ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00008828 and ADJ-00009958

Parties:

Complaint(s):

Date of Adjudication Hearing: 13/04/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 13 of the Industrial Relations Acts 1969, and Section 8 of the Unfair Dismissals Act, 1977,following the referral of the complaints to me by the Director General, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.

The Complainant submitted three Complaints. The first two complaints were received on 31st May 2017 and relate to the concerns the Complainant has regarding a change in her working conditions and the alleged handling of a complaint of bullying and harassment that she raised with the Respondent. These complaints are referred to under ADJ00008828. The third complaint which was submitted on 21st July 2017 refers to an unfair dismissal due to the alleged continued failure of the Respondent to deal with the complaint after the Complainant had submitted her first two complaints to the WRC. The third complaint is referred to under ADJ-00009958.

As all three complaints are related they are dealt with together. Two identical decisions are issued under complaints ADJ00008828 and ADJ-00009958 for ease of reference. All three complaints were heard within the same hearing.

Background:

The complaints refer to an alleged change in the terms and conditions of employment of the Complainant without notification in writing; a dispute between the parties regarding the alleged failure of the Respondent to properly deal with a complaint of workplace bullying raised by the Respondent; and the alleged constructive dismissal of the Complainant due to the alleged handling of her complaint of bullying and harassment.

The Respondent refuted the complaints, and maintained it dealt properly with the complaint of bullying made by the Complainant, and that the Complainant resigned her position prior to the complaints being dealt with.

The Complainant was employed as an Information Officer from 19th September 2011 until 21st July 2016 when she left her employment alleging an unfair dismissal. The unfair dismissal complaint is dealt with under a separate adjudication reference.

The Respondent worked 19½ hours per work was paid €215.50 gross per week.

Summary of Complainant’s Case:

CA-00011670-001 Complaint Under Section 7 of The Terms of Employment (Information) Act, 1994

The Complainant submitted that she commenced her employment on 19th September 2011 on a one-year contract with a Community Employment (CE) project. She was advised in writing by letter dated 15th September 2011 that she would be working shifts from Monday to Thursday from 1:00PM to 5:00 PM, and on Friday from 1:00 PM to 4:30 PM. Her contract of employment was extended on a yearly basis until she left her employment on the 17th July 2017.

The Complainant maintained that her working hours were changed in July 2015 to working a full day on Wednesday and Thursday from 9:30AM to 2:00 PM, and this roster remained until the 24th February 2017 where the Complainant alleged her roster was again changed and where she was then required to work from 12noon to 5 PM on Wednesday to Friday. She advised that she received no notification in writing of these changes and was only provided one working days’ notice of the change.

The Complainant further submitted that on 21st March 2017 her shift was changed again without proper notice or proper consultation and these hours remained in place until she left her employment in July 2017.

CA-00011670-002 Complaint Under Section 13 of The Industrial Relations Act, 1969

The Complainant submitted that the way the change to her roster was communicated to her afforded her no respect and dignity; that her supervisor deliberately held back information that she needed in order to get work done, and her supervisor did not communicate such information with her; that her supervisor deliberately changed her hours to make it difficult for her; and that she considered such action to be controlling and bullying behaviour.

The Complainant submitted that from February to July 2017 she had been seeking her complaints to be dealt with but that the Respondent failed to respond in a timely or manner. The Complainant maintained that she felt the delays were to avoid the Respondent having to deal with the matter as her contract was due to finish in November 2017.

Since raising this complaint the Complainant subsequently left her employment and raised a complaint of Unfair Dismissal relating to the Respondent’s alleged handling of her concerns.

CA-00012707-001- Complaint under Section 8 of the Unfair Dismissals Act, 1977              

By way of background to the termination of her employment, the Complainant advised that when she was approaching the date for her fifth year of extension in the scheme for the 2015/16. The Complainant submitted that she experienced undue delays in the Respondent confirming her extension of contract and where her Supervisor said she had been applying to the Department of Social Protection (the Department) to sanction the extension since August 2015 but had heard nothing back. The Complainant was concerned as to whether her contract was to be renewed so she sought a transfer to another Community Employment Scheme, but her Supervisor refused her transfer and advised the Complainant that she would continue seeking a further year’s contract for the Complainant. The Complainant submitted that no application for her extension was submitted to the Department before the eight weeks she was due to finish, and that no exit plan had been put in place as per the CE procedure manuals. The Complainant maintained her supervisor was aware that the Complainant was eligible for another three years as documentation from the Department dated 19th May 2015 and 2nd July 2015 would have indicated this to be the case.

The Complainant submitted that her extension was eventually granted. The Complainant advised that for the year 2016/17 she also experienced difficulties from her Supervisor in having her contract extended. She had again looked for a transfer to another CE scheme alleging this was blocked and when she pursued the matter in July 2016 she was ordered up to her supervisor’s office, and as result of questioning her eligibility for an extension a written warning was issued to her. She advised that she was not aware at the time that this warning had been penned by the Chairperson of the Board of Management, and the Complainant maintained this warning was unmerited and provides very strong evidence that she had no chance of any fair procedures or natural justice in progressing concerns regarding her employment.

The Complainant advised that she eventually received a further year extension on 22nd October 2016 which was provided to her at very late notice as her contract was due finish on 18th November 2016. She maintained that since she questioned her eligibility for an extension on 8th July 2016 there was very little communication between herself and her Supervisor, and where this was the start of the alleged bullying behaviour from her supervisor. The Complainant contended that she was ignored, that her Supervisor did not communicate to her regarding roster changes, that she has been treated unfairly, and that her Supervisor has been talking to work colleagues about her.

The Complainant maintained that in early December 2016 the Supervisor changed the shift from 5 half days a week to 2 ½ days a week and she had implemented this change without consultation. The Complainant submitted when she returned from work after the Christmas break on 3rd January 2017 the Supervisor had organised for three staff members to go on courses without discussing this with the Complainant and as result she had to juggle the shift roster for the month of January which was very difficult. She advised that she was never supported by the Supervisor who made it impossible for the Complainant to continue managing the roster despite the Supervisor having several meetings and discussions with the Complainant’s co-workers regarding the roster. The Complainant submitted that this action was a clear example of bullying. The Complainant also advised that on 18th January 2017 she experienced violent behaviour from another member of staff, and in February 2017, unknown to her, this member of staff raised a complaint against the Complainant. The Complainant contended she was not made aware of this complaint until 21st March 2017 at which time all the staff had known about it except her. This she maintained was also unfair on her.

The Complainant advised that due to the ongoing issues on 27th February 2017she submitted a complaint regarding her Supervisor’s behaviour, but this complaint was not presented to the Board of Management until 10th May 2017. The Complainant maintained that she should have received a response from the Board of Management regarding her letter of complaint in accordance with fair procedures. She advised that the Board of Management knew she wanted to speak to them, yet she was ignored. The Complainant maintained that the Board of Management did not investigate her complaint, and that she was prevented from speaking to a Board of Management member as was her right which is provided for in the organisations Grievance Procedure.

The Complainant advised that she had raised another complaint on 8th March 2017 against the aforementioned employee’s alleged behaviour towards her. The Complainant also advised that the aforementioned member of staff had raised a second complaint against her on 1st March 2017, but she had never heard about this complaint until the hearing within.

The Complainant submitted that on 1st March 2017 she also emailed the Supervisor requesting an opportunity to present her complaint to a member of the Board of Management as per the Respondent’s Grievance Procedure.   The Supervisor replied to the Complainant on the same date advising the Complainant that the Supervisor had intended to meet with the Complainant prior to receiving her email of 1st March 2017. As a consequence of this response, the Complainant advised the Supervisor she would arrange to meet a member of the Board of Management herself in the coming days.

The Complainant further advised that she phoned the Chairperson of the Complaints Committee asking to meet with him and another Board Member as per the Grievance Procedure. In response the Complainant was told by the Chairman he would get back to her, but he never did. As two complaints had been made against the Complainant she maintained that she had been trying to get an opportunity to defend herself to have a chance to respond to these complaints, but she was not afforded proper procedures or given an opportunity to be heard.

The Complainant advised that her complaint of the 8th March 2017 was not discussed until 5th May 2017. She advised the staff member was separated from working with her.

The Complainant also advised that she received a letter from the Chairperson of the Complaints Committee on 16th March 2017 advising her that two members of the Board were going to meet with all staff. The Complainant submitted that never happened. The Complainant maintained that on 19th March 2017 a named male member of staff had shouted at her and made a complaint against her alleging harassment, but this complaint was never acted upon.

The Complainant submitted that her roster was then again changed on 21st March 2017 where the changes remained until she left her employment on 17th July 2017.

The Complainant also submitted that on 19th April 2017 the Assistant Supervisor took statements from herself and other staff members regarding the inappropriate behaviour of the male member of staff. The Complainant advised that in accordance with the grievance procedure copies of statements made by witnesses should be made available to the parties but that she never received any copies of statements which were taken. She advised the male member of staff was separated from working with her until he left s month later, however she wasn’t given an opportunity to speak to anyone about his complaint against her.

The Complainant further submitted she handed a letter of complaint to the Board of Management on 26th May 2017 clearly stating that she was continuously being bullied by the Supervisor. She contended that this grievance should have been considered as a priority by the Board of Management. The Complainant advised that she had been out sick as a consequence of the bullying behaviour. However, despite the Complainant trying to follow procedures she stated the Board of Management had advised her they could not consider her complaint until a board meeting in June 2017. At that meeting the Board of Management were advised that the Complainant had referred matters to the Workplace Relations Commission and therefore they decided they were unable to deal with it from that point.

The Complainant maintained that she had not advised the Board of Management at the time of the board meeting in June 2010 that she had made a complaint to the WRC and that the Board would not have been notified about her complaint until after it’s board meeting in June 2017. On that basis the Respondent maintained the Board of Management had her complaint for over two weeks and it failed to adhere to its grievance procedure which stated a ten-day guideline for dealing with a grievance. She submitted that the Board of Management were satisfied to allow her suffer ill-health and bullying with no consideration of her well-being and this was compounded by ignoring her complaint and delaying the handling of her complaint.

The Complainant submitted that due to the Respondent’s failure to respond to her complaint, and despite her best efforts to have matters resolved, the Respondent failed to address her concerns and she continued to experience bullying behaviour from the Supervisor. As a consequence of the Respondent failing to address her concerns, and as a consequence of its failure to respond to her complaints in a reasonable manner she stated she had lost all confidence in the Respondent, and in light of the continued lack of response she had no option but to resign from her job. She therefore submitted that the Respondent’s failure to adhere to its own procedures amounted to a constructive dismissal.

The Complainant stated that as her complaints had not been addressed, and in order to progress matters, the Complainant submitted a further letter to the Board of Management on 12th July 2012 as there was a Board meeting that day. The Complainant advised that on 13th July 2017 she was informed by the Board that they were prepared to deal with her complaint but only if she would withdrew her complaint from the Workplace Relations Commission. As a consequence of the alleged lack of response to her complaint against her Supervisor, her complaint with regard to how she believed the Respondent had dealt with complaints against her, and the Respondent’s failure to address her concerns regarding the roster changes, the Complainant felt she had no option but to resign her position at she had lost all trust in the Respondent.

She advised that in trying to address her issues throughout the months she was bullied by her Supervisor who made her job as difficult as possible and where she believed her Supervisor orchestrated a situation that allowed her co-workers gang up on her. She maintained the responsibility lay with her Supervisor and management to properly manage the roster. The Complainant contended that her Supervisor should have intervened when she was aware of the difficulties with the roster and the deterioration of the relationship in the workplace between the Complainant and her colleagues. The Complainant advised that she had not been made aware of complaints against her, and that she had always got on well with staff until she received a year’s extension on the scheme in November 2016. It was only after that was granted that matters deteriorated.

The Complainant advised that having exhausted every avenue to deal her concerns she had not been treated fairly as was her constitutional right. She submitted that no reasonable measures were put in place to prevent the bullying she experienced, and she was not afforded with the opportunity for a fair investigation of her complaint. She maintains that the dealing with the issue and an investigation of her complaints was deliberately delayed on the basis that her contract was due to end in November 2017. She contended that by the Respondent not following due process and proper procedures the Respondent as her employer was unreasonable. As a consequence of being ignored and bullied she lost trust in her employer and was exhausted in trying to have her voice heard. She maintained she was left with no choice but to resign. The Complainant further advised that after she had left on 13th September 2017 she received a letter from the Respondent’s Complaints Committee stating her complaint against a staff member had been investigated but not been upheld. The Complainant maintained that proper procedures had not been applied in conducting the investigation.

Summary of Respondent’s Case:

The Respondent advised it was a non-profit organisation with charitable status and where a grant for the wages of its staff is received from the Department of Social Protection (The Department) under a community employment scheme. The Respondent advised that when the Complainant started on 19th September 2011 her hours of work were 1 PM to 5 PM Monday Thursday, and 1 PM to 4:30 PM on Fridays. The Respondent advised upon her appointment the Complainant had signed her job description and the staff handbook and where it states that the maximum single period of work is 52 weeks, and where a participant may be engaged for subsequent periods where approval has been authorised by the Department, subject to re-engagement.

The Respondent acknowledged the Complainant was a very conscientious participant on the scheme and was very pleasant to customers, to other participants on the scheme (her colleagues), and to management. It further submitted that the Complainant was very highly regarded and any extensions that she requested to her contract of employment were always sought by her Supervisor and supported by the Board of Management.

CA-00011670-001 Complaint Under Section 7 of The Terms of Employment (Information) Act, 1994

In response to the complaint regarding a change in her work hours without written notification, the Respondent submitted there was an ad hoc meeting with all Information Officers in 2015 in response to a request by the participants for a 2 ½ day working week, and where it was agreed that there would be two shifts for a trial period. When these changes were made, the Complainant was rostered for the second half of the week, and where the Respondent submitted that the Complainant compiled the roster for the staff.

The Respondent advised that at the end of January 2017 the Assistant Supervisor was approached by three participants who raised concerns about the roster as changes had been made regarding working on Wednesdays which they had not agreed to. The Respondent submitted that the participants claimed they felt pressurised into agreeing the roster change. The Assistant Supervisor and Supervisor reviewed the revised roster and planned to bring the revised roster to the next Board of Management meeting.

The Respondent submitted that difficulties arose between staff about the roster and as a consequence the Supervisor issued an instruction that the roster was to revert to the previous pattern.

The Respondent indicated that another staff member felt she was being watched by the Complainant and where an official complaint was raised against the Complainant by that staff member regarding the Complainant’s approach to changing the roster. It was submitted this staff member had attended her GP and was prescribed medication to assist her deal with the issue. In light of the complaint the supervisors brought it to the attention of the Board of Management, and the Respondent agreed that a Complaints Committee would be set up comprising of three Board Members to look into the issue.

Following this, the Complainant emailed the Supervisor on 27th February 2017 stating she was upset in the manner in which she discovered her shift was changed as the changes were placed on a notice board without consultation with the Complainant. The Complainant advised her Supervisor that she had accepted and agreed the shift she had been working for over a year, had organised her time off to facilitate these hours, and found it unacceptable that due to the new changes she had to cancel her arrangements or take a day’s holiday. In this email the Complainant referred to the staff handbook where it stated that the manager has the right to change roster after appropriate consultation with the staff, and to inform the Board of Management of all changes. The Complainant had contended the appropriate consultation with her had not taken place regarding the change. The Complainant advised the Supervisor that she was raising a concern as a formal grievance. The Respondent also advised that the Complainant sought to present her case to a member of the Board of Management.

CA-00011670-002 Complaint Under Section 13 of The Industrial Relations Act, 1969

The Complainant has responded to this dispute as part of their response to the Complaint of Unfair Dismissal. The response is detailed below.

CA-00012707-001- Complaint under Section 8 of the Unfair Dismissals Act, 1977              

The Respondent outlined that an exchange of correspondence between the Complainant and her Supervisor occurred during February and March 2017 regarding her complaint about the workplace roster and the attitude of two other employees towards her.

On 1st March 2018, a member of staff had submitted a letter to the Supervisors complaining about the unpleasant atmosphere, and about the Complainant. This letter was not shared with the Complainant at the time.

On the 1st March 2017 the Complainant’s Supervisor wrote to the Complainant to advise that along with the Assistant Supervisor she intended to meet with the Complainant to discuss the concern the Complainant had submitted on 27th February 2017. The Respondent submitted that the Complainant wanted a member of the Board of Management to attend this meeting and advised the Complainant that it was not possible to meet with a Board Member on that day. The Complainant responded that she would meet with either a member of the Board of Management or her union rep in the next few days and would revert to her Supervisor.

The Respondent submitted that on 8th March 2017 the Complainant lodged a complaint against the colleague who had complained against her on 1st March 217, accusing the colleague of intimidation, and of attacking and bullying the Complainant. The Respondent submitted that this issue referred to an alleged altercation that had happened on 18th January 2017 where it was alleged the employee was banging her fists on the desk during a heated altercation. This complaint was passed to the Complaints Committee by the Supervisor.

The Respondent advised that on 21st March 2017 the Complainant requested to speak to the Supervisors to discuss what protections the Supervisors were going to put in place to protect the Complainant from the violence she alleged she experienced, and that she was afraid come to work the following day in case an act of violence was committed against her. The Complainant had advised the Supervisor she had just come from her GP. The Respondent then advised the Complainant that a complaint had been made about her for bullying and intimidating the employee, and that the Supervisors had planned to speak with the Complainant the next day as instructed by the Complaints Committee.

The Respondent advised that mediation was offered to the Complainant to seek a resolution of the matter between the Complainant and the employee. The Supervisors then spoke to the employee and advised the employee that they had received a complaint from the Complainant about the employee’s behaviour. The employee was not happy to progress with a mediation and wanted the complaints to be investigated. The Supervisor then organised the roster so that the Complainant and the employee would not have to work with each other.

The Respondent maintained the complaint from the employee was shared with the Complainant and an investigation progressed, where interviews held over the 22nd and 23rd of March 2017. The interview notes were shared with the Complaints Committee and matters were subsequently progressed to a meeting between the Complainant and the Complaints Committee on 5th May 2017. The Respondent submitted that after this meeting the Complainant tried to give an email to the Chairperson of the Complaints Committee regarding the changes to her working hours at which time the Chairperson advised the Complainant that it was not the Complaints Committee remit to deal with this and that it should be passed to the Assistant Supervisor to be presented at the next Board of Management meeting planned to take place on 10th May 2017. Also, on 5th May 2017 attempts were made to see if mediation could take place between the Complainant and the employee, however on 10th May 2017 the employee declined mediation and the mediation did not progress.

The Respondent advised that on 26th May 2017 a complaint was raised by the Complainant against the Supervisor. This was brought to the attention of the Board of Management on the 14th June 2017. The Respondent submitted that at the same Board of Management meeting correspondence regarding complaints to the WRC under section 13 of the Industrial Relations Act with regard to the terms and conditions of employment had been made. The Board decided to attend a mediation to be conducted by the WRC.

On 30th June 2017 the Assistant Supervisor requested the Complainant to attend a meeting to discuss her exit planning as the Complainant’s contract was due to be completed in November 2017. The Complainant advised that she would only attend the meeting if the Supervisor was not present inlight of her complaint of bullying against the Supervisor. Following an exchange of emails between the parties it was proposed that the meeting would be rescheduled for 12th July 2017 and that a member of the Board of Management would attend. The meeting took place as planned and the Complainant was provided with a new exit planning form from the Department and she was also offered with any support or further training that she needed to assist her in applying for future positions. On the same day the Complainant presented a letter by hand to the Complaints Committee and the Board of Management stating she was disappointed that her complaint against her Supervisor had not been investigated. She asked the Board of Management to consider this at its meeting that evening.

The Respondent advised that the following day, 13th July 2018, it responded to the Complainant stating the Board were prepared to deal with the complaint in accordance with the grievance procedure but only on a verified understanding that the Complainant would withdraw her complaint from the Workplace Relations Commission.

On 17th July 2017 the Respondent advised it received a letter of resignation from the Complainant where the Complainant referred to the letter of 13th July 2018 as threatening because of the requirement for her to withdraw the complaint to the WRC before the Respondent would investigate the matter. In the resignation letter the Complainant advised that she had no confidence or trust in the Respondent as an employer and as the next Board of Management meeting was not until September 2017 the Board of Management were content to allow her to continue to being subject to bullying behaviour with no regard for her health or well-being, and that the Respondent had not complied with its grievance procedure.

The Respondent submitted that it replied to the Complainant on 18th July 2017 and informed her the matter will be considered at its next board meeting to be held on 25th July 2017. On 31st July 2017 the Respondent wrote to the Complainant refuting the allegations against the Board of Management and clarified that the Complainant could proceed with a complaint to the Workplace Relations Commission after an internal investigation had been completed.

Findings and Conclusions:

CA-00011670-001 Complaint Under Section 7 of The Terms of Employment (Information) Act, 1994

Section 3(1) of the Terms of Employment (Information) Act, 1994 requires that an employer shall, not later than 2 months after the commencement of anemployee’s employment with the employer, give or cause to be given to theemployee a statement in writing containing…particulars of the terms ofthe employee’s employment.      

Section 5(1) of the Act requires that whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3…the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than 1 month after the change takes effect.

Based on the evidence provided I am satisfied that the Respondent had initially met its obligations under section 3 of the Act in that it provided the Complainant details of her working hours in her letter of appointment. The staff handbook also referred to hours of work where the handbook states that the Complainant was required to work for a period of 39 hours per fortnight and this work arrangement can take place in various combinations which includes 39 hours every second week, 19.5 hours every week, or in a combination of half days at 2.5 days per week. I am satisfied that the subsequent change in rosters adhered to work hours as per the notice laid out in the staff handbook. In addition, when the rosters changed in 2015 the Complainant was also notified and accepted the changes.

Having reviewed the evidence, I find changes were again introduced with the roster in January 2017, where these changes impacted on the Complainant due to other staff being away for training. These changes were notified in writing and placed on the staff noticeboard.

Furthermore, I am satisfied the evidence supports that changes took place in February 2017 and where the Complainant was involved in these changes. There appeared to be disagreements among staff with regard to the rostering from that point. I am satisfied the Complainant was fully aware of the changes that were being discussed and was involved in the implementation of same, and that in light of the discontent amongst other participants, and the Complainant deciding to withdraw from managing the roster, that the Supervisor decided to revert to a former roster in March 2017. The change that took place on 21st March 2017 was to address the concerns that had emerged between the Complainant and a colleague where it was decided not to have them working together again. I am satisfied that the Complainant was informed of this change, albeit she was unhappy with the manner the change was enacted. The change was consistent with her written notification of her working hours that are contained in the employee handbook and as per the Respondent’s obligations under section 3 of the Act

Whilst acknowledging the Complainant was unhappy with how the change came about I do not find the Respondent has breached its obligations under the Terms of Employment (Information) Act 1994. These changes were known to the Complainant at the time, and the Complainant’s action was part of the reason the change to a former roaster were re-introduced.

I therefore do not find the Respondent is in breach of section 3 of the Terms of Employment (Information) Act, 1994.

CA-00011670-002 Complaint Under Section 13 of The Industrial Relations Act, 1969

Section 13 (3)(a)(i) of the Industrial Relations Acts, 1969 requires that I make a recommendation to the parties to the dispute setting forth my opinion on the merits of the dispute.

Having considered the dispute regarding the handling of the complaints raised by the Complainant, I find that as the Complainant had also raised the same issues under an additional complaint regarding an Unfair Dismissal. I recommend that this complaint be heard as part of her Unfair Dismissal Complainant. Therefore, having being superseded by the Unfair Dismissal claim I have not considered the complaint as an industrial relations dispute.

CA-00012707-001- Complaint under Section 8 of the Unfair Dismissals Act, 1977

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the conduct of the employee.

In this case the Complainant resigned on 17th July 2017 on the basis she felt the Respondent had failed to deal with her complaint of bullying and harassment, or afford her a fair procedure with regard to responding to complaints she raised and complaints raised against her, and where the Respondent would only agree to consider the Complainant grievance if she withdrew her complaint to the WRC.

The breach of a contract of employment is a very serious matter and which in cases of unfair dismissal, requires an examination of whether an employer acted fairly. This test is a demanding one involving a mix of both procedural and substantive issues. The onus falls on the employer in such cases to justify any termination. In cases where an employee breaks the contract, and then seeks to pursue the employer for constructive unfair dismissal, as in this case, the bar is set just as high. Likewise, the burden of proof, which now passes to the employee, is set at a high level.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the Complainant’s resignation, and something that represents a repudiation of the contract of employment. In this regard The Supreme Court has said that: ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’ (Finnegan J in Berber v Dunne’s Stores [2009] E.L.R. 61).

In the case within I am satisfied that there is some history with regard to the Complainant seeking and obtaining an extension to her contract. The Complainant is of the view that following representations she made in 2016 to have her contract extended for another 12 months that her Supervisor’s attitude changed towards her. The issues that occurred on 2016 are not subject to consideration in the current complaint where the Complainant has submitted that due to the attitude of her supervisor regarding roster changes, and due to the failure of the Respondent to deal with her complaints of bullying; and her complaint against another employee, that she had no option but to resign her position.

The evidence confirms that on 27th February 2017 the Complainant was unhappy with changes to her work roster and sought to have these issues resolved, through her supervisor, by the Board of Management. It is clear that approval to changes of working hour rosters are within the remit of the Board of Management.

On 1st March 2017 the Complainant advised her Supervisor that she wanted to present her case to the Board of Management as per the organisation’s Grievance Procedure. It is therefore reasonable to conclude that by 1st March 2017 the Complainant had raised a formal grievance.

In addition, the evidence supports that complaints were raised against the Complainant, but she was not informed of these complaints at the time they occurred. In progressing her complaint, the Complainant was assured that she would be met by a member of the Board of Management; however this did not occur until 22nd / 23rd March 2017. An investigation seemed to be progressing at that time; however, there was no clear terms of reference provided in advance of these interviews as to what the purpose of the interviews were. The Complainant’s Assistant Supervisor also met with the Complainant regarding complaints against another member of staff and where the Complainant understood that the Board of Management was to investigate the matter and get back to her. Whatever the intentions of Board of Management were I am satisfied that in reviewing matters they did not adhere to their own policies and that meeting records were not exchanged with the Complainant. In effect the Complainant was left in the dark as to what was being investigated and was not aware of how her own grievance and complaint was being dealt with.

The Complaints Committee subsequently met with the Complainant on 5th May 2017, and the Complainant attempted to give the Board of Management her complaint letter of 27th February 2017. This submission was considered by the Board of Management on 10th May 2017, but the Complainant received no response from the Board of Management.

Attempts were made by the Respondent between the 5th and 10th of May 2017 to see if the Complainant and the employee could resolve the complaints through mediation; however, mediation was not progressed. After that decision, the Respondent again did not deal with the complaint within the timescales laid down in the Grievance Procedure.

On 26th May 2017 the Complainant sent a letter to the Complaints Committee maintaining she was being bullied by her Supervisor and complaining that there had been no follow-up to the complaints made against her. This complaint would have been provided to the Board of Management before they were aware that the Complainant had progressed her concerns to the WRC, as her WRC complaint was received by the WRC on 31st May 2017. This complaint was considered by the Board of Management on 14th June 2017. The Board of Management also discussed the Complainant’s initial submission to the WRC regarding her terms and conditions of employment and her complaint that her bullying concerns had not been addressed.

The Complainant received no further response on these matters and she was invited to an exit meeting on 30th June 2017. Whilst I find the exit meeting was in order as it related to the natural termination of the Complainant’s contract in November 2017, it is clear that no formal progress was being made with regard to the Complainant’s grievance or her bullying complaint. Once a bullying complaint was submitted, the Respondent was obliged to process it in accordance with its Harassment and Bullying Policy and Procedure. Section 6.2.4 of the policy states that an immediate and thorough investigation would be conducted.

The exit meeting took place on 12th July 2017 and as the Complainant expressed her disappointment that her concerns regarding the alleged bullying behaviour and her grievance had yet to be dealt with. The evidence further supports that on 13th July 2017 the Complainant was informed that the board were prepared to deal with her complaint in accordance with the organisation’s grievance procedures only on the basis that she withdrew her complaint to the WRC.

I am therefore satisfied that whilst a number of staff issues were in progress, it was clear that the Complainant had raised a formal grievance about the roster on 27 February 2017, had raised a formal complaint about a member of staff on 8 March 2017 and had also raised a formal complaint against her supervisor on 26 May 2017. With the exception of attempting to set up a mediation between the Complainant and the employee in May 2017, the Respondent has failed to demonstrate it dealt with the Complainant’s grievance or bullying complaint in accordance with its obligations under the respective policies. It is also evident, as outlined earlier, that the Complainant made numerous attempts to progress matters but the Respondent’s response not only fell short of what a reasonable employer would do, but significantly it did not adhere to its own procedures, the very procedures the Complainant had sought to exhaust in attempting to address her concerns.

In July 2017 the Respondent progressed with the Complainant’s exit process and remained silent about her concerns during that meeting. At that point the Complainant again sought for her concerns to be addressed but was advised by the Respondent’s Board of Management that it would only deal with her complaint on the basis she would withdraw her WRC complaints. I find this approach to be entirely unreasonable, and an attempt by the Respondent to undermine the Complainant’s statutory rights. As such I find the acts and omissions of the Respondent to be a serious breach of the its obligations and under the circumstances it was reasonable for the Complainant to view it   as something that is so intolerable as to justify her resignation. Under the circumstances, and in light of the disregard the Respondent had for its own policies, I find the conduct of the Respondent was   without proper cause and where it is reasonable for the employee to conclude that it could no longer be expected to put up with it.

Decision:

CA-00011670-001 Complaint Under Section 7 of The Terms of Employment (Information) Act, 1994

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.

In accordance with Section 7 of the Terms of Employment (Information) Act, 1994 I find that the complaint is not well founded in that the roster was notified to the Complainant, and that the change was as a consequence of, inter alia, issues relating to the Complainant. The roster she was required to work with was in accordance with her contract of employment, and as indicated in the staff handbook.

I therefore do not uphold this complaint.

CA-00011670-002 Complaint Under Section 13 of The Industrial Relations Act, 1969

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have recommended the complaint is dealt under the Complainant’s subsequent Unfair Dismissal’s complaint.

CA-00012707-001- Complaint under Section 8 of the Unfair Dismissals Act, 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

For the aforesaid reasons, I find this complaint to be well-founded and conclude that the Complainant was unfairly dismissed by the Respondent.

Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded. Relevant to the case within, where compensation is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”

Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer; the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

As I have found the Respondent is entirely accountable for the breach in trust of the employment relationship by its failure to adhere to its own procedures in progressing the Complainant’s grievance and bullying complaint, I uphold that it contributed to the decision of the Complainant to resign and as such the Respondent’s behaviour amounts to a constructive and unfair dismissal.

As the Complainant’s contract was due to end on 5th November 2017, and she resigned her position on 13th July 2017, I consider it just and equitable in all the circumstances to award the Complainant 16 week’s pay (subject to any lawful deductions). This is the maximum award I can grant under the circumstances.

Dated:   17th October 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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