Complainant

Respondent

Anonymised Parties

A Receptionist

A Guest House

Representatives

Jamie Sherry, Miley & Miley Solicitors

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-00026608-001

27/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00026608-002

27/02/2019

In October 2009, the complainant started work in the house-keeping section of the respondent’s guest house.   She worked three days a week for seven hours each day. In April 2018, she moved to a job on reception, and she continued to work three days a week. She earned €10 per hour on reception, which was the same as her hourly rate in house-keeping.

The complainant resigned on February 18th 2019. She claims that she had to leave her job due to bullying, the failure of her employer to provide a safe place of work and the failure of her employer to control other employees who, she says, engaged in bullying. She also claims that her employer did not comply with the Code of Practice of the Health and Safety Authority on the Prevention and Resolution of Bullying at Work. She complains that this was a constructive dismissal and, in accordance with section 7 of the Unfair Dismissals Act, she is seeking redress of compensation.

In respect of her complaint of discrimination, the complainant alleges that she was discriminated against on the grounds of her gender, family status, disability and race.   She said that this discrimination consisted of the general manager’s efforts to demote her from her job on reception and his refusal to reimburse her for her taxi fare when there were no early buses available to get to work for her 8.30am start on the public holiday on January 1st 2018.

Background to the Complainant being Absent from Work from August 3rd 2018

In April 2018, when she moved to her job on reception, the complainant said that she worked on Fridays, Saturdays and Sundays, from 8.30am until 3.30pm. On June 10th, following a meeting with the company director, who I will refer to as “CD,” she said that she agreed to change her Friday shift to Thursday, and from then on, she worked on Thursdays, Saturdays and Sundays. Twice in June 2018, the complainant said that that two employees on reception tried to change her days. As she has three children, the complainant said that she couldn’t re-arrange childcare at short notice and she refused to change her roster. She put a note to this effect in the reception diary and she complained to CD. At a meeting with the reception supervisor and CD on June 19th, she said that CD confirmed that her days were fixed as Thursdays, Saturdays and Sundays and he apologised for the upset caused by the staff who had tried to change her days.

A few weeks later, on July 27th, on one of her days off, the complainant said that she got a voicemail message from the general manger, who I will refer to as “GM,” telling her that she would have to do two more shifts on reception.   She said that GM said that if she didn’t work the extra shifts, he would have to think about moving her back to house-keeping. The complainant said that she phoned CD when she got this message and he told her to ignore GM.

On July 30th, the complainant said that she got a text message from GM asking her to attend a meeting on Thursday, August 2nd, when she was back in work. She said that she was anxious waiting for this meeting, but, on the day, GM didn’t show up, although CD was there. It appears from the evidence that nothing emerged from this meeting. The following day, the complainant gave CD a medical certificate and a letter complaining about how she was being treated by GM. She said that she attended her GP due to feelings of anxiety which she said, were caused by the way GM speaks to her. In her letter, she said that in May 2018, GM asked her to attend a training course for reception which was on one of her days off.   She said that he threatened that she would have to go back to house-keeping if she didn’t go to the training course. She also referred to GM’s voicemail message on July 27th, when he also threatened that she would be moved back to house-keeping. The complainant’s medical certificate stated that she was suffering from “work-related stress and depression.”

Management of the Complainant’s Grievance

With she got no reply to her letter of August 3rd, the complainant sent an e-mail to CD on September 17th. In her mail, she referred to an incident the previous January, when GM refused to reimburse her for her taxi fare to work on New Year’s Day, when there were no early buses. She also referred to the voicemail message from GM where she said that he said she would have to go back to house-keeping if she didn’t work extra shifts. As a result of this treatment, the complainant said in her e-mail that she felt “emotional and restless at work” and she asked for CD’s response.

One minute after she sent her e-mail to CD on September 17th, she received a mail from GM in which he said:

“I refer to your doctor’s cert that you submitted on the 24 August informing me that you will be returning to work on the 21 Sept.   If you have to extend this period kindly inform me a few days in advance so I can amend the roster. You are rostered to work for bedroom duties on the 21 Sept. Your suitability as a receptionist will be further assessed on an ongoing basis and will be dependent on regular reports from your doctor in relation to your ‘work related stress.’”

On September 20th, the complainant wrote to CD again. She said that as a result of the e-mail referred to above, it was clear that CD had done nothing about her complaint about GM’s treatment of her.   She said that she would not return to work until the situation was resolved.

On October 2nd, CD replied and asked the complainant to clarify if she wished to initiate a grievance. He said that he instructed GM not to communicate with the complainant. On October 10th, the complainant replied seeking “immediate action towards the resolution” of her complaint about GM’s treatment of her.   On October 13th, as the first stage of the grievance procedure, CD asked the complainant to set out her grievance in writing. She did this in an e-mail on October 23rd. The following is a summary of the issues that the complainant said resulted in her being absent from work due to stress:

1. The taxi incident on January 1st when GM refused to reimburse her for her taxi to work;

2. At the end of March 2018, it was agreed that the complainant would move to reception, but she said that GM didn’t put her on the roster for five weeks. She described this as “malice and animosity on his part.”

3. In the Spring of 2018, a training course for receptionists was arranged and the complainant was asked to attend. The training was on a day that the complainant was not rostered to work. She said that she explained to GM that she would attend the training if she could get childcare, and she said that he reacted “with a series of threats” that she would be demoted from reception if she did not attend.

4. In June, the complainant said that on two occasions, she had to leave a note in the reception diary asking people not to change her rostered days. On July 27th, GM left her a voicemail and threatened that she would be moved back to house-keeping if she didn’t do two extra shifts. She referred to the meeting on August 2nd when GM didn’t turn up.

On October 25th, CD replied to this e-mail and asked the complainant if they could arrange a call to decide on a place and date to meet to discuss her grievance.   A meeting took place in the Gresham Hotel in Dublin on November 1st 2018. Following this meeting, on November 14th, CD wrote to the complainant. He said that he intended to meet GM to get his side of the story and that if he was not satisfied with GM’s response, he may “advise management to look at starting a disciplinary investigation.”   He told the complainant that GM was out sick and unable to attend a meeting “for the foreseeable future.” In the e-mail, CD explained how he intended to proceed:

“1. You will report directly to me going forward.

2. If and when this staff member returns, we will need a Certificate from his doctor confirming his capacity to come back to work. Once that is received, I shall meet with him to discuss your claims.   He will not come back to work without me having had an opportunity to meet with him.

3. I note that the grievance is outstanding and I agree to address it in any manner which I can reasonably do.

I should say the above is in relation to the conduct allegedly perpetrated by this staff member.”

On November 19th, the complainant asked for a copy of the company’s grievance procedure and she looked for some indication of when the investigation into her grievance would be concluded. On November 26th, CD replied that it wasn’t possible to move forward due to GM’s absence and that he didn’t know when he would return. He said that when she returned to work, that she would report directly to him and, referring to GM, he said, “under no circumstances would you be meeting with him in the employment environment without bringing some finality to your grievance.”

On December 2nd, the complainant wrote to CD as follows:

“I note from your e-mail that the grievance procedure appears to be in motion. Can you please provide me with the details of the procedure, including stages and timeline, so that I can have a full understanding of the process? It is with a huge regret that I will not be able to return to work without the outcome of the process.”

In her e-mail, she provided details of her loss of earnings and her loss of Family Income Supplement due to being out of work. She claimed reimbursement of a total of €6,815.

An e-mail from CD dated December 11th was produced in evidence at the hearing.   In this e-mail, CD informed the complainant that GM had ceased employment with the company and that no further action could be taken with regard to the investigation into her grievance. The complainant said that she never received this e-mail. On December 14th, CD wrote to the complainant as follows:

“Apologies for the delay. I am checking your calculations with our accountant and I expect him to come back to me later today or Monday at the latest.

“I don’t wish to put you under any pressure but for rostering reasons you might let me know the date of your return.”

The complainant replied on December 18th:

“Referring to your question about putting me back on the roster, I really appreciate the knowledge that you will be happy to have me back. However, without the full protocol and the outcome of the grievance procedure unknown, I am not able to confirm the date of my return. I was once again issued with a doctor’s certificate on 13th December (certificate attached). I thank you again and look forward to hearing from you.”

On January 2nd, the complainant wrote again and informed her employer that she had a miscarriage just before Christmas. She alleged that this was due to “a number of events that occurred in the workplace since January 2018.” She claimed reimbursement of losses of €8,880, including a bonus of €100 which she heard was given to other employees at Christmas. She got no reply to this e mail and on February 4th, she submitted notice of her resignation with effect from February 18th. She explained the reasons for her decision as follows:

§    Continuous bullying in the workplace;

§    The employer failed to provide a safe place of work;

§    The employer had no control over employees who bullied and discriminated against others and caused a risk of stress at work;

§    On-compliance with the Code of Practice on the Prevention of Bullying at Work;

§    Suffering physical and psychological illness as a result of negligence;

§    Failure of the employer to respond to e-mails and no contact form December 14th 2018;

§    Loss of earnings and medical expenses.

On February 13th, CD wrote to the complainant offering to meet her and asking her to re-consider her resignation.   She replied the following day and requested her P45, P60 and a reference.

The complainant said that she started a new job on May 27th 2019.

In his evidence at the hearing, CD said that when he received the complainant’s letter of August 3rd, he didn’t think that this was the start of a grievance process. Following receipt of the complainant’s e-mail of September 20th, on October 2nd, he asked her to clarify her intentions. A meeting took place on November 1st and CD said that he listened to what the complainant had to say about her treatment by GM and he said that he would speak to him. GM was then absent due to illness and, then, his employment was terminated. CD said that informed the complainant about this on December 11th, but the complainant said that she didn’t get this e-mail.

For the respondent, Mr Sherry said that the first time CD became aware that the complainant had an issue with GM was in her letter of August 3rd 2018. From that date on, she was out sick. CD said that the complainant was a good employee and that he wanted her to come back to work. Following their meeting on November 1st 2018, it was clear to CD that what was preventing the complainant from returning to work was her relationship with GM. On November 14th, CD gave the complainant a written undertaking that she would not report to GM on her return, and that GM would not come back to work until her grievance was resolved.

In his evidence, CD said that the grievance initiated by the complainant could not be concluded because the person that she alleged was causing her stress was no longer employed. CD held the complainant in high regard and asked her to re-consider her decision to resign. She already had an undertaking, from June 2019, that her days at work were fixed, as Thursdays, Saturdays and Sundays. From December 2018, when GM left the company, there was no impediment to her returning to work. For these reasons, it is the respondent’s case that the complainant’s claim of constructive dismissal does not stand up.

Constructive Dismissal

The definition of dismissal at section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract without giving prior notice of the termination to the employer…”

The issue for decision in this case, is, taking into consideration the conduct of the respondent in relation to this former employee, and considering how her grievance was addressed, was it reasonable for her, or was she entitled to terminate her employment?

Examination of the Evidence

The move from house-keeping to a job on reception was a positive change for the complainant.   In her evidence, she said that her background is in accounting and it was important to her to move to working with a computer, rather than cleaning rooms. She said that she could only accept the move if she could work the same three days a week, although in June 2018, she agreed to change from Fridays to Thursdays.

It is apparent that the complainant’s relationship with GM was poor. Her impression was that he didn’t like her because she stood up to him in January 2018 over her claim for her taxi fare. It seems that GM knew that the job on reception was significant for the complainant, and, although he wasn’t called to give evidence, my impression is that, on three occasions, he used her desire to work in reception to intimidate her. From the evidence of the complainant, I note that on the following occasions, GM threatened the complainant with moving back to house-keeping:

May 2018 – when he told her that she must attend the training on her day off;

July 27th – when he left a voicemail telling her that she must work two extra shifts each week;

September 17th – when he wrote to the complainant and said that on her return to work, she would be rostered for bedroom duties and that her “suitability as a receptionist will be further assessed on an ongoing basis and will be dependent on regular reports from your doctor in relation to ‘work-related stress.’”

From the evidence, it is apparent that the complainant had a good relationship with the company director, CD. When she complained to him in June about the two occasions on which another employee tried to change her roster, he met her and confirmed that her shifts were fixed.   In her evidence, she said that when she got the voicemail from GM on July 27th telling her that she had to work more shifts, she phoned CD and he told her to ignore the message.   In the course of the investigation into her grievance, CD reassured the complainant that she reported directly to him and that she would not have to interact with GM until her grievance was resolved.  

While it is clear from the evidence that, as an employee of more than 10 years, the complainant was well-regarded by CD, his response to her letter of August 3rd lacked a sense of urgency, or any indication that he intended to deal with her complaint efficiently. Seven weeks after she gave CD her letter complaining about GM, she had no reply and she sent a follow-up e mail on September 17th. It is incredibly coincidental that one minute after she sent this mail, GM replied, telling her that she was rostered for bedroom duties on her return to work.

When CD eventually replied to the complainant, he did so on October 2nd, and said “you never sought to invoke the grievance procedure.” On three occasions, November 19th and December 2nd and 18th, the complainant asked for a copy of the grievance procedure, but this was not provided to her and a copy was not provided at the hearing. How could she be expected to invoke the grievance procedure when she never had sight of it?

Any reasonable person would interpret from the complainant’s letter of August 3rd that she was making a complaint and that she wanted it to be investigated.   However, on October 2nd, CD asked the complainant was asked to put her grievance in writing, which she did again on October 22nd.   Eventually, CD arranged to meet her on November 1st. There was no formal invitation to this meeting, no advice to be accompanied and no indication of where the meeting sat in the grievance procedure. The outcome from the meeting was constructive however, and on November 14th, CD wrote to confirm that the complainant would report directly to him on her return, that GM was out sick and that he would not be permitted to return to work until her grievance was resolved.

Although it appears that someone drafted an e mail on December 11th to tell the complainant that GM was no longer employed, I doubt that this was actually sent. I make this comment because the copy of the e-mail submitted in the respondent’s book of papers contains no details of the “sent” information. This purported e-mail has no reference to the complainant’s claim for reimbursement of her losses that she set out in her mail of December 2nd, whereas the e-mail of December 14th is a clear response to this claim. In the mail of December 14th, CD made no reference to his e-mail of December 11th, which contained the important detail that GM was no longer employed.  

The Reasonableness of the Employee’s Decision to Resign

The issue I have to consider is if the conduct of the employer in this case was such that it was reasonable for the complainant to resign and to claim that she was constructively dismissed. Many years of case law on constructive dismissal point to the requirement for a complainant to show that the conduct of the employer must fail at least one of two tests, the contract test and the reasonableness test.

More than 40 years ago, in the English case of Western Excavating (ECC) Limited v Sharp [1978] (IRLR 332), Lord Denning concluded;

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance.”

In her letter of August 3rd 2018, the complainant wrote that in October 2009, she signed her contract for part-time employment “which was for 3 set days.” I am satisfied that, in respect of her requirement to work three days a week, and, in relation to all her other entitlements, there was no breach of her contract such that the complainant was entitled to discharge herself from her job.

In the Labour Court case of Caci Non-Life Limited v Daniela Paone [2017] UDD 750, the chairman, Mr Haugh stated:

“It is well-settled law that a complainant who is advancing a claim of constructive dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective.”

It is clear that the cause of the complainant’s stress was GM, and particularly, the fact that on three occasions, he threatened that he would move her back to house-keeping from her job on reception. Although it is unlikely, in my view, that the complainant got the e-mail of December 11th in which CD informed her that GM was no longer employed, I am satisfied that she knew from her colleagues that he was gone.   In her evidence, she said that she knew this from “hearsay.” As she had a positive relationship with CD, and, as he supported her need for a fixed roster, there was no impediment to her returning to her job on reception.  

I find that, in his management of the complainant’s grievance, GM lacked commitment to dealing with the matter within a reasonable timeframe. I also find no evidence of the existence of a grievance procedure that could have provided clarity to the complainant about how her complaint should have been managed.  

it is my view that, while the employer’s approach to dealing with the complainant’s grievance was imperfect, it was not so fundamentally flawed that she could have not have confidence that she would be treated with dignity and fairness in the future.

Conclusion

I accept the complainant’s evidence that she was upset because of the way she was treated by GM.   I find that it was reasonable to be upset, but not reasonable to resign. The complainant had the support of CD before she went out sick, and, afterwards, although somewhat belatedly, CD initiated in investigation into her complaints. The investigation could not proceed because the protagonist was no longer employed.

The fairness or otherwise of every dismissal is adjudicated on by reference to the substantial cause and the procedural correctness. While I have found that it was not reasonable for the complainant to resign from her job and to claim that she was constructively dismissed, it is my view that, if she had received a copy of a grievance procedure and, if CD had treated her complaint with more urgency, she may not have resigned.   On this basis, I must conclude that, due to the procedural failings on the part of her employer, the complainant’s dismissal was unfair.

The complainant said that, following her resignation, she started a new job on May 27th 2019. She was unemployed therefore for 14 weeks. In accordance with section 7 of the Unfair Dismissals Act, I decide that the respondent is to pay the complainant compensation of €2,940, equivalent to 14 weeks’ pay. As this award is compensation for loss of earnings, it is subject to the usual statutory deductions.

On her complaint form, the complainant said that she was subject to discrimination because she is a Polish single mother of three children. In this respect, she claims that she was discriminated against on the ground of her Polish nationality.

The complainant said that her fixed working days were changed and she was required to work additional days. She said that she was threatened with demotion from reception if she didn’t work extra shifts and that this conduct, when her employer was aware of her family circumstances, is discrimination on the ground of her family status.

In respect of her entitlement to a refund of her taxi expenses on January 1st 2018, the complainant said that she was treated differently to Irish employees.

When she was absent due to stress, her correspondence was unanswered and she said that her absence due to illness was an inconvenience. She claims that this treatment was discrimination on the ground of disability.

On her complaint form, the complainant also alleged that she was discriminated against on the ground of her gender. When she was asked about this at the hearing, she suggested that because GM is gay, he doesn’t understand what it’s like being a woman with children.

At the hearing, I asked the complainant why she thought she was discriminated against under all of these headings. She referred to the incident in January 2018, when GM refused to reimburse the cost of a taxi fare from her home to work. She said that, when she asked about the money for the taxi, GM told her that there was a bus from where she lived and, if she had taken the bus, she would have been just a few minutes late. The complainant said that she went to the Dublin Bus office in O’Connell Street and got a copy of the timetable for public holidays. This showed that the first bus was at 9.00am and that she would not have been at work until at least 9.30am which would have made her one hour late.   She said that presented this information to GM and from then on, he knew that she was “strong” and that he didn’t like when she stood up to him.

In his evidence at the hearing, the company director, “CD,” said that 40% of his employees are not Irish, and that each person is treated with respect.

In respect of the issue with the taxi refund, on behalf of the respondent, Mr Sherry said that this incident occurred in January 2018 and the complainant did not bring it to the attention of CD until she set out the details of her grievance in October.   At the meeting on November 1st in the Gresham Hotel, CD agreed to refund the complainant the cost of her taxi, which he said, should have been refunded in January by GM.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, she has been treated less favourably than her colleagues in respect of her nationality, family status, disability and gender.

The Primary Facts

The primary facts of this complaint relate to the difficulties in the relationship between the complainant and GM. These difficulties, according to the evidence of the complainant, resulted from the fact that she challenged his refusal to reimburse her for the cost of a taxi fare on January 1st 2018. In her evidence, she claimed that GM “treated me badly because I showed that he was lying.”

The complainant produced no evidence to show that she has, or had, a disability. She was out sick and she said that it was a result of work-related stress.

Conclusion

I refer to the Labour Court appeal of Graham Anthony & Company Limited against the decision of the Equality Officer in respect of the complaint of Mary Margetts, EDA 038.   This was a complaint by Ms Margetts that she was discriminated against on the grounds of her marital status, her family status and her age; however, the point made by the Chairperson of the Court, Ms Jenkinson, is relevant here:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

Having examined the primary facts adduced by the complainant, it is my view, that, they are inadequate to show that, on the balance of probabilities, she was discriminated against on any of the grounds alleged. For this reason, the burden of proving the absence of discrimination does not shift to the respondent.

As I have concluded that the complainant had not established the primary facts which show that she was discriminated against on the ground of her gender, I have decided that this complaint is not upheld.