Complainant

Respondent

Anonymised Parties

A Billing Administrator

A Consultancy Firm

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00029786-001

19/07/2019

This is a complaint of constructive dismissal which, because the complainant had less than one year’s service, he submitted under section 13 of the Industrial Relations Act 1969.

The complainant joined the respondent company as a billing administrator on May 8th 2018 and he resigned 10 weeks later on Tuesday, July 17th. He left on Friday July 20th. When I asked him why he submitted a complaint more than a year after he resigned, he said that he became homeless and then he had to look for another job. He started a new job in February 2019 and he is now a full-time law student. He said that the outcome he wants from this hearing is a recommendation that he be paid compensation for the difficulties he experienced during his employment in the respondent company.

On the form he submitted to the WRC, the complainant said, “I was treated terribly in my position at (name of the employer). I was asked to give an account of this to HR, which I did. I was told it would be taken seriously and investigated. I have not been contacted by HR since in this regard.”

At the hearing, the complainant produced a copy of the document he gave to the HR Business Partner at his exit interview on July 20th 2018. In this document, he described the behaviour of a colleague which he said was the reason that he decided to leave. For convenience, in this document, I will refer to this colleague as “Tracy.” The complainant described the working environment as “hostile” and said that from his first day at work, Tracy snapped at him and became irritable over the slightest issue, such as putting two spaces between words on an invoice.   He said she was condescending towards him and “scathing” of other colleagues. He said that once when she made a mistake and apologised, there was no humility. In the document, the complainant said that he was shocked “that someone could be so callous and disrespectful to me and her lack of patience with someone who was clearly willing to learn was equally as shocking.”

Many of the examples given by the complainant about Tracy’s behaviour described her interactions with or comments about other employees. The complainant said that Tracy’s disrespectful attitude towards others created a difficult environment for him.

When he returned from work having been out sick, the complainant said that Tracy questioned him in an aggressive manner and said that she didn’t take sick days. When he wanted to take a day off, he said that Tracy took the calendar out and limited his options regarding the days he could take.   He said, “I was nothing more than a servant to her.”

Apart from his difficulties with Tracy, the complainant said that he received very poor training, compared to what was expected of him in the job. He said that there was “little or no planning put into my progress, everything has been haphazard and last minute…” He said that he met with a manager and advised him that he needed more training, but none was provided. He also said that he asked to be moved to a different department, but this didn’t happen.

Outlining the case for the respondent that the complainant was not dismissed, Mr Whelan said that on his first day at work, the complainant attended the company’s day one induction programme. On May 30th, he attended a full day induction, half of which was given over to presentations on the company’s Dignity at Work and Grievance procedures.   At no stage did the complainant seek to utilise these procedures to deal with his concerns about his relationship with Tracy.

The respondent’s submission notes that on July 5th 2018, the complainant had been with the company for eight weeks and he had been absent on a number of occasions.   There were also some concerns about his performance. He had been working closely with his line manager’s manager, “LMM” and a meeting was arranged to discuss how he was getting on. LMM reported that the complainant said that he could do with more training on a specific piece of work and he also wanted to review the invoice tracking processes. Action points from this meeting were documented which resulted in Tracy taking responsibility for the tracking processes and other work was to be moved to a different team.

About two weeks later, on July 17th, the complainant sent a note to the HR Business Partner saying, “I hereby resign with immediate effect. Friday the 20th of July shall be my last working day.”   The HR Partner advised the complainant to inform his line manager about his decision, which he did in an email saying, “it just hasn’t worked out.” Later that day, the complainant sent LM an email saying that he found working with Tracy difficult. This was the first time that the complainant mentioned any concern about his relationship with Tracy. On July 20th, LM met the complainant to discuss his comments about Tracy and he expressed disappointment that he wasn’t offered a job in a different department. LM explained that the normal process was to request a role change and not simply resign.

On the afternoon of July 20th, the complainant attended an exit interview with a HR Business Partner and he presented a two-page document setting out his experience of working with Tracy over the previous 11 weeks. The contents of this document have been summarised in the previous section.

After the complainant’s resignation, the HR Business Partner met LM and an informal investigation commenced into the concerns document at his exit interview. LM met Tracy to investigate the complainant’s allegations. Tracy has been with the company for many years and her performance appraisals were examined to determine if there was evidence of a pattern of unacceptable behaviour. Tracy and the complainant had sat near to each other, back to back, in a large, open plan area with approximately 50 desks. A review of the communication in this area was carried out. The line manager also reviewed the training provided to the complainant. No issues of concern emerged from these investigations. The managers are satisfied that, if Tracy had behaved in the manner described by the complainant, this conduct would have been observed and heard by others in the open plan office.

Referring to the burden of proof which is on the complainant to show that the termination of his employment is a constructive dismissal, Mr Whelan cited the case at the Employment Appeals Tribunal of McCormack v Dunnes Stores, UD 1421/2008.  

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures, formal or otherwise, in an attempt to resolve her grievances with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of the employment with the particular employer intolerable.”

Mr Whelan said that at all times, the respondent operated within the terms of the complainant’s contract of employment and that no contractual violation occurred.

Mr Whelan referred to the two strands of the reasonableness test, where, in the first instance, a complainant must establish that his or her employer has acted unreasonably and, secondly, that he or she has made a reasonable effort to have problems resolved. It is the respondent’s case that the issues raised by the complainant on his last day at work were properly considered and dealt with. This had to be done after he left. Their position is that it was unreasonable to bring a concern to the attention of management without giving them a chance to investigate the problem and to seek a solution before he resigned.

Constructive Dismissal

While this complaint is for consideration under the Industrial Relations Act 1969, the definition of constructive dismissal at Section 1 of the Unfair Dismissals Act 1977 is a useful premise upon which to base my conclusions:

“dismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer…”

The issue for decision in this case, is, taking into consideration the conduct of the respondent in relation to this former employee, and considering that, in the weeks before his resignation, he never raised a grievance about the conduct of his colleague, was it reasonable for him, or was he entitled to terminate his employment?

Review of the Evidence

I have reviewed the written submission provided by the complainant at the hearing and I have considered the evidence in the respondent’s book of papers. Apart from the complainant’s description of the difficulties in his relationship with Tracy, there is no evidence that she was disrespectful towards him or, that as he described, she treated him like a servant. For an employee with a number of years of service, I find it difficult to understand how Tracy could remain in the organisation if her behaviour was as bad as it was described by the complainant. When I put this to him, he said that this was her particular skill and that she was “hiding in plain sight.”

I accept that the complainant had a difficulty with his colleague, but as a complaint of constructive dismissal, he has not given an adequate explanation, or any explanation at all, about why he didn’t bring his problems with Tracy to the attention of someone who could have done something about them. In the first instance, he could have spoken to his manager, LM, who sat in the same open plan area and who could easily have monitored the situation. At the hearing, he said that he didn’t speak to LM because he felt more comfortable talking to her manager, LMM. At his eight-week review with LMM on July 5th, he could have told him about what he considered was Tracy’s scathing attitude towards him and how she was disrespectful towards others. Why he didn’t is baffling, because the concerns that he raised about training and work processes were documented and actioned. Why didn’t he go back to LMM and say, “can I talk to you again? I have a bigger problem that’s making me think I should resign.” As well as his day one induction, the complainant attended an induction day three weeks into his job, where he was informed about how to deal with grievances and issues related to dignity at work. He gave no explanation about why he didn’t attempt to have his concerns dealt with by using these procedures.

Conclusion

It is my view that the complainant has not demonstrated that his decision to resign meets the burden of proof set out in the McCormack V Dunnes Stores case which requires him to have used the procedures available in the workplace to resolve his grievances with his colleague. Because he didn’t report the difficulties he experienced, he prevented the management from having an opportunity to intervene before he resigned. An investigation was carried out after he left and his manager was satisfied that the complaints he made about his colleague were unfounded. I find that the complainant has not provided the evidence required to show that the conduct of his employer was so unreasonable that he had to resign and, for this reason, his complaint of constructive dismissal does not succeed.

I recommend that the respondent takes no further action regarding this complaint.

Constructive dismissal, reasonableness of the decision to resign