Complainant

Respondent

Anonymised Parties

A Manager

An Art Gallery

Representatives

Brian Gill, Callan Tansey

Declan Thomas IBEC

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-00020784-001

25/07/2018

The complaint may be synopsised as follows: The Complainant worked as the front of house manager of an arts gallery. Her job responsibilities included inter alia managing and overseeing the running of the front of house area and the café. The day to day running of the café itself was the responsibility of a chef/café/bar manager (AB). When AB was first employed, in June 2017, he did not report to the Complainant but three months after his commencement, his line management changed from the Acting Director of the Art Gallery to the Complainant. This was occasioned by her promotion to Visitors’ Experience Manager in September 2020. However, this change in line management did not prove to be successful. AB refused to take instructions from the Complainant and when she reported this problem to the Acting Director, CD, (who was her line manager) nothing effective was done. The matter escalated in February 2018 when the Complainant had an altercation with AB as a result of which she felt threatened. She left the premises that day and went on sick leave. Her complaint is that there was a failure to deal with an escalating interpersonal situation between AB and herself between October 2017 and February 2018 and thereafter management did not deal adequately with her grievance. She left on sick leave in February 2018 and did not return to work.

1.       In October 2017 the Complainant was appointed to the Visitors’ Experience Manager. This involved a number of wide-ranging responsibilities however for the purposes of this complaint, one of her roles was to oversee and manage the café and be the line manager of the chef (AB) who ran the café business on a day to day basis.

2.       From the start of the change in his line management AB would not cooperate with the Complainant and would not take direction from her. Throughout October, November and December 2017 the Complainant copied in CD to the emails of instruction to AB. It is clear from these emails that CD was aware that AB was resisting line management from the Complainant.

3.       Matter came to a head in December 2017 when CD was on leave. These are recorded in 3 separate emails which show that AB was resisting instruction from the Complainant.

4.       After her return from the Christmas break still there was no intervention by CD. At this point the Complainant gave up cc-ing CD in her emails to AB as she believed that no intervention would be made in any event.

5.       Throughout October 2017 to January 2018 the Complainant explained verbally to CD the ongoing difficulties that she was having with AB but CD kept replying by saying “you have to manage him, you are his line manager.” She felt alone and abandoned by management.

6.       On 2 February 2018 she arrived into work and AB arrived a half and hour late. He appeared to be in an aggressive mood. When the Complainant asked him to clear the tables of dirty wine glasses (that had been left over from an event the night before) he came over to her with loosely clenched fists at the front desk and raised his voice saying he would not take instructions from her and he threw a sheet on the table. She was afraid that he would hit her.

7.       The Complainant left her position and went outside to telephone her manager, CD. CD did not respond appropriately to this and the Complainant believed that her complaint was not being treated seriously by CD. She left her work and went to the doctor and thereafter went on sick leave.

8.       After some weeks the Complainant wrote to the chair of the Board of Management setting out her version of what occurred on 2 February 2018 and she received a reply email from the Chair stating that if she had a grievance that it must be raised in accordance with the Respondent grievance procedures.

9.       The Complainant treated this response as being a rebuff as she had already given her version in writing in accordance with the grievance policy. The request by the Chair then that she follow the grievance procedure, which was to set out a grievance in writing was an implied rejection of the complaint that she had made and was in keeping with a general management approach of a failure to intervene. She had made a complaint in writing that she had been exposed to behaviour that she regarded was physically threatening and the response (for her to follow the grievance procedure by putting a formal complaint in writing) amounted to a refusal to deal with her complaint.

10.   She was very upset by this treatment and failure to take her complaint seriously. She had no option but to not return to work.

1.       Having previously worked for the Respondent on a Community Employment scheme until 2014 the Complainant was approached in 2017 about covering some front of house duties. This was an ad hoc appointment when a vacancy in front of house role emerged.

2.       The permanent managerial post of Visitor’s Experience Manager was advertised and interviewed for in September 2017 and the appointment of the Complainant to this post was made in October 2017.

3.       In October 2017 the Complainant’s duties expanded to include managing the staff of the café as well as front of house, CD held a meeting with the Complainant, AB and the café assistant to explain the duties and the new reporting structure. Up until that point, AB had reported directly to the Acting Director, CD.

4.       CD accepts that in October 2017 it had to be made clear to AB that his line manager was now changing to the Complainant and that he should report to her.

5.       Over the period October to December there were teething duties between the Complainant and AB in terms of day to day management of the cafe but nothing that was out of the ordinary. CD disputes that AB had little or no restaurant experience or that he was floundering in the post or was out of his depth.

6.       CD says that nothing in the emails between October and December point to any significant interpersonal difficulties between the Complainant and AB. They were more operational differences of opinion or priority and CD felt that these would be sorted out over time. Significantly there was not request by the Complainant to CD to intervene or again clarify again with AB that he reported to the Complainant. From conversations with AB it was clear that he was unhappy with the Complainant micro-managing his job but it was nothing more than that.

7.       CD went on leave in December and she accepts that she received 3 emails over her leave period that indicated the Complainant was not happy about AB not following her instructions and or that he was being “defiant” with her. However, CD did not treat this as being a cry for help by the Complainant, rather that the Complainant was keeping her in the loop about the situation.

8.       In any event on her return on 2 January 2018 she approached both the Complainant and AB separately to ask what the work dynamic was like between them and both said it was satisfactory. As a result, CD did not consider that the situation was in any way serious.

9.       She did not receive any email correspondence throughout January 2018 from the Complainant and took from that that all was well.

10.   On 1 February 2018 the Complainant spoke to her at the front desk using bad language at a high voice, which member of the public could hear. The Complainant was emotional and critical of AB. After bringing the Complainant aside and hearing her out, CD advised her to go home early that day, which she did. She then told the Complainant that she was on leave the following day as she had to drive her mother to a hospital appointment in Galway. As the Complainant had been fragile, she advised her not to engage with AB at all the following day and that she, CD would deal with the matter properly on her return.

11.   The following morning when she was en-route to Galway she received a phone call from AB saying that a verbal altercation had just occurred between the Complainant and AB. She was emotional and said she would go to the Police. CD asked if any physical contact had occurred, which the Complainant replied no, “but there are different types of assault.” However, as the Complainant was so upset, CD told her that she would turn around and return. She told her that she would meet her in the gallery at 11.30am.

12.   On her return, at approximately 11.45am she learned that the Complainant had just left work, had gone to the doctor. She noted that the incident had been reported as occurring at 10am however the Complainant did not leave work until 11.40am. The reason she knows this is that the Complainant cc-ed her in 2 emails to AB about work related matters and also an email to her, CD, directly about the altercation. CD denies the Complainant’s version of events which was that she left the work place immediately without returning to collect her belongings. The Complainant remained at work for an hour and a half following the alleged altercation. CD said that the version of the altercation provided by the Complainant at the Adjudication hearing was both different to that which was reported to her that morning on the phone and is also different to the version recorded in the Complainant’s email to her that morning and different to that which was subsequently sent to the Chair of the board of Management.

13.   Following the Complainant’s commencement of sick leave, CD wrote on several occasions requesting that if the Complainant wished to raise a grievance, she must do so in accordance with the Respondent’s grievance policy.

14.   The grievance policy states that if an employee has a grievance, he or she must first attempt to deal with the complaint informally and if this is unsuccessful he/she must initiate the formal grievance process by setting out the complaint in writing to the Director. The policy is silent when the complaint lies against the Director (or in this case the Acting Director) but it should be assumed by an employee that the written complaint in those circumstances should be sent to the Chair of the Board of Management.

15.   CD went on leave and on 21 February 2018 a email letter of complaint was sent by the Complainant to the Chair of the Board of Management. Neither the Chair nor, later did CD consider that this email constituted a grievance in writing in accordance with the grievance procedure, no use of the word “grievance” was employed and it was not considered by the Respondent to constitute a grievance.

This complaint is two-fold. Firstly, that there was a failure to intervene in an escalating situation between the Complainant and AB in the period October to January 2018 and secondly that subsequent to the altercation that occurred on 2 February 2018 there was a failure by management to deal adequately with her grievance.

I accept the evidence of the Complainant that she felt out of her depth and undermined by AB’s attitude towards her. This is a common situation when one’s line management changes and after which one reports to a person to whom one regarded as equal as opposed to senior to one. Such transitions are often fraught with difficulty and require clear and firm handling, otherwise who has authority over who becomes blurred and from which dissent often follows.

My observation in relation to this period is that both AB and Complainant, who were both recently appointed to their respective positions, understood from CD that they were expected to “get on” with the job at hand and that she would not be micro-managing their relationship. I think that the Complainant did not want to be regarded as failing and while she was continually reporting difficulties to CD, she did not take the necessary step of requesting her intervention. There is a significant difference between someone reporting to her manager that the attitude of an employee is difficult and a request for management to intervene in the situation in order to clarify her authority over him. Unless such a request is made specifically, it could be said that such an intervention, when no such request had been made, would undermine the manager’s authority rather than bolster it. In any event such a request is not evidenced in the emails and I do not accept that it occurred in fact.

However, when matters came to a head, as they did on 2 February 2018, it cannot be said that management were not aware of the situation. The Complainant had left work, she had gone on sick leave and had gone to the Police to report the incident. With knowledge of these events, the Chair of the Board of Management received an email on 21 February 2018 where the event was described, and the following request or ultimatum was made. It could not have been clearer.

“Until such time as it is made clear to AB that I have authority over him, that it is made clear that it is clearly not acceptable to shout and threaten me, publicly and in front of other colleagues, I will not be in a position to return to work.”

I cannot accept that this did not constitute a request for an intervention or a grievance within the meaning of the Respondent’s grievance procedure. Just because the word “grievance” is not used does not mean that it did not constitute same. If there were any doubt about this the Chair of the Board could have asked – do you, the Complainant, wish the contents of this email to be treated as a written grievance?

Alternatively, if the Chair of the Board of Management was reluctant to become involved in day to day management of the business, in the absence of the Acting Director. And one could imagine why she would have been so reluctant, she could have stated that this matter would be referred to the Acting Director on her return from leave.  

But instead the reply repeated the management position which was that any grievance needed to follow the Respondent’s grievance procedure, which was that a complaint be put in writing, as if that had not already occurred.

It is understandable why the Complainant believed from this point on that management were of the view that she had over reacted to the situation and/ or her complaint was not serious and/or did not her work was not valuable to them.

On the balance of probabilities, I find that there was a failure by the Respondent to comply in a pro-active way with the written complaint/ grievance dated 21 February 2018. I find that this complaint to be well founded and I recommend that the sum of €9000.00 be paid to the Complainant. In making this recommendation I take into account the fact that Complainant left her work as a result of what occurred and suffered financial hardship as a result.

I also recommend that the Respondents’ Grievance Policy wording be amended to reflect, in express terms, that which the Respondent’s representative contended was implied in the policy, namely that when an employee’s grievance is against the Director (or Acting Director) of the Respondent, that the grievance should be addressed to the Chair of the Board of Management (as occurred in this case).

Recommendation: Compensation of €9000.00 be paid to the Complainant