Complainant

Respondent

Anonymised Parties

An administrator

A car retailer

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00011997-001

20/06/2017

The complainant worked for the respondent from the 2nd February 2015 to the 9th June 2017. She made complaints of bullying regarding the behaviour of another receptionist. The complainant resigned and complains of constructive dismissal. She was paid €12 per hour. The complainant was unable to work following her resignation for health reasons and asserts that this was attributable to the dismissal. The respondent denies the claim of constructive dismissal.

The complainant worked for the respondent as a receptionist and tendered her resignation on the 2nd June 2017. She did so after being subjected to bullying and harassment and after bringing this to the attention of the respondent. She was not provided with a grievance procedure or told how to implement proper steps to deal with her grievances. It was submitted that the employer failed in their obligation in accordance with the contract of employment.

Evidence of the complainant

The complainant outlined that she commenced employment as a receptionist in 2015. She dealt with customers and was the “face” of the respondent. She had been head hunted to the role. She was initially in the service reception area and then in the showroom reception. She worked with a named colleague, who became business manager. There were then no issues in the workplace.

The complainant outlined that she was never directed to a written grievance procedure and never heard anything about a net server, where the respondent said that the grievance policy was held. She did not know who the UK-based HR manager was or who the disciplinary board was, as referred to in the contract.

The complainant explained that another full-time receptionist came on board in January 2017 (referred to in this decision as ‘the colleague’). The complainant was informed that the colleague would be doing the same role as there was a great deal of administration work as well as the reception role. The complainant was expected to show the colleague what to do and to divide up the tasks between them.

The complainant said that she raised the first grievance with the named acting sales manager in January 2017. This occurred in the second week of the colleague’s employment as she was reading out confidential, personal information relating to others. This was in the presence of customers and in a large open plan space with 8 or 10 sales staff. The colleague was also being nasty. The complainant raised this on the 13th January with one manager who said that she would speak with another manager. This second manager came over to the desk while she and the colleague were present and told the colleague that he was stopping her access to emails, giving an excuse. The manager told the complainant to delete the information downloaded by the colleague, but she could not do this as the colleague had changed the password. The complainant asked the colleague for access to her computer in order to delete the information.

The complainant outlined that the colleague behaved very badly on the 8th February 2017. She was abrupt and dismissive. The complainant said that their relationship deteriorated between the 13thJanuary and 8th February as the colleague was “biting my head off”. The complainant was trying to welcome the colleague and to train her, but she just obnoxious. The complainant emailed two managers on the 9th February 2017. The complainant was uncomfortable about the colleague’s behaviour, including her lack of discretion. Everything written in the email had been brought verbally to the respondent’s attention. There was no response from the respondent. The next day the complainant met with a local manager and a HR representative from the Head Office. They had already met the colleague separately, who had made a complaint about the complainant. She asked for the colleague’s complaint about her and this was only provided to her after her resignation.

The complainant said that nothing specific was said to her following the meeting of the 10th February 2017. She had the opportunity to elaborate about the contents of her complaint and they spoke for about an hour. She outlined that she treated the colleague the same as others, but the colleague accused the complainant of mistreating her. No other staff or customers had complained about the complainant. After the meeting, the respondent called the complainant and colleague in and said that they both had to get over it. The respondent said that this did not require further intervention. The message was “go back and do your job”.

The complainant said that she told management that she was unhappy with the conclusion of the meeting. She felt that there were points left out and told them that she could not put up with things any longer. She spoke very candidly to the manager and clarified why she had deleted the emails. The HR Manager later suggested that the complainant move to an office. This was later mentioned at a supplemental meeting with both the complainant and the colleague. The complainant said that she was delighted with this as she needed space. She brought the administration work and the reception phone. This was a temporary solution. The complainant said that she enjoyed being in the office, but the colleague continued to have a go at her when their paths crossed.

The complainant spoke with management about the colleague’s behaviour between the 10th February and the 22nd March, but there was no formal response from the respondent. The complainant made a second written complaint on the 22nd March 2017. The colleague’s behaviour had not improved. and she was badmouthing the complainant to other staff. The complainant learnt this from the sales executives. The colleague was saying that the complainant was moved at the colleague’s request because the complainant was bullying the colleague.

The complainant said that her email of the 22nd March 2017 was more specific about how the colleague treated her. The email specifically refers to bullying and how this made her feel, for example the incident of the 15th March 2017. The respondent did not respond and no one from management approached her. The complainant said that this “stuff” was happening every single day, but her email summed it up. The only email she received from the respondent was the annual performance review, but there was no specific response regarding the other issues.

The complainant said that the performance review criticised her in respect of customer interface, but this was because she had moved into the office. She explained this to the respondent. The review made negative findings about her “teamwork” and “positivity”. This was her first performance review and she was unhappy with the outcome. She said that it was hard to be positive when she was being bullied. She explained that the honesty issue referred to the road charging issue. She thought that the reference to being disrespectful towards management was about the disciplinary meeting where she said that there was no training regarding road charging. She thought she was being transparent. The complainant said that there was no report regarding the mystery shopper exercise involving her. While she was told that she would have an Individual Capability Plan, this was never provided.

The complainant explained that she purchased a car from the respondent under a scheme and used a tag for road charges. She had authority to use the tag and thought she was transparent about using the card. She was given a final written warning for using the tag. The complainant said that the respondent did not provide training following the performance review. She only attended one day of training, which was for all administration staff to learn about excel. The complainant took sick leave in April 2017 and was concerned about her reputation on her return to work. The sick certificates referred to stress and she told her GP that this was caused by being bullied at work. She was to have another performance review in three months.

The complainant did not think that the colleague was told off and she continued to behave in the same way. The complainant was unnerved at being on a final written warning while the colleague was “out to get her”. The complainant said that her email of the 6th April 2017 to the UK-based HR representative had followed her email to local management the day before. There was no response to either email. She said that the colleague’s behaviour improved after the 22nd March and the complainant assumed that the respondent had spoken with her. This relationship later deteriorated as, for example, the colleague prevented the complainant from accessing a filing cabinet. She set this out in the emails of the 5th and 6th April and referred to the complainant wishing to give further information about the colleague. The respondent did not get back to her.

The complainant returned to work on the 18th April. Management said that she did not have to go back to reception. She was to do the same administrative role and would also do accounts and HR. She was moving away from customer service. A named person was employed as “customer support” and based at reception. The complainant presumed that this was a solution and she had not been given advance notice of the proposed re-organisation. The complainant was to support the sales and account teams. While the complainant was initially relieved, the manager later told her that the respondent was offering a salary of €24,000, which was less than her existing hourly rate. The complainant asked for a review and for a contract. The respondent declined as the role fell under the general part of the receptionist contract. They suggested that she work in the accounts office, but this did not make sense as she worked with the sales team.

The complainant was delighted that she did not have to go back to the reception desk, but the colleague made remarks on passing her office. The complainant saw the new staff member cry on two occasions. The complainant had sought to help the staff member and welcomed her. The staff member told the complainant that she did not know where she stood with the colleague and that she was not being trained. The colleague was being difficult with the complainant, for example making it hard to access files and making negative comments to her.

The complainant spoke to management about the colleague’s comments and how the new staff member was faring. The complainant cleaned the coffee machine at the end of each day. She had to leave early one day so emailed the colleague to ask her to clean the machine the following morning. The complainant described what followed as “crazy”. The complainant spoke with the colleague, who said that the staff member would clean the coffee machine. The colleague then reported to a manager that the complainant was ordering her about. The staff member also told the complainant of the colleague’s derogatory comments made about the complainant’s hygiene and home. The complainant reported these to a manager, who did not respond.

The respondent was aware of what was going on. The complainant’s emails to the colleague were copied to a manager. She had sought the emails, but they were not provided to her. She thought that the HR representative sought to assist when she came over, but nothing else was done.

In May 2017, the complainant met with the branch director and told him about the effect the stress was having on her and her children. She had been prescribed with an anti-depressant but did not tell the respondent of this. The manager said that he would have a word with the colleague. While the conversation was pleasant, the complainant mentioned going to court. She did not want to leave as she was a single mother with two children. The branch director replied that the chances were the colleague would resign before she did. The complainant could not understand why nothing was done. The financial controller warned her to stay away from reception.

The complainant said that after this, the colleague was nice to her for a day or two. At this time, the colleague could be called to work in the service department, leaving the staff member alone at reception and unable to deal with queries. The manager asked the complainant to cover reception, but the colleague was “like a bull” when the complainant resolved queries, for example with an elderly customer who was in tears after an error with the paperwork. The colleague let the complainant “have it” for getting involved.

The complainant said that she reported the colleague’s behaviour once a week and things were escalating. She emailed these concerns, coping the HR representative. At no stage was the complainant provided with the grievance procedure nor offered mediation. The complainant outlined that there were problems with the colleague in the week before the 2nd June. The complainant provided the staff member with links to help her do the job. A manager approached the complainant to say that she should stay away from reception “for her own sake”. The complainant felt this related to the final written warning and she feared being fired.

On the 2nd June, the complainant submitted an annual leave request to the financial controller. They spoke about the issues she raised the previous week. The financial controller told the complainant she would have to get on with it as they had already provided the office and a new role, as well as the offer of a role in the accounts department. The complainant said that nothing, however, was done regarding the colleague and it seemed that the colleague was making the rules. Things changed every time the colleague threw a tantrum. The complainant said that the move to accounts had been mentioned once and she had not declined this. She felt that she was being moved to accommodate the colleague’s behaviour.

The complainant described the conversation of the 2nd June as not pleasant and being a heated exchange with the financial controller. The accounts role was presented as a promotion and they were not telling her anything. The complainant acknowledged that she may have cursed and raised her voice. She said that the financial controller told her she was “closer to the door” than the colleague. After the meeting, the complainant went upstairs and cried for an hour. She emailed her resignation on the way home, giving one month’s notice. The HR representative acknowledged the email and there was no contact from either local manager.

On the 5th June, the complainant emailed to explain what had happened. She wanted to make sure that the HR representative knew what was going on. The HR representative acknowledged the resignation and that she was taking the request for emails as a data access request. The complainant sought the complaint made about her, as well as her emails to management and the colleague’s abrupt emails. The HR representative had said that there was only one grievance and this related to the resolved February matter. The complainant emailed again on the 13th June as she was frustrated and infuriated. This referred to accessing files at reception and the difficult emails of the 1st June. The complainant was sent her personnel file but was not given emails or a reference.

The complainant was sent the colleague’s complaints about her on the 27th July. She sent the post-resignation emails as she wanted to document the incidents and what had happened verbally. The complainant emailed again on the 31st July.

The complainant outlined that she was being treated for work-related stress. She attended counselling and is under the care of a psychiatrist. She was currently unfit for work. She had a panic attack before an interview in the motor trade. She had earned €480 gross per week with the respondent and lost out on her entitlement to family income support. She is now in receipt of Illness Benefit. She would love to go back to work.

Cross-examination of the complainant

In cross-examination, the complainant accepted that she resigned on the 2nd June 2017 and had not worked since. She referred to previous depression in 2014 and being on mild anti-depressants in 2004. She said that she resigned because she was bullied by the colleague. She accepted that there were issues with members of staff prior to the colleague starting employment with the respondent. She referenced an issue covering the administration work of a staff member. She accepted that there were words with another staff member over damage caused to a car.

The complainant was asked whether the colleague’s arrival threatened her; she replied that every interaction with the colleague was negative and this led to her feeling threatened. It was the complainant’s role to train the colleague, but she was not “having any of it”. The complainant was asked whether she wanted the colleague sacked; she replied that the colleague was on probation and management should have dealt with the situation. The complainant had no issues with the colleague being salaried and full-time. She had mentioned this in a confidential email, but the colleague was able to repeat this back to her.

The complainant said that she did not know that the she had upset the colleague by asking her to remove information from the computer. The complainant asked for permission and the colleague sat on her shoulder. The colleague complained about this to a manager and this manager should have said that he had asked the complainant to access the computer. While the colleague was not happy, she did not storm off. The complainant said that she asked for a copy of the colleague’s written complaint.

Commenting on the email of the 13th January 2017 from the colleague to a manager, the complainant said that she had never seen this email before. No-one had approached her about the email. She said that there was CCTV which could have been checked to see if she had been aggressive. She said that they both made complaints on the 8th February 2017 and the colleague had been angry while writing her complaint. The complainant said that she had dealt very well with the colleague’s behaviour, who had been insulting and obnoxious from the off.

The complainant outlined that the outcome of the February process was that they would work together at reception. It was put to the complainant that the matter was dealt within 12 hours and that she had to act professionally; she replied that she was not happy with the solution as she was unable to do her work. She did not see how this was going to work because of the colleague’s behaviour. While the respondent listened to her complaints, they would not say what issues the colleague had raised or what she was alleged to have done wrong.

It was put to the complainant that the respondent proposed moving her to the office after she expressed her dissatisfaction; the complainant replied that she had asked for a different resolution. She did not know what the colleague was accusing her of doing. She had thanked the HR representative for moving her to the office. The complainant said that she had not seen and never received the letter from the HR representative, dated the 15th February 2017. The complainant now had less interaction with the colleague, whose behaviour was still bad. There were huge problems on the 15th February 2017 as the complainant needed access to a computer, but the colleague used a chair to block her. She described every single incident with the colleague as difficult. The respondent could have checked the CCTV of this interaction.

The complainant acknowledged receiving a final written warning which she did not appeal. This related to using a tag on her personal car. She had authority to use the tag and repaid the monies.

It was put to the complainant that she felt targeted by management; she replied that she was targeted by the colleague and became ill by the way she was treated. It was put to the complainant that her email of the 21st March 2017 was a rehashing of her issues; she replied that by then she knew that the colleague’s behaviour was personal and directed against her. She asked the respondent to inform her what the colleague was saying she was doing wrong. The complainant wanted whatever the colleague was saying dealt with. In respect of the email of the 5th April 2017, the complainant said that after this, she met with the respondent and was moved to the general administrator role. It was put to the complainant that this represented another solution offered by the respondent; she did not accept this as they would still not explain what was alleged against her and she was upset. She said that the respondent was accommodating the colleague, but she was moved because she was being bullied. She was expected to do the same work, with extra accounts and the HR role. There was no increase in her salary and no new contract was offered to her.

It was put to the complainant that she complained on the 5th April 2017 and was offered a move on her return from sick leave; she replied that she had no choice and was told to move to the accounts department. She was relieved to be moving away from the colleague. She said that on the 18th April, she was happy with the solution. She asked the respondent to go on a new salaried contract for five days but was offered a lower salary. The complainant said that the respondent wanted to keep her quiet and they were fed up listening to her. The bullying had not stopped, and they did not take responsibility. She said that she had limited interaction with the colleague in May, except for handing over documents. The colleague kept giving out to the complainant and the atmosphere was poor.

The complainant said that the staff member approached her twice when she was crying because of the colleague’s behaviour. The staff member was too scared to complain. When the complainant entered the financial controller’s office regarding annual leave, they discussed what had happened the previous week and the financial controller said she was fed up hearing from the complainant. The complainant said that this issue was never resolved as the colleague continued to behave in the same way. She had a heated discussion with the financial controller and did not like how the financial controller reacted.

It was put to the complainant that her letter of the 5th June 2017 referred to the colleague being quiet; she replied that the colleague might back off for two or three days but would then come back again. The complainant was asked to work in reception when the colleague was away, who was livid on her return. She made horrible comments, for example about the complainant’s home.

It was put to the complainant that her statement that the colleague was backing off did not add up with her now saying that she was bullied every day. The complainant was asked what was wrong with the financial controller’s advice to keep away from reception; she replied that she had to access documents and post. The staff member was coming to her for advice and help. The staff member was unable to access the correct records when the colleague was away; the colleague was livid that the complainant had helped out.

It was put to the complainant that the colleague had submitted a grievance about the complainant on the 1st June; she replied that they had had an interaction regarding fines. The complainant was busy and had not dealt with the issue. A manager asked her to give the fines to the colleague and she would also speak with the colleague. The complainant then dropped the fines down to the colleague, who was horrified of the complainant’s conversation with the manager. The complainant did not like her manner and argued back. The complainant said that she could not understand how the colleague got away with it and she was let go from a previous job for bullying.

It was put to the complainant that the respondent did everything possible to resolve the interpersonal issues, stopping short of dismissing one or both of them; she replied that she had a good record with the respondent and the move penalised her annual review. She acknowledged that there were incidents with two staff members in 2016.

Re-examination

In re-examination, the complainant said the letter of the 15th February 2017 was not on her personnel file. She said that there were no disciplinary proceedings arising from the 2016 incidents. She was only advised of the contents of the colleague’s February complaint in June, despite requesting this. She was not told how she had to change. She said that the new role meant doing the same work as well as work for accounts and sales. This was the second time she was moved arising from her complaints. The colleague was not moved from reception. The complainant said that she remained on €12 per hour when she expected to move to a salaried position. The staff member told the complainant that the colleague would not teach her and was also saying terrible things about the complainant. The complainant said that the day of the adjudication was the first time she became aware of the colleague’s second grievance of the 1st June. The complainant said that she kept the respondent aware of the ongoing issues with the colleague. She was never advised of the formal grievance procedure and nor was she provided with the employee handbook. She said that the respondent ignored her and did not support her. On the 1st June, she was told to stay away from the reception.

Closing

In closing, the complainant submitted that she made repeated written complaints regarding the colleague’s behaviour. The respondent had not provided with a grievance procedure and there was an imbalance with how it treated the issues raised by the complainant and the colleague. There was no real engagement with the complainant’s issues, while she had been very engaged and proactive in raising the issues. The respondent was aware that the period of absence was related to stress at work. The complainant relied on the authority of Allen v Independent Newspapers [2002] ELR 84, in respect of loss arising from a dismissal.

The complainant submitted that there was no investigation as the branch director had only spoken with staff members. This did not constitute an investigation. The complainant had also sought the complaints made about her, but they were not provided. She had since attended counselling and had been referred to a psychiatrist. She suffered panic attacks when attending interviews. The complainant sought redress that was just and equitable and to reflect the impact the employer’s treatment had on her. She had financial loss also from losing an entitlement to Family Income Supplement. She referred to Homecare Medical Supplies v O’Connell (UD1747) and SI 146/2000. She distinguished this case from Ruffley v St Anne’s School [2017] IESC 33.

The respondent denied that claim of constructive dismissal.

Evidence & cross-examination of the branch director

In evidence, thebranch director outlined that he started at the respondent on the 1st February 2017. He said to the complainant that he would look at both sides. He told the complainant and the colleague they should remain professional as they worked together in a public area. He expected them to put aside their interpersonal differences. The complainant sought another resolution and he suggested that she move to an office and continue the same role.

The branch director said that he never witnessed any negative interactions between the colleague and the complainant. Both later told him that the relationship was not going well and there was animosity between them. He suggested that they have as little interaction as possible and that it should be kept professional. The complainant said that if she was not happy with the resolution, she would go for constructive dismissal. He replied that he did not like being threatened. This conversation occurred in May.

The branch director described the show floor as being on two levels, with sales staff on both. The new role was the only solution he could think of. The next incident occurred in June. The staff member did not complain to him about the colleague. The complainant approached him to say that the staff member was upset, and he said that she should approach him. He and a manager asked the staff member out right how she was getting on and asked whether the colleague was intimidating her. She replied ‘no’.

The branch director said that they facilitated the complainant’s requests, first by moving her to the office and then to the new role. The HR representative recommended that the complainant should be dismissed for the road charging issue, but he did not think that the punishment fitted the crime. He said that there was nothing more the respondent could have done for the complainant, who had thanked him for the resolutions he put in place.

In cross-examination, the branch director accepted that the complainant had only once thanked him for a resolution. They agreed to meet both the complainant and the colleague from what was a clash of personalities. The branch director was asked whether he considered the cumulative effect of repeated complaints; he replied that he agreed that there were repeated complaints from both employees. He accepted that the complainant made repeated complaints about the colleague’s behaviour. It was put to the branch director that the complainant was looking for help and felt that she was not supported; he replied that while there was no formal grievance policy, her grievances were dealt with. He said that the respondent did not refuse to provide a contract, and this was being revised by the parent company.

The branch director could not confirm that the letter of the 15th February 2017 was provided to the complainant. It was put to the branch director that the respondent had no process to address the complainant’s grievances; he replied that the parent company had an employee handbook but there was no local grievance procedure. It was put to the branch director that it was clear from the complainant’s repeated complaints that this issue had not been put to bed; he replied that this seemed to be a personality clash. It was put to the branch director that the complainant could not avoid interacting with the colleague; he replied that they had to interact professionally. The colleague did not ask to move so the respondent never considered this.

It was put to the branch director that the respondent had not engaged with the complainant; he said that they had engaged but there was no finding of bullying. They had spoken to both the complainant and the colleague. He could not recall whether the colleague’s complaint had been given to the complainant. He did not tell the complainant what the colleague was saying about her. He accepted that they had to continue to work together and said that this did not work because of their dislike for each other. He said that the respondent took the initiative in creating a new role.

The branch director said that there had been an investigation into the complainant’s complaints of bullying. He had conducted this investigation and spoken with colleagues, naming three individuals. One said that he had not requested the complainant to access emails. The branch director was referred to the complainant’s email where she says that she was acting under instructions. He told the complainant he would look into it and investigated her allegations. He spoke with the colleague, who denied the allegations and made complaints of her own. He said that he had taken notes. He accepted that the complainant made further complaints, but he found no evidence of bullying. He accepted that he had treated the complainant and colleague differently.

The branch director accepted that the complainant had sought a formal process. He did not accept that the respondent had reacted inadequately to the issues raised by the complainant. He had not realised that the complainant was upset about moving. He said that the respondent did everything in its power to relieve the situation, which involved strong personalities. If the complainant was not explained the grievance procedure, this should have happened. He accepted that the colleague’s allegations were not put to the complainant. It was put to him that this was required by SI 146/2000.

Evidence & cross-examination of the financial controller

The financial controller outlined that she is also the conduit to HR in head office. She first became aware of the incident with the colleague in January 2017. There were three incidents in 2016 involving the complainant’s behaviour. One involved a part time receptionist, whose role overlapped with the complainant and who became upset following an interaction. In another incident, the complainant had tipped her car off a staff member’s car and there followed a verbal interaction between them. The complainant also accused another staff member of posting disparaging comments about her on social media, which led to raised voices between them.

The financial controller said that she managed reception until the branch director started in February 2017. The complainant accessed the colleague’s computer on the 13th January 2017. The colleague believed that the complainant had been aggressive. The financial controller met with them to go through reception duties and for the complainant to show the colleague what to do. The financial controller forwarded to the HR representative both emails of the 8th and 9th February and had no further involvement thereafter. She did not know whether another manager had instructed the complainant to access the emails.

In respect of the annual review, the financial controller said that this covered the previous 12 months. The complainant was marked down as customers were not being met on their arrival at the showroom. This did not just relate to when the complainant worked from the office. The other negatives arose from the 2016 incidents and the road charging issue.

The financial controller said that she forwarded the March and April emails to HR. She attended meeting of the 18th April and said that the role offered to the complainant was a new one. The complainant retained some duties and was assigned others. The physical move did not present a problem as there was another staff member based on the second floor who worked with the sales team. The financial controller believed that the complainant was happy with this proposal.

The financial controller said that no other staff member raised issues about the colleague. She spoke with the staff member, who said that she had no problems. While the complainant raised many incidents, for example receiving a ‘look’ or the colleague not saying, ‘good morning’, there was nothing tangible. The complainant moving upstairs reduced her contact with the colleague. This represented another solution provided by the respondent and was done at the complainant’s suggestion.

In respect of the 2nd June 2017, the financial controller said that the complainant approached her about annual leave and mentioned that the staff member was being bullied. The financial controller said that she had spoken to this staff member and there were no problems. She suggested that the complainant put this issue in writing. She told the complainant that there was no need for her to now go to reception. She did not witness any bullying and said that this was a clash of personalities.

The financial controller said that the colleague made a verbal complaint on the 1st June, but she did not mention this to the complainant on the 2nd June. The financial controller said that her comment about not going to the reception reflected the complainant’s changing role. She could not recall being asked to look at the CCTV regarding the February and June incidents. It was put to the financial controller that the complainant had been marginalised over a period of six months; she accepted that the complainant had raised issues, which she had listened to and liaised with the branch director and HR. The complainant’s grievances were dealt with and she was offered resolutions. The contract of employment referred to the grievance procedure. She said that the 2016 complaints were not formally investigated.

It was put to the financial controller that the respondent did not provide the complainant with the tools to raise grievances; she replied that the HR representative had dealt with the February grievance. The complainant said she was happy, and the respondent had tried to put its best foot forward. She said that this was a clash of personalities. The complainant had expressed an interest in doing a different role and the financial controller explained what the duties would be. The financial controller said that the complainant had been instructed to delete certain credit card information but not to deal with emails.   The financial controller accepted that there should have been an investigation leading to findings. It was put to the financial controller that it was not equal that the complainant’s grievances were put to the colleague, while the colleague’s complaints were not put to the complainant; she said that she was not part of the latter investigation. She did her best to find solutions and this arose because of a clash of personalities. The meeting of the 9th February addressed the colleague’s behaviour and the respondent had put solutions in place for the complainant.

Closing

In closing, the respondent submitted that the complainant’s evidence was that she was unfit for work. This limited the redress she could be awarded pursuant to the Unfair Dismissals Act. It referred to personal injury proceedings taken by the complainant against the respondent and this claim included loss of earnings. It referred to the complainant’s pre-existing condition and submitted that she had not adduced any medical evidence.

The respondent distinguished this case from Allen v Independent Newspapers as there were unique factors in that case. In Ruffley, the Supreme Court held that there must be malice in the disciplinary procedure to merit an award. The complainant had taken one week off as sick leave, which referred to stress at work. She had not informed the respondent of her pre-existing condition.

The respondent submitted that the complainant was contending that the employer must continue to take steps until she is happy. The respondent had acted reasonably and made changes to the business, to separate them and creating a new role for the complainant. The complainant did not avail of the new role. Her evidence was inconsistent whether she was being bullied on a daily basis or less frequently. The only solution that the complainant would have been happy with was the colleague’s dismissal. Her grievances were dealt with promptly and she was happy with the steps taken in February and April. She was given simple advice to stay away from reception. She had not helped the situation by rejecting the new role.

Background

This is a complaint of constructive dismissal. The complainant worked for the respondent from the 2nd February 2015 to the date of her resignation on the 2nd June 2017. At 12.05 on the 2nd June 2017, the complainant asked if she could go home because she was not “feeling well” and states: “don’t need to be feeling this uncomfortable and stressed in my job.” The financial controller immediately agreed that the complainant could go home. On the same day, at 12.26, the complainant resigned. She stated, “I am offering my resignation from today, with 1 months notice as per my contract of employment.” Later that day, the complainant emailed regarding annual leave for a period in June 2017. The HR representative emailed to say that she has been forwarded the resignation email. She stated that the annual leave request to the 9th June 2017 was approved and that the respondent would pay the other three weeks in lieu of notice. The formal date of dismissal is, therefore, the 9th June 2017.

As set out in the evidence, there were a series of interactions between the complainant and the colleague. The complainant raised the colleague’s behaviour as well as her inability to perform all the tasks expected of her. The colleague, in turn, raised issues about the complainant’s behaviour, although the details were not provided to the complainant until after her resignation (including one document presented at the adjudication). The colleague commenced employment in December 2016 and the complainant’s first grievance was raised in January 2017. The HR representative became involved and closed the first grievance by letter of the 15th February 2017. There followed a series of further grievances raised by the complainant. During this time, she changed roles, working from an office and taking on additional responsibilities. An offer was made that she move into an accounts role. Alongside these issues, the complainant received a warning arising from the parking tag issue and participated in the first performance appraisal.

Constructive dismissal – legal test

The classic formulation of the legal test in respect of constructive dismissal was set out in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27. This laid out two separate tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” It is important to note that the contract test requires repudiation of contract and not merely breach of contract.

In Berber v Dunnes Stores [2009] 20 E.L.R. 61, the Supreme Court stated that mutual trust and confidence is an implied term in every contract of employment. The Court held “There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.”

Moreover, the Supreme Court in Berber set out the following approach in assessing whether a contractual term of mutual trust and confidence was repudiated or broken by an employer’s conduct:

“1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at. 4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

In Western Excavating (ECC) Ltd v Sharp, the ‘reasonableness test’ provides that the conduct of the employer should be assessed and whether it “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.” The reasonableness test requires the complainant to have “substantially utilised the grievance procedure to attempt to remedy her complaints” [Conway v Ulster Bank UD474/1981]. The reasonableness test requires an assessment of the employer’s conduct and the extent to which the complainant sought to utilise procedures and raise her concerns.

In Homecare Medical Supplies v O’Connell UDD1747, the Labour Court considered the resignation of an administrator in circumstances where she was effectively demoted by the creation of a new team leader role. It commented on the lack of preventative or support measures put in place following the creation of the new role. The Court referred to the claimant resigning while on sick leave for work-related stress and “No offer to meet to resolve matters was advanced and, notwithstanding that the Complainant was out sick in the care of her GP, no opportunity was provided to her to delay her decision and reflect on the situation.”

Assessment of the evidence

This is a claim of constructive dismissal against the background of allegations of bullying made by, and also about, the complainant. It is clear that the complainant raised these issues at meetings and through detailed correspondence. It is striking that the complainant refers repeatedly to her desire to be professional; she wanted to do her job despite the poor relationship with the colleague. There can be no doubt that the respondent was aware of the complainant’s concerns. It intervened by first meeting the complainant and the colleague, so that they agreed to be professional. Unfortunately, this intervention was not successful, and the complainant had cause to raise further issues. They were not a rehashing of previous complaints.

It was not disputed that there was no grievance policy available to the complainant and other staff. There was reference to a document in the UK business, but this was not made available to staff here. It was also not in dispute that the HR function was run from the UK office. The financial controller was charged with the HR function at the respondent office, although she was the liaison with the HR representative based in the UK.

It is inevitable that there will be interpersonal difficulties between staff working together. This is a case where there were sharp interpersonal difficulties from “the off”, and the complainant outlined that she was unable to do her job. The first grievance was dealt with by the prompt intervention of the HR representative. It looked like the basis for the parties to move on, but this was not to be. It was appropriate to address the first grievance informally, i.e. without an investigation.

It is a striking feature of this case is that the complainant continued to raise issues about the colleague’s behaviour and was clear about the effect on her. The move to the office and the change of role were implemented. The complainant was clear in her emails that these initiatives did not end the problem. She cited many more examples, and her evidence was that while the behaviour might abate for a few days, it would return. The repeated and detailed complaints raised by the complainant should have led to a formal investigation. Only when an investigation was completed could the respondent know whether the colleague’s behaviour was as serious as described by the complainant.

The respondent witnesses outlined that they did not believe that there was bullying. They referred to carrying out an investigation, but there are no notes or minutes presented of any such investigation. There was no formal finding ever made that bullying did, or did not, take place. Aside from the February intervention, there was also a striking lack of response or engagement from the respondent to the complainant’s later complaints. I note the solutions offered by the respondent, but they did not curtail the colleague’s interactions with the complainant.

I also note that, despite several requests, the respondent never provided the complainant with the colleague’s first complaint against her. In respect of the colleague’s second grievance (dated 1st June), it is striking that the respondent witness did not mention this at the fractious conversation of the 2nd June 2017. This was surely something to say to the complainant, in the light of her raising what she described as “bullying tactics”.

I have regard to the complainant’s periods of stress-related sick leave and her ongoing complaints. Whatever her previous health issues, the complainant was clearly stressed and in ill-health. I note that the emailed resignation was a flat communication of termination of employment. This must be seen in the context of the complainant’s other messages, which she clearly refers to the bullying and stress issues.

Given this background, it is notable that the respondent’s initial responses following the resignation related only to the annual leave request, pay in lieu of notice and the return of the car. The respondent does not engage with the complainant regarding the resignation, despite the background and the complainant’s ongoing emails. In further correspondence, the complainant outlines her wish to pursue the bullying allegations. As arose in Homecare Medical Supplies v O’Connell, there was no opportunity given to the complainant to reflect on her decision, in the light, for example, of a proposed new intervention by the respondent.

Taking these findings together, I find that the complainant has met the burden of proof for constructive dismissal. I find that the complainant has met this according to the reasonableness test. The complainant repeatedly and clearly raised the allegations of bullying with the respondent. She also communicated to the respondent the effect this was having on her. Workarounds were introduced but did not resolve the problem. Apart from the initial, informal, process, the respondent did not formally intervene and did not investigate the complaints. There was no grievance procedure. I find that the complainant “substantially utilised” whatever avenues were open to her, but the problem continued without there being an end in sight. It was, therefore, reasonable for the complainant to conclude that she should not put up with this situation any longer and to resign.

Redress

I have found that the complainant was constructively dismissed. It follows that there was a contravention of the Unfair Dismissals Act and for an award of redress to be made.

Legislative background

The remedies of reinstatement or re-engagement were not sought, and it would not be appropriate in this case to award such redress. It follows that an award of compensation shall be made in accordance with section 7(1)(c) of the Act, i.e. compensation that is just and equitable in all the circumstances.

An unfairly dismissed employee is entitled to recover actual and prospective loss, provided the loss arises from the dismissal. Section 7 defines “financial loss” as including “any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation”. It defines “remuneration” as including “allowances in the nature of pay and benefits in lieu of or in addition to pay.” The broad scope of these provisions ensure that bonus payments, use of a company car, an employee’s PRSI and pension contributions fall within their ambit (see Bunyan v United Dominions Trust (Ireland) [1982] ILRM 404).

Section 7(2A) of the Act provides that in calculating financial loss “payments to the employee (a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned … shall be disregarded.”

Complainant’s ill health

It is not disputed that the complainant was unable to commence alternative employment following the end of her employment with the respondent. She states that she attended counselling and under the care of a psychiatrist. She states that she had panic attacks when attending interviews. The complainant submits that this inability to find alternative employment because of ill-health is attributable to the dismissal.

The respondent submitted that the complainant cannot recover an award for financial loss pursuant to the Unfair Dismissals Act as she has been unable to work following the end of her employment. This ill-health was not attributable to the dismissal. Prior to her resignation, the complainant had been off on sick leave and this was certified as ‘stress’. The complainant had not informed the respondent of any pre-existing condition.

The parties referred to Allen v Independent Newspapers (EAT) and Homecare Medical Supplies v O’Connell (Labour Court). In Allen v Independent Newspapers, the EAT was “satisfied that her [the claimant’s] illness is attributable wholly to the factors which led her to resign her employment and claim constructive dismissal. Her illness has led to her financial loss. Having regard to the series of findings made by this Tribunal it follows that it must hold that the claimant’s financial loss is attributable to the conduct of the respondent.” The Tribunal heard medical evidence from three witnesses, with the respondent’s psychiatrist stating that the claimant had suffered an adjustment reaction or stress reaction.

In Homecare Medical Supplies v O’Connell, the Labour Court relied on Allen v Independent Newspapers and made an award for financial loss when the claimant could also not work due to illness. The Labour Court held “In determining the amount of compensation, the Court is required to have regard to the following: the extent to which any financial loss is attributable to any act, omission or conduct by either the employer or the employee; the measures adopted by the employee to mitigate the financial loss; the extent to which the employer has complied with disciplinary procedures in relation to the dismissal; and the extent to which the conduct of the employee was attributable to the dismissal.”

Having considered the medical evidence submitted by a Clinical Psychologist and Neuropsychologist, the Court was satisfied that “the Complainant’s illness was caused by the factors which led to her constructive dismissal. Effectively her illness was caused by events which led to her dismissal and these events caused her financial loss.”

There is no doubt that the complainant was in ill-health at the time of her resignation. I accept that dealing with the colleague and seeking to address this with the respondent were stressful. This is attested to by the certificate of the 6th June 2017, which states “unfit to attend work due to stress at work”. This is repeated in the certificate of the 12th June 2017. I note, however, that the earlier certificates did not refer to the workplace as the cause of stress, referring instead to “stress” or other conditions.

The question is whether the complainant’s ill-health is “wholly attributable” or “caused” by the respondent’s failure to address the bullying allegations. While I accept that the complainant incurred ill-health, I do not believe that there is an evidential basis to find that this was “wholly attributable” or “caused” by the respondent’s actions. The only medical certificates date after the resignation. There was no other medical evidence to establish causation. It follows that the complainant’s ill-health was not caused by the dismissal and the respondent’s contribution to this.

Working family payment (formerly Family Income Supplement)

The complainant gave evidence that she incurred financial loss (of about €150 per week) because she lost her entitlement to the Working Family Payment on losing her job. This is because the WFP is a payment available to those at work and who have financially dependent children. Claimants lose this entitlement once they lose their employment. The payment is made for 12 months and claimants must re-apply every year.

The complainant gave evidence that she lost this entitlement once she resigned from the respondent’s employment. The question is whether regard can be had to the loss of this payment in assessing financial loss.

Section 7(2A) of the Act was inserted by the 1993 Amendment Act. It provides that social welfare payments shall be disregarded in assessing financial loss. It was inserted primarily to avoid scenarios where a successful claimant’s award would be significantly reduced by their claiming jobseeker’s benefit etc. The section is explicit that payments made “in respect of any period following the dismissal concerned … shall be disregarded.”

I find that the complainant’s loss of Working Family Payment does not fall within the ambit of section 7(2A). This is because it is not a payment made “following the dismissal concerned.” I find that it is actual loss arising from the dismissal. I note, however, that it was an entitlement that would expire and for which the complainant would have to re-apply, depending on her family and employment circumstances.

Calculation of actual loss

As set out above, I have found that the complainant is not entitled to recover prospective loss of income following her dismissal. I have found that she is entitled to an award of actual loss arising from losing the Working Family Payment€. The complainant is also entitled to recover actual loss arising from having to return the car to the respondent. In fact, this is the first thing the respondent requests of the complainant on resigning. I also note that the definition of “financial loss” explicitly refers to lost Redundancy Payments rights, i.e. the accrued entitlement. I also make an award in this regard.

Taking these factors together, I make an award of redress of €8,500. This is just and equitable in the circumstances as it takes account of the losses incurred by the complainant in no longer having use of the car, the cessation of her WFP payment and the loss of her redundancy rights. This award does not take account of prospective loss of income as this was not “caused” by or “wholly due” to the dismissal.

CA-00011997-001

For the reasons set out above, I decide that the complainant was unfairly dismissed, and the respondent shall pay the complainant compensation of €8,500.

Unfair Dismissals Act / constructive dismissal

Bullying / investigation

Financial loss / actual and prospective loss