Complainant

Respondent

Anonymised Parties

A Supervisor

A Contract Cleaning Provider

Representatives

Michael Roche                                              MR Consultants

Rory Traynor                                        Peninsula

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-00026848-001

06/03/2019

The Complainant issued a Workplace Relations Complaint Form on the 6th of March 2019 some two weeks after her employment with the Respondent was terminated

The Complainant’s case is that the Respondent conduct was so unreasonable so as to give her no option other than to resign her position.

The Respondent says that the Complainant’s decision was entirely voluntary and formed part of an agreed course of action reached between the parties in an amicable way.

I have considered the evidence I have heard in the course of this hearing.

The complainant came into the employment of the respondent company as a result of a transfer of undertaking situation where the contract for the cleaning of the building in which the complainant was a contract cleaner was won by the respondent company. I note that the complainant had in fact built up about 12 years of service working in the field of contract cleaning as she was subjected to a series of transfers in the manner which led eventually to her employment with the respondent.

The respondent company engages up to 130 contract cleaners and pitches for contract cleaning work across the city. It is accepted by everyone that the complainant was particularly good at her work she was efficient and thorough, and it was not long before her employer singled her out for promotion to the status of supervisor. There is no evidence that the complainant was up-skilled in any way when taking on this new role. She was, it seems, expected to be able to manage up to 30 or 40 employees across a number of sites in the city without any particular training in the area of personnel management.

Despite having a considerable number of employees – 130, the respondent company does not have a permanent HR manager or any other personnel carrying out the HR function. I understand that the   company engages the services of a third party Consultancy firm from time to time. However, when here are so many employees it is hard to see how this ad hoc arrangement can suffice with the daily need to manage a large and fluid workforce. Clearly the presence of an in-house HR person may have helped avoid the breakdown of this relationship.

The respondent was represented at the hearing by one of its Co-directors a Mister S. I do not doubt that he thought highly of the complainant, however in his evidence he said he found that he needed to keep talking to her about the level and standard of work she was getting out of her staff.

Mister S said that sometimes clients would complain that they weren't getting the service they'd been promised by Mister S on behalf of his company. Sometimes Mr. S would take photos of areas already covered by the Complainants team and raise issues with the complainant telling her in effect that she would have to push her staff harder. Again I come back to the point that I do not see how the complainant could necessarily be expected to have management skills The Complainant had not been given any additional training when she was promoted, She was ill-equipped to know how to get the best out of her work force. The fact that she was so able and conscientious herself, did not of necessity mean that she could get that high-quality out of others. I am also conscious of the inherent difficulties of managing staff remotely across several sites and where the staff are not selected by her and where staff tend to come and go in a fluid industry.

In her evidence, the complaint said she was also finding it incredibly difficult to juggle her home life with the expectations of the job. She was contracted to work 40 hours a week but invariably ended up doing payroll and other tasks during her free time at the weekends and that this was affecting her family life. The Complainant also felt she was missing out on her children when she couldn't collect them from school and spend quality time with them. For these reasons, at the beginning of February 2019, the complainant went to talk to Mister S about her circumstances. I accept that this may have been a casual enough conversation, but there is no doubt that the complainant was looking for some help from Mr. S with the management of her hours. The Complainant was looking to have more free time during the day to allow her to collect her children from school. The complainant was suggesting that she be allowed work earlier in the day, be free for part of the afternoon, and then work in the evenings. I do not know how practical this may have been, but the complainant did form the impression that Mister S was open to the idea. Mister S in his evidence, said he was always relaxed about the complainant’s family commitments, and there had never been a problem. To some extent I suspect the parties were at odds at the end of this meeting -the complainant was looking for a fixed roster to accommodate her requirements and the respondent wanted the work to be prioritized.

Subsequently, and for reasons that are unexplained, Mister S called a meeting with the complainant on the 27th of February 2019. The intended nature of this meeting is unclear. Mister S described it as a “qualitative meeting”. There did however appear to be some disciplinary element to it. The complainant certainly had no forewarning that her work was going to be so heavily criticized, and she attended the meeting on her own as she expected the discussion to be of any everyday nature. In any event the respondent Mister S asked the complainant to a meeting to which he brought 2 pre- prepared and undisclosed letters. I note that I have only seen one of these letters as the other one was not shown to me. The letter which was opened to me purported to accept and record an agreed resignation from the complainant. I re-iterate this letter was prepared in advance and brought to the meeting. At the meeting the respondent witness said he went through the unsatisfactory work of some of the cleaners under the complainant’s supervision. Again I note that the complainant has nothing to do with the recruitment process and to some extent is therefore bound by the staff provided to her by Mister S and others in management. Mister S said that he needed to have more assurance that this work would be done to a higher quality and standard as he was expecting new contracts to come in in the near future and he wanted the assurance that the old ones were working well.

There is no suggestion that Mister S was being unduly heavy-handed in the course of this meeting but I also do not doubt that the complainant became very upset at the criticism and the fact that fault was being found with her. In particular, I believe she was worried about how much more of the burden she would have to shoulder. The suggestion of new contracts was worrisome to her. There was no indication that her workload was going to lessen or to be shared. When she asked Mister S if she would get additional support, he was non-committal. The Complainant was already working in excess of her 40 hours and she foresaw an increased and impossible burden which would resonate badly with her personal life. I accept that the complainant probably became upset at the meeting. Despite the fact that she was crying (and Mister S confirmed that she was) Mister S put some sort of ultimatum to the complainant when he offered her on the one hand 2 weeks of paid leave on the understanding that when she came back to work she would work harder than ever. The second offer was that she terminate her employment.

Crucially, the complainant who asked for a chance to consider her options was not allowed this time. The Complainant simply resigned her position. It is regrettable that a working relationship that had been historically good became so thwarted in the space of 30 about   minutes. As the complainant handed in her resignation (or at least signed the pre-prepared one), I have to be cognizant of the fact that the complainant was called into this meeting, she was not represented at the meeting, and she had no idea that she was going to be given a difficult choice in terms of outcome. The Respondent with his pre-prepared letters seemed to know exactly what the outcome would be. I note that there has been no previous disciplinary or grievance processes which might have formed some sort of a backdrop to this interaction. When asked by me, Mister S could not explain why he had prepared for this meeting in the way that he had i.e. the preparation of a letter of termination or resignation - which to my mind is unusual. The set of circumstances inescapably draws me to the conclusion that   the meeting was called and designed to secure the Complainant’s resignation.

I cannot find that the complainant wasn't forced into tendering her resignation. On reflection it was a rash ill-thought out decision which was foisted on her by Mister S. The complainant agreed in making that decision to walk away from   12 years of built up service including and to her entitlement to a notice period or to be paid in lieu. There could have been no rational thinking behind such a decision.

I accept that the complainant was upset and distressed when she said she'd leave. I also accept she was not particularly aware of the content of the letter of resignation described by Mister S to be an agreement. I really do not understand what Mister S objective was. I believe that he had found the complainant to be a good employee and I cannot reconcile that with his treatment of her on that day. Even after that day there may have been a chance to iron out matters or at least to ensure that the complaint was satisfied that she had made the right decision. To allow for a cooling off period. But the hostile and threatening nature of a letter sent to the complainant on the 4th of March drove a wedge in any relationship that might have existed. This letter, which was written only 5 days later, was sent to ensure that the complainant understood her obligations regarding confidentiality. However, the letter was hostile in its nature. It threatened criminal prosecution, Solicitors letters and legal action and made and contained unsubstantiated accusations. This letter was ill judged and frankly contentious in its tone and content. It went well beyond its supposed intent of reminding the complainant of her obligations re data protection. I am mindful of the fact that this letter of course postdates the resignation being tendered and was not therefore instrumental in the fact of the resignation. It does however speak to the mindset after the event. It goes some way towards creating an impression of Mister S true regard for the complainant.

On balance I accepted the complainant hand was forced and that she tendered her resignation where no other option was open to her and she was therefore constructively dismissed. I also fully accept that it was the unreasonable conduct on the part of the Respondent which drone the Complainant to this decision.

In terms of mitigation the invocation of the restrictive covenant in the contract of employment made a very difficult for the Complainant to get work. In fact, the employer’ actions made her fearful of getting work in the field where she had a particular skill. The complainant gave evidence and I accept the she has made positive attempts to find work elsewhere.

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

CA-00026848-001

The Complainant was Unfairly Dismissed and is entitled to redress in the sum of €14,000.00 compensation for her financial loss.