Complainant

Respondent

Anonymised Parties

A Production Manager

A Furniture Manufacturer

Representatives

Steen O'Reilly Solicitors

HRS Consultants

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-00016485-001

21/12/2017

The complainant was employed by the respondent as a Production Manager until her resignation in June 2017. The complainant was asked to re-consider her resignation but refused. The complainant’s last day of employment with the respondent is recorded as the 14th July 2017. The complaint was submitted to the Workplace Relations Commission on 21st December 2017 and relates to alleged Constructive Unfair Dismissal.

The complainant outlined a number of incidents of alleged bullying and harassment that she was subjected to by the Sales Manager throughout her employment. The complainant stated that although she submitted a formal complaint in relation to an incident that took place on 26th October 2016, she had spoken to the Managing Director informally on a number of occasions in relation to the Sales Manager’s behaviour towards her.

The complainant stated that when she submitted the formal complaint in relation to the events of 26th October 2016, the Managing Director urged her to change certain elements of the complaint as the Sales Manager would be unhappy with its contents. The complainant also contends that the Sales Manager sought to have the complaint dealt with immediately as he was going away on holidays and did not want it “hanging over” him. The complainant stated that the actions of the Managing Director in relation to the complaint, the close relationship between the Sales Manager and the Managing Director as well as the obvious influence that the Sales Manager had in relation to rushing the complaint, left her with the view that the complaint would not be taken seriously, and that a fair and transparent process would not take place.

The complainant outlined that an investigation was carried out by an independent third party but that the previous incidents that she had referred to were not considered and that she was dissatisfied with the outcome of the investigation. The complainant outlined that she appealed the investigation findings and the Managing Director conducted the appeal but ultimately did not change the investigation findings. The complainant stated that she had been continually undermined by the Sales Manager, he had made personal comments in relation to her and bullied her over a prolonged period of time. The complainant stated that she was dissatisfied with the entire process, the lack of transparency and fairness and the way she had been treated in the workplace over a long period. The complainant confirmed that she was medically certified as unfit for work in early November 2016 an has only recently been declared fit to resume some work on a part-time basis.

The complainant is seeking compensation in relation to her complaint.

The respondent refutes the complaint. The respondent stated that the complainant was a valued member of staff and that it took the complaint she made very seriously. The respondent stated that the Sales Manager and the Managing Director were not close friends and it was not accepted that the Managing Director was in any way trying to protect the Sales Manger by having the complainant alter the complaint. The respondent stated that it hired an external consultant to carry out an investigation into the complaint and the investigation findings were that bullying had not taken place but that certain organisational changes were required to improve working relationships and to clearly define the roles and operating structures of all parties in the employment. The Managing Director of the respondent conducted the appeal of the Investigation findings and stated that it made every effort to engage with the complainant and to support her return to work and for her to be involved in whatever changes were necessary to improve relationships within the workplace. The respondent cited the Supreme Court decision in the case of Berber v Dunnes Stores [2006] IEHC 327 in support of its position.

The complainant was employed as the respondent’s Production Manager. The person against whom she made the complaint was the Sales Manager. The complainant outlined in evidence that the Sales Manager had a condescending tone towards her and did not respect her position within the organisation. The complainant stated that the Sales Manager would interfere with the production schedule whereas the complainant operated to a production plan having made sure that all materials were in place in relation to each specific order. I can understand the frustration on the part of the Production Manager in those circumstances. It appears that the relationship between the two colleagues deteriorated over time and the complainant for her part considered that she was being bullied by the Sales Manager. The Sales Manager stated in evidence that he was unaware of any previous difficulties until the formal complaint was made in October 2016 as he was not spoken to in relation to the previous incidents that the complainant had raised informally with the Managing Director.

In relation to the formal complaint that was submitted in October 2016, I find that it was completely inappropriate for the Managing Director to suggest any changes to the complaint that was given to him. I also find that the Managing Director should not have caused the complainant further stress by his attempts to fast track the process as the Sales Manager was going on holidays and didn’t want the matter “hanging over him.” The Managing Director, having never received a formal complaint from an employee before, acknowledged his lack of experience in this area and his initial errors in the grievance process.

The respondent obtained the advice of an external consultant and an investigation was carried out. The Investigation found that bullying and harassment had not taken place but that organisational changes were required going forward. The Investigation findings were subsequently appealed.

I note that the Managing Director of the respondent carried out the appeal, which given his earlier involvement in the complaint and the complainant’s perception that he had a close friendship with the Sales Manager, was ill advised in my view.

The complainant was also dissatisfied that the earlier incidents she mentioned to the Managing Director were not considered during the process. On this issue I note that between May 2015 and August 2016 there appears to have been no incidents raised by the complainant. Having reviewed the documentation, I note that a thorough investigation was undertaken on the issues raised in complainant’s grievance.

In cases of Constructive Dismissal, an Adjudication Officer must decide if, as a result of the respondent’s behaviour, the complainant was left with no other option but to resign from her employment. It is not the Adjudication Officer’s role to carry out an investigation into whether or not the complainant was subject to bullying and harassment by a co-worker.

The applicable Law in relation to Constructive Dismissal is as follows:

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 as follows:

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 onus is on the Complainant to prove that, due to the behaviour of the respondent, there was no other option for her than to resign from her employment.

There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised 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.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

“whether the employer 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.”

I have given careful consideration to the documentation submitted by both parties in relation to the complaint, the investigation, the appeal and the additional correspondence between the Managing Director and the complainant after the appeals process had concluded. Despite the Managing Director’s initial errors of judgement in the process, it is clear from the documentation that the complainant was a valued member of staff and that her return to work and her input in the required changes as outlined in the Investigation report was a priority for the respondent. The Managing Director, in my view, made every effort to support the complainant in her return to work and maintain the working relationship. Despite the respondent’s efforts the complainant chose not to reconsider her resignation which the respondent ultimately accepted in July 2017.

In all of the circumstances of this complaint, I do not find that the respondent behaved in such a way that left the complainant with no other option than to resign from her employment.

Having considered the written submissions of both parties and all of the evidence adduced at the adjudication hearing, I find that the complaint of Constructive Unfair Dismissal is not well founded.

Constructive Unfair Dismissal