Complainant

Respondent

Anonymised Parties

A Duty Manager

A Retailer

Representatives

Ursula SherlockIBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00027220-001

21/03/2019

The worker submitted a dispute in respect of bullying and harassment procedures under Section 13 of the Industrial Relations Act 1969.  The dispute was submitted on the 21^st of March 2019 and I proceeded to a hearing of the matter on the 27^th of May 2019.

The worker submits that

She was employed by the respondent from October 2017 as a Duty Manager, she was subjected to bullying and harassment by colleagues and went out on sick leave from July 2018,

She resigned from her employment on the 23^rd of November 2018.

The employer submits that

The worker made a complaint to her manager in June 2018 which resulted in a finding in her favour in August 2018,

The complainant raised further issues but failed to pursue a formal grievance despite being invited to do so by the respondent,

The complainant was out on sick leave form July 2018 and resigned her employment on the 23^rd  of November 2018.

The worker advised the hearing that she was employed by the respondent from October 2017 as a Duty Manager in their store in location A.  She told the hearing that while working in the store she was bullied and harassed by work colleagues and that she reported this to management. 

She outlined an incident in April 2018 while training in an employee Ms. V who had told her she didn’t like working with her in the cash office and preferred to work with a different manager.   The complainant told the hearing of another incident in May 2018 where a Sales Assistant Ms. S had used aggressive language towards her when the complainant had asked her to stop what she was doing and helping the shop floor at a time when the shop was very busy.    She stated that Ms. S also threatened to tell the other staff that the complainant had shouted at her and said to her that no one liked her there.   The complainant stated that she had made verbal complaint to her manager in respect of this incident on the 31^st of May 2018 and later lodged a formal grievance in respect of the issue on the 1st of June 2018.

The complainant told the hearing that she was called to a grievance meeting in relation to this matter on the 21^st of June 2018.  The grievance meeting was chaired by a manager from another store.  She received the outcome of the grievance meeting on the 29th of August 2018 and the outcome was that the complainant’s grievance was upheld, and a finding was made that Ms. S had used ‘inappropriate and offensive’ language.

The complainant told the hearing that she was out on sick leave by the time she received the grievance outcome letter on 29^th of August 2018.   The complainant told the hearing that the letter of outcome from her grievance dated 29th of August 2018 had recommended that she and Ms. S engaged in mediation to resolve their issues. The complainant stated that she had gone on sick leave from the 25th of July 2018. 

The complainant also told the hearing about an incident where a customer of the respondent had approached her outside of work in late April 2018 and had used abusive language towards her and had threatened her and her son.  This arose from the complainant having watched and followed him in the respondent shop in the course of her work and the complainant had rang the bell to alert management that he was being followed as a potential shop lifter.  The complainant stated that she also reported this incident to her manager Ms. M and that nothing was done about it.    Ms. M told the hearing that the complainant had told her about this incident and that she had advised the complainant to go to the guards about it, but Ms. M told the hearing that the complainant had replied that she knew who he was, and that her husband would go after him.  The complainant at the hearing denied this but stated that her boys had gone to look for the individual in question afterwards and that they had found his friends but did not see him as he was hiding.

The complainant told the hearing that she had also raised issues in respect of her working hours as she was being rostered to work up to 42 hours per week even though her contract was for a 39-hour week.  The complainant stated that she had raised this with her manager and a meeting took place on the 20th of July 2018 to discuss this matter.  The complainant stated that her manager at this meeting had told her that she was not being flexible enough when they were short staffed and maybe she wasn’t suitable for retail work.  The respondent at the hearing stated that it had following this complaint checked the complainants clock cards and found that she had been working on average 40 hours a week.  The respondent notified the complainant of this and offered her the chance to view the clock records for herself.    The complainant told the hearing that she had gone on sick leave on the 25^th of July due to anxiety. 

The complainant told the hearing that the letter of outcome from her grievance dated 29^th of August 2018 had recommended that she and Ms. S engage in mediation to resolve their issues.  The complainant stated that she could not engage in mediation as she was at this stage out on sick leave and had been on sick leave from 25th^th of July 2018.  The complainant told the hearing that she had submitted a note from her doctor stating that she was not fit to attend work meetings.  

The complainant went on to state that he respondent had threatened to visit her at home when she was unable to attend a workplace meeting.

The respondent advised the hearing that it had sought on a number of occasions to arrange a welfare meeting with the complainant and had eventually offered her a home visit in accordance with its policies if she felt unable to attend the e workplace for such a meeting.  The complainant declined this offer and sent in a cert from her doctor to state that she was not fit to engage with the process.  

The respondent told the hearing that it had at this stage held a grievance meeting in June 2018 and issued an outcome letter finding in favour of the complainant on 29^th of August 2018 and recommending mediation.    The complainant was out on sick leave form 25^th of July 2018 and refused to engage with the respondent re meetings and so the mediation could not be progressed.  The respondent stated that the complainant was offered the right to appeal this outcome, set out in the outcome letter, but she did not appeal same.    The complaisant stated that nothing happened after the outcome letter except that she kept receiving letters and emails from the respondent asking for meetings even though she was out sick and sent in a doctor’s note on the 7^th of September saying she was not fit to attend meetings.

The respondent stated that it had following the 29th of August sought to meet with the complainant a number of times, but she refused all offers of meetings.  The respondent also sought the complainant’s permission to engage with her doctor and to refer her to the Company Doctor, but she refused to attend the appointment.  The respondent stated that they received an email from the complainant on the 6^th of November 2018 outlining issues which she stated were the cause of her sick absence, she listed breach of contract and the issue previously raised by her in respect of an allegation that she was rostered to work more than 39 hours a week,  she also referred to an alleged health and safety breach regarding verbal abuse form customers of the shop and outlining her experience from April 2018 where she had been verbally abused and threatened by a teenager on her way home from work.    The complainant raised further issues about another colleague Ms. A Assistant Store Manager in an email dated the 13^th of November this email referred to text messages containing strings of emojis received from the phone of Ms. A s boyfriend at 4 am on the 11^th of November.    The respondent replied on the 9^th of November and again on the 20th of November asking the complainant to confirm whether she wished to raise a formal grievance in relation to these matters and advising her of the next steps if she wished to raise a grievance.  The complainant did not reply to this question and the next communication form her was her letter of resignation sent on the 22nd of November 2018

The complainant resigned her employment by email dated the 22nd of November 2018.   The complainant told the hearing that she had resigned her employment after receiving a string of text messages containing emojis from a colleague Ms. A.  who was an assistant manager working with the complainant at the respondent’s shop.  The complainant advised the hearing that that the messages had been sent from the phone of Ms. A’s boyfriend at 4 am one night.  The messages consisted of strings of emojis with ‘piles of poo’ and ‘ghosts’.  The complainant told the hearing that she had up to this point believed that the respondent had wanted her to come back to work but after receiving these messages she knew they did not want her back and so she resigned.   The respondent told the hearing that Ms. A had finished working for them two weeks before the alleged incident involving the text messages.     The respondent stated that they wrote to the complainant after receiving her resignation again asking her if she wished to pursue her grievance under the formal grievance procedure.  The complainant did not respond to this letter.    

The respondent stated that it had done all it could to resolve the issues raised by the complainant given that she had been out on sick leave from 25^th of July and had refused to engage with them or with the company doctor before resigning on the 23^rd of November.  The respondent stated that it continued to try and resolve issues after the complainant’s resignation asking if she wished to pursue a formal grievance but the complainant did not engage or reply to them and so it could not progress her grievance.   The respondent acknowledged the complainant’s resignation letter on the 26th of November 2018 and again asked of she wished to pursue a formal grievance.  The complainant did not reply.  The respondent submits that it found in the complainant’s favour in respect of the first grievance raised by her and that it was prevented in progressing further issues raised by her due to the complainant’s absence on sick leave and refusal to engage with the respondent or its medical professionals.  The complainant then resigned before giving the respondent the opportunity to deal with other concerns raised by her. 

Having given the matters raised a great deal of consideration I am satisfied from the totality of the evidence adduced that that the respondent did all it could do in the circumstances and given that the complainant while out on sick leave had advised that she was not well enough to engage with them and refused to attend for a medical assessment.   In addition, the complainants first grievance was investigated, and a finding made in her favour and she was invited to submit a second grievance in respect of additional issues raised by her but then failed to pursue the  grievance when invited to do so by the respondent.  In addition, the complainant resigned of her own free will and was not prompted to do so by the respondent tor on foot of any action taken by the respondent.  Accordingly, I find that here is no merit in this dispute and given the circumstances I cannot recommend in favour of the complainant. 

 I find that here is no merit in this dispute and given the circumstances I cannot recommend in favour of the complainant.