Complainant

Respondent

Anonymised Parties

A child care worker

A community resource centre

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-00018338-001

06/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00018338-002

06/04/2018

At the commencement of the hearing the complaint under the Minimum Notice Act 1973 was withdrawn and the Unfair Dismissal complaint proceeded as a sole complaint.

Constructive Dismissal Complaint

The fact of dismissal is in dispute. The Complainant contends she was dismissed due to intolerable work conditions, the Respondent contends that the Complainant resigned her post voluntarily.

This case considers the duty on an employer to intervene when, within a small staff, interpersonal relations have broken down to the extent that staff members are not speaking to one another, a significant number of staff go on stress related sick leave and the work environment has become toxic.

Complaint: The Complainant worked as a child care worker from 2006 until 2017 when she resigned her post due to what she described as intolerable work conditions and a poisoned work atmosphere. She claims that she was constructively dismissed by a failure by management between January and August 2017 to deal with a work environment where the staff had split into two camps and neither camp were on speaking terms with each other. She was not given a staff handbook or grievance procedure.

Response: The dismissal is in dispute. The Respondent contends that they did all that they could to remedy the interpersonal problems within the staff. It was the Complainant who was the bully not the bullied. Furthermore, the Respondent was not put on notice of the fact that the Complainant was considering leaving her job over these issues and she failed to utilise a grievance procedure before resigning.

From 2006 until 2017 the Complainant worked as a child care leader. Her relationship with management until 2017 was always good and her work environment was positive. However, following a staff management meeting in January 2017 at which management raised the possibility of redundancy, the complainant and one other co-worker (a complainant in a related WRC complaint) raised an objection to the Last In First Out policy that the management was proposing to adopt. Their complaint was that the daughter (XX) of the chairperson of the board was being leapfrogged over other longer serving staff members, which they believed to be unfair. Their objection was not on behalf of themselves but rather on behalf of other staff members who would be adversely affected if the selection policy was to be as that outlined by management at the meeting.

The meeting descended into chaos, XX objected to being singled out by the Complainant and her co-worker at the meeting. She described their behaviour as a “bullying tactics” from which the Complainant felt she was being called a “bully.” References by the chair to “bitching” was understood by the Complainant as her being called a “bitch.”

The meeting was abandoned and from this point onwards the staff split into two camps. One camp who believed that XX was being isolated and bullied by the Complainant and her co-worker and another camp who felt that merely because they had stood up for other long-standing member of staff (not themselves) that they were punished and categorised as bullies. Thereafter they became isolated in the work place.

The work atmosphere became increasingly aggressive. At times the aggression between employees was expressed between staff even when children were present.

A few days after the January meeting, XX arranged a meeting with the Complainant and her co-worker. At the meeting XX told them that she felt unwanted within work and was suffering anxiety. She told them that she was taking some time off work. The Complainant apologised to XX but explained that this was a management problem and that management needed to deal with the fall out of a meeting that had been badly handled. However, no such meeting was held and XX went on a period of stress related sick leave in February 2017.

From then onwards, the attitude of the chairperson changed completely towards the Complainant and her co-worker. She criticised her work and she was unfriendly. Her relatives who also attended the resource centre would not talk to the Complainant or her co-worker.

A staff management meeting took place on 9 February 2017, at which the Complainant’s trade union representative was present. The minutes of the meeting as complied by the reflect the fact that the Complainant was not asked what the problem was. Instead the meeting concentrated on what had happened at the January meeting, ie the possibility of redundancies. However, while the redundancy meeting in January had been the trigger of the staff splitting, the problem now had become something more pernicious, namely the in-fighting and exclusionary behaviour within the small staff. The meeting in February failed to identify that and instead concentrated on something that was no longer the problem, namely redundancies. The problem had become that the Complainant had been classified by some as a bully and because she and her co-worker had bullied XX this had forced her to go on stress related sick leave. This wrongful blame of the Complainant and her co-worker was not only being supported by the Chairperson but was encouraged by her dismissive and critical attitude towards them. They accepted that she was the mother of XX, but she also was their boss and owed them a duty of care. They had done nothing wrong only stand up to what they regarded as an injustice.

The minutes of the 9 February 2017 meeting do not indicate that the Complainant or her co-worker spoke or contributed at all. The Complainant did not feel that during this meeting, nor indeed in any of the management meetings was there was any desire to actively listen to her side of things or that she was being side-lined and excluded by work colleagues. There was a failure too by the Respondent that they had in part created the problem because of the poor way that they had conducted the meeting in January. There was never an ownership of blame by the Respondent.

When XX returned from sick leave on 8 March 2017 she refused to speak to the Complainant and her co-worker. In a work environment where the staff numbers were so small, this made work impossible and miserable. This also had an impact on other staff members, who began taking sides. In March, now 2 months since the hostility had started, the staff were completely divided and the atmosphere had become toxic. The situation was crying out for effective intervention by management, but none was forthcoming. The chair and the other management staff were in a separate part of the premises and rarely entered the centre. They did not know, nor did they seem to want to know about the in-fighting that was happening in the centre itself.

The Complainant’s sense of increased alienation continued. A further meeting was held in March 2017. At this stage the Complainant felt isolated. Her co-worker told management that staff morale was low. They told her that redundancies would now not be affected. She did not feel comfortable explaining to the Chairperson about how she was being ill-treated and excluded by other staff who were treating her as being responsible for the daughter of the Chairperson’s poor mental health. She felt that she and her co-worker had been made scapegoats for this, when they had done nothing wrong, other than stand up for someone else’s rights. At the end of the meeting the trade union representative and management agreed to set up a mediation process to address low morale.

Over April and May the toxic work environment got worse and no-one was speaking to anyone else, everyone was back biting and being negative. It got so bad that community workers were told to collect trays from the child care rooms so that the staff could avoid entering a room where the Complainants were working.

The death knell occurred on 11 Mary 2017 when XX left work and took a second period of stress leave for acute anxiety. At this time, XX was acutely ill and was considered by her doctors as a suicide risk. At this a staff member (who until this point had remained aloof from the in-fighting) brought the Complainant and her co-worker to one side and told them that “this matter with XX has to end. She is at risk of suicide. You have to stop this.” The Complainant and her co-worker felt completely oppressed by this. They could not believe that they were now being blamed for this too. This was not of their making. She felt aggrieved that she was in part being blamed for this. However, she felt that someone’s suicide ideation is not something that can be blamed on someone else.

This poisoned work atmosphere had been allowed go on unabated.   Management did not intervene. They had talked about mediation from March onwards, but nothing was being done.   What was required was for management to sit down with staff to actively listen to why the Complainant and her co-worker were upset, to accept that the Complainant and her co-worker had been wrongly scapegoated, to accept that management had allowed the situation to get out of hand and for management to then put processes in place to engender respect back into the staff cohort. However, nothing was done. Meetings were called and went ahead but everything was discussed other than the actual problem.

A meeting was arranged in a hotel in Cavan on 16 May 2017. All the staff were invited together with the Complainant’s trade union representative. The Complainant felt over whelmed and could not attend the meeting. She provided a sick certificate and went home. Her co-worker, feeling the same level of stress, did the same.

In the following days, despite being on sick leave the Respondent’s secretary wrote to her on 19th May asking her to contact the Respondent to arrange a meeting to discuss their issues. The Complainant was upset that they were contacting her when she was on stress leave. She felt harassed by it. The Respondent secretary wrote again on 22 May suggesting a meeting on 26 May. The Complainant contacted her trade union representative requesting that they desist from contacting them during their sick leave. On 23 May the Complainant’s trade union representative contacted the Respondent informing them that they would not attend the meeting.

The Complainant denies receiving a copy of the grievance procedure in the post and further denies ever been given a copy of the Respondent’s grievance procedure.

A meeting was arranged for June 2017.

On 6 June 2017 the Complainant and her co-worker met with the Respondent, with their trade union representative. The minutes of the meeting demonstrate that again the meeting was hijacked by an emphasis not on what the Complainant’s problem was, but rather on discussing getting the Complainants back to work, reassuring the Complainants that the redundancy issue was finished, discussing the need for transparent disciplinary and grievance policies and reducing the Complainant’s paper work.

None of which dealt with the actual problem which was their grievance that they were being blamed for bullying someone, which they did not do and that all the staff had become embroiled in this and no one was talking to them and finally that the staff blamed them for XX’s suicide ideation and that this had all emanated from a badly handled meeting in January.

The June meeting ended unsatisfactorily with a vague understanding that an independent HR company would be appointed. From this third party facilitation the Complainant hoped that the unfair treatment and unfair blame that had been ascribed to them would be lifted.

The Complainant returned to work following this meeting however due to a further incident a day later with a member of staff she left again and went on prolonged sick leave.

The incident involved a temporary worker being asked by a member of staff to bring children food trays into the room in which the Complainant and her co-worker were based. When this occurred the Complainant understood this to be a device so that the staff member would avoid having to speak to the Complainant. She got extremely upset at what she saw as a deliberate avoidance by the staff member against her. Her co-worker telephoned management to report this incident but nothing was done about this by management. She left work on that day having had an altercation with the temporary worker. Over the following weeks, while on sick leave, she spoke to her trade union representative about the promise of mediation by a HR company, but nothing was organised. She, along with her co-worker, had understood that the mediation would take place during the summer recess in July, when children would not be attending the centre. They heard nothing about this for a number of weeks. They spoke with their trade union representative in July who told her that he was going on holidays and that the HR mediation would start in September at the beginning of the new academic year. Her co-worker told their trade union rep that they could not hang on until then, that the problem needed dealt with before the new year started, that they could not be expected to return with this unjustified cloud of blame hanging over them

The Complainant sent a letter of resignation on 10 August 2017. She did so as it was a joint decision between her and her co-worker. She felt that she could not go back to work in September without this issue being sorted out. The only reason that she had gone back to work in June was because she understood that the HR company was being appointed forthwith. Yet again, she felt unimportant and unprioritized, despite all her years of work there. She had reached breaking point and felt that she had to tender her resignation. If the mediation had started or even if she knew that the HR company had been appointed there was some prospect of relief, but by 10 August 2017, as this had not happened, she had no choice but to resign.

The Complainant has been receiving illness benefit since the dismissal and therefore her loss of income since the dismissal arises from her inability to work rather than as a result of the dismissal, although she claims that the stress and anxiety was caused by the way she was treated.

The events took place between January and August 2017.

The Complainant was employed as a pre-school leader from 2006. Her hours were from 9am until 12.30pm five days per week. In addition, for three afternoons per week, she worked from 1-3pm.

All staff were issued with contracts in May 2010 which included an employee handbook and a grievance procedure.

At a meeting on 26 January 2017 due to a reduction of the after-school numbers various options were considered by management and staff. Redundancies were discussed only as a last resort scenario and everything would be done to prevent this occurring. Specific staff were identified by management as being those who would be affected by the management policy of Last In First Out.

The Complainant objected and stated that XX had been the last employee to be engaged (last in) and not those identified by the chair. She stated that the only reason that they were having a meeting was to keep XX in a job. XX was the daughter of the chairperson of the board. XX responded by saying that it was unfair to single her out and that this was a bullying tactic. The meeting was abandoned because emotions were running high.

On 9 February 2017 a staff meeting was arranged by the board of management. The Complainant’s trade union official was present. The possibility of redundancies were discussed again. The Complainant and her co-worker did not engage with the meeting. They did not raise any grievance. The trade union representative suggested that an independent mediator be obtained, and the Chair of the board agreed to contact Peninsula to use their mediation services. The Chair of the board said that her door was always open for any staff member to discuss any problem with her.

XX went out on sick leave on 8 February 2017. While she did not report it to management until May, XX gave evidence that following the January meeting, neither the Complainant nor her co-worker would talk to her at work. Prior to her taking sick leave in February XX met with the Complainant and her co-worker to try to clear the air. The Complainant told her that all that was said at the January meeting was what everyone had been saying behind her back, namely that she (XX) was receiving favourable treatment over other staff who had been there before her. XX felt upset at this and commenced the period of sick leave. She did not discuss this with her mother at this time, nor did she discuss this with other work colleagues.

A staff management meeting took place on 16 March 2017. The chair of the board asked the Complainant and her co-worker how they were, to which they answered that morale was low. The chairperson asked how could management make things better and the Complainant and her co-worker did not answer. They both said that they had no grievances. Mediation was discussed and the ladies said that they did not want mediation. They were defensive and queried who had asked for mediation. The chair asked them to look at the grievance procedure if they had any grievances and they said that they did not. They said that they would agree to facilitation and they wanted an independent person doing this, not a body such as Peninsula which was the Respondent’s HR advisor. This was agreed.

During April – May 2017 the Complainant’s trade union representative and management discussed setting up a further follow up meeting, but nothing was arranged until 16 May 2017.

During this time matters had deteriorated on the ground in that XX suffered an acute episode of anxiety and her medical advisors recommended that she stay away from work. She had felt isolated from her work colleagues and was told that the Complainant and her co-worker had told other staff members not to speak with her. On one occasion a staff member was reprimanded by the Complainant and her co-worker from joining XX for a cigarette. XX told a staff member (AA) that it had all become too much for her and that her doctor wanted to section her under the Mental Health Acts for her own safety. After this conversation AA approached the Complainant and her co-worker and told them that they should all sit down to have a cup of tea and sort things out. She denied blaming them for XX’s mental health problems but felt that they should be told about how serious things were with XX.

XX accepted that she told her mother about everything that had occurred at this time.

A staff management meeting was arranged in a hotel for 16 May 2017 with the trade union representative but neither the Complainant nor her co-worker attended due to stress.

Efforts were made to contact the Complainants during their period of sick leave, but they declined to attend any meeting. On each occasion their well being was enquired after by management.

By this stage, four members of staff had taken stress related sick leave between February and May 2017 as a result of the deteriorated work atmosphere.

A meeting was arranged for 6 June 2017 and the Complainant was accompanied by her trade union representative. The meetings with the Complainant and her co-worker were held separately.

The June meeting discussion revolved around the Complainant getting back to work she agreed to do so. The Complainant did express specific difficulties about how she and her co-worker had been isolated within the workplace.

On the day following the meeting the HR manager of the Respondent went into the centre and provided fresh copies of the Respondent grievance procedures to all staff, including the Complainants.

The Complainant came back to work but only stayed a short number of days before leaving again on sick leave following an altercation with another member of staff. The Respondent was aware that there was an agreement to appoint an independent HR advisor and it was waiting on a recommendation from the Complainant’s trade union representative to suggest someone, but he had not done so yet. There was no mutual understanding that the mediation needed to occur before the summer recess. In fact, they did not receive the recommendation of a HR advisor until late July, after the trade union representative had returned from holidays. If he was not anxious about pushing forward with the mediation that had been agreed months earlier, they were not.

When they received his recommendation, they arranged a meeting with the HR advisor but the Complainant’s resignation intervened. On 10 August they received the letters of resignation from both the Complainant and her co-worker and the Respondent’s attempts to get the Complainant and her co-worker to reverse their decisions were unsuccessful. They contacted the independent HR advisor but the Complainant and her co-worker still would not change their minds.

Significantly, neither the Complainant nor her trade union representative told the Respondent that unless the mediation was arranged during the summer recess that she would resign her position. The failure to communicate this information is fatal to the complaint, as for a constructive dismissal case to succeed the Respondent has to be made aware that the continuing insult (as described by the Complainant) has become intolerable to the extent that she was intending to leave her job. Without this notice, a constructive dismissal case cannot succeed. They believed that she would be coming back to work in September and that the matter of mediation would be dealt with then.

The allegations of ill treatment of the Complainant and her co-worker were not specified until December 2017 when their legal representative wrote to the Respondent with specific complaints. These were not known of prior to the resignations.

This case was heard over three hearing days. The dismissal being in dispute, the issue to be determined initially was whether a dismissal occurred as a matter of fact.

This is a most regrettable case which involved a complete staff relationship breakdown in a community resource centre in a small north midlands village.

As often occurs in bullying cases; the person who is accused of bullying feels that they are the one being bullied and are being blamed for problems not of their making which results in them behaving defensively. In such case there is usually hurt on both sides, which the employer has a duty to manage.

To prevent this foreseeable cycle of blame/fault finding, the necessity for immediate and effective intervention by management in these cases is paramount. A failure to intervene quickly and effectively can result in staff becoming alienated which can affect other staff. Fixed positions can develop (especially within a small staff cohort) and a toxic atmosphere is thus created. For the employee (in either camp) when the prospect of going into work is silence, sullenness, lack of cooperation and ill will, each day becomes a miserable experience. Each day is stressful which provokes defensive behaviour and so the feeling of alienation becomes more and more entrenched.

This is a classic case where leadership was required. If in the immediate aftermath of the January 26th meeting (rather than an intervention not occurring until 9 February 2017) the management had sat down and been accountable to the staff, I suspect the outcome in this case would have been quite different. Why? Because the individuals involved who had given many years of valued work to the Respondent, would have felt respected and valued. Unfortunately, this did not occur and management instead adopted a long armed non-interventionist policy, until it was too late.

Following the January meeting, which the Respondent accepts was poorly handled, the Respondent should have accepted that it had a role in creating this problem but that they all now had a duty to rectify it together before the hurt became established and ingrained, but there was no such accountability.

At both the January and February meetings the chair of the board confirmed that the Respondent operated a LIFO selection policy for redundancies. LIFO is not a skills-based selection and for this reason has not been regarded as a sophisticated selection policy for some time. However, in any event, having identified LIFO as their policy they then proceeded to not apply it (because XX had skills that the Respondent required). It was this inconsistency that gave rise to the belief that XX was receiving preferential treatment because of her relationship to the chair of the board. This belief was not without basis.

What was required in the immediate aftermath of the January meeting was an acknowledgement by management of a number of things. I believe that if these acknowledgements were made these complaints would not have been brought.

An acknowledgement that redundancy should not have been raised by management until it became a likelihood as opposed to a remote possibility.

An acknowledgement that by discussing LIFO and by identifying individuals who would be made redundant under a LIFO selection, this gave the impression, not that redundancies were a vague possibility, but rather was a likelihood which this was both regrettable and unwise.

An acknowledgement that LIFO was not an appropriate selection policy to use where skills were necessary to retain.

An acknowledgement that the complainants were not at fault for speaking up on behalf of a colleague who they felt was being unfairly passed over. Their advocacy was done in good faith to prevent unfairness.

That the reference by XX to “bullying tactic” was not meant as an accusation of bullying but rather that it was unfair to single one person (XX) out. She did not intend to allege that they were bullies, nor did she believe that they were.

That XX as an employee had as much of a right to work for the Respondent as any of the staff and just because she was the daughter of the chairperson does not negate that right. All staff were expected to respect each other and not to act defensively towards one another.

That in the following days, any conduct where staff are not talking or cooperating with one another needed to be brought to the attention of management until this issue has been fully resolved. Each individual employee has a duty to act with respect towards every other individual employee.

That this should be reflected on and if there are any issues arising these should be raised within one week when there would be another meeting about this issue to monitor it is progressing.

The problem can only be resolved by active listening, positive action and showing respect and the duty for this lies on all parties.

I am of the opinion that had a robust intervention occurred as described above, or something similar, then the complaint before the WRC would have been avoided.

However, this decision is not to advise on how the Respondent should have intervened following the January 2017 meeting (although I hope that my observations are in some way useful for future staff dealings) but rather, was the Complainant dismissed when she left on 10 August 2017?

In relation to the complaint constructive dismissal, the Respondent are correct in their contention that there is an obligation on the Complainant to give notice to the Respondent prior to deciding to leave the employment, that they consider that unless the problem changes, they will leave. The ultimatum must be known by the employer.

I do not accept that the Respondent knew nothing of the problem. The reason for this is that four staff went on stress related sick leave between February – May 2017 all of which related to the problems within the resource centre. Furthermore, XX admitted having told her mother everything when she went on her second period of sick leave in May 2017. Therefore, from May 2017 onwards the Respondents cannot say that they were not aware of the ongoing problems.

However, the question to be answered is, were they aware that the problems were so serious that the Complainant intended leaving the job unless management intervened?

Following her return to work in June and during her subsequent period of sick leave, was the Respondent aware of her intention to leave specifically if the mediation was not put in place? This is not clear.

The Complainant gave evidence that she explained this to their trade union representative and therefore assumed that he would have told this to the Respondent. However, I cannot be confident that the latter is the case and if it is not the case, this complaint more properly lies against the trade union representative than the Respondent. He was asked by both sides to attend the Adjudication hearing and he declined.

A consideration of the minutes of the meeting on 6 June 2017 reveals that mediation was not discussed. This is significant. The conversation concentrated rather on getting the complainants back to work. The minutes of the June meeting read like a steam roller over the Complainant’s concerns.   There is a distinct lack of an active listening by the Respondent or her trade union representative. At no stage was she asked “what would like to happen? You have been upset since January, what do you see as a remedy to this?” And then allow her space to answer that question.

At one point the Complainant said clearly “we felt unwanted, unsafe. (Before) we had always got on great. Before, when we had hot and heavy discussions, we had a cuppa and a fag. But (this) it’s blown way over. I am talking about Everyone.”

The only interpretation of this is that the Complainant and her co-worker felt completely isolated to the extent that everyone was now against them and they felt unwanted and unsafe. These are serious concerns for an employee to raise with an employer.

However at this point in the meeting, the trade union representative unhelpfully intervened. Instead of asking how she felt that this could be made better, he interrupted saying “To be fair, the two girls will be back at work tomorrow.” As if them not being at work was the problem that needed to be addressed. They needed to be heard, understood and respected. Hugging was not a solution.

She expressed that she was out of work because she felt unsafe, unwanted and excluded. This required a solution by management. If they went back to work, the problem was not solved, it was postponed. The Complainant believed that a return to work could only have worked if it had been eased by a third party mediator, someone who could see both sides of the conflict. There had been an earlier agreement (in March) for this to happen. And yet, at that meeting in June there was no discussion about mediation never mind a time line as to when one might be appointed. At this stage neither the trade union representative nor the Respondent witnesses seemed to regard the appointment of the mediator as a priority, even though this had been agreed at earlier meetings.

However, if this is the case, the corollary to this is also true, that is, if the Complainant was waiting on a mediation process as being the only remaining life-line to the job, she should have said so at the June meeting, but she did not.

And if the trade union representative did not appreciate the importance that she was placing on mediation and without it, she intended to leave, she should have told both him and the Respondent directly. In July when her trade union representative told her that he was going on holidays and that the mediation would not be put in place until September, this seems to have been her breaking point. It is understandable why this might be so. However she neither told him nor the Respondent this and in not doing so, the Respondent was not aware of this ultimatum and therefore she cannot be regarded as having been constructively dismissed. The employer must know what and when the employee’s breaking point is.

I make this decision reluctantly because I found the Complainant to be a candid witness who gave many years of loyal service to the Respondent who was criticised for standing up for a work colleague, who was referred to as someone who used “bullying tactics” and was made feel responsible for the suicide ideation of XX. Any of that experience would make someone reluctant to speak up, less they further exacerbate a perception that she was guilty of wrong-doing.

I had hoped that bearing in mind the hurt that had been felt by the parties, that the case might compromised on the first day of the hearing before the evidence was heard and cross examined. I encouraged this bearing in mind the Complainant’s eleven years of service and because it was predictable that that giving evidence and the stress of a hearing over several days, would only cause more upset for everyone involved. The loss of income in this case was insignificant. However, unfortunately I was unsuccessful, in persuading the parties as to the bigger picture involved and the benefits of compromise. The consequent three day hearing was unhappily stressful for all the witnesses who gave evidence.

Having made these observations I am however bound by the case law and the authorities are clear, in order for a constructive dismissal to succeed the Respondent must be on notice of what the Complainant regarded to be intolerable prior to her resignation and I accept that they were not put on notice of this. Not merely on notice of the problems and the severity of those problems but the fact that the Complainant regarded them as fatal to her ongoing employment. The existence or otherwise of a written grievance policy would not have changed that obligation. Had she done and had the Respondent then failed to act reasonably, I would have no hesitation in finding this to be a constructive dismissal.

However, once she knew that her trade union representative was not representing her position properly (by him allowing the mediation to be postponed until September) she should have identified her ultimatum (ie arrange the mediation before September or I will have no option but to leave) to the Respondent directly. She did not.

Therefore, for this reason alone I do not find that a dismissal occurred and I do not consider this complaint to be well founded.