Complainant

Respondent

Anonymised Parties

Technical Support Representative

Technical Support Provider

Representatives

Self

Robin McKenna IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030182-001

12/08/2019

The complainant was employed on a part-time basis by the respondent commencing employment in October 2015. The complainant resigned from her position on 20 August 2019 and alleges that she was constructively dismissed.

The complainant was the subject of bullying and sexual harassment by a male colleague commencing in 2016.

The complainant had a grievance hearing as a result of which the colleague in question was transferred to another location.

In 2018 that colleague returned to the complainant’s workplace and he again resumed his former behaviour.

The complainant again lodged a formal complaint but an arranged grievance hearing never took place and the complainant believed that in those circumstances she had no option but to resign.

The complainant lodged her complaint with the WRC on 12 August 2018. The complainant resigned from her employment on 20 August 2019.   The adjudication officer has therefore no jurisdiction to hear this complaint.

The complainant failed to exhaust internal procedures prior to her resignation. The complainant received training in the respondent’s Dignity in the Workplace policy in 2019.

The complainant did not raise a grievance under that policy.

Many of the incidents mentioned by the complainant relate to a period which was some considerable time prior to her decision to resign.

The complainant joined the employment of the respondent in October 2015. According to her evidence she began to experience inappropriate behaviour from a male colleague in 2016. This behaviour took the form of sexual remarks and physical actions such as putting his hands on her waist. This colleague was in a more senior position and he also issued her with a type of written warning regarding alleged breaches of time-keeping, mistakes on the computer, etc.

The complainant stated that she made a complaint to management regarding these matters and that she attended a meeting with two named members of the management team who recorded her complaints and advised her that they would speak with the colleague concerned. Despite requests she did not get formal feedback in relation to her complaints but learned that the colleague against whom she had made the complaints had been transferred to another branch of the respondent. When the complainant later requested the minutes of the grievance hearing she was informed that they were not on her file.

In 2018 the complainant was surprised and shocked to see the colleague back at work in her branch.   The complainant stated that she heard rumours to the effect that the colleague concerned had threatened to get her sacked. The complainant said that she was very upset to have to work in close proximity to the colleague and this stress was increased when the colleague again began to make remarks to her of a sexual nature and criticise her work. The complainant stated that on 9 August 2019 she spoke to a member of management and told him that she wanted to make a formal complaint about the colleague concerned. The complainant said that she was advised to come in the following day for an official meeting regarding her complaint. The next day was a Saturday which was not one of the complainant’s normal working days but she reported for work in order to attend the meeting. The complainant said that she was put on duty answering calls and nobody approached her in relation to the grievance hearing. The complainant stated that she felt that no one cared about her position. The complainant went home when her shift finished.

On Monday, 12 August the complainant contacted the respondent’s sick-line and told the person who answered about her situation and asked them to speak to the HR Department in this regard. The complainant also went to her doctor and got a certificate. The complainant stated in evidence that she had decided at that stage not to return to work. Some days later the complainant got a phone call from a HR Partner who advised that a meeting with her would take place upon a return to work. The complainant then contacted the HR Department on 20 August and told them that she was coming into the office to formally hand in her notice. The complainant handed in a letter of resignation that afternoon. The letter included a summary of the complainant’s grievance.

The HR Partner discussed these matters with the complainant and suggested a meeting in the following week. The complainant was also advised that the respondent was not accepting her resignation at that time. There was further interaction between the parties over the course of the next week by way of phone calls and emails regarding the proposed meeting. On 27 August the complainant emailed the HR Partner and stated that she would not be attending any meeting and re-iterating her reasons for resigning. The email ended with the complainant stating that she was happy to let the WRC “look into this problem.” The HR Partner responded by again offering to meet with the complainant offsite and with someone attending with the complainant.  

It should be noted that witnesses for the respondent disputed a number of matters raised by the complainant in her submission and direct evidence. In particular, it was disputed that there was a formal grievance hearing back in 2016 or that the transfer of the colleague against whom the complainant had a grievance was a disciplinary sanction arising from that meeting. A further point of contention was as to whether a formal grievance hearing was due to take place on Saturday, 10 August. It would appear that the complainant had been absent from work on Thursday 8 August and that on Friday a Return to Work (RTW) Meeting was held.   It was accepted by a Team Leader who attended that meeting that the complainant had raised the issue of the colleague’s attitude to her and remarks made by him about her work.   The team Leader’s evidence was that management had offered the complainant the Grievance Procedure and had asked her to let them know the following day what she wanted to do.   It was further stated by the Team Leader that the complainant attended work the following day in lieu of the hours missed on the sick-day and that the Team Leader had had a casual conversation with the complainant who did not raise the issue of her grievance.

Preliminary Issue:

The respondent raised the issue of the jurisdiction of the adjudication officer to hear the complaint under the Unfair Dismissals Acts. The respondent argued that the complainant had lodged her complaint with the WRC on 12 August 2019. The complainant tendered her resignation to the respondent on 20 August 2019. The respondent stated that there was no jurisdiction to hear a complaint which was lodged prior to the termination of employment.

Section 8(2) of the Unfair Dismissal Act, 1977, states:

A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of Section 41 of the Act of 2015) to the Director General –

(a)    within the period of 6 months beginning on the date of the relevant dismissal

(b)    within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

and a copy of this notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.

In the case before me the complaint to the WRC was submitted on 12 August 2019. This form did not have the “Date Employment Ended” box filled in. This was the Monday when the complainant contacted the respondent on the phone line dealing with absences and, whilst detailing her issues, requested that the HR Department be asked to contact her.   There was communication between the HR Department and the complainant during the course of the following week and on 20 August the complainant advised that she would be attending the office that afternoon to hand in her notice. The complainant handed over a hand-written letter dated 20 August 2019 which began by stating that the complainant “would like to officially hand in my notice of employment with (Respondent).” On the following day, 21 August, the complainant emailed the WRC with the following message:

“I would like to update the date I officially handed in my notice to (Respondent) on my complaint to the 20/8/2019.”

I am therefore satisfied that the date of the complainant’s resignation was 20 August 2019. The respondent, in support of their submission on this point, referred to a decision of the Employment Appeals Tribunal (EAT). In that decision, Employee v Employer, UD1517/2012, the EAT considered a case where the complaint was lodged before the employment terminated and stated:

“The tribunal is therefore satisfied that the date of termination herein is 12th of November 2012 which means that the six month time period within which there is an entitlement to bring a claim commenced on 13th of November 2012 and the claimant’s T1A was therefore received too early and in the course of her ongoing employment.

The Tribunal therefore has no jurisdiction to proceed with a claim under the Unfair Dismissals Acts, 1977 to 2007.”

The situation in the case before me is similar in that the complaint was lodged prior to the termination of employment. The Act is quite specific in stating that the period for lodging such a complaint is “within the period of 6 months beginning on the date of the relevant dismissal.” The date of termination of the complainant’s employment was 20 August 2019 and this particular complaint was lodged prior to the period specified in the legislation. It follows therefore that I do not have jurisdiction to hear this complaint.

Complaint No. CA-00030182-001:

For the reasons outlined above I find that this complaint under the Unfair Dismissal Acts, 1977 – 2015, was not submitted within the time period in the legislation in which there is an entitlement to bring a complaint. I therefore find that I do not have jurisdiction to hear this complaint.   The complaint accordingly fails.

Resignation     Date of Termination     Time Period for Bringing Complaint