Complainant

Respondent

Anonymised Parties

Financial Controller

A Risk Management and Advisory Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00018740-001

26/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00018740-002

26/04/2018

The Complainant tendered her resignation in January of 2018. The Complainant says that this resignation was a Constructive Dismissal brought about by reason of the Respondent’s behaviour. The Complainant has brought an additional complaint under the Payment of Wages legislation claiming that a Bonus Payment was unlawfully deducted.

The Complainant was fully represented and gave oral evidence on her own behalf which was fully tested by the other side. The Complainant maintains that her resignation was brought about by the systematic diminution of her role (built up over 13 years) by a Management that appeared to address her concerns but which in reality she says were not open to addressing issues and instead sought to implement a policy of obfuscation and delay.

In resigning her position, the Complainant put in jeopardy her Bonus due and earned from 2017.

The Respondent denies it behaved in such a way that the Complainant was forced to resign her position. The Respondent did not see the need to implement a “cooling off” period.

I have carefully considered the evidence adduced herein. The Complainant is without doubt a highly competent and qualified Accountant and commenced her employment with the Respondent in 2005 (albeit in an earlier manifestation of the Respondent herein named) and worked her way into a position of Financial Controller by 2011. In 2015 there was a takeover (the last of several over the years) of her company and an amalgamation ensued. At the end of this process the Complainant reported to EMcG who ultimately is described as the Head of Finance who in turn reported to JC the Chief Financial Officer for the Respondent company in Ireland. I understand there could be up to 600 employees in this company.

The Complainant described her responsibilities which included financial reporting, financial planning, pay role, accounts payable regulation and statistics reporting. The Complainant had a direct responsibility for three members of her team. At the height of her progress the Complainant believed she had career prospects and was held in good standing.

The Complainant said that after the 2015 merger there was a certain amount of ambiguity around the specifics of roles and responsibilities. The merging of different financial teams was done without certainty. Job titles didn’t necessarily change, and roles and responsibilities were unclear. The Complainant’s own title stayed the same.

The Complainant said that she felt that there was a strain in the relationship between EMcG and JC. Her observation was that there might have been concerns around JC’s management style and that EMcG was not letting him manage autonomously. The Complainant said that under pressure EMcG became more hostile or aggressive towards her. The Complainant raised a complaint about this behaviour and an external mediation process was engaged with. Both EMcG and JC engaged with the process and all three of them signed an agreed outcome.

However, in the course of 2017 the Complainant noted that there was a diminution in her role. The Complainant she stated that the responsibilities which she had heretofore had control over were being allocated elsewhere e.g. pay role and budgeting forecasts. The Complainant was never given any rationale for this change. In all her years working with the Respondent the Complainant had never had negative feedback and she found the distribution of her work to be upsetting and demeaning as it was often going to unqualified Accountants. She raised the issue with both EMcG and JC but the implication was that she was not coping with her workload which had never before been an issue.

The Complainant formed the view that the mediation process had served to turn both her superiors against her and that the conflict between her and EMcG escalated inevitably.

In the summer of 2017 the Complainant was very busy working late and weekends. New systems were being implemented in the workplace. She got no credit for this demanding work.   Unexpectedly, an opportunity arose to go on secondment. JC put her name forward for this experience. The Complainant had the requisite Implementation experience. The Complainant was happy to be given such an opportunity (which involved working abroad) though was hurt that JC had indicated that of all of his team she was the one he could replace. The Complainant was due to head away in February of 2018 but in December of 2017 the global CFO cancelled the project and the secondment was not to proceed.

Clearly the Complainant was very disappointed not to avail of this opportunity which had the added benefit of removing her from a workplace which had turned increasingly difficult for her.

In a regrettable piece of timing EMcG requested a meeting with the Complainant within a few hours of being disappointed on the secondment. At that meeting in early December 2017, the Complaiannt was informed that her title was being changed from Financial Controller to Cost Accountant. EMcG purported to explain an entire new structure and how the office workplace would operate but the Complainant could see from the title change alone, that her job specification was changed utterly. She raised this with EMcG. She questioned why she had not been asked for her input into the new structure. She flagged that the team personnel being allocated to her were notoriously weak and had performance issues. In short, the Complainant believed that she was being specifically given a much narrower role. A significant part of her responsibilities were given to someone else. The Complainant felt this was a definite signal that she was getting pushed out of the Finance team. She sought the assistance of HR. In an email dated the 11th of December the Complainant outlined her issues to HR

The Complainant explained to HR that there had been a gradual re-structuring since 2016 and that she had been passed over and pushed out. The Complainant raised the issue of never having been asked about the re-structuring. The lack of job specifics was an ongoing issue. The Complainant pointed to the fact that she had experienced difficulty with EMcG in the past and been to mediation. Her role was being diminished and the fact of being described as a Cost Accountant after 6 years of being a Financial Controller was severely damaging to her career progression.

The indications from HR were that this re-structuring was a fait accompli. However, there was a meeting held with JH of Human resources. The Complainant outlined the issues. She told JH that she was not consulted and not communicated with regarding these changes – these represented a dilution and diminishing of her roles and functions. I note that despite the stated informality of the interview process at that time (as declared by HR), the Complainant was provided with a copy of the Grievance Procedure at this meeting.

With the intervention of Christmas, the next meeting was not held until January 2018. At that time JC was present alongside JH. JC sought to explain the situation. He conceded that there has been a restructuring process going back as far as 2016 as he sought to merge three different finance teams as well as their different processes and functions (e.g. Oracle). JC indicated that a wider finance team engaged in the process of coming up with the new re-structuring which was required. This often meant moving away from previously accepted norms which often gave rise to “key person” risks. The final decisions were made through London in November of 2017. JC confirmed that the Complainant continued after EMcG to be the most senior member of the local Financial and Reporting team. JC provided a rationale for the change in title and the fixing of functions, roles and responsibility and indicated that the Complainant continued to be a necessary part of the team.

The Complainant pointed out that even though a formal announcement had been made everyone had been informally told what their role would be though she still had no idea as to the specifics. The Complainant pointed out that she had been assigned two weaker members of the Financial team which suggested that she was going to struggle from the start. They disagreed ultimately on whether the re-structuring would provide the Complainant with development opportunities. In her evidence the Complainant said that she does not think that JC really took on board her concerns. In addition, the Complainant noted that her salary was remaining static and her ability to earn bonus was reduced. In time, the Complainant would come to see that this meeting had been a form of window dressing where her issues were allowed to be aired but without being fully taken on board.

I note that there was some disagreement on the question of whether EMcG had or had not been advised of these two meetings. The Complainant was ultimately happy for him to be put on notice and the series of email communications after the meeting (to clarify the notes of the meeting) tend to suggest that HR was open to a further meeting happening (Per email of the 11th of January).

There can be little doubt that the stress and concern that the Complainant was experiencing gave rise to a need to absent herself from the workplace to consider her position. The Complainant went out on stress leave. The Complainant indicated that while away from the workplace she gave some thought to her situation and believed that despite engaging with HR and indeed senior management that her concerns were not being addressed. On the 22nd of January, the Complainant wrote a letter of resignation and sent it to EMcG. To her mind EMcG was her line Manager and her resignation should be directed at him. The Complainant stated in her letter that the lack of transparency in the process which has led to her re-positioning within the company was a key issue for her. In addition, the Complainant also said that she had found JC to have been difficult and offensive in dealing with the issue once raised. The Complainant asserts a belief that her core concerns will not be addressed.

JH from Human Resources met with the Complainant and indicated that there were other options still open to the Complainant. The Complainant was advised that a formal Grievance option was available to her and she was told that she had yet to receive her job specification which had been agreed was to be given to her after the meeting with JC (the Complainant had been out sick in the interim).

On the 31st of January 2018 the HR Business Partner JH wrote to the Complainant stating that there were other options available to the Complainant. To continue the informal approach or to instigate the Formal Grievance process. The letter is interesting because it seems to be purposefully ambiguous on whether or not the Complainant was entitled to or should consider reversing her decision to resign. The only reference to the resignation is :

“As you tendered your resignation on your return to work on the 22nd of January, we never got an opportunity…”

Mr. H conceded that he never explicitly stated that she could and should withdraw her resignation as such a valued member of the team (an expression repeatedly used by management and HR). In fact, he gave evidence that EMcG commentedwhen receiving the letter of resignation that she had never been happy and it was no great surprise. This evidence was of course hearsay. Mr. H said he felt he had no authority to reverse the decision to resign. To my mind, the HR expert has intentionally shied away from allowing the Complainant to withdraw her resignation although the continued engagement in either process (formal or informal ) would surely imply that a   withdrawal of the resignation would make sense, if any ongoing interaction was to have any point?

There followed an unusual period of engagement. The Complainant having resigned her position was staying on to work out a considerable notice period of three months. I accept that that this period must have been extremely difficult for the Complainant. In her evidence, she said that JC turned actively hostile towards her in these weeks. She explained to her HR Manager that she felt “intimidated”. The Complainant had no comfort and was working under stress and emotion.

HR had accepted that the Complainant could trigger a Formal Grievance which she was minded to do. HR has not signified the point of this exercise where it had not asked the Complainant to at least re-consider her resignation. This would be little more than allowing a “cooling off” period to apply – I am quite clear that the concept of a “cooling off” period is well recognised in HR Management and is particularly applicable in case of Constructive Dismissal.

The Complainant had a meeting with JH on the 14th of February at which she was advised that only a very limited number of people were being considered for the role of investigator in any formal grievance being brought. The Complainant, quite rightly queried this in circumstances where all the proposed names were colleagues of JC against whom her proposed Grievance was being brought. On this last point I am inclined to agree with the Complainant. In an international company with the depth of personnel available to it, it is inconceivable that HR would refuse to look elsewhere (e.g. London) to find someone to conduct a workplace investigation.

On balance, I am of the view that whilst the Complainant may have been somewhat pre-emptive in resigning her position – we will never know for example if her proposed new role would be satisfactory – the actions of her employer up to that point and the subsequent actions of the Employer make me believe that the Complainant had in fact done exactly what it was probably hoped that she would do. The subsequent actions of her Employer (through the HR department) tend to suggest that the Complainant was right to have felt that she was being pushed aside. The shutters came down once the resignation was in.

In her evidence, the Complainant linked her treatment (of having her career prospects derailed) with the fact of having previously forced her line management to engage in a mediated process with her. I cannot say for sure whether this is true or not, but can see that the linkage is tempting. I note neither of the two line-managers presented themselves to give evidence.

In assessing loss, it should be noted that I am including the loss of the bonus as a loss of remuneration as envisaged by the Unfair Dismissals legislation. I am also noting that the Complainant was back in full time employment within three to four months at a slightly reduced annual income.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00018740-001

I accept that the Complainant was Unfairly Dismissed by reason of a Constructive Dismissal situation having arisen. I award the Complainant the sum of €28,625.00

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 -CA-00018740-002

I make no finding under this Act in circumstances where the alleged deduction has been included in the figure awarded under the Unfair Dismissals legislation.