Complainant

Respondent

Anonymised Parties

Credit Controller

A Financial Service

Representatives

Damien Keogh Independent Workers Union

Rosemary Mallon B.L. instructed by Whitney Moore Solicitors Whitney Moore Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00015758-001

13/11/2017

The Complainant was employed by the Respondent as a cash allocator/cash controller from 1st February 2012 until 18th July 2017. She was paid €28,500 gross per annum. She is claiming that she was constructively dismissed.

The Respondent denies that the Complainant was constructively dismissed.

The Complainant said that she made a complaint about bullying and harassing behaviour against her team leader manager. She said that since the Team Leader was appointed in 2012 she was subjected to bullying behaviour from her particularly at times when the TL was under pressure. She said she reported this behaviour to her manager multiple times over the years.

The complainant said that she was out on certified sick leave almost monthly as she was suffering from migraines. Her Team Leader (TL) called her in and behaved in an aggressive manner towards her and raised her voice because of her sick leave. She was also accused of being late and wasting time at work. She said that she found it extremely hard to respond without shouting over her. She said that she left the meeting in tears and reported the incident to her manager. She told her manager if she was ever subjected to this treatment again that she would leave. The manager was surprised at the TL’s behaviour and suggested that she needed to do people management skills. She said rather than resolving the issues this led her to being singled out for unwarranted attention.   She said that she was given permission by the previous manager to leave a little early in the evening to catch the bus, but this was withdrawn by the TL and she was prohibited from leaving early. She said that the bullying and harassment continued with her TL constantly shouting at her and she always had a negative attitude towards her.

The complainant said that she went out sick around January 2017 suffering from stress some of which related to the work situation. She requested to work from home for a period of time. Following a meeting with her TL and her Manager she was told that she would be allowed to work from home one day per week for the month of February, but this offer was not acceptable to her, and she refused it.

The complainant said that she returned to work full-time on the 27th March 2017. A back to work plan was put in place by her manager and HR. She was informed that she would be keeping only a few of the tasks that she performed before her sick leave. She was told it was to help her with her return to work after sick leave. She said that she was unhappy with her treatment by TL who continued to be angry and aggressive towards her. She was also unhappy with the way the work was organised and the fact that a lot of her tasks were taken away. She asked her Manager when she would get her full range of tasks back, but she was told that management would decide. She had a meeting with HR at which she raised issues about her treatment by TL. She was asked by HR if she wished to raise a formal complaint and following the meeting the Complainant decided to put her complaint in writing.

The Complainant said that she asked her trade union to represent her with her complaint, but the Respondent refused to allow her to bring her union to the investigation meeting, but she could bring a work colleague with her.   This was not acceptable to her and for this reason she did not attend any meetings with the Investigator.   She received a copy of the report of the outcome of the investigation, but none of her complaints were upheld.   She was offered a right to appeal but she believed it would be futile to appeal given that she was not allowed to bring her union representative.

The Complainant said that following her complaints about TL, she was reporting directly to the Manager instead of the TL. She was doing monthly reports but the information she needed was not entered on the system. This work was the responsibility of other members of the team and she was unable to give the Manager a date for the completion of the report. She said that she then received an email from her Manager which she regarded as scolding her for the mistakes that had been made by other members of the team. She said that usually she had friendly exchanges with her Manager, but the tone of this email was very different. She said that given the bullying and harassment she experienced and the fact that most of her tasks were taken away from her that this email was the last straw and she decided to resign.   She emailed her Manager on the 118th July informing him of the reasons for her resignation.

The complainant commenced employment as a cash collector and initially she worked in a stand-alone role. Another employee was switched to her area and they both got on well together.     This employee went on maternity leave in November 2016 and the complainant was again working alone until another employee was appointed in February 2017. On the 16th January 2017, the complainant went on sick leave and submitted a medical certificate stating she was suffering from stress due to a few reasons including pressure at work.

On the 31st of January 2017, the Complainant met with HR and she indicated that she wanted to work from home because she was feeling stressed due to factors outside work. It was agreed to set up a meeting with her managers to discuss this request. The complainant met with her manager and the Team Leader, but she was dissatisfied with the options offered to her and she left the meeting saying that she had no option but to call in sick. HR wrote to her on the 31st January 2017, offering her the option of working from home for one day per week in the month of February and referring her to Employee Assistance Programme.   In her response, the Complainant rejected the offer and referred to a number of issues which was causing her stress including issues at work.

The Complainant was on sick leave from the 13th of February 2017 to the 24th March 2017. The Complainant had indicated that she found the operational part of her role somewhat boring. The Respondent, taking this fact into account and the fact she was returning from stress related sick leave, and did not want to overload her on her return to work, decided that she should concentrate on analysis and reports to management work, and that she would have less involvement in the operational part of the work.

The Complainant’s Team Leader informed her of the changes to her work on her return for sick leave and the reasons for the change. She was unhappy with the changes and she raised the matter with the Manager. In response the Manager told the Complainant that the reason for changes and the reorganisation of the tasks was to relieve her of the extra workload because she had complained that the work was the cause of her stress. The reduction in her tasks was to help and support her in returning to a manageable work environment.

On 7th April 2017, the Complainant had a meeting with HR at which she outlined several grievances. She was asked if she wished to raise a formal grievance.   She indicated a number of days later that she wished to raise a formal complaint against her Team Leader and that she wished to have her union present at any further meetings. Her union then wrote to the Respondent stating that the Complainant wished to raise a bullying and harassment against her TL and she put her complaints in writing on the 18th April 2017. The Complainant was informed that she was not entitled to trade union representation at the investigation meetings as it was not in line with procedures, but she was entitled to be accompanied at the formal stage of the process by a work colleague.

An investigator from HR was appointed to investigate the complaints of bullying and harassment. Management decided that the Complainant would report directly to the Manager rather than TL, during the course of the investigation. The Complainant refused to attend any of the meetings in relation to the investigation of her complaints because she was not allowed to bring her union. The investigation proceeded, and several employees were interviewed. Her complaints of bullying and harassment against her TL were not upheld and the outcome was communicated to her in a letter dated the 24th May 2017.   The investigator recommended that the Complainant should continue to report to the Manager where possible.   The union objected to the outcome of the investigation and the fact that the Complainant had been denied union representation at the investigation meetings.

In July 2017 and issue arose with the Complainant in relation to deadlines for reports not being met and it was raised with her by the Manager. In an email dated the 17th July 2017, the Manager raised his concerns with the Complainant. He told her that she was not engaging with the rest of her colleagues to identify when she would have all the necessary information from the team so that she could write the report.   The Complainant responded on the 18th July 2017, stating inter alia that she was resigning. The Manager responded accepting the resignation.

It was submitted that the burden of proof is on the Complainant to establish that either (a) she was entitled to terminate her employment due to the breach of a fundamental term of the contract of employment or (b) the actions of the employer were so unreasonable that it was reasonable for her to terminate her employment without notice.

It was submitted that there was absolutely no fundamental breach of a term of the contract of employment. Furthermore, it was submitted that the actions of the respondent were always reasonable. The Respondent investigated the Complainant’s grievances even though she would not meet the investigator. Despite the fact that the Complainant’s complaints were not upheld, she continued to report to the Manager as opposed to the TL.

It was submitted that the Complainant’s letter of resignation clearly illustrates that she did not resign because of alleged bullying. She resigned because she was unhappy with a direction given to her by her Manager and this does not satisfy the test for constructive dismissal.

The matter I must consider is whether the complainant was constructively dismissed as she resigned from the employment. Section 1(b) of the Unfair Dismissals Act 1977 defines dismissal as:

“dismissal”, in relation to an employee, means—

…….

(b) 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 of employment without giving prior notice of the termination to the employer,”

The matter I must consider is whether the complainant was constructively dismissed as she resigned from the employment. Section 1(b) of the Unfair Dismissals Act 1977 defines dismissal as:

“dismissal”, in relation to an employee, means—

(b) 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 of employment without giving prior notice of the termination to the employer,

In relation to considering whether the conduct of the employer was in breach of the contract of employment, the judgment in Berber v Dunnes Stores Limited [2009] IESC 10 is the authority. The Supreme Court held that the test for whether the conduct had breached the implied term of mutual trust and confidence in a contract of employment is an objective one. Finnegan J. held:

“1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.”

The Labour Court in the case of Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, endorsed the legal test in respect of constructive dismissal as set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. The ‘contract test’ is set out as follows: “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 as discharged from any other performance.”

The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.” According to the Supreme Court in Berber cited above, “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 to determine if it is such that the employee cannot be expected to put up with it.” Therefore, this definition places the burden of proof on the employee to show that her resignation was justified in all the circumstances.

The Complainant put forward a number of reasons for her resignation including that she was bullied and harassed by her TL; that her tasks were taken away on her return from sick leave and that she got an email from the Manager which she alleges scolded her for not providing information to senior management about a report she was preparing.

I note that the complainant raised grievances with the respondent concerning alleged bullying and harassment by her Team Leader through the formal procedures. The Respondent carried out an investigation in which the Complainant did not participate, and the complaints were not upheld. The complainant was offered a right to appeal but she declined because she could not have her trade union present at the investigation. It is difficult to know what further action the Respondent could have taken in relation to the allegations if the Complainant did not cooperate with the investigative process. I note that the Respondent changed the Complainant’s reporting structure to her Manager after she lodged the complaint against her Team Leader and this reporting arrangement continued after the outcome of the investigation. I am satisfied that the Complainant’s complaints were dealt with appropriately and in accordance with the procedures and there was no evidence put forward by the Complainant that she was subjected to any further bullying and harassment after this.

The next reason for the Complainant’s resignation related to the change in the volume of work allocated to her. The complainant was on stress related sick leave which she indicated which was due to work and personal issues and was seeking to work from home. She turned down an offer to work from home for one day per week for a month. Management then decided to reduce the Complainant’s workload on her return to work. I am satisfied that there was no ulterior motive in reducing the Complainant’s tasks other than to ease her back to work after a period of sick leave. This action cannot be considered as conduct by the employer which would justify the Complainant.

The final matter which led to the Complainant’s resignation concerned an email from her Manager regarding progressing a piece of work for which she was responsible.   The complainant said that the email was scolding her for matters which were not her responsibility and upon receiving it she resigned. The Manager evidence was that the purpose of the email of the 17th of July was to advise the Complainant she needed to interact with the team including the Team Leader to ensure she had all the information necessary to complete her report. I am satisfied that the Manager has every right to request an employee to carry out her tasks in accordance with the obligations of her role as an employee. I cannot accept that the contents of this email could be in any way be construed as conduct which breached a fundamental term of her contract of employment. Furthermore, it was not reasonable for the Complainant to resign in the circumstances.

I am satisfied therefore that the evidence tendered by the Complainant to justify her resignation fails to meet the either the ‘contract’ or the ‘reasonableness’ test as set out in the jurisprudence cited above. I find that the Complainant was not constructively dismissed.

I find that the complainant has failed to establish that she was constructively dismissed.

Unfair Dismissals Act, 1977, Constructive Dismissal