak with her as to the details of her complaint, to confirm without doubt that she wished a Formal Investigation (rather than an Informal Investigation), that it was first necessary to meet with her to obtain and discuss the details to full understand them, to find if there were any witness to any of the alleged incidents and that this needed to be done before the investigation could proceed any further She did not disagree with or contest this and said she accepted this was the case in relation to any formal investigation.   It was pointed out to her that she submitted her final resignation only two days later on 24th October 2016 and that this did not give the Respondent any reasonable opportunity to conduct an investigation.   She accepted that this was too short a period to conduct such an investigation.

In response to a question the Complainant confirmed that she did not raise with the Respondent or anyone else any issue in relation to high intensity classes

In response to questions from the undersigned the Complainant confirmed that the first mention by her of bullying and harassment was in her correspondence to the Managing Director and she accepted that she had not specifically stated prior to that that she had been bullied and/or harassed.  

The Complainant submitted the following in relation to procedure.

She repeated she did not receive any training in relation to dealing with bullying and harassment and she said this had not been disputed by the Respondent.

She said she had completed the informal procedure by raising her grievance in numerous emails.   She referred to the fact there was no ‘contact person’ available to her and none had been named by the Respondent including at the hearing.

The Complainant referred to the evidence of the Area Manager where that he stated that he had experience of carrying out a bullying and harassment investigation process.   Buts she said that he confirmed that he was at the formal stage of the procedure and that he simply ignored the requirements contained in the policy to have a note taker present etc.  

The Complainant said that the Area Manager’s attitude to her and her husband who accompanied her and with which he was rude and frankly extraordinary.   She said to leave her husband to sit on the floor throughout what was a difficult meeting for her was evidence of the dismissive attitude of the Respondent to her genuine grievances.

The Complainant submitted various authorities, decisions and determinations in support of their position and her complaints

The Complainant made detailed submissions and answered questions in relation to the question of mitigation of losses.

Summary of Respondent’s Case:

The Respondent was rejecting all of the Complainant’s complaints under the 3 Acts.

The Respondent said that the Complainant is submitting that she has been discriminated against by them on the grounds of gender and family status in terms of Section 6 and contrary to Section 8 of the Employment Equality Act 1998.   She is further submitting that the Respondent breached Section 27 and 28 of the Maternity Protection Act 1994 on her return to work following her return from her maternity leave and she further complains that she was constructively dismissed in accordance with the provisions of the Unfair Dismissals Act 1977.

The Respondent said that although the Complainant ticked the box on the WRC Complaint Form that states: “I say the Respondent treated me unlawfully by discriminating against me is dismissing me because I opposed discrimination” it is understood that the Complainant is not pursuing that complaint.

The Respondent said that while the boxes on the WRC Form relating to victimisation and harassment have been ticked, these issues have not been pursued in legal submissions.

The Respondent said it is their case that they did not discriminate against the Complainant on grounds of gender and/or family status, in terms of Section 6(2) of the Employment Equality Act 1998, as she was allowed to return to the job she held immediately prior to maternity leave when she resumed her employment following that leave.   The Respondent said that further it is their case that they did not constructively dismiss the Complainant, as they sought at all times to persuade her to return to work and allow them to investigate her grievance. They further said the Complainant did not exhaust the internal Grievance procedure and in fact she barely allowed it to commence.

The Respondent said the issues for consideration are whether the Complainant was so unreasonably treated by them that she was entitled to treat herself as having been dismissed by them notwithstanding their desire and attempts to meet her and persuade her to allow them to address her grievance so as to achieve her return to work.   In addition, whether the Complainant’s role was in fact changed on her return to work after her maternity leave in a manner that was in breach of the Maternity Protection Act 1994 or of the Employment Equality Acts 1998?

The Respondent said the Complainant commenced working for them in 2005 as a Fitness Instructor.   They said that on 2nd July 2008, she was promoted from Fitness Instructor to Senior Fitness             Co-Ordinator at a salary of €24,500 per annum.   They said this post was also known as Group Fitness Manager to reflect the meaning of the title as manager of fitness or group fitness classes as opposed to individual fitness that would be performed by a personal trainer.

The Respondent said that when at work the Complainant wore a uniform that stated Group Fitness Manager.   They said that she was also known within the Club as Group Fitness Manager as this can be seen in posts on the Facebook site by the General Manager on 21st November 2014.   They said the posts were by way of congratulating the Complainant as she was getting married on that day.   They said that no issue was taken by the Complainant with the title ‘Group Fitness Manager’ on her uniform or in the congratulatory posts.

The Respondent said that the management structure is based on 3 separate locations is as follows for each separate location.

• Level One, General Manager
•  
• Level 2 Operations Managers (Fitness and Gym Manager, Maintenance and Buildings Manager)
•  
• Level 3 Managers for a specific area

The Respondent said that in the above structure there is a Managing Director of all 3 clubs, and an Area General Manager and Financial Controller.

“The Respondent said the 29th January 2015, R was appointed as Studio Co-Ordinator.   They said the email announcement of appointment stated as follows: In his role, R will join the gym management team and work with H and L to increase class participation, improve trainer standards, deliver instructor training, promote virtual classes, liaise with Les Mills regarding hosting events, organising special events and everything else that helps us deliver a world class studio schedule to our members.

R has demonstrated a passion for group exercise and he will bring this passion and his considerable skills and experience to deliver the results we need.”

The Employer said that ‘Les Mills’ is a franchised highly choreographed music themed group fitness Class and it is clear from the outset that R had a role in this.   They said it was also clear from the outset that R and the Complainant would be working together on group exercise.   They said that from the commencement of the appointment of R on 29th January 2015 that there seems to have been some lack of acceptance of the Complainant of the role of R.   They said she sent a number of emails to R in March to take him to task for various matters.   On 27th March 2015, she reprimanded him for changing his shift without telling her and without asking a manager if he wanted to change his shift and not approaching her for changes he wished to make.   In an email on 1st April 2015, she stated:

“Les Mills CDS

Hi R….

If you want to make suggestions about tracks and launches, like any other staff you can approach me with your ideas before I decide on what to do.

Thanks.”

The Respondent said that this necessitated the named General Manager on 2nd April 2015 to write to the Complainant as follows.

“H….

R is not any other staff member.   He is a member of the management team.”

The Respondent said that on 15th June 2015, K was appointed as General Manager, V was appointed as Operations Manager to replace a named person in that role.

The Respondent said there is no sense that the Complainant was the superior of R prior to her going on maternity leave.   They said a series of emails to both of them in July 2015 and August 2015 from V asked them to set up a draft for classes and schedules and timetabling options, so that it could be hammered out between them prior to the Complainant going on maternity leave.   They said there are also emails to an equivalent person in a named location, who was called a studio co-ordinator, setting up a meeting to discuss and arrange the timetabling of group classes, between the Complainant, R and another named person and the then Operations Manager V.

The Respondent said the Complainant went on maternity leave at the end of 28th August 2015 and gave birth in September 2105.   On 28th December 2015 the Complainant informed the Respondent that she would be availing of 16 weeks additional maternity leave and her return to work date would be 17th June 2016.

The Respondent said the Complainant attended a training weekend at the end of January 2016, and shortly after this R sent a supportive message to the Complainant and invited her to attend a course in May 2016.   The Complainant replied stating that she was “good with course for the time being.”   When R responded encouraging her to attend he referred to her an ‘Group Fitness Manager.   The Complainant angrily responded about several matters to this email, but notably not about the use of the title ‘Group Fitness Manager’, she referred herself as ‘Group Fitness Manager in her own email.

The Respondent said that therefore up to and during her maternity leave the Complainant:

• Wore a uniform with “Group Fitness Manager’ on the back
• Was referred to by the General Manager in a post on their official Facebook Site as ‘Group Fitness Manager’ in February 2014.
• Was referred to by R in an email February 2016 as ‘Group Fitness Manager’
• Refers to herself as ‘Group Fitness Manager’ in an email on 10th February 2016
•  

The Respondent said that therefore the Complainant took no issue at all with this title and indeed she referred to herself by it.

The Respondent said that to facilitate the Complainant’s return to work on Friday 17th June the named Operations Manager invited her to attend a re-brief on that day.   The Operations Manager made it clear that the Complainant would just be doing meetings, that there would not be any actual work to do that day and concluded stating “Looking forward to having you back.”   The Respondent said that in subsequent emails the Complainant took issue with the time of the re-brief Meeting and the rosters she was placed on and she refused to agree the variation of start and finish times, stating that she was of the view that she was entitled to go back to the same hours and days she was working prior to going on maternity leave.   The Respondent said that apart from swapping a Friday with a Sunday the only changes on other days was a half an hour earlier or later. They said that changing roster times is specifically provided for in the Complainant’s contract of employment.   They said her rosters was being notified to her in good time prior to her return to work.  

The Respondent said the Complainant also took issue with the involvement of R in discussions, stating in an email of 9th June 2017: “As your previous email states that I will be discussing issues with R can you tell me what R’s title and role is please.”

The Respondent said that the Complainant returned from maternity leave on 17th June 2016.   The Operations Manager sent her and R and J a spreadsheet that set out the respective duties as she (the Operations Manager) understood them of the 3 employees and herself as the Operations Manager.   She stated:

“Hi guys,

Just an email of the roles situation.   All subject to change with agreement, any questions, problems please let J know! JOKE!

I’m still working on it?”

The Respondent said it is very clear that the email was a working document and was still in a state of preparation and it must be remembered the Operations Manager in June 2015, a short time before the Complainant had returned wished to set out her understanding of the relative roles of all parties, provide them to the parties and clarify area where there may have been overlap and it is also very clear that this process was all subject to change with agreement.   They said that in other words nothing was being imposed on the Complainant.

The Respondent said that however the Complainant took the view that her role had changed dramatically and emailed the Operation Manager to that effect.   The General Manager asked her to state in detail where she believed her role was different from before she went on maternity leave and she did so.   On receipt of this the General Manager responded on 24th June 2017 and reassured her that her title, role and duties had not changed.  

The General Manager stated: “Your title was Group Fitness Manager before you went on maternity leave and it still is.   Your uniform that you are currently using which is the same as the one before you left states Group Fitness Manager.  Group Fitness Manager is a Gym Managers’ or Fitness Manager’s role.   A Group Fitness Manager’s role is responsible for the delivery of (the Respondents) classes.”   She then asked the Complainant to let her know when it suited her to meet to discuss the details of the email she had sent and she stated: “I understood from our meeting last Friday that you were happy with the setting out and documentation of individual duties in order for it to provide clarity and transparency for everyone.”

The Respondent said a series of emails then were exchanged between the General Manager and the Complainant, in which the Complainant insisted that her role had changed and the General Manager sought to reassure her that it had not.   The General Manager sought to meet the Complainant to discuss what her concerns were, but the Complainant raised issues to block such a meeting, stating that she wanted a third party present and then raised queries as to what the agenda for the meeting was. On 27th June 2016, the General Manager responded as follows:

“ H…..

I am confused with your email below. You have stated that you feel your role and title have changed.   I stated it has not changed. I suggested to meet and discuss as all these emails back and forth are not the way forward.   You wanted to bring a third party along. I am not in agreement as I do not feel a third party is warranted and as already mentioned this is not a Grievance Procedure.

There is no agenda, it would be you outlining your concerns to me, therefore you will have an agenda based on your current concerns.

I will amend the title in the spreadsheet and put it down as Group Co-Ordinator.

Your title is exactly the same as it was before you went on maternity leave.   It is Group Fitness Manager.   This is also what is written on the back of your uniform which you have worn prior to going on maternity leave and for a long time prior to that.

We do not have a Gym Manager or Fitness Manager.   If you remember correctly L the previous Operations Manager was responsible for the running of the gym floor.   When he left that role transferred over the new Operations Manager, V…   Let me know if you still wish to meet me.’

The Respondent said that further emails were exchanged in which the Complainant maintained that her role had changed, and the General Manager trying to reassure her that it had not.   They said that some confusion remained about the title ‘Fitness Manager’.   The General Manager understood that there was no separate designation of Fitness Manage in the employment and that this role had long been one that was redundant and that the title of the Complainant before she went on maternity leave had been Group Fitness Manager.   They said that when the Complainant persisted as to the title designation the General Manager sought confirmation.   The Complainant also sought to suggest that the General Manager was making her redundant and she stated in an email on 9th July 2017: “I was surprised that you yet again referred to my position, Fitness Manager, as now being redundant in (the Employment).   Are (the Respondent) making me redundant or are you able to offer me a suitable alternative.”

The General Manager responded one hour later to emphatically reject that she had ever referred to the Complainant being made redundant, stating: “Please be very clear that at NO stage during our conversation did I make reference to you being made redundant …… I went on to say that I was not aware that there was a Fitness Manager’s title/role as some years ago the ‘Fitness Manager’ role was made redundant in all 3 clubs.   Hence the reason I asked you to bring in a copy of what you have as I do not have anything on file.”   The letter was then provided by the Complainant.   The General Manager responded the day she received the letter from the Complainant.   The GeneralManager immediately accepted the title and she asked for the accompanying job specification which had not been provided with it and this was to ensure that she knew exactly what the Complainant’s concern was, as the General Manager was of the firm view that the Complainant’s job title and role remained the same before and after she went on maternity leave and was at a loss as to Complainant’s hostility at her attempts to obtain clarity on the Complainant’s concerns.   The General Manager also asked the Complainant to have her uniform amended to reflect the title in order to have clarity.

The Respondent said the Complainant also took issue with the payment for the performance of CX Module Course and Video, seeking 3 full days pay for attending the course and recording a training video, although her peers in fact were paid no more than 11 hours pay.   When the General Manager asked how long the Video was, the Complainant did not answer the question, simply stating that 3 full days had been agreed.   The General Manager responded on 13th July that she understood that the Complainant would be at work the day the Video was recorded, and she asked for clarification as to how long the Complainant was in for the Video.   The General Manager agreed to pay for the 3 days, stating that she would pay for all outstanding days in the next payroll run, but making it clear that she felt that 8 hours pay was excessive for filming the DVD.   For the avoidance of doubt, the Respondent said the Complainant is not correct in Paragraph 83 of her submissions, her peers did not receive 3 days pay for completing the Video, they received 11 hours pay, she stated:

“I will pay for the outstanding days in next payroll as you have presented me with effectively 12 days holidays which after extended maternity leave makes it more difficult.   In addition, as you are just back and have weeks booked from 25th July I believe the best option is to pay it off.”

The Respondent said the General Manager was clearly referring to the difficulty of the Complainant suddenly seeking 12 days holidays in addition to the already booked holidays from 25th July to 8th August 2016 at a time when the Complainant had just returned from maternity leave on 17th June 2016.   They said the difficulty was a practical one of scheduling and rostering the teaching of classes that might reasonably have been overcome by making a payment in lieu of holidays taken.   The General Manager’s comments about difficulties of rostering and scheduling would have been the same for any employee on extended leave for whatever reason.   They said there was no difference of treatment of the Complainant.

The Respondent said the Complainant then went out sick on 14th July 2016.   They said that although she was initially signed off for 2 weeks, in fact the Complainant did not ever return to work and she had in fact only spent 16 days back at work, during which she had sent an email asking if the Respondent wanted to make her redundant.  

The Respondent said the Complainant’s medical certificate stated, “work related stress.”   In acknowledging receipt of the certificate, the General Manager stated that she would organise for the Complainant to attend the designated Company Occupational Physician before she returned to work and also stated in that email; “I wish to put on record that at no point since you returned to work from maternity leave on 20th June have mentioned that you are stressed in your role.”   They said that as the Complainant returned to work, they were entitled to assume she was fully fit, unless they were otherwise informed.

The Respondent said they have analysed the Complainant’s submissions and the duties that she states were hers prior to her going on maternity leave that she alleges were removed from her.   The Respondent’s Operations Manager has compared these with the duties set out on the spreadsheet, emailed to the Complaint, R and J on 17th June 2016, the day she returned and prepared a table of comparison.   They said it can be seen that many of the roles that the Complainant alleges were removed from her are actually pencilled against her named on the spreadsheet.   The Respondent said that there are areas that the Complainant states were added to her role, in fact the duties were always part of her role and part of a manager’s role.   (Information submitted to the Hearing).

The Respondent said the contradictions apparent in the Complainant’s submissions can be seen in the granting of holiday’s duty.   They said the overall thrust and complaint of the Complainant’s complaints are that she was demoted after she returned and that she was placed at the same level as R.   However, she then complains that a new duty was added to her role of granting or refusing holidays requests, as well as evaluating work experience and rostering interns.   They said that these duties are clearly managerial duties and would amount to a step up and not a demotion.   The Respondent made further submissions is that respect.

In addition, the Respondent said it was made clear in the email sent on 17th June and in subsequent meetings, that the spreadsheet was a working document that the Operations Manager had put together and that it was up for discussion and agreement from all involved.

The Respondent said the Complainant emailed the Financial Controller on 2nd August 2016 in an email titled ‘Wages’ asking him to rectify what she termed as ‘underpayment’ of her wages and blaming the General Manager for this.   She then went on in that email to make a series of complaints against the General Manager, that she had treated her very unfairly, had belittled her since her return from maternity leave, had shouted at her, had changed her job role despite her objections and suggested that taking the additional maternity leave had made things difficult for her and the Complainant stated that she did not know where else to go as the Respondent does not have a HR Department.

The Respondent said that none of these matters had been raised with any person in the Respondent or with the General Manager, prior to the Complainant going on sick leave.   The Respondent said they deny all of these allegations and said that indeed the emails themselves show, the allegations are a misrepresentation and misstatement of what was actually said by the General Manager.

The Respondent disputes that the Complainant would have believed that the Financial Controller was the only one she could complain to.   They said that while the Complainant’s Line Manager was the General Manager, there was also her named Area Manager and her named Managing Director.  

They said that at all times, the Complainant was well aware that the Respondent had policies in place to deal with grievances and that these policies provided that complaints be made to her managers or their managers.   They said that the Complainant’s written contract of employment contained a policy on prevent bullying and harassment in the workplace and set out a complaints and grievance procedure.   She had also signed that she had received the Employee Handbook.   They said an updated Employee Handbook was sent to all employees on 19th July 2015, prior to the maternity leave of the Complainant.  

They said that all of these provide for the making of a complaint to the Line Manager or their own Manager or if this is not possible, to another manager with whom the employee feels comfortable with.   They said that nowhere in any of the policies is the Financial Controller mentioned.

Upon receipt of the forwarded email the General Manager did two things.   First, she clarified to the Complainant that the 64 hours deduction for 6 days was normal Company practice as they did not pay for sick leave.   Secondly she stated that the last paragraph in her email was very concerning and stated that the Complainant should make her complaint using the Grievance Procedure; she stated: “I think it best at this juncture that you set out your grievances in line with the Company policy outlined in the Handbook to A… (the Area Manager).   That way it can be investigated in line with Company Procedure and fairness to all parties.”   The General Manager copied this letter to the Area Manager, and the Respondent said that therefore he was entitled to expect that a complaint would be made directly to him by the Complainant in the near future, but this was not done, the Complainant did not send any grievance complaint to the Area Manager, she did not contact him by email or telephone; they said that she did nothing for 3 weeks.

The Respondent said that on 23rd August 2016, the Complainant wrote to the Managing Director.   In her correspondence the Complaint used the expression bullying and harassment for the first time, she did not use that expression in her email to the Financial Controller of 2nd August.   The Managing Director informed the Complainant that A was the Area Manager and that “it was best that you go through him.”   The Complainant responded that the Area Manager had been aware of this matter for at least 3 weeks and nothing had been done.

The Managing Director passed the Complainant’s email to her on to the Area Manager.   The Respondent said that the Area Manager was confused as the Complainant appeared to be saying that she had been in contact with him.   Having made some searches, he responded on 28th August and initially queried as to whether there had been some email to him or some communication to him lost.  He then sent an email to the Complainant in which he stated:   “I have been passed an email outlining submissions/grievances you experienced at (the Respondent).

Forgive me if I am misunderstanding the contents of your email, if I am reading the email correctly; you informed me about issues you are having a few weeks ago, and nothing has been done by me.

I want to assure you that any complaints/grievances I receive directly from employees are dealt with me as a matter of urgency.   This includes any complaints/grievances I receive directly from employees either by email, post or in person.   However. I have trawled through all my emails and I can’t locate any correspondence sent from you to me outlining any greater complaint.   I’ve also check my spam box and again I can find no email grievances from you on your grievances.”

The Respondent said that in a lengthy email the Area Manager made it clear that he had received nothing from the Complainant but he assured her that any complaint of bullying was taken very seriously by the Respondent and would be fully investigated.

The Respondent said the Complainant did not respond to clarify the confusion.   They said that rather she simply replied 4 days later on 29th August that she had followed the Grievance Procedure in the Handbook, which she had in fact not done.   She said that her email stating the bullying she received had not been dealt with confidentially but sent to the person bullying her.   They said that again this was not correct, as her initial email to the Financial Controller was entitled ‘Re Wages’ and did not mention or use the word ‘bullying’. They said that finally the Complainant complained that “no investigation has taken place in the past 4 weeks since I make my grievance known.”

The Respondent said the Area Manager then emailed once again on 2nd September 2016, to once again state that any grievances would be dealt with by him and to offer her all of his contact details to discuss her grievances.

The Area Manager wrote again on 11th September and he once again confirmed that he would be investigating the Complainant’s complaints and that he was extremely anxious to meet her and get the investigation underway.   He asked to meet her as soon and as this happens that he could then move forward and fully investigate her complaint.   The Respondent said the Complainant did not respond in any way for almost 2 weeks.  

On 14th September the Complainant sent an email stating that she was staggered and upset that the Respondent had not investigated her complaint in 6 weeks and as a result she was resigning.

The Respondent said that a series of emails then were sent in which the Area Manager sought to convince the Complainant to withdraw her resignation and also to get her to meet with him and to allow him to investigate the issues that she had raised.   He wrote on 17th and 22nd September, however he received no response whatsoever from the Complainant.   Accordingly, on Monday 3rd October 2016 the Area Manager notified the General Manager that he had no success and therefore asked her to organise all final payments including holiday payment to be sent to the Complainant.

The Respondent said that on Saturday 8th October 2016, some 3 weeks after the Area Manager asked her not to resign and to meet with him, the Complainant wrote to him to ask whether there had in fact been an Investigation and to complain that nearly 10 weeks had elapsed since she first made her complaint.   She expanded on her initial list of complaints and set out a new list of bullying complaints.   She stated that: “All the details of the bullying I was subjected to are contained in my original complaint that I sent on 2nd August 2016.   This can be confirmed simply by checking the email correspondence with (the General Manager) as I tried to resolve the issue with her.   (The General Manager) was also given a copy of my complaint next day so I assume that the Company policy was followed and she responded on the seventh day as allowed.”

The Respondent said it is extraordinary that having declined to respond to the Area Manager and his invitation to meet and discuss her complaints that the Complainant complains a month later:

“I hope the investigation has already taken place but if not I expect and want one to start immediately.   I will meet with you once I get the all clear from my doctor to do so if there is still a need.”

The Respondent said the Area Manager sent a letter by post on Friday 14th September to the Complainant to invite her to contact him to arrange a meeting.   He stated: “it had appeared from your silence in response to my emails of 17th and 22nd September and my registered letter to you of 22nd September that you were not retracting the resignation letter you sent me on 14th September.   I am glad you are offering me the opportunity to deal with your grievance.   He again gave her all his contact details, private mobile telephone email etc for her to contact him in order to progress her grievance.   He also sent the same content email on Saturday 15th September at 19.24.

In the meantime, the Complainant emailed the Area Manager on 15th October 2016, at 15.27 to complain that she had received her P45 that week, 2 days after she had responded to him.   She interpreted this as an additional act of bullying by the General Manager stating: “It seems not to be a coincidence that I was sent my P45, on the instruction of (the General Manager) two days after I accepted your offer to meet and again request that you start an investigation into the incident of bullying I have endured since returning from maternity leave.   Have I been fired?”

On 19th October the Complainant emailed that while she was very upset at what had happened in the employment that; “I am prepared to give you one last opportunity to investigate what happened to me.   I will meet you any evening this week to give you any information you need. You suggest a time and date.   Following this meeting I will hold off on my resignation provided I receive an outcome sometime next week.”

The Respondent said that therefore an impossible deadline was contained in the email, that the Complainant was expecting an outcome to the investigation the following week, even though she had initially refused to meet the Investigator and subsequently resigned.

The Respondent said that the Meeting took place on 22nd October.   Following that Meeting on Monday 24th October the Complainant sent an email in which she expressed disappointment that an Investigation not got started.   She stated that she was very stressed and upset and was without work or without pay.   She stated she wanted to resign but wished to give one last chance “to show me you were serious about investigating the issues.   But I know from Saturday that we are just beginning.

I can’t afford to have no income and wait indefinitely for a result and a decision from you. Thank you and I have no confidence that the Company is putting any importance on this.   Your lack of action is consistent with the manner I have been treated since my return from maternity leave so I am forced to confirm my resignation effective this Wednesday and will be lodging a complaint for unfair dismissal with the Workplace Relations Commission next week”

The Area Manager wrote back on Saturday 29th October 2016, to express his confusion.   He stated that at the Meeting the Complainant had stated that she wished a Formal Investigation rather than Informal and that he had assured he that he would fully investigate her complaint of bullying.   He again asked her to hold off on her resignation to allow him to investigate her complaint.   The Respondent said the Complainant did not respond.   They said her complaint to the WRC was received by the WRC on 3rd November 2016.

The Respondent submitted the Complainant did not give them any opportunity to investigate her complaint.   They said she refused to engage with the Area Manager when he first invited her to meet him on 2nd September 2016.   They said the fact that no meeting took place until almost 2 months later was entirely due to the Complainant.

The Respondent said it is notable that the Complainant applied for jobs on 27th and 29th October for the job of secretary in a primary school and on 9th November 2016 for the job of special needs assistant in a senior school, a role for which she stated in her submissions that she had to retrain.   They said that therefore it is undeniable that the Complainant had prepared for some time to take up a completely different kind of work than the one she performed for them.  

The Respondent said the Complainant refers to a number of acts that she says constituted bullying and that she relies on this alleged conduct that would reasonably justify an employee to terminate their employment.   The Respondent said they would respond to each of these in turn:

• • Continually referring to the Complainant as a Fitness Co-Ordinator in front of other employees and publishing this in the workplace.The Respondent said the foregoing submissions have set out the facts and it is very clear that they did not refer to the Complainant as a Fitness Co-Ordinator, but rather a Group Fitness Manager, which was what was on the back of her uniform.   The General Manager and the Complainant exchanged a series of emails over about a 2 week period until it was clarified that the Complainant’s correct title was Fitness Manager.   They said that once the Complainant provided the letter she was relying on, the General Manager immediately accepted this, yet the Complainant still complained that this was an issue
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• Blocking the Complainant’s access to workplace IT systemsThe Respondent said this did not happen.  The Complainant was not to monitor R’s attendance as his attendance, like her own attendance, was to be monitored by managers at a higher level.   The said that the TMS systems code were updated to remove R from her access.

• Verbally intimidating the Complainant by shouting at her in private and verbally intimidating the Complainant by shouting at her in front of other employees and customers.The General Manager states that she had very little face to face dealings with the Complainant other than one in her Office and when they passed each other on the stairs.   She said any meeting where others were present were respectful.

• Issuing the Complainant with a P45 in circumstances where the Respondent had accepted her retracting of her resignation. The Respondent said it is difficult to see how this could amount to bullying by the General Manager.   The General Manager had been told that the Complainant had resigned and was asked to prepare a P45.   She did so and the receipt of the P45 crossed with the other arrangements that the Complainant made with the Area Manager to meet with him.

• Stopping the Respondent’s Payroll Department from paying the Complainant’s back pay further worsening her financial situationThe Respondent said that pay was stopped because the Respondent does not pay sick pay

The Respondent said that based on the foregoing they fully refute that the Complainant was constructively dismissed and it shows that she does not satisfy the legal and factual tests to substantiate such a claim.

The Respondent said Section 26 the Maternity Protection Act 1994 confers a general right to return to work with the same employer, in the same job and under the same conditions of employment as before the maternity leave.   The Respondent said that it is accepted by them that a breach of this Section of the 1994 Act would also constitute a breach of the Employment Equality Act. But, they said the Complainant cannot recover twice for the same set of facts, notwithstanding that the type of prohibited conduct potentially falls under the two Acts.

The Respondent submitted that Section 26 of the 1994 Act in effect directs that at the end of a protective leave the employee is entitled to return to the workplace with the employer under the same contract of employment and under the same terms and conditions of employment being no less favourable than those that would have been applicable to the employee if she had not been absent from work.   They submitted that therefore the emphasis is on the substance rather than on the form of the work to which an employee returns.  

The Respondent referred to case ADJ-00003762 which they said illustrates that duties cannot be set in stone and they quoted from that case.

The Respondent submitted that case law has established the requirement protected by law is the entitlement to return to the same job and the same terms and conditions, but that minor variations in the duties of a role are not prohibited, if they are duties of the same level or grade.

The Respondent said that in so far as the Complainant objects that the name of her job was changed, while they dispute this, they submit that a name change which does not change the substantive nature of the role is not contrary to law and that this was confirmed by the Labour Court in MPD163.

The Respondent submitted that the Complainant did in fact return to the same job with the same role and title upon her return from maternity leave.   The Respondent acknowledged that there was discussion and meetings with the Complainant and others to clarify their areas of responsibility and duties and to identify precisely what each did and to co-ordinate their work in a complementary fashion.   They said that however the work of the Complainant was appropriate to her managerial grade and her wages and terms and conditions of employment did not change.  

The Respondent said that in reliance on case law they were entitled to engage in a process for all managers whereby there would be clarity as to who was doing what.   They said that even if there were some role changes as alleged by the Complainant, those set out in her submissions were not a demotion, but in fact would have added managerial duties to her role, for example in giving her responsibility over holidays and supervision of others in the workplace.

In relation to the constructive dismissal complaint the Respondent said there was no significant breach by them going to the root of the contract.   The Complainant returned after maternity leave to her job.   They said she was welcomed back and was immediately included in meetings to organise the smooth operation of the management team.   They said there was some interaction about her job title and as to whether she could take 12 days public holidays as well as 2 weeks holidays immediately, rather than being paid-in-lieu of the 12 days public holidays.   She was also sorting out payments for 3 days in which she did training and a video class, where her colleagues were only paid 10 hours for the same work.   The Respondent said these are perfectly normal employer/employee interactions.   They said the Complainant was only back at work 16 days and she did not give herself any chance to settle back.   They said that while she now complains of bullying by the General Manager, this ‘bullying’ word first appears 2 weeks after she had gone out on stress related sick leave.   They said her only complaint before she left was an add-on to an email on a wages issue to the Financial Controller who had no responsibility for her wages or any HR issues.

The Respondent said it is well settled that the employee must utilise the Grievance Procedure and give the employer every reasonable opportunity to remedy any grievance raised.   It was submitted that in this case the Complainant was twice advised to go directly to the Area Manager using the Grievance Procedure, but she did not.

When, nevertheless the matter came to the Area Manager’s attention 3 weeks after the Complainant had complained to the Financial Controller, he contacted her on 28th August 2016, he assured her that the matter would be investigated and on 2nd September 2016 and again on 11th September provided her with all his contact details including private mobile telephone and asked her to meet him to discuss the grievances so that he could process the matter.   But she did not arrange to meet him and did not respond at all except to complain that there had been no investigation in the 4 weeks since she complained.   On 14th September 2016, the Complainant resigned claiming constructive dismissal on the basis that she had been bullied and that there had been no investigation.

The Respondent said that notwithstanding their attempts on 17th and 22nd September by email and registered post to persuade the Complainant to retract her resignation and allow them to investigate her complaints and there was no response.

They said that finally, on 8th October 2017, some 5 weeks after the Area Manager sought to meet her the Complainant agreed to meet once she got the all clear from her doctor.   They said the Complainant was not speedy in her responses to the Area Manager and the Meeting finally took place on 22nd October 2017, after which she resigned because an investigation was only at the beginning, while at the same time applying for other jobs for which she would have to have engaged in a lengthy process of retraining.

The Respondent said therefore they had acted entirely reasonably and did not dismiss the Complainant constructively or otherwise.

The Respondent said it is self-evident that any investigation must began with a meeting of the person complaining to hear the substance of their complaint and to gather the facts.   They said that moreover if the Complainant expected a formal complaint to be commenced, she did not provide a formal complaint in writing to the Area Manager, when she had twice been informed he was the correct person to deal with it.   They said that if the Complainant intended the complaint to be dealt with using the informal procedure, then the role of any manager is set out in the policy in the Handbook as to “listen, be supportive and discuss the various options with the employee concerned.”   They said the Complainant was an employee of long standing, part of the management team and was well familiar with relevant workplace policies, indeed at one point quoting them to the Area Manager.   They said she cannot have been unaware that the formal or informal procedure could not be commenced without her engaging in a meeting in the first instance to set out her complaints.

The Respondent said that in all the circumstances they submit there is no constructive dismissal.

The Respondent said none of the complaints were well founded and all of them should be rejected.

A number of witnesses gave evidence on behalf of the Respondent:

Witness No. 1:   The Witness said she was Operations Manager and she said that the Complainant and R reported to her.   She referred to her correspondence to the Complainant and the spreadsheet she sent to the Complainant just before her return, and her evidence was fully supportive of the written submissions of the Respondent in that respect.   She said she made it clear both in the correspondence and discussions with the Complainant that it was a proposal, a discussion document that was up for discussion and clarification and was subject to change by agreement.

She said that the Complainant emailed her to say her role was different and that told her “you don’t have to do it.”   She said that she told the Complainant to consider and think about what she strong at, and to make her input into the process.

The Witness said that R and the Complainant had similar roles and that R did much of her work while the Complainant’s work while she was on protective leave.   She said the additional work caused by the Complainant being on protective leave and due to much of her work being taken on by R was taken up by others including the Witness herself.

Much of the Witness’s evidence supported the Respondent’s written submissions.

Witness No. 2:   The Witness was the person referred to by me in this document as R.   He said that he was employed by the Respondent for approximately 5 years.   The Witness said that from January 2015 the Complainant was no longer his manager (he had been promoted).

In relation to the alleged encounter between the Complainant and the General Manager in a gym fitness studio, in which the Complainant alleges that she was verbally abused by the General Manager who shouted at her the Witness said that he saw the two women together, but he was not close enough to hear what was said.  

In response to questions he said that the 2 women did not appear agitated.

The Witness was asked if he had done any of the Complainant’s work while she was on protective leave he said that he did all of her work as well as all of his own during her absence.   He was asked if he was saying that he did all of his own work and all of her work during her absence on protective leave and he said he was.   He agreed that he had a fulltime job before the Complainant went on protective leave and the Complainant also had a fulltime job before she went on her protective leave and he was asked how it was possible for anyone to perform two fulltime jobs at one and the same time, but he insisted that he had done that while the Complainant was on protective leave.   It was pointed out to him that the previous witness had said that the Complaint’s work was divided up among a number of employee, including her and him, but not just him, however he continued to insist that he had performed all of her work duties and all of his own work duties for the lengthy period the Complainant was on protective leave.

Witness No. 3:   The Witness was/is the General Manager against whom the Complainant alleged bullied and harassed her.   The Witness said that she had 25 years’ experience with the Respondent.   She said she commenced in the position of General Manager 6 weeks before the Complainant went on maternity leave.   She said approximately 100 employees reported to her.   She said her promotion was an internal promotion.   She said she had a good, trouble free relationship with the Complainant in those 6 weeks before she went on protective leave.  

The Complainant gave details of the training provided to her.   She said she done a 10 day (one day per week) training course in employment law in UCD.   She that she received other training including a 2 days practical in house Workshop for managers.   The Witness said that she had previously dealt with a bullying and harassment complaint.

The Witness said that she had a good, trouble free relationship with the Complainant in the 6 week period before going on maternity leave.   She said she invited the Complainant to the Members Christmas Party and that she sat and spoke with her for circa 45 minutes at the party.

She went in detail through the emails exchanged between her and the Complainant.

In answer to questions she said there was nothing in the Complainant’s Personnel File that supported the Complainant’s case that her work title was ‘Fitness Manager’ and up until she provided the correspondence to the Witness, the Witness had no reason to believe this was her title.   She gave evidence in this respect fully in line with the written submissions of the Respondent.

The Witness was asked why she refused permission to the Complainant to bring anyone to the meeting along with her and why she used such strong language as “I will not permit a third party”.   She said it was not a disciplinary matter and she saw no reason for a third party at the Meeting.

The Witness said the Complainant raised no issue with her at the meeting between them other than her job title and accordingly that was all that was discussed.   She insisted the meeting was civil and cordial on both sides and emphatically denied she had ever been abusive to the Complainant.

The Witness gave detailed evidence that fully supported the written submissions of the Respondent in every way.

Witness No. 4:   The Witness said that he was the Area General Manager for the Respondent managing circa 400 employees.   He said there was no dedicated HR Function in the Respondent Employment.   He said that over 50% of their managers were women.

The Witness said before dealing with the Complainant on this issue he had a very good working relationship with her.   He said the Complainant was a first class employee, she was one of their best employees and was an exceptional employee.   He said that his approach throughout this matter was to deal with and sort out the Complainant’s complaint and to have her return to work as a valued employee on an agreed basis.  

The Witness said that he had recently dealt with and investigated a complex bullying and harassment case in the employment and that accordingly he was familiar with such cases and the Respondent’s policy and procedure in that respect.  

The Witness gave evidence of his contacts with the Complainant following the referral of the matter to him by the Managing Director fully in line with the Respondent’s written submissions in the foregoing.

The Witness said that the Complainant did not approach him either formally or informally in respect of this matter although he said her office was just across the corridor from his, within arm’s length.  

The Witness gave evidence in relation to the meeting between the Complainant and him on 22nd October.   He said that he was anxious to progress an investigation expeditiously.   He said that he asked the Complainant did she wish to have her complaint dealt with informally or formally and she confirmed that she wished to have it formally investigated.  

He said he told her that he wished to investigate her complaint and sought details, he said she told him it was all in the emails between her and the General Manager and he said that he asked her to provide him with copies of the emails and that she said she would (the Complainant denied this).   He said he was surprised she did not bring these or any other documents to the meeting.   He said he asked her were there any witnesses to the alleged acts and that she said there were not.

It was pointed out to the Witness that in accordance with the Respondent’s Policy on Investigations of complaints into allegations of bullying and/or harassment that the Investigator should have an official notetaker present, he agreed this was so.   In response to a further question he agreed that he did not have such a notetaker.   It was pointed out that accordingly he was in breach of Company Policy and it was further pointed out that if a notetaker had been present then there might not be the dispute between him and the Complainant as to what actually occurred at the Meeting.   The Witness was unable to identify whom the ‘contact person’ was in accordance with the Company Procedure.  

The Witness confirmed to the Hearing that he was asked and agreed that the Complainant’s husband could/would accompany her to the Meeting.   He agreed that the Complainant’s husband had not been provided with a chair to sit on at the meeting and had to sit on the floor and he said he was concentrating of efforts to progress the investigation.

The Witness said 2.5 days later the Complainant, to his great surprise submitted her resignation.

The Witness said he was not given any opportunity to investigate the Complainant’s complaints and he again restated what was stated in the Respondent’s written submissions.

The Respondent submitted numerous authorities and decisions/determinations in support of their position.

The Respondent sought, based on the foregoing, that each and all of the complaints/claims under the 3 Acts that each be rejected and none of the complaints be upheld.

Findings, Conclusions and Decisions:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with Section 7 of the 1977 Act.

Section 32 of the Maternity Protection Act 1994 requires that I make a decision in relation to the complaint in accordance with the provisions of the same Section of the 1994 Act.

Section 79 of the Employment Equality Acts 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 82 of the 1998 Act.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I first will make a number of observations in relation to relevant matters in respect of the complaints under the 3 Acts and in particular about the constructive dismissal case.

I am greatly surprised about the complete lack of records kept by the Respondent in relation to the Complainant and in particular her job title on promotion and her job description.   The Complainant found herself forced to produce a copy of a letter provided to her by the Respondent on promotion that contained her proper job title of ‘Fitness Manager’ to prove to the ‘new’ General Manager, who very strongly and repeatedly denied this was her title and even when she did that a copy of her job description was sought from her.   I am concerned and surprised that there was no record of this in the Complainant’s Personnel File.   Had this been contained in the Complainant’s Personnel File it would have avoided the strong dispute between the General Manager and the Complainant, that clearly caused so much distrust to build up between them and that was a major contribution and cause of the instant disputes.   It reflects very poorly on the Respondent.

I am also greatly surprised at the actions or lack of actions of the Financial Controller when he received an email headed/entitled ‘Wages’ from the Complainant, after making her complaint alleging she was not paid correctly at the instruction of the General Manager, she goes on to make serious allegations against the General Manager.   The Financial Controller forwarded this correspondence to the General Manager for her to deal with.  

This placed the General Manager in the invidious position of having to respond to the Complainant about complaints about herself without it being checked in any way and to have to advise the Complainant to follow Company Policy as contained in the Employee Handbook and placed the Complainant in the position whereby her complaints were disclosed to the person against whom she had made her complaints before the matter had been checked out by in any way or before she had been consulted in any way.  

I do not understand why the Financial Controller did not, as it is to be expected any reasonable person would, contact the appropriate person in the Company who deals with such matters asking him to respond to the Complainant and/or write directly to the Complainant informing her of the appropriate way to proceed in respect of her complaint.  

What the Financial Controller did in this instance is very hard to understand and was unfair to both the General Manager and the Complainant.

I find that the evidence given by R, the Witness 2, for the Respondent in respect of him doing all of the work of Complainant along with all of his own work for the 42 weeks the Complainant was absent on protective leave is not logical, does not make sense and is not in accord with the evidence of another witness.   It is not in dispute that prior to her going on maternity leave, both R and the Complainant had full-time jobs that kept both of them fully occupied, i.e. 2 full-time fully occupied jobs.   Yet R maintains and insisted that he fully performed both jobs alone and unaided throughout a 42 week period.   This does not make sense and I cannot accept that a person who is fully occupied in his full-time job can take on and perform all of the work of another person who was also fully occupied in her full-time job, without any assistance from anyone else. Further it is not consistent with the evidence of the Operations Manager, Witness 1, for the Respondent, who said the Complaint’s work was, during her absence on protective leave, performed by R, herself and others.   I have concluded that the evidence of R is not to be relied upon and it is rejected by me.

I note with regret that the Area Manager, despite Company Policy requiring him to do so, did not have a notetaker present at his meeting with the Complainant and her husband on 22nd October 2016 as this would have avoided the dispute about what was said/occurred at that meeting.   I am also at a loss to understand how the Area Manager, after agreeing to the Complainant’s husband attending at the meeting on 22nd October did not notice he did not have a chair to sit on and was sitting on the floor.

The following are my findings in relation to the complaints under the 3 Acts.

Unfair Dismissals Act 1977:                                                                                                                                  . I have carefully considered the evidence and the submissions made and I have concluded as follows in relation to the complaint/claim of constructive dismissal under the 1977 Act.

The claim for constructive dismissal is based on the alleged bullying and harassment of the Complainant by the General Manager and the alleged failure to investigate her complaint and/or the failure to investigate her bullying complaint in a timely or reasonable fashion.

Firstly I note that in relation to any bullying or harassment complaint an employer must address such issues carefully and neutrally and with full regard to the competing rights of both the complainant and the alleged perpetrator. It is not possible for an employer to begin a bullying and/or harassment investigation unless or until a written complaint of bullying and harassment has been made to them.   To do otherwise would be to leave the employer open to the charge that they were investigating a bullying and/or harassment complaint when such a specific complaint had not been made.

I note that what is required in relation to bullying and harassment cases is well established by practice and law including: the LRC Code of Practice on Workplace Bullying, the Health and Safety Authority (HSA) Code of Practice on Workplace Bullying and the Equality Authority Code of Practice on Workplace Bullying. These all require that where a Formal Investigation is required, as in the instant case, then the complainant must make a formal complaint in writing stating that they are making a bullying complaint before any such investigation can be considered by the employer.

When that has been completed, then self-evidently, the first or next thing that must be done is for the Investigator to meet with the person making the complaints, to hear the substance of the complaint and establish facts, to establish if there were any witnesses, to collect any (written) evidence, to explore the facts with the complainant and to confirm that the complainant (still) wishes to continue with a formal investigation.   It simply would not be possible to continue with an investigation until that is done.   It is only then that it is appropriate to meet with the alleged perpetrator, and any witnesses, having supplied the alleged perpetrator with all complaints and all evidence and allowed them a reasonable opportunity to prepare a defence to these charges.   Ideally an indicative time scale should be agreed between the complainant and the employer at this stage.  

All of this is well-established in law and practice. It is also the case that the Employment Appeals Tribunal (EAT) and the civil courts have repeatedly stated that the failure of a complainant to fully utilise or exhaust all processes and procedures available to deal with their grievances is fatal to a constructive dismissal claim/complaint.   I must now explore if this was observed in the instant case and if the Respondent was afforded a reasonable opportunity to deal with the Complainant’s complaints and if the Complainant fully exhausted all available procedures and processes to deal with her complaints before she resigned her job.

I note and find as follows in relation to this.

The Complainant went on sick leave on 13th/14th July 2016 and did not return to work between then and her terminating her own employment by way of resignation on 26th October 2016

The Complainant sent an email to the Financial Controller on 2nd August 2016 headed/entitled “Wages”.   In this email she asserts that she was not paid correctly that month and had been informed that this was done on the instruction of the General Manager and she asks him to rectify this.   She stated this was one of many incidents of the General Manager treating her unfairly and proceeds to list them.   However, she does not state at any stage in this letter that she believes she was/is being bullied, nor does she ask the Financial Controller to investigate or take any course of action in relation to those allegations.   I find that there is nothing in this correspondence that could be taken as making a bullying complaint or warrant commencing a bullying investigation.

The General Manager sent the Complainant an email on the following day, 3rd August 2016, in which she referred to the allegations and advised the Complainant to set out her grievances in line with the company procedures as set out in the handbook in order that they can be investigated in line with company procedures and fairness applied to all parties.   But the Complainant did not do this.

On 23rd August 2016 the Complainant sent an email to the Managing Director and in this correspondence for the first time the Complainant referred to alleged bullying by the General Manager and went on to list what she called some of the incidents of bullying.   The Managing Director responded the following day and advised the Complainant to contact the Area Manager in relation to her complaints.   The Managing Director also forwarded the Complainant’s email to the Area Manager.     The Complainant responded to the Managing Director stating the Area Manager had been aware of her complaints for 3 weeks (he denied this) and that no action had been taken.

On 28th August 2016 the Area Manager emailed the Complainant about the matter and stated her complaint would be investigated.   4 days later on 29th August 2016, the Complainant responded and stated that she had followed the Grievance Procedure in the Handbook.

On 2nd September 2016, the Area Manager again wrote to the Complainant and again confirmed he would be investigating her complaints and that he was anxious to meet and get the investigation underway and he asked to meet her as soon as possible.   The Complainant did not respond.

On 14th September 2016, the Complainant emailed complaining that her complaints had not been investigated and submitting her resignation.

The Area Manager then sent a number of emails to the Complainant seeking to convince her to withdraw her resignation, meet with him and allow him to investigate her complaints.

On 8th October 2016, the Complainant emailed the Area Manager, on this occasion she did offer to meet with him, subject to her GP’s approval.   She said she expected the Investigation to commence immediately and she would expect an outcome sometime the following week.   The meeting between the Complainant and the Area Manager took place 22nd October 2016.

Two days later on 24th October 2016, the Complainant sent an email to the Area Manager stating it was unacceptable that there was such a delay in investigating her complaints and submitting her resignation with effect from two days forward, Wednesday 26th October 2016.   She further stated that she would be lodging a complaint for Unfair Dismissal with the WRC, which she duly did 3rd November 2016.

This means that the Complainant resigned her job just two days after her first (and only) meeting with the Investigator appointed to investigate her.

I find that this means the Complainant gave the Respondent no opportunity to properly investigate her complaint and did not exhaust the grievance procedure available to her to resolve her complaint.

Based on these facts I must find and declare that the Complainant was not unfairly dismissed by the Respondent, constructively or otherwise.

Maternity Protection Act 1994:                                                                                                 .                                                                                                                         I have carefully considered the evidence and the submissions under the 1994 Act and I have concluded as follows.    

The Complainant in her submissions on her complaint under the 1994 Act stated she was not allowed by the Respondent to return to the ‘job’ she held before she went on maternity leave.   She made 3 submissions in that respect:

1. That when she went on maternity leave she held the position of Fitness Manager, when she returned the Respondent purported to change her title to Fitness Co-Ordinator, lesser.This submission is rejected by me.   There was no effort to change the Complainant’s work title. There was initially some dispute between the parties as to what was the Complainant’s correct title.   However following submission by the Complainant of some correspondence in that respect, the Respondent confirmed by email of 13th July 2016 that her correct job title was ‘Fitness Manager’ and that dispute was resolved.   I note that it was confirmed to the Complainant that her correct job title was ‘Fitness Manager’ more than 3 months before the complaint was referred to the WRC, accordingly there could be no issue or dispute about this at the time the complaint was referred to the WRC.   Based on this I must find and declare that this element of the complaints is not well founded and it is rejected by me.
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4. That the Respondent had changed her working responsibilities.I find that the Complainant returned to work at the same place performing the same work and on the same pay rate.   I find that any changes that took place were normal ongoing change that happens in any employment, I further find that they were “not less favourable than those that would have been applicable to the employee”. I note and find that I was presented with no credible evidence that this was not the case.   Based on this I find and declare that this element of the complaints is not well founded and it is rejected by me.
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7. That the Complainant was not returned to a position of equivalent seniority as R, who had received no promotion but was considered on equal status with the Complainant despite previously being her junior.The submission is rejected by me.   Firstly, I note that the Respondent produced a copy of an email of 29th January 2015 announcing R’s promotion.   This letter states: “In his role, R will join the management team and work with (the Complainant) and L to increase class participation…”    I note this evidence was not challenged by the Complainant and it clearly demonstrates that R was on the same level/status as the Complainant.   I would also have a serious problem with the suggestion/implication in this submission that a person could not be moved or promoted from a position while their Supervisor on protective leave.For the foregoing reason I see no merit whatsoever in this element of the complaints and it is rejected by me
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For the foregoing reasons I find and declare that none of the complaints under the Maternity Protection Act 1994 are well founded and they are all rejected by me.

Employment Equality Act 1998:                                                                                                                          . I have carefully considered the evidence and submissions in relation to the complaints under the 1998 Act and I have concluded as follows.

The Complainant had made a complaint that she had been discriminated against by the Respondent by reason of her gender and family.   She had also complained on her Complaint Form to the WRC that she had been victimised by the Respondent, but that element of the complaint was not pursued at the Hearing.

The Complainant in her submissions under the 1998 Act submitted that she was discriminated against by the Respondent in the following way/events:

Family Status:   The Complainant said that she was immediately returned to High Intensity Fitness Classes upon her return to work and she was also required to do Class Launches during that period.

The Complainant confirmed at the Hearing that she had raised no issue with the Respondent in relation to either High Intensity Classes and Class Launches with the Respondent.

In circumstances where the Complainant was certified as fit to return to work and where she raised no issues about performing the above duties or any other duties or sought any assistance in preforming duties, the Respondent was entitled to the assumption that the Complainant was fit to perform her full range of duties without let, hinderance or any assistance.   In these circumstances I cannot possibly accept that the performance of these duties constituted discrimination on the grounds of family status or any other grounds against the Complainant by the Respondent.   Accordingly, I must find and declare that these elements of the complaints under the 1998 Act are not well founded and they are rejected by me.

Gender:   The Complainant said that the difficulties about her role only began after she returned from maternity leave and she further said she was the only employee singled out for the carryover of annual leave in respect the CX Module in relation to 3 days annual leave.

The difficulty about the Complainant’s work title was, as noted above, resolved and was resolved well before the instant complaints were referred to the WRC and can see no credible evidence that any such issues were as a result of her pregnancy or gender. In addition, I note that no other employee received 3 days annual leave in respect of the CX Module.

The Complainant has failed to make out a prima facie case of discrimination and accordingly I must find and declare that the complaints under the 1998 Act on the grounds of Family Status and Gender are not well founded and they are rejected by me.

Based on the foregoing findings the following are my decisions in relation to each of the complaints under the 3 Acts.

Unfair Dismissals Act 1977: CA-00007962-001:                                                                                               . Based on the above findings I declare that the Complainant was not unfairly dismissed by the Respondent, constructively or otherwise.   Accordingly, I find and declare that the complaint under Section 8 of the Unfair Dismissals Act 1977 is not well founded; it is rejected and is not upheld by me

Maternity Protection Act 1994:   CA-00007962-002:                                                                                   .         Based on the above findings I declare and decide that the complaints under Sections 30 and 31 of the Maternity Protection Act 1994 are not well founded; they are rejected and are not upheld by me.

Employment Equality Act 1998: CA-00007962-003:                                                                                     . Based on the above findings I declare and decide that the Complainant has failed to establish a prima facie case of discrimination in respect of her conditions of employment on the grounds of gender and/or family status grounds or any other grounds in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts.   I further declare and decide that the Complainant has failed to establish a prima facie case of victimisation in terms of Section 74(2) of the Acts.

The Complainant’s claims under the 1998 Act fails in their entirety.

All of the complaints under the 3 Acts are rejected by me and none of them are upheld.

Dated: 11th July 2018

Workplace Relations Commission Adjudication Officer: Seán Reilly

Key Words:   Alleged Constructive Dismissal, Alleged Failure to allow return to job held before commencing on Maternity Leave and Discrimination on grounds of Gender and Family Status.