Complainant

Respondent

Anonymised Parties

An Employee

An Electronics Company

Representatives

Barry O’Mahony BL Arag Legal Protection Limited

Lisa Conroy Peninsula Group Limited

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-00029016-001

13/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00029016-002

13/06/2019

The Complainant worked as an administrator and credit controller for the Respondent from 1st May 2013 to 28th March 2019.

CA-00029016-001

The Complainant raises a preliminary issue that the Respondent has sought to frustrate prosecution of her case by refusing to provide correspondence regarding the Complainant’s complaints and incorrectly sought to claim privilege over the documents.

The Complainant claims she has been constructively dismissed due to the conduct of her employer when she was being bullied and harassed by another employee who shared her office in front of staff from 2017. The employee was aggressive and shouted at the Complainant for simple inquiries. The employee constantly left the door open despite requests by the Complainant for privacy for customers and which created a draft impacting on the Complainant’s health. The conduct was repeatedly brought to the attention of the employer but no action was taken. No grievance was offered. Moving office would have assisted but requests to do so were refused. The Complainants complaints were not addressed. Her health issues were aggravated.

An incident occurred on 31 January 2018, when a customer account was blocked by the employee. The Complainant was blamed for telling the employee to do this by the other employee. The employee approached her and accused her of giving this instruction and repeatedly shouted at her. It was so loud the Manager came into the office. The Manager said there would have to be a meeting with the CEO on 5th February 2018. The meeting with the CEO was unsatisfactory and the Complainant was told the parties had to put what happened behind them and did not listen to the detail. The Complainant subsequently discovered she was not in the office on the day the instruction was given so was not at fault. She told the employee, Manager and Managing Director about this but did not receive any apology. She was not notified about any procedure.

She raised the claims of bullying at her review in March 2018. She told the Managing Director she dreaded coming into the office every day, but he refused to discuss it and said it was in the past. The Complainant believes she was refused a salary review because of her complaints.

Throughout 2018 the Complainant was subjected to similar behaviour and the Respondent took no action. The employee went out of her way to leave the door open and the Complainant felt intimidated. The employee tried to undermine the Complainant’s work and ignored work processes including releasing goods contrary to instruction.

The Complainant sought to relocate to another office. The CEO refused the move and said the parties should get on with it and treat each other with respect.

An incident occurred on 20th February 2019 when the employee spoke loudly and aggressively repeatedly to the Complainant when she enquired about the payment arrangements for customers. The Complainant reported the bullying to the Manager the following day who was dismissive. After she relayed what occurred the Manager said the other member of staff had given a different version, that the Complainant attacked her. The Complainant told the Manager she was constantly afraid that the employee would attack her. In her six years there she never attacked anyone and was not confrontational.

In the afternoon the Complainant met the Managing Director for less than ten minutes to discuss her complaint. She wanted HR to be present for the meeting which was refused. She was referred to the complaints procedure in the employee handbook provided on 7th February 2019 and asked if she wanted to have a colleague or solicitor at the meeting. The Managing Director requested the two employees communicate by email only pending the issue being resolved. The CEO subsequently sent an email falsely claiming the Complainant refused to meet him. The Complainant replied to the CEO’s email on 22nd February 2019 said she did not decline a meeting but felt it would be advisable to have an impartial arbitrator present when meeting, as previous complaints were not resolved.

The Managing Director said the past grievance was dealt with informally, and reported to the HR company. He falsely claimed the Manager addressed the issues raised and the Complainant was informed of the grievance procedure.  He informed her that representation for her by the company HR was not possible and she could obtain union representation if she wanted. He asked her to advise how she wished to proceed by 1st March 2019. He said he would put up office dividers to assist with privacy and the door would remain partially open pending resolution.

The Complainant replied by email on 28th February 2019 saying she was never informed of the company’s grievance procedure previously. She sought documents furnished to the Complainant’s HR company about her complaints, she was concerned by the suggestion she should have a solicitor present and sent in a written complaint. She said she felt the office dividers was a cosmetic gesture and would not help in resolving the bullying and harassment. There are only 4 members of staff in the office.

The Complainant notified the Respondent of her intention to resign giving one month’s notice by letter dated 28th February 2019. She said she was disappointed she was not treated fairly by addressing her grievances and felt the company’s actions amounted to constructive dismissal. The Respondent wrote requesting her to reconsider her resignation for a period, and if she wished to invoke the grievance or harassment policy. The Complainant felt she had no option but to resign based on the company’s actions and impact of stress on her health.

The Complainant submits that the Respondent has acted in such a way as to entitle her to resign due to unreasonableness and by repudiating her contract of employment. She relies on the Labour Court decision in Paris Bakery & Pastry Ltd v Mrzljak DWT 68/2014. The Complainant says she made numerous attempts to resolve matters, and denies that she did not follow internal procedures. She lost confidence in their willingness and ability to deal with the issues. Some of the issues related to how the Manager and CEO behaved and the CEO refused to refer the matter to a third party. She relies on Accountant v Accountancy firm ADJ-00017676 and Homecare Medical Supplies v Pauline O’ Connell UDD1747.

The Complainant submits the company is obliged to provide a safe workplace under the Safety Health and Welfare at Work Act 2005 and to investigate the grievances of the Complainant fully and has committed a repudiatory breach of the Complainant’s contract.

CA-00029016-002

The Complainant claims she did not receive a statement in writing of her terms of employment. This omitted the Complainant’s place of work, right to seek a statement pursuant to S23 of the National Minimum Wage Act 2000, details of rest breaks and a copy of the grievance and disciplinary procedure.

The Complainant submits this is not a technical breach and relies on the Labour Court ruling in Guerrero v Merchants Arch company Ltd (DWT188).

CA-00029016-001

The Complainant was employed by the Respondent as an office administrator and credit controller. All complaints are denied by the Respondent.

On 9th January 2013 the Claimant was provided with a contract of employment which was signed on 21st January 2013, and on 30th April 2013. Updated statement of terms of employment and an employee handbook were furnished to staff on 7th February 2019.

In January 2019 the Complainant registered 2 companies to the Respondent’s business address. On 15th February 2019 a salary review meeting took place between the CEO and the Complainant and she was informed she would not receive any salary increase. She was requested to deregister the 2 companies from the company address.

On 21st February 2019 the CEO sought to meet the Complainant to discuss issues raised by her which she refused. The Complainant was directed to the employee handbook and grievance procedure. On 22nd February 2019 the Complainant said she would review the company polices and revert. The CEO requested the Complainant to outline in writing any grievances and a meeting could be arranged with an appropriate party to accompany the Complainant. The CEO requested the Complainant outline how she wished to proceed by 1st March 2019.

The Complainant wrote to the CEO by email on 28th February 2019 that she was unaware of the company policies regarding grievances, it was disappointing a meeting involving the HR company for the Respondent and the Complainant was not being granted, that the CEO suggested she have a solicitor representing her (which was not correct as he suggested she have a colleague or union representative) which was a concern.

The Complainant attached a document related to minutes of meetings from 5 February 2018 to 21 February 2019, which were not circulated or agreed.  The Complainant tendered her resignation on 28th February 2019.

On 1st March 2019 the CEO wrote to the Complainant inviting her to invoke the grievance or personal harassment policy. She was informed if she reconsidered her decision to resign, she would be invited to an investigation meeting into her grievance.

On 4th March 2019 the CEO found out the Complainant had been conducting the business of her 2 companies during working hours. The Complainant refused to utilise the grievance procedure and proceeded with her resignation.

The Respondent relies on the decision in An Employee v Employer (UD720/2006) which found the Complainant did not exhaust the grievance procedure available and it was fatal to his case.

The Respondent relies on the decision in Donegan v Co. Limerick VEC (UD8928/2011) which held the Respondent’s conduct was not so unfair or damaging to the Complainant’s rights and entitlements that she had no option but to resign. A lack of a harmonious professional relationship is not sufficient to justify a claim for constructive dismissal as held in Flaherty v College Freight Ltd [2009] 6JIEC 2901. There is a heavy onus of proof on the Complainant.

The Complainant chose to resign despite the procedures available and invitations to utilise these and her complaint should be dismissed.

CA-00029016-002

The Complainant alleges a breach of S3 of the Terms of Employment (Information) Act 1994. Information was provided in satisfaction of S 3 on 30th April 2013. The Respondent relies on S41 (6) of the Workplace Relations Act 2015 that a complaint shall not be entertained if it is presented after 6 months beginning on the date of contravention to which the complaint relates, and the complaint is statute-barred.

I have heard and considered the written and oral submissions of the parties.

CA-00029016-001

The Complainant’s claims unfair dismissal under S 6 of the Unfair Dismissals Act 1977-2015 and that she has been constructively dismissed under Section 1 of the Act. The Act defines “dismissal” in relation to an employee as:

“ the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

The Respondent is a small employer with four members of staff. An incident occurred in 2018 where difficulties between the Complainant and her co-worker came to the attention of the Complainant’s Manager and the CEO. The co-worker disputed the account and blamed the Complainant. The Complainant was asked to put the matter behind her. The Complainant was unhappy with how this was dealt with and asked for this to be formally noted. She raised her concern about the incident again in March 2018 and was told to forget about it.

It is understandable that management would request co-workers to try to resolve and move past  differences, particularly in a small office in an effort to resolve issues . However, in evidence the Complainant says the situation subsequently worsened. She says she repeatedly raised concerns about her co-workers aggressive, snappy behaviour with her Manager but no action was taken. When another incident happened on 20th February 2019 she had no faith that the company would resolve the issues.

The Complainant’s Manager gave evidence that following the incident in February 2018 two co-workers were complaining about the Complainant’s role. They said the Complainant was intimidating and interfering. The Manager clarified the roles of each employee but there were still issues. She said there were some small incidents and door slamming. There were a few complaints by the Complainant, one being that her co-worker was leaving the office door open and it was affecting her health. The Complainant asked to move to another area but there was nowhere suitable. The Manager wanted the door open as she wanted to be aware of what was going on.

The Complainant had been provided with a contract of employment dated 30th April 2013. No grievance procedure or Dignity at Work policy is contained in the contract of employment to address complaints of bullying and harassment. This does not comply with S.I. 146 Industrial Relations Act 1990, (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000. An Employee Handbook containing a grievance procedure was subsequently circulated to staff on 7th February 2019.

It is evident there were a few complaints by the Complainant regarding her co-worker from February 2018 to February 2019, but these seem to have been at a more minor level. I accept the Manager’s evidence on this issue. The Complainant never put any complaint about the conduct in writing to the Company. When the Complainant raised a further complaint on 21st February 2019, she was notified of the grievance procedure and requested to clarify how she wanted to proceed. The Complainant requested an impartial Arbitrator be present, as previous grievances had not been resolved. The CEO did not agree to this request, said the Complainant failed to pursue a formal complaint previously and suggested she be accompanied by a colleague or Trade Union representative at a grievance meeting. Six days later, the Complainant objected, said she was never informed of the company grievance procedure previously and her grievances were unresolved. The Complainant forwarded details of her grievance and submitted her resignation.

I accept the Complainant’s evidence that she was not informed of the Company grievance procedure and was unaware that this was available until February 2019. However, there was a gap of almost one year between the incidents of February 2018 and February 2019. The Complainant made a few minor complaints in the intervening twelve month period. In my view the Complainant acted unreasonably in failing to substantially utilise the grievance process and not allowing the Company the opportunity to try to resolve a difficult situation in February 2019 in accordance with Conway v Ulster Bank UD474/4/1981. I find the behaviour of the Respondent does not reach the threshold required for a finding of constructive dismissal and the complaint of constructive dismissal fails.

CA-00029016-002

The Complainant claims a breach of S3 of the Terms of Employment (Information) Act 1994. The Complainant received a statement in writing of her terms of employment but this omits significant details required by statute. This is a continuing obligation of the Respondent and the complaint is not statute-barred. I find this complaint to be well founded and award 4 weeks remuneration of €2,500 as compensation for the breach.

CA-00029016-001

The complaint of constructive dismissal fails.

CA-00029016-002

This complaint is well founded and I award 4 weeks remuneration of €2,500 as compensation for the breach and direct payment by the Respondent to the Complainant.