Complainant

Respondent

Anonymised Parties

An account assistant

A communication company.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00029575-001

08/07/2019

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

CA-00029575-002

08/07/2019

The Complainant commenced employment with the Respondent organisation on 4th December 2017 as an account assistant, this employment ended on 26th June 2018.

This complaint was received by the Workplace Relations Commission on 8th July 2019 and originally contained four complaints, two referred under the Industrial Relations Acts and two referred under section 77 of the Employment Equality Act, 1998. The two complaints under the Employment Equality Act, 1998 were deemed to be out of time. The hearing into the complaints referred under the Industrial Relations Acts proceeded. These two complaints are as follows:

CA – 0002957 – 001 – complaint referred under the Industrial Relations Acts – the Complainant contends that she was unfairly dismissed by the Respondent.

CA – 0002957 – 002 – complaint referred under section 13 of the Industrial Relations Act, 1969 – the Complainant contends that she was subjected to bullying and harassment.

The Complainant contends that at her interview she was informed that the Respondent organisation were looking for someone to work closely with the Finance Director and the Group Financial Accountant and these facts were contained in her contract of employment – this never happened.

The early months of employment appear to have been uneventful. It was in May 2018 that the relationships in the office, particularly in the Finance section, started to become fraught and this would coincide with the time when the Complainant’s probationary period review was due to take place.

On the 23rd April 2018 the Complainant attended a meeting with the HR Director who informed the Complainant that the Finance Director was not happy with her behaviour, he then made reference to an incident on 18th April 2018.

On the day that the Complainant was issued with the investigation report i.e. 26th June 2018, straight after the meeting with the independent investigator that the Complainant was approached by the Dublin office Managing Director and the Finance Director who asked her to attend a meeting with them in his office. The Complainant informed them that she had just come from a difficult meeting and that she informed them that she was not available. The Dublin office Managing Director then came to the Complainant’s office on her own, closed the door and asked the Complainant when she would be available. The Complainant was very angry and and informed the Managing Director that they could not just come to her office and demand that she attends a meeting. The Complainant then informed the Managing Director that she wanted HR to attend any meeting that she was going to.

The Complainant then went to the Finance Director’s office and informed the Finance Director that if he wanted her to attend a meeting he would have to send her a meeting request and an agenda for any meeting. The Complainant then returned to her office.

The Dublin office Managing Director went to the Complainant’s office and informed her that the HR Director would call her on the phone (he was in Belgium on the day in question).

The HR Director called the Complainant by phone and informed the Complainant that her probationary period would not be extended and that she should hand in her keys etc.

The Complainant gave her keys to the Dublin office Managing Director and said – “he is lying and lying and lying, he should be hung in O’Connell Street and he should not be working in any place really”.

The Complainant contends that the Finance Director knew exactly what the consequences of dismissing the Complainant would have on her career and her life. He was fully aware of “on goings” in the organisation she had previously worked in, that he had information on her experience, knowledge, education and career progression plan and also her age as well as her private circumstances and the consequences this would have on her life, her mental health and career progression.

The Complainant listed a chronology of events leading to her dismissal – this is very similar to the email chain I have summarised below.

During the third week in May 2018 the Finance Director sent the Complainant a meeting request email. He was proposing to meet the Complainant on 29th May to conduct a review of her probationary period of employment. This meeting took place on 29th as scheduled. Following the meeting the Finance Director wrote the following email to the Complainant:

“I am writing to you now following the meeting today with myself and (HR Director named) at 3.00pm. As I had informed you previously the purpose of this meeting was to discuss your probationary period. Firstly, I have to express my disappointment at your decision to get up and walk out in the middle of our meeting. At the start of this meeting I explained my intention to extend your probationary period by a further six months which we are entitled to do at our discretion as per your contract.

As I went through the reasons for this I was also disappointed that you felt it necessary to laugh throughout and then walk out in order to compose yourself. When you returned to the meeting I proceeded to go through the reasons why I felt the need to extend your probationary period.

I tried to explain to you that the major factor was your attitude to me and your other colleagues in the finance department. As I went through this you disagreed with almost every point I made in a confrontational manner. This demonstrates the point I was trying to make that when something happens that you disagree with you act in a manner that is not acceptable in a professional working environment. The HR Director referred to the meeting you had with hi at my request on 23rd April where he discussed my concerns regarding your behaviour. Your take away from that meeting was that you were doing well, and everyone was happy with you and that I had over reacted and was overly sensitive. The Hr Director challenged you on this view and asked you again what was your view on why you were being asked to meet the HR Director, to which you responded that you didn’t really know without looking at your notes. The HR Director then asked you what were the reasons you had just been given for extending your probation period, to which you responded that you would have to look at your notes from the last fifteen minutes.

I suggested to you that we review your probationary period on 29th August with an eye to exiting you from the probationary period if you demonstrate a significant improvement in the way you deal with people in the finance department.

When I made the point that you often walk away when you disagree with a reasonable instruction, you completely disagreed with me and said that no one has ever claimed that of you. I can state that you have done it to me on numerous occasions and I have observed it happen to P and U has told me that you have done it to him. Let’s be clear, you walked out of the meeting today which is unacceptable and unprofessional behaviour.

We held this meeting to explain to you our concerns and explore ways to overcome such issues, obviously this couldn’t happen as you walked out.

We need to conclude this meeting and I suggest we meet again on Thursday, which gives you time to consider our concerns which were outlined to you.

I will send a meeting invite to you for 11.00am Thursday.

Regards”.

Following this meeting the Finance Director met with the Complainant in the presence of the HR Director on 31st May 2019. Following this meeting the Finance Director sent the following email to the Complainant:

“I am writing to you in regard to our meeting this morning where we discussed your probationary period. Firstly, I wish to address what has happened since we met on Tuesday.

At Tuesday’s meeting I suggested to you that there were certain areas of your performance that I would like you to work on, in particular, certain behaviours that I flagged, namely, the way in which you deal with myself and the rest of your colleagues in the finance department. I put it to you on Tuesday that there were times when I was asking you to carry out a piece of work and you would just walk away from me before I was finished speaking, that you had refused to carry out certain instructions from the Finance Controller, and the closing of your office door. As I did not get the chance to finish on Tuesday I flagged today about wearing headphones while at your desk.

At Tuesdays meeting you walked out twice, the first time because you were laughing and felt the need to compose yourself, the second time you raised your voice at me because you did not agree with what I was saying and walked out of the meeting.

Since that meeting on Tuesday you have contacted the Chairman of the company and the CEO, along with other members of staff. The CEO asked you to deal with myself and the HR Director. You persisted in trying to get the CEO to hold a meeting with you after he referred you to myself and the HR Director and subsequently you contacted the Chairman when you were asked not to. These are some of the issues that I was asking you to review, in particular, to follow a reasonable request.

I am disappointed that at today’s meeting you refused to take on board any of my suggestions and instead started to shout at me at such volume that the Receptionist had to knock on the door to say that the noise was disturbing a client meeting next door. At this meeting you asked that I apologise to you, your family, the Chairman and all the employees of the company and following that I quietly resign my position with the company, all the while failing to acknowledge any of the points I was making about your behaviour. I am not accustomed to behaviour such as this and find it completely shocking and unacceptable.

Going forward I am now extending your probationary period by three months as opposed to the six I recommended on Tuesday. I will review your performance on a monthly basis to see if you are making progress with the suggested points above and then assess your suitability as to whether or not I can exit you from your probation.

Even though you may not have fully taken on board the changes required, it is necessary that I point out that failure to correct these behaviours will have the consequence of not having you confirmed in employment.

Please let me know if there is anything you need in order to reach the level that we require to achieve a productive and harmonious workplace.

Regards”.

The Complainant replied to this email on 5th June 2018 and put in the subject line of her email “Probationary period extension error”; she wrote:

“Thank you for your email. Could you please reassess your thoughts and feelings and cancel extension of probationary period.

As far as I am concerned my contract is permanent and salary should be increased.

Thank you”

The Finance Director replied on the same day.

“It is very disappointing that you don’t seem to have recognised the significance of our meetings last week. As per your contract of employment, we have extended your probationary period by three months. I will have a monthly review meeting, end of June, July and August with you and we will discuss your performance and behaviour, depending on your progress we will assess your suitability for exiting of the probation period.

What concerns me now is that you don’t seem to have taken on board the conversations we had last week, which you must address.

Also, your behaviour last week in emailing staff (both the email below and the one after our Tuesday meeting) and leaving those private emails in printers on the first and second floors is not professional and is certainly not the behaviour I would expect from any employee”.

The following morning (6th June 2018) the Complainant replied:

Could you kindly end my probationary period (from 3/6/18) and increase my salary; and cover the loss for the salary difference for the period 3/12/17 – 3/6/18.

Could you please confirm % of my bonus in January 2018.

Many thanks”.

On 15th June 2018 the Complainant sent an email to the Finance Director regarding her email of 5th June, this email read as follows:

“Is there any update on the below” (referring to the question of cancelling the extension of probation and a salary increase).

The Finance Director replied as follows:

“Please refer to the email I sent you on 5th June”.

The Complainant then sent:

“As you did not speak the truth I will have to ask for further assistance”.

The Finance Director replied as follows:

“It is very concerning that you would say in writing that I do not tell the truth.

I am a Chartered Accountant with over 25 years’ experience, and not one person has ever questioned my integrity.

You were spoken to by the HR Director in early May and subsequently spoken to by myself and the HR Director on 29th and 31st May.

I again need to advise you to review your performance and behaviour …………”

Within three minutes of receiving the email from the Finance Director the Complainant wrote to the Chairman of the company, in her email she states:

“Could I please talk to you in private to report bullying and harassment in the office which is ignored by the HR Director and the CEO”.

The Chairman replied as follows:

Thank you for your recent email requesting a meeting with me. I have no role in dealing with the issues which you outline. The correct procedure is for you to put your complaints in writing and address them to (HR Director named) who will deal with them. At (Respondent named) we value the welfare of our employees and I can assure you that the matter will be dealt with in accordance with company procedures.

With kind regards”.

The Complainant sent the chairman a short email to thank him for his input.

On the 20th June 2018 the Complainant met with the independent investigator who had been asked to come into the Respondent company to conduct an investigation.

The Investigator met initially with the Complainant on 20th June 2018 and reached agreement with her on a process to be followed:

·         Conduct the meeting with the Complainant

·         Write up a summary note for agreement by the Complainant.

·         Meet with others involved in the investigation and complete summary notes for agreement by them.

·         Once all the data had been collected the investigator would then issue a decision in as reasonable a timeframe as possible.

·         The investigator emphasised that he understood the pressures individuals are under in investigations such as this, particularly the Complainant, and thus would want to complete the total process as efficiently as possible.

The Complainant was in complete agreement with this approach and signed off on her meeting with the investigator.

It should be noted that the Complainant named five witnesses that the investigator should talk to.

On 26th June the Investigator issued his report, the following are quotes taken from the final investigation report:

“Not one of the allegations put forward was given any credence by any of the five witnesses”

The investigator concluded:

“No credibility can be attached whatsoever to the allegations put forward by (the Complainant was named)”.

In his determination the investigator has said:

“It is the overwhelming view of this investigator that there is absolutely no foundation at all for the allegations being made and thus the Investigation finds unequivocally that (the Complainant named) despite her own feelings, has made totally unfounded and unwarranted allegations against the Finance Director.

In situations such as this where the evidence is so overwhelmingly against the individual making the complaint an Investigator approach the question of whether or not the allegations were vexatious. In this particular case I am of the view that the evidence indicates that the original complaints were vexatious in nature”.

Following the issue of the investigation report from the investigator the Complainant was invited to a meeting by the Managing Director of the Dublin office, the Finance Director would also be attending this meeting.

At this meeting the HR Director told the Complainant by telephone that the Finance Director did not want to extend the probationary period, and this would result in the termination of her contract with the Respondent.

The Complainant submitted this complaint in conjunction with three other complaints against different respondents and claims that they are all linked together. It is not possible to hear complaints against different respondents at the same hearing.

In hearing this complaint, I can only consider the complaint against this named Respondent and no one else.

CA – 0002957 – 001 – a complaint of unfair dismissal to be heard under the Industrial Relations Act.

Clause 1.2 of the Complainant’s contract of employment reads as follows:

The first six months of your employment shall be a probationary period and your employment may be terminated during this period at any time on one week’s prior notice. We may, at our discretion, extend this period for up to a further six months. During this probationary period your performance and suitability for continued employment will be monitored.

In this instant case the Complainant’s behaviour was being looked at in April and she was informed by the HR Director that her behaviour was unacceptable.

At the two meetings with the Finance Director and HR Director in May the Complainant was left in no doubt about what may happen if her behaviour did not improve, examples of unacceptable behaviour include the Complainant walking away from people who are talking to her, the Complainant shouting at people and wearing earphones at her desk.

No employer could be expected to accept this type of behaviour from any employee at any time during the period of employment especially an employee who is only a few months into the employment relationship.

CA – 0002957 – 002 – complaints of bullying and harassment.

I note that the Complainant only complained of being bullied at a time when the email chain between herself and the Finance Director was coming to and end. The Complainant sent an email to the Chairman of the company.

The Respondent organisation initiated an investigation to be conducted by an independent investigator. The investigator chosen is a highly respected HR Consultant and he spent time with the Complainant on 20th June agreeing with her how the investigation would proceed. The Complainant signed a document stating that she agreed with the way the investigation should be conducted.

The outcome report from the investigation read as follows:

“It is the overwhelming view of this investigator that there is absolutely no foundation at all for the allegations being made and thus the Investigation finds unequivocally that (the Complainant named) despite her own feelings, has made totally unfounded and unwarranted allegations against the Finance Director.

In situations such as this where the evidence is so overwhelmingly against the individual making the complaint an Investigator approach the question of whether or not the allegations were vexatious. In this particular case I am of the view that the evidence indicates that the original complaints were vexatious in nature”.

There is no need to say more in relation to this complaint.

I can find no merit whatsoever in the complaints submitted by the Complainant.

The complaints are not well founded and therefore fail.

Industrial Relations issues.