ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008233
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00010874-001 | 19/04/2017 |
Date of Adjudication Hearing: 23/01/2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 19th April 2017, the complainant submitted a complaint pursuant to the Protected Disclosures Act. The complainant also submitted a complaint pursuant to the Unfair Dismissals Act, subject to report ADJ-00008157. The complaints were scheduled for adjudication on the 27th October 2017 and the 23rd January 2018.
The complainant was represented by Owen Keany, BL instructed by Sherwin O’Riordan Solicitors. The respondent was represented by Desmond Ryan, BL, instructed by Mathesons. Three witnesses appeared for the respondent and they are referred to as the manager, the Managing Director and the HR Director.
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
As the evidence in ADJ 8157 and ADJ 8233 was heard together, the evidence of the parties is set out in both reports. The findings and decision are made per the requirements of the relevant statute.
Background:
The complainant worked for the respondent between the 5th October 2015 and the 2nd January 2017, when he resigned from his employment. The complainant asserts that he made a protected disclosure and incurred acts of penalisation for making the disclosure, including being placed on a Performance Improvement Plan (“PIP”). The respondent denies the claims. |
Summary of Complainant’s Case:
The complainant outlined that he made a protected disclosure on the 17th March 2016 in relation to his line manager. The email referred to taking drugs and section 5(3) of the Protected Disclosure Act referred to criminal acts committed overseas.
In evidence, the complainant outlined that he had previously worked for a social media company and moved to the respondent. He went on a business visit to Amsterdam and saw his line manager take drugs after hours. He questioned this incident but he was then only in the role for a few months. He later put this down in writing. He was unsure about bringing this to management’s attention, so he buried the incident in the email. He commented that the respondent employee handbook referred to disclosures being made by email.
The complainant outlined that this line manager left the company. The damaging part of the email was the reference to drugs. The manager returned in May 2016, one month after the line manager left. The manager had interviewed the complainant and she then went on maternity leave. The line manager had reported to her.
The complainant said that he had been building a good book of business and while there were issues with targets, they had good team meetings. On the manager’s second day back at work, she pulled him into the room with the water cooler. She was angry and aggressive. She said that the complainant had no friends and was a “nobody”. The manager stated that the complainant would not do to her what he had done to the line manager. He told the manager what he was doing in the company and that his numbers were good. He said that he took annual leave to defuse the situation but this situation worsened at pod meetings. The manager called the complainant “childish” and set him against colleagues.
The complainant outlined that there would be five or six people at the pod meetings and the manager’s treatment of him became a “running gag”. His sales, however, were good, including in the second quarter. He referred to his email of the 15th June 2016 addressed to the Managing Director. This pointed to his derailing working relationship with the manager and asks that the manager soften her approach. His email of the 24th October 2016 referred to his first conversation with the manager. In September 2016, she treated him like a child and berated him in the open plan office. He outlined that the PIP was invoked in October 2016 on the basis of attitude, the meetings and respect. The complainant said that he then reported to someone else and did not have team meetings with the manager. The complainant said that he knew that this was a disciplinary process because of the threat of dismissal. He, therefore, approached a lawyer. The complainant outlined that he sought to challenge the invocation of the PIP and had to do so by a formal grievance on the 24th October 2016. He later emailed on the 8th November 2016 regarding a panic attack and commented that the manager had caused friction between him and a colleague.
The complainant outlined that he met with the HR Director on the 2nd and 7th November, but never saw his notes of meetings with colleagues. The HR Director showed him the amended PIP, with the reference to dismissal deleted. The complainant stated that this reference was missing and the HR Director replied that this was a draft. The complainant was never given an amended document. The complainant stated that he was not aware that a grievance process could lead to findings being made against him. He was not given the notes in order to challenge them. He was not given examples of when he lost his temper or used profane language, in order to challenge these allegations. He then went to his GP and attended mindfulness counselling. The complainant appealed the outcome of his grievance on the 13th December 2016 and met the appeal manager on the 22nd December 2016. In their informal discussion, the appeal manager said that it was only a job. The appeal manager criticised the document for not being well written and poorly constructed. He criticised the manager’s outburst of the 12th September 2016. The appeal manager had made up his mind that there was no link to the protected disclosure and obtained legal advice regarding whether the PIP process was okay. He said that the complainant could not prove a link between the protected disclosure and the penalisation. At the end of the meeting, he said that this was only a job and “happy holidays”. He said that he would talk to different people and give the complainant the documentation relating to these discussions. The complainant said that while the appeal manager was a good guy, he was pulled into this without training. The complainant said that it was also clear that he had been briefed.
The complainant outlined that he resigned on the 2nd January 2017 and returned his laptop, as requested. He said that he could no longer remain in the respondent’s employment as there was the PIP process and a grievance procedure that had found him guilty of things he did not do. While the appeal manager was briefed, he was not objective. The appeal manager referred to this being “only a job” and he felt pity for the complainant. The complainant said that despite having a successful Q4, he was sick and miserable. He decided not to return to Ireland in the new year and his Facebook message reflected his good year on leaving Ireland. He had wanted to wait for the appeal process to finish but it was clear that this would not fix the issue.
The complainant said that he commenced in an alternative role on the 4th April 2017 and was paid €2,400 net in this role. This did not pay no commission. His salary at the respondent was €2,950 net, plus commission.
In cross-examination, it was put to the complainant that he had raised management issues at the meeting of the 16th March 2016; he denied seeing the minutes of the meeting before and thought he could recall the meeting. He did not accept that he now sought to retrospectively characterise the management issues as a protected disclosure and he had also raised the drugs issue. The complainant outlined that the disclosure was related to the line manager taking drugs and being intoxicated at a client meeting. It was put to the complainant that the title of his email of the 17th March 2016 relates to the management issue and not the protected disclosure. The complainant outlined that he was unsure how to bring the drugs issue to the attention of the management team, so it was included in the body of the three-page email. He had read the employee handbook and these were serious allegations. The complainant did not accept that it was crystal clear that the email of the 17th March 2016 related to getting support from his line manager. He accepted that the respondent’s reply made no reference to there being a protected disclosure.
It was put to the complainant that the employee handbook sets out different policies for whistleblowing and making a grievance and his email could not come within the confines of the former. It was put to the complainant that despite his reading the employee handbook, he chose to bury the disclosure and this showed that case he was not making a protected disclosure; he replied that he wanted to raise the issue of intoxication and to blow the whistle. He accepted that there was a difference in the two policies and he had referred to the disclosure in the grievance complaint. It was put to the complainant that he did not mention the protected disclosure between March and October. It was put to the complainant that his allegations of bullying are denied by the respondent and they were concocted fabrications.
The complainant accepted that he had never previously worked with the manager. Their first meeting was the pod meeting. This was a haphazard meeting because of issues with how a colleague managed the territory. There was no 360-degree view of the pipeline. The complainant said that the water cooler meeting with the manager took place afterwards. It was put to the complainant that the comments he attributed to the manager about him not having friends and being a nobody were lies. It was put to the complainant that his own written account of a later pod meeting were not the words of someone being bullied; he commented that this was one of the few meetings that worked. He had wanted to make the relationship with the manager work, despite their one-to-one meeting. The complainant did not accept that the pod meetings were dysfunctional because of his behaviour.
The complainant was referred to the note of the 12th June setting out the complainant’s behaviour at a recent pod meeting; he replied that he had never seen this note and he did not derail meetings. It was put to the complainant that the note records his statement of behaving in a “vicious” way to a named colleague; he absolutely denied saying this and he had not seen this document. It was put to the complainant that he was frequently frustrated with others; he accepted that he became frustrated. The complainant did not accept that the manager had to address his demeanour in a one-to-one meeting or explain to him what acceptable behaviour was. The complainant outlined that the manager had referred to the protected disclosure at their first one-to-one meeting by the watercooler but not afterwards. He had the nickname “king slayer” which was connected to the protected disclosure.
The complainant was referred to the minutes of the meeting of the 14th June 2016; he said that he had never read these notes. He did not accept that he had become frustrated and this was exactly the type of “vicious” one-to-one meeting he described. It was put to the complainant that the notes reveal his inappropriate behaviour; he replied that they were fabricated fiction and he had not seen them. The complainant did not accept that it was inappropriate of him to reveal to colleagues in the open plan office what the manager had said to him. It was put to the complainant that his message to a colleague referred to him and the manager never being able to work together. It was put to the complainant that his comment of “not sure if I want to spend more time and effort” on the relationship showed his resolve to have conflict with the manager and that he could not be bothered; he replied that this message was sent in the context of his working relationship with this co-worker.
It was put to the complainant that there was an inadvertent inclusion to “dismissal” in the document setting out the terms of the PIP. It was put to the complainant that if the manager was out to get him, why did she wait until October to initiate the PIP; he replied that the manager had a grudge and an axe to grind. It was put to the complainant that the note of the PIP meeting of the 18th October 2016 states that he mentioned an “assisted exit plan”; he did not accept this and denied that he said that the company did not “get” him. He had no recollection of making the break up comment and that he needed more structure. He was aware at the time of the meeting that there were ongoing issues with his behaviour. It was put to the complainant that one comment referred to “no more displays of xenophobia”; he replied that there were no current issues. A warning on his file for a culturally inappropriate joke had since expired. No incidents of a xenophobic nature were put to him.
The complainant did not accept that the manager did her level best to improve his working relationships with colleagues. It was put to the complainant that this was in contrast with his stated position in the message of the 12th September 2016. The complainant said that he had problems with the harshness of the PIP and it showed that the respondent did not want the relationship to work. It was put to the complainant that his email of the 24th October 2016 sought to exaggerate the significance of the disclosure made in the email of the 17th March 2016; he replied that he had explained the situation with the drugs at the meeting with the Managing Director. The complainant did not accept that the accounts of the 17th March and the 24th October differed as he had elaborated in the second email. The complainant rejected in absolute terms the statement that he had cast around to trump up a so-called protected disclosure for the “messy” break up he had spoken about. The complainant said that the manager had pitted him against one colleague and she ensured that the roles continued to be diametrically opposed. The complainant explained that his reference to a “deeper disturbing problem” was to the lack of following procedure. The PIP was vague and being used to drive the complainant out of the company. His reference in the email to reaching the point of no return following being placed on the PIP and threatened with dismissal. It was put to the complainant that he had already resolved not to work with the manager; he replied that he made this statement in a private conversation.
It was put to the complainant that there was no reference in his emails to the HR Director of the 4th November to a protected disclosure; he replied that he mentioned it in the email of the 8th November. It was put to the complainant that the PIP was clear as to the steps the respondent would take and the reference to an Employee Assistance Programme was evidence of its support. The complainant denied that his email of the 8th November and his account of the one-to-one conversation with the manager were inconsistent. The manager had said she would run things differently and also said that he would not do to her what he had done to the line manager.
The complainant did not accept that he had behaved inappropriately or in a childish way. It was put to the complainant that he had used the word “vicious” when this was also the word used in the minutes of the one-to-one meeting which he denied saying. It was put to the complainant that he stated “I feel miserable” and this related to how the manager treated him as opposed to penalisation for a protected disclosure; he said that this was not true. It was put to the complainant that the minutes of the 8th November meeting record that he and not the HR Director raised the issue of an exit agreement; he replied that he had issues with the minutes and could not remember whether he said this. They did not record his raising the line manager and the whistleblowing. It was put to the complainant that he is recorded as saying that the respondent did not suit him; he denied saying this. It was put to the complainant that he had raised an exit agreement and said that there were easy or messy ways to break up; he replied that the manager could not explain why he was being put on a PIP and said that it would be messy. He denied saying that there was an easy or messy way to break up. It was put to the complainant that the outcome letter of 22nd November 2016 records him as saying that there was a clean or messy way to break up and that he raised the exit package; he replied that he appealed this outcome. It was put to the complainant that he did not challenge these statements in the appeal; he disagreed.
On the second day of hearing, the complainant was invited to withdraw his account of the water cooler conversation with the manager; he declined to do so. It was put to the complainant that he had not raised the protected disclosure at his May and June meetings with the manager; he replied that he raised it in October. It was put to the complainant that the incidents with the named colleague were nothing to do with penalisation for the protected disclosure; he replied that they were interlinked.
In respect of the incident of 12th September, it was put to the complainant that the manager should have spoken to him in private but that his emailed comment of “it’s not that complicated” was patronising and disrespectful; he replied that it translated differently in his mother tongue and that another manager had answered the email completely differently. It was put to the complainant that it was perfectly reasonable to put him on a PIP; he replied that this was a disciplinary process. It was put to the complainant that he was provided with a template document which contained the reference to a disciplinary process; he replied that he was given multiple versions of the PIP and that an employer cannot put an employee on a PIP in the way done here. It was put to the complainant that the letter of 22nd November explains that the PIP is not a disciplinary process.
It was put to the complainant that his appeal had not challenged findings in the grievance outcome of him suggesting an exit package and his reference to a messy way to break up because these statements were true; he did not accept this. The complainant said that he did not have confidence in the person appointed to hear the appeal as she was new to the respondent and reported to the HR Director. It was put to the complainant that the respondent appointed someone else to hear the appeal because of his concerns. It was put to the complainant that it had been unreasonable, rash and hasty for him to resign before the appeal concluded; he replied that the respondent was driving him sick and into a depression and the whole process was not fair. It was put to the complainant that by mid-October 2016, he was looking for a pay out and effectively threatened the manager. He was asked when did he prepare to leave Ireland; he replied that he made this decision very late and his mother asked him to come home. He did not have this in mind in October 2016 and he was not looking for a pay-out. The complainant was referred to his Facebook post about moving back to his country of origin in 2017; he replied that this was posted in December 2016 and that he had been stuck in the PIP, whistleblowing, disciplinary and appeal processes and he was sick. He did not wait for the outcome of the appeal as he had a two-hour conversation with the appeal manager, who told him “it’s only a job”. He then booked his flights and left the country. It was put to the complainant that this was not reasonable as the respondent had put a process in place and he should have seen it through. It was put to the complainant that he had planned to leave and could not be bothered to make relationship with the manager work. It was put to the complainant that he chose to resign; he did not accept this.
The complainant said that he started his new employment on the 4th April 2017 and that he had not looked for alternative roles in 2016. His Facebook message was private as his profile is not public. A colleague, who is a Facebook friend, had taken the screenshot. The complainant said that he attended seven or eight interviews in his home country. His current salary was €3,800 per month with no commission. The complainant said that he resigned as it was clear that the PIP was part of the disciplinary process and there were modified versions presented. An inappropriate person was appointed to hear the appeal. The complainant said that he lost his security deposit as he left his rented accommodation in a haphazard manner. He resigned on the 2nd January 2017 after spending Christmas with his family and concluding that enough was enough. He did not accept that this had been his decision and that his plan to get a pay-out had not worked out.
In re-direction, the complainant said he faced the situation of the modified versions of the PIP, the inappropriate appeal appointment and his doubts whether the appeal manager could hear the appeal as he had no formal HR training. His conversation with the appeal manager was a review of the whole matter A-Z and they agreed that some letters should not have been sent to him. He told the complainant that it was only a job. The complainant left the meeting thinking that there would be no positive outcome to the appeal so he gave up. The appeal manager was pretty sure that some documents should not have been drafted but they could not figure out a scenario where he could stay in the company.
On the 18th October 2016, the manager summonsed the complainant into the corner office and she told him that he was on a PIP. The manager could not explain why he was being put on the PIP. He asked if she wanted her to leave the company. In respect of the Facebook post of the 19th December 2016, the complainant said that he had sought counselling, which convinced him that the respondent was toxic and he should remove himself from this madness. He accelerated the plan to leave after the conversation with the appeal manager. At the time he posted the message, the inappropriate person was to hear the appeal.
In closing submissions, the complainant stated that it was absolutely clear that the PIP document was constructed so that it did not conform with a conventional PIP. In truth, it was disciplinary action by stealth. There were disciplinary findings made and presented as fact. The complainant was never provided with an investigation and not given fair procedures. A document designed to ensure improvement of performance was abused for the purposes of providing a mechanism to immediately dismiss the complainant in the event of further conduct, without notice and without investigation.
It was disingenuous for the company to say that someone accused of such wrongdoing could be dealt with by the PIP process, which is not designed to give fair procedures. In this case, there were shifting sands since the PIP was put in place. The respondent should have invoked the disciplinary procedure and there is no overlap between performance and conduct. They are separate things and dealt with separately in the dismissals document.
Someone accused of misconduct is entitled to investigation and to fair procedures. Against the background of months of inappropriate treatment by the manager, the complainant raised a grievance. His email of the 15th June 2016 raised serious issues, even if there is doubt as to what happened before. It is clear that from the 18th October on, there was an attempt to supress the complainant or at its most sinister, to seek the complainant’s exit.
Having raised the grievance, there followed a farcical process, especially as it is now known that the HR Director approved the PIP and also carried out the investigation. This flies in the face of the most basic rights the complainant was entitled to. He could not carry out an impartial investigation into a document he prepared. The HR Director canvassed the views of those he believed to be relevant and ignored the account of others. He canvassed their views and has not presented the notes of these meetings. The complainant did not have sight of what they said about him and not given a right of reply. This is a fundamental right.
It was submitted that the outcome document is one-sided. Anything management said was considered to be fact. Anything said by the complainant was considered with suspicion. The HR Director seeks to justify these actions. He goes further by making findings against the complainant, even more inappropriate where the complainant was not given the chance to respond. The PIP document was flawed from the start as it refers to immediate dismissal and further disciplinary action. This is not acknowledged in the outcome document and not addressed in the later aggressive legal correspondence. The HR Director never acknowledged that the document was incorrectly constructed in a material way.
There is no plausible explanation to explain why the respondent and the manager moved against the complainant, but for his disclosure. The complainant is clear about the conversation in May 2016 where the manager specifically referred to the line manager. This all emanated from the protected disclosure. It is clearly a protected disclosure as it falls under several grounds: an offence and an issue of health and safety. The manner in which his disclosure was presented is not relevant.
The complainant submitted that the manager and the respondent were guilty of penalisation and this is a separate cause of action to the Unfair Dismissal claim. The disclosure was why he was treated in this way and the basis of the constructive dismissal. The complainant meets the constructive dismissal test simpliciter, whether or not this is linked to protected disclosure. Relying on Allen v Independent Newspapers [2002] E.L.R. 84, the complainant submitted that he met both the contract and reasonableness tests. An employee is not always required to invoke all internal procedures and must air his grievance and give the employer the opportunity to address this. In this case, the complainant met this requirement and the respondent acted on the basis of a flawed PIP document. There was plenty of case law show that an employee does not have to exhaust all procedures. In Allen, it was sufficient for the claimant to have raised the issue with the employer, just as the complainant had done in this case. The PIP document was flawed and constructed in error and the respondent chose not to resolve this.
The complainant relied on the Labour Court authority of Monaghan v Aidan and Henrietta McGrath Partnership [2017] E.L.R. 8. It was clear that the respondent’s acts of penalisation were “but for” the complainant’s protected disclosure. This was evidenced by the manager’s comments made in May 2016. The Protected Disclosures Act states that it is immaterial that the wrongdoing occurs outside of the State.
The complainant submitted that he lost income for three months and there were ongoing losses of €250 per month. |
Summary of Respondent’s Case:
The respondent made the preliminary submission that it was impermissible for the complainant to advance complaints pursuant to both the Protected Disclosures Act and the Unfair Dismissals Act. The respondent submitted that fundamentally this was an abuse of process and relied on Henderson v Henderson. It submitted that the complainant had not made a protected disclosure within the ambit of the Protected Disclosures Act. There was no reference to “protected disclosure” in the complainant’s email of the 17th March 2016. The act complained of was a lawful act in Amsterdam. There was no protected disclosure as there was no relevant wrongdoing.
In evidence, the manager said that she was the head of corporate sales for the EMEA region and managed team of 22, across five markets. She returned from maternity leave in May 2016 and had not previously worked with the complainant. She came back to a tricky situation with a team in a transition. The line manager had left and she had to put her energy into his reports. There was a new starter who started on the day she came back. She pulled the team together and also did one-to-ones. She prioritised people with whom she not worked before. She said that it was untrue that she managed the complainant in any particular way because of the protected disclosure involving the line manager. She did not know of the issues raised by the complainant about the line manager. She commented that someone coming back from maternity leave would not attack the team and did not say to the complainant that he had no friends. At their first one-to-one meeting, she could see that the complainant was not comfortable and she wanted to see what his challenges were. He said that being an ex-pat was hard and that he had no friends here. She gave him advice and said that the ex-pats who worked for the respondent formed a little family. She advised him to use internal resources.
In respect of the meeting of the 18th May 2016 and the complainant’s email the following day, the manager thought that the meeting and the complainant’s response were positives. He had been sceptical and wanted to see the benefit of the meetings. The manager accepted that she said that things would be different with her as manager. She said this to provide reassurance as the complainant had raised how the team had previously been managed. She denied saying that the complainant would not do to her what he did to the line manager. The entirety of the one-to-one meeting took place in the meeting room and there was no conversation by a water cooler.
The manager outlined that the complainant was easily frustrated and the respondent had a complicated product. The complainant had strained relationships with others and his manner would rile people. He upset one colleague and the manager had to tend to her. She said that she had been a people manager for nine years. There were cultural differences and people from the complainant’s country and an adjoining one were no-nonsense and direct. She had to call out the complainant’s behaviour, such as eye rolling at meetings.
The manager said that there were multiple team meetings. The whole team would get a once-weekly business update. The respondent had invested in new sales methodology and this required new sales language. There were also POD meetings, involving the sales team, for example in the markets dealt with by the complainant. She asked one staff member per week to present something relating to the new sales methodology and asked the complainant to do so for the 18th October meeting. He refused and she raised this with him afterwards.
Commenting on the notes of the 12th June one-to-one meeting, the manager said she used quotation marks to record what the complainant said. She was sure that the complainant had used the word “vicious” and she was taken back by this. He was referring to his harsh interaction with a colleague. The complainant did not raise anything following the issues with the line manager. She wanted the relationship to restart and there was no mention of the line manager. She asked the complainant for an agenda for the next meeting and wanted to empower him.
The manager was disappointed with the meeting of the 14th June 2016 as she could tell that the complainant had not prepared anything. He tried to put it back on her. He said things were out of date, so she suggested addressing this. He sought to kick up a fuss and said that he intentionally came without an agenda. The manager commented that this was disrespectful and disruptive. She had recently returned to work and had no context of working with the complainant prior to this. She was giving the complainant the benefit of doubt and seeking common ground. She did not then invoke the PIP and wanted to give him time.
In respect of the incident of the 12th September 2016, the manager said she was then five months managing the complainant. She had invested a great deal of time and patience in him and reacted to his email. She approached the complainant and told him not to ever send her such an email. She never believed that the complainant was trying to make their relationship work as it was one step forward and two steps back. The manager said she decided to place the complainant on a PIP in October 2016 as there were many little things, which were disruptive and disrespectful. It was disrupting for the whole team and undermined the respondent’s massive investment in the sales methodology.
The manager referred to the version of the PIP that she wrote. The HR Director had started working for the respondent that week so she wanted him to see it. They sought to give the complainant three areas to address and in which they expected to see improvements. They were looking for the complainant to react well in meetings. The manager said that it was not true that the PIP was a response to the complainant’s protected disclosure.
In respect of the complainant’s grievance, the manager said that it was unfair to say that she had made it impossible for him as she had done so much. The example she had asked for on the 18th October was an easy way for him to show his work to colleagues. The PIP was not a disciplinary sanction and 80% of people placed on a PIP succeed and get out of the PIP.
In cross-examination, the manager said that there were interpersonal difficulties between her and the complainant from June but not beforehand. She denied saying to the complainant in May “you won’t do to me what you did to [the line manager]”, “you have no friends” and “you’re childish”. She said that she would change things and this was in a positive way. It was put to the manager that the complainant filed a complaint against her in June 2016; she accepted this and thought he had told her of this at a one-to-one. She never saw the email regarding her management style. Her recollection was there was lots of complaints about the complainant’s behaviour and the Managing Director had spoken to him about this. The manager accepted that there had been a complaint about her and the Managing Director told her that he had spoken with others and there was a theme. She had not seen the colleagues’ complaints. The manager informed the Managing Director that she had treated the complainant fairly and given him time and energy.
The manager acknowledged that her reaction to the email of the 12th September was not appropriate. She disagreed that this was consistent with how she treated the complainant at meetings and that this was a single occasion. It was put to the manager that the event of the 12th September could be substantiated by a witness so she could not deny it; she replied “it was what it was”.
It was put to the manager that the complainant’s email of the 12th September 2016 was a genuine concern as it related to a large client; she replied that everyone’s competitors appear in the affinity report and she did not see what the issue was. She said that she did not see the purpose of the email. It was put to the manager that her one-line response was inappropriate, in particular when copied to others; she replied that the complainant’s email was an information dump and she did not see what the issue was. It was put to the manager that her response was terse; she replied that was if something was escalated to her, she wanted to know what the issue was. The complainant’s line manager provided context in his reply. It was put to the manager that her terse statement was humiliating.
It was put to the manager that the “so-called” notes of one-to-one meetings were not given to the complainant; she replied that they were internal notes. They were comprehensive and she had written down the points of a meeting and inputted them into the system. She also kept her notepads. The online records were the date-stamped record of the meetings. She had typed up the notes of the 12th June meeting on the 14th June, as recorded on the system. It was put to the manager that they should have her handwritten notes to show what actually happened as the complainant did not agree that the record was comprehensive. She agreed that the comments attributed to the complainant were inflammatory and said she was taken aback. She could not recall when the notes were shared with the HR Director and she accepted that she had met him during the grievance process. It was put to the manager that serious allegations were made against her and she should give details of the meetings with the HR Director who investigated the allegations; she replied that there was at least one meeting. She did not know the HR Director well as he was new. He interviewed her and there was a third person in the room. She was asked about their relationship and she answered the questions. She could not remember if she was given any documents. She probably did take notes of this meeting and they may be in a note pad. It was put to the manager that she had not brought these notes even though this case hangs on the grievance process; she thought that there were minutes of the meeting.
The manager said that she did not have handwritten notes of the PIP meeting of the 18th October 2016. This took place at 5.30pm and she typed the notes up at 8pm. Because of the nature of the meeting, she wanted to write up the notes when they were fresh. She commented that the complainant’s statement about a “messy way to break up” stuck in her mind. He said this at the end of the meeting, as she was leaving.
In respect of the versions of the PIP notification, the manager said that her version advised of the possibility of dismissal. There was a duty of care to refer to this, even though there was another process. She was not sure whether the word “dismissal” was used in the template format. It was put to the manager that the third section “respect for others” refers to immediate dismissal; she replied that the complainant’s intolerance was a gross misconduct issue and she had not used this phrase in previous PIPs. There were ongoing issues with disrespect and disruption. It was put to the manager that if the complainant behaved as she said, why did the respondent not engage a disciplinary process on the grounds of gross misconduct. It was put to the manager that it was assumed in the PIP document that the complainant had done all the things stated; she accepted this. It was put to the manager that the starting point of the PIP was that the complainant had behaved inappropriately; she agreed with this and said this occurred in group settings and with colleagues. The manager was asked whether the allegations had been formally investigated before invoking the PIP and whether the complainant had an opportunity to respond; she replied that this had taken place at their one-to-one meetings. She accepted that there was no investigation.
It was put to the manager that the respondent disciplinary procedures only provided for dismissal where there is gross misconduct or a final written warning; she replied that people should not repeatedly be treated so disrespectfully. She accepted that someone on a PIP should precisely know what is expected of them. The manager accepted that she had employed the line manager and had worked with him for six months before her maternity leave. She had concerns about how quickly the line manager was ramping up and asked the Managing Director to keep an eye on him while she was on maternity leave. She was not surprised that the line manager was gone and did not think he was a very strong manager. The Managing Director told her that it did not work out. She only heard about the complainant’s protected disclosure in August or September 2016. The manager said that she could swear 100% that she did not know the circumstances of the line manager’s departure. She knew that he was not doing well and he was gone on her return. It was put to the manager that this was implausible; she replied that the respondent had acted on what the complainant reported. It was put to the manager that she referred to knowledge of the disclosure in August or September 2016, while the grievance outcome of the 22nd November states “she has no knowledge” of the disclosure; she said that she had heard gossip and rumours. In re-direction, the manager said that she could not be more positive that the complainant had referred to a messy way to break up.
In evidence, the Managing Director outlined that in March, the complainant emailed regarding the line manager’s failures and the events of a recent business trip. He acknowledged the email and liaised with HR. They concluded that the use of cannabis was inappropriate but not a disciplinary matter. The other points were more important as this related to a line manager. The issues were performance issues and he would not expect to see the use of drugs being raised as a disclosure with the other issues. From reading the complainant’s email, he was concerned at the line manager’s impact on the whole team and on other teams. This was a management challenge rather than relating to a specific incident. As Managing Director, he had a duty of care across the organisation. In respect to the complainant’s email of the 17th March, he read the reference to “fixable” to repairing the personal and professional relationships. The Managing Director commented that a protected disclosure is about a specific wrong thing as opposed to general criticisms of a manager. He would not expect a person making a protected disclosure to say it was fixable. The least worrying thing in the email was the drugs issue.
The complainant referred to not having a strong manager and was excited that the manager was returning from maternity leave. There was more of an air of optimism at this time. The Managing Director spoke with the complainant about behavioural issues. There had been three or four incidents and while he did not have the detail, they all involved the complainant. One involved an account manager becoming upset. The Managing Director spoke to the complainant about the culture in the office and about quotas and goals. The complainant mentioned that getting to quota was a source of conflict and the Managing Director replied that he preferred to have him at 85% of quota. Commenting on the complainant’s email of the 15th June 2016, the Managing Director said that the middle part of the email showed things were getting better. He was happy to see that the complainant was working with a named line manager.
In cross-examination, the Managing Director accepted that he had seldom worked directly with the complainant. He was unsure what format a protected disclosure had to take. His concern from the complainant’s email was the management issues. They assessed that the cannabis issue merited a separate conversation, but his concern was about the rest of the email. He would not accept a disclosure being contained within many performance issues. He accepted that the disclosure policy did not require a disclosure to be framed in a particular way.
The Managing Director accepted that the issues raised by the complainant in his email of the 15th June were serious issues. As he spoke with the manager a lot, he did not take any specific steps on receiving the email. It was put to the Managing Director that the relationship between the manager and the complainant was derailing and the complainant was being disrespected. The Managing Director did not think it was appropriate to set up an investigation. There was an ongoing process between the manager and the complainant with HR. They were working together and things were getting better. He did not receive many emails from the complainant and did not think this warranted further investigation. The Managing Director said he wanted to discuss with the complainant his general attitude and behaviour, as opposed to specifics. He had heard about various conversations and they all had a common theme. He did not want to focus on the rights and wrongs of each incident. He wanted to convey that culture was more important than quotas.
In evidence, the HR Director said that he sent one version of the PIP document to the complainant. The PIP is not a disciplinary process and it was an error to include the words “further disciplinary action”. He explained the error to the complainant on the 22nd November 2016. The HR Director said that he met the complainant on foot of his email of the 24th October and his request for an intervention. They went through the handbook and he set out the complainant’s options. The complainant said that he would lodge a formal complaint and arranged to meet him after the email of the 8th November. The HR Director described this as a challenging meeting and the complainant was clearly upset. He sought to get specifics on the allegations. The HR Director referred to the minutes of the meeting, which were his notes. The complainant had not brought anyone to accompany him. By the end of the meeting, the complainant conceded that it was he who put an exit agreement on the table. The complainant never challenged the accuracy of this statement.
The HR Director said he sought to explain to the complainant that the manager had not created the PIP template. The content of the tables in the document were unique. He said that while the disclosure issue was mentioned in the grievance it was not central. Most of their time was spent discussing the allegations of bullying and harassment since May and June 2016. The HR Director outlined that he carried out a substantial investigation of the complainant’s grievance. He met the complainant on five occasions between the 9th and 22nd November and met others.
The HR Director said that he concluded that the complainant’s allegations were not proven and he could not say that they happened. He took account that the manager was not involved in the line manager leaving the company. The complainant’s then line manager gave an account of tension between the complainant and the accounts department and he could not see any meddling from the manager. He was concerned that the complainant could not recall the substance of his June meeting with the Managing Director. The HR Director said that he found for the complainant about being chastised in public, but this was not indicative of penalisation for whistle blowing. The complainant did not dispute the statement that he had raised the exit package. The HR Director said that he was surprised to learn that the complainant had resigned, as he had not exhausted the process and had not engaged in mediation. This was offered on the 2nd November. The business was closed between the 22nd December and the 2nd January.
In cross-examination, the HR Director said that he first became involved in this matter on the 18th October when the manager sent the draft PIP document. The complainant raised two issues: bullying and harassment and the PIP process. He did not take the complainant’s email of the 24th October as a complaint; it was an employee looking for help and he offered to meet. He wanted the employee to know about the grievance process. He first wanted to have a dialogue before it might pivot into the grievance process. The HR Director said that he decided that he was the best person to carry out the formal investigation. This was because of his experience and being new to the company. It was put to the HR Director that there was a conflict in him in carrying out an investigation of a PIP document that he had been involved with and approved; he replied that the primary importance of the investigation was what motivation led to the PIP being put into place. He also sought to investigate the allegation of bullying and harassment. It was put to the HR Director that he had amended and approved the PIP document and this is what was under scrutiny in the investigation, therefore he was conflicted; he disagreed as he had not amended the substantive elements of the PIP draft, i.e. the text of the boxes. He was still impartial. It was put to the HR Director that had he found that moving to the PIP was inappropriate, this would implicitly criticise his actions; he said that he would not have a problem with this and there were multiple elements to the investigation. He disagreed that he was the least appropriate person apart from the manager to investigate the grievance.
The HR Director said that there was no respondent policy for PIPs. He sought templates and the manager sent him a populated template. The inclusion of the word “further” was an administrative error and accepted that this caused confusion. The complainant first raised this on the 22nd November when he said that the PIP itself was a sanction. The HR Director then saw that the word “further” was an issue. The complainant was of the view that behaviour in the workplace should not be addressed by a PIP. The HR Director commented that whether behaviour is subject to a PIP or a disciplinary process depends on its frequency and severity. The HR Director agreed that the PIP document refers to behavioural issues and presents them as facts. It was put to the HR Director that the complainant should have the chance to reply to these serious allegations; he accepted that there was no investigation and this was a forward-looking document for the next 90 days. It was put to the HR Director that one column contains statements presented as facts, without investigation. It was put to the HR Director that this PIP contained the words “immediate dismissal”; he replied that this might happen where the conduct is of a serious nature, for example xenophobia.
The HR Director said that this investigation was fair and conducted as quickly as possible. He took notes of the meeting with the manager and discussed what she had said with the complainant. This was set out in the outcome letter. There were no minutes of the meeting with the colleague as he only supplied the hip chat. There were notes of the meeting with the Managing Director and the current line manager and they were not supplied to the complainant. The HR Director accepted that he had not spoken to the four colleagues referred to by the complainant in his email of the 8th November. He had validated with the complainant who he should speak with and there was a time limit to the investigation. It was put to the HR Director that his outcome letter presents the comments of others as facts; he said that he presented their responses. Where he could not find evidence to support an allegation, he concluded that there was no basis to make a finding. It was put to the HR Director that he had accepted what managers had said as fact; he accepted this as the managers were emphatic. He decided that there was no evidence to support the allegation. It was put to the HR Director that the complainant’s account of conversations was evidence; he said this account was not definitive while the accounts were.
It was put to the HR Director that he took the “pod outbursts” as fact; he replied that he took what the Managing Director had told him. He could not accept the complainant’s account that he could not recollect talking about the manager to the Managing Director. It was put to the HR Director that he adopted wholesale what others said to him while he questioned what the complainant said. He said that the comments regarding the complainant’s behaviour in the letter of the 22nd November were the consistent view of management. He had also observed the complainant’s behaviour in their meetings. It was put to the HR Director that he made findings against the complainant; he said that he found that the PIP was valid as it was based on his behaviour. He was satisfied that the behaviour happened. The HR Director said that he asked the legal department why the line manager had left and the manager told him that she had no knowledge of this. It was put to the HR Director that the manager did know, unofficially; he replied that the complainant’s allegation related to the manager’s threat in early May so he honed in on this allegation. He was confident that the manager had no knowledge in May or June.
The HR Director outlined that he spoke with the complainant about the error in the PIP document when reading through the outcome letter. Correcting this would not change the outcome of the grievance, in particular with regard to the motivation for the PIP. He was being transparent about the error. It was put to the HR Director that the solicitor’s letter of the 23rd November 2016 raised the fairness of including “further disciplinary action” in the PIP; he replied that they first discussed this on the 22nd November. The HR Director said that he acknowledged the complainant’s resignation on the 5th January 2017 and it was confirmed that the PIP was not part of a disciplinary process. The HR Director accepted that the error was not acknowledged in the letter of 22nd November but it referred to the PIP not being part of a disciplinary process. The HR Director said that the person initially selected to hear the appeal was appropriate as she was new and based in the UK. They understood the complainant’s concerns and facilitated his request for someone else to be appointed.
In closing, the respondent submitted that both the Protected Disclosure and Unfair Dismissal claims should be rejected. It is absolutely disputed that a protected disclosure had been made. The complainant made complaints about the line manager. The Code of Practice makes a clear distinction between a protected disclosure and a grievance, but the complainant raises a myriad of issues about the line manager’s management style. The reference to drug-taking was buried in a terse statement and tied up with his management style. Any consideration of relevant wrongdoing must address where the drugs were consumed, in this case an Amsterdam coffee shop.
Even if it was a protected disclosure, the complainant fails the “but for” test. It has been demonstrated that the manager managed staff and had to manage an extremely difficult employee. She sought to integrate the complainant and afforded him a great amount of time. She later had to resort to the PIP. The manager gave her evidence of her lack of knowledge of the circumstances of the line manager’s departure and acknowledged that she later became aware of the circumstances. She had no knowledge of this in May 2016 when it is alleged she made comments to the complainant about the line manager.
It was submitted that the HR Director acknowledged the error regarding the 22nd November but this does not go towards the fairness of the process. It was implausible that the manager would place the complainant on a PIP because of the issue with the line manager. It was unfair and misplaced to criticise the respondent for not carrying out an investigation prior to engaging a PIP.
There was a heavy onus on the complainant to establish a causal link between the protected disclosure and the act of penalisation. The Monaghan case involved a serious disclosure involving HIQA and was different to the complainant’s “rambling” email and the buried, terse statement regarding drug-taking. The reality was that the manager’s actions arose from the complainant’s failure to behave appropriately at meetings and his interactions with the manager. Those are the reasons and not the spurious issues raised by the complainant about a now departed line manager. This falls below the “but for” test.
There is a high onus on a claimant in a constructive dismissal claim to show that they had no alternative but to resign or to consider himself to be dismissed. The complainant revealed at an early stage that it was not worth working on his relationship with the manager. An employee was required to work on such a relationship prior to considering themselves to have been dismissed and must also meaningfully engage with their employer.
The respondent had afforded the complainant a detailed and substantial investigation into his grievance, which rightly rejected the baseless allegations made against the manager. The complainant met with the HR Director on numerous occasions and was presented the outcome. He was advised of an appeal and facilitated with an alternative person to hear this. He, however, resigned within one business day. This took place after the complainant had looked for work on social media and after which, he hatched a plan to get an exit package. After this did not succeed, he contrived the Protected Disclosure and Unfair Dismissal claims. There was a positive obligation on employees to avail of internal procedures. An employee who fails to see through processes put in place by the employer should not succeed in such a claim. The complainant resigned after not securing an exit package. It was submitted that the complainant’s lack of reference to a protected disclosure at an early stage damaged the credibility of this being a protected disclosure.
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Findings and Conclusions:
This is a complaint of penalisation made pursuant to the Protected Disclosures Act. The separate complaint pursuant to the Unfair Dismissals Act is the subject of a report in ADJ 8157. Both complaints were heard together. As a preliminary submission, the respondent submitted that the complainant could not advance both complaints and this represented an abuse of process. I find that the complainant is entitled to pursue of this complaint of penalisation as well as the complaint pursuant to the Unfair Dismissals Act. The Protected Disclosures Act provides a scheme to protect employees and others making protected disclosures of relevant wrongdoing. The Protected Disclosures Act provides protection to employees from acts of penalisation by the employer other than dismissal. The Act also amends the Unfair Dismissals Act to make a dismissal on foot of a protected disclosure automatically unfair and not subject to the service requirement.
Section 5(8) provides the statutory presumption that a disclosure is a protected disclosure, unless the “contrary is proved”. The complainant asserts that the protected disclosure was his email to HR of the 17th March 2016. This followed the meeting of the previous day where he raised his line manager’s use of cannabis on business trips to Amsterdam. A common thread in the meeting notes and the email is the complainant challenging the line manager’s management style. The three-page email of the 17th March 2016 uses the following headings: “punctuality”, “preparation”, “follow-up, follow-through”, “team player/team captain”, “call management”, “opportunity management”, “account management”, “territory management” and “salesforce enablement”. The drugs issue is mentioned in “miscellaneous behaviour” where the complainant states that the line manager consumed drugs before major meetings and this impacted on the meetings. In the minutes, the complainant criticises the line manager’s performance at meetings (he was “like a plant”) and refers to him being somewhat incapacitated after smoking cannabis the previous night.
The respondent makes the strong case that there was no disclosure of relevant wrongdoing within the ambit of the Protected Disclosures Act. What the complainant asserts as a disclosure was one of many points of criticism of the line manager and “buried” in the email. I note that it refers to the consumption of cannabis in an Amsterdam coffee shop, something permitted in that jurisdiction. I also note that the complainant says that this caused poor performance as opposed to a health and safety risk. Despite these comments, and to provide a robust decision, I consider the case with the statutory presumption in place.
The line manager who smoked cannabis left the respondent shortly after the complainant’s email. The manager returned from maternity leave in May 2016. The crux of the case is whether the complainant can show the way he was treated by the respondent and, in particular, the manager were “but for” his raising the drugs issue. As opened by the parties, the Labour Court held in the Monaghan case: “… the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”
The complainant’s evidence was that in early May 2016, the manager took him aside to say that things would be run differently from now on and that the complainant would not do to her what he had done to the line manager. The complainant asserts that the manager made further denigrating comments about him. It is submitted that the tone and content of the manager’s comments link her actions to the protected disclosure. The manager denies that the conversation took place as set out by the complainant. She refers to having a one-to-one meeting to identify challenges and to provide advice.
When faced with such divergent evidence, it is often not possible to make a definitive finding either way whether an event happened as stated by one or other witness. In this case, however, such a finding can be made. The conversation, as described by the complainant, was an extraordinary event. A senior manager returns to lead the team at the time of new hires and the implementation of a new software package. It is a time of transition. She is said to personally attack and threaten the complainant at their very first meeting. The complainant’s email shortly thereafter (19th May 2016) states “Hi guys and gals, I want to quickly come back to our meeting yesterday. I think it was one of the best meetings we ever had. On point, on time and with good open discussion around the opportunities, challenges and key wins. [manager’s hashtag]: thanks for showing us the way” While I appreciate the point about the complainant seeking to establish his sales record and contribution to the team at this time, it is striking that the email specifically praises the manager by name in the light of what he says transpired between them.
Key, however, is the interaction of the 12th September 2016. This was where the manager acknowledges she publicly berated the complainant in an open plan office and referred to him as “a child”. The complainant says he was denigrated in May 2016 and called “childish” and it is significant that a similar term was used on the 12th September. It is striking that the complainant did not immediately link these two events and bring them to the respondent’s attention. He had already articulated clear criticisms against the line manager. The complainant and the manager had clashed at pod and one-to-one meetings. In spite of all of this, the first mention of the water cooler conversation is the email of the 24th October 2016 after the complainant was placed on a PIP. For the reasons set out above, this delayed formulation of the water cooler conversation is not credible and I find as fact that the respondent’s and manager’s account is correct.
The rest of the evidence charts a manager seeking improve working relationships in the team. This included fractious meetings involving the complainant. She refers to the complainant rolling his eyes and seeking to derail her meetings. This formed the basis of the PIP, which cited that improvements were required in attitude, conduct at meetings and respect for others. It is unusual for a PIP to include as an expected outcome “absolutely no more displays of xenophobia or malice.” The complainant challenged the basis of the PIP and made an allegation of bullying. They were comprehensively dealt with by the HR Director, who met the complainant several times in November 2016. He made findings that the claim of bullying or harassment was not founded and that the decision to place the complainant on a PIP was appropriate, proportionate and complied with company policy. There was careful cross-examination of the HR Director’s evidence, including points that the content of his conversations with managers should have been put to the complainant and other staff should have been interviewed. The HR Director acknowledged that he made findings of fact after conversations with managers and without going back to complainant. While this approach would be detrimental in a disciplinary process, this process related to a grievance and the thoroughness of the process indicates that it was handled fairly. In any event, the complainant had the right to appeal, a process he initiated but did not complete.
As outlined above, it is for the complainant to show that the acts of penalisation were but for a protected disclosure. The crux of the case was the conflict in evidence regarding the May water cooler conversation. I have resolved this conflict in the respondent’s favour. While the complainant was not happy with being placed on a PIP and with his other interactions with the respondent, there is nothing to show that the respondent actions were but for the contents of the email of the 17th May 2016. It follows that the complaint of penalisation pursuant to the Protected Disclosures Act is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00010874-001 I find that the complaint of penalisation pursuant to the Protected Disclosures Act is not well founded. |
Dated: 28/11/2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Protected Disclosures Act Statutory presumption / relevant wrongdoing Penalisation |