Complainant

Respondent

Anonymised Parties

Customer Solutions Agent

Payment Services

Representatives

 Self

Des Ryan BL instructed by Ciara McMahon  Eversheds

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-00035712-001

15/04/2020

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

CA-00035712-003

15/04/2020

The cases heard were a complaint of constructive dismissal and a dispute regarding the procedures followed in the investigation of a complaint of alleged bullying which commenced after the Complainant submitted her resignation. Details of her case and the complainant’s terms of employment are set out in the Summary of the Complainants case.

In terms of procedures, the complaint and dispute were heard over two dates December 2nd, 2020 and February 17th, 2021.

On the first date, and following presentations on the substance of the issues, the parties were informed that the complaint of constructive dismissal would be decided under the Unfair Dismissals Act 1977-2018 consistent with the referral under that legislation ; that there would be no investigation or findings on the substance of the complaint of bullying on the basis that the WRC does not provide a forum for investigating such complaints; various points were put to the parties which would need to be addressed at the resumed hearing in a sequence which were subsequently confirmed in writing to the parties.

The dispute under the Industrial Relations Act 1969, is concerned with the procedures adopted by the Respondent in investigating the allegation of bullying. That investigation commenced after the Complainant had submitted her resignation. It includes the claim that there was no appeal process following the issuing of a report by the Investigator in May 2020,after the Complainant had  left the employment. Accepting that there was some overlap between the dismissal and procedural issues in the complaint form where the Complainant also referred to her decision to resign, under CA-00035712-003-she specifies a failure to contact her witnesses-which can only refer to the process which commenced in March 2020,the day before her employment ended and concluded in May 2020 after she left the employment. Issues related to the procedures were discussed at the resumed hearing.

On the first date there was a discussion with the representative of the Respondent where he expressed concern about conducting such a complex case remotely allowing for full cross examination and the possibility initially of  an investigation of the bullying allegations. Correspondence on the procedures to be followed issued by the undersigned following the first date together with the assurance that there was to be no investigation of the allegation of bullying satisfied the Respondent. Concerns raised by the Complainant in her subsequent correspondence regarding the conduct of the remote hearing were also taken into account. The remote platform for hearings is a new development. Concerns about its efficacy for conducting and ensuring a  detailed exploration of sometimes complex issues are understandable, especially when one side, in this case the Complainant, is unrepresented and unsupported and finds him/herself looking at many faces on a screen at the same time, as was sometimes the case here. Notwithstanding all the concerns raised by the parties, at the end of the second day, both sides declared themselves satisfied that they had received the opportunity to set out their case fully over the course of the hearing.

Witness RA gave evidence at the second hearing on behalf of the Respondent. The Complainant was questioned by the Respondent lead representative.

The Complainant was employed as a customer services agent from 05/06/2017 until 20/03/2020 when her resignation became effective. She had given notice of her intention to resign and expressed a willingness to work her four weeks notice on 20/02/2020.

The rate of pay was €2353 gross per month with additional benefits.

Unfair Dismissals Act 1977-2016

In her  letter of resignation, the Complainant stated:

This is by no means an easy decision to make however; I am left with no other options. As of 22nd November 2019, which is now just shy of 12 weeks  I have been suspended from work for allegations that have not been properly investigated and following that anything that was investigated was hugely biased which resulted in my suspension. This is hugely unprofessional for an organisation off [Company Name] Multinational stature. It is also hugely unprofessional that I have to speak to more than six HR advisors from [Company Name] with no resolution.

It is clear to me that [Company name] has absolutely no intentions of resolving this issue. It is also clear that [Company Name] has no processes or procedures in place locally  to tackle such issues.

As of 5th December 2019, I formally advised[Company Name] as my employer about issues which had taken place on your premises in reference to Dignity at work and Bullying. I feel that ample time has been given to resolve this issue. As per your requests I have exhausted the procedures and followed through on everything that has been asked of me and yet[Company Name] has still not resolved this issue.

The letter makes references to the Respondents Policy and procedures continuing ’I have tirelessly explained my self to [Company Name] on a number of occasions and[Company Name] has done nothing. I have exhausted the grievance and complaints procedure  which [Company Name] has not acted on.

Under the Unfair Dismissals Act 1977-2015 this resignation should be regarded as constructive dismissal.[Company Name] has left me with no choice in respect to this. [Company’s Name] conduct also shows that use no longer intend to be bound by the essential terms of my contract and your own policies when use have not acted on any issue which I have brought to your attention.’

The letter of February 20th, 2020 followed a sequence of events detailed by the Complainant which commenced at what might be termed a performance  investigation meeting conducted by a Team leader on November 14th, 2019. Further meetings were convened regarding that same issue and a second performance issue.  A disciplinary process was put in place and the Complainant was suspended with pay. The Complainant provided details of contacts with HR advisers in the days and weeks which followed the meeting on November 14th including while she was on suspension. She says that she wanted to make a complaint but had difficulty getting the necessary advice and gaining access to the formal documentation required to submit a complaint when she was suspended.

On December 5th, 2019 she submitted a formal complaint of bullying against a team leader. From that point on she spoke about being referred from one HR Adviser to another-being told in an email by one person that she would be investigating her complaint and speaking to that person-only to find that person was leaving, and she was then passed back to another adviser. On January 28th, 2020 she attended the Company medical adviser, an appointment she had to travel some distance to attend, and that assessor deemed her fit to participate in an investigation. However, there was no contact with her regarding the commencement of an investigation of her complaint until February 12th , 2020,when she was informed of the change of investigator. On February 19th  she was contacted by the named investigator requesting to meet her the following day to start the investigation. She replied to the effect that this was insufficient notice as she needed to arrange for her witness to attend-and received no reply. The letter of resignation alleging constructive dismissal was submitted the following day, February 20th, 2020. She submitted that the necessity to repeat her complaints to different people, the failure to investigate her complaint in a timely manner ‘made it clear to me that[Company name]had no intentions of resolving this issue. This was because theywere not acting on any of my complaints. This in itself makes these work conditions unbearable. Their conduct towards me amounts to a breach of my contract in relation to the welfare of employees with respect to such complaints. They are not following their own policies and my contract which they are bound to legally.’

On March 4th the HRBP (witness RA at the hearing) emailed the Complainant explaining that she herself was on sick leave for a period. The email offered the Complainant the opportunity to retract her resignation to enable the investigation process to be completed. The Complainant replied on the same day declining to withdraw her resignation stating:

‘[Company name] actions have left me with no choice due to their behaviour over the last 15 weeks, which I would like to add these behaviours do not display the core pillars in which [Company name]operates and preaches about.’

Asked at the hearing why she resigned on February 20th when she had been notified that the investigation was about to commence, the Complainant referred to a contact from the team leader also on February 20th -the person she had accused of bullying- referring among other matters, to the Complainants end of year conversation. The team leader asked’ Can you please let me know if you would like to have a call nextweek to discuss or if you would refer me to post you out those details?’   The Complainant said she was shocked at this contact and considered that allowing the person she had accused of bullying her to contact her meant that the Respondent had no duty of care to her.  Nothing had been done to resolve her grievance in the weeks since she had submitted it despite all the contacts with HR.

In her letter of resignation, the Complainant had offered to work her four weeks notice. Asked at the hearing why she had made this unusual suggestion given that it would have meant returning to the workplace and given that she was alleging constructive dismissal, the Complainant said she did not want the Respondent to say that she was unwilling to work and then refuse to pay her for those weeks. In the event the Respondent did not require her to work the four weeks and she was paid up to 20 March 2020. Adjudication Officer Decisions -00011215; ADJ-0001116;17335 were cited by the Complainant as precedents. These three cases related to the investigation of complaints by an employer leading to findings of constructive dismissal.

 Details of losses were provided together with efforts to find alternative employment. Compensation was sought by way of redress.   

Industrial Relations Act 1969-Section 13

The Complainant met with the Investigator on March 19th, 2020. Her next contact was by way of a report he issued in an email on May 21st  2020.   She had provided the names of two witnesses who were not interviewed by the Investigator. Following receipt of the investigation report she informed the Respondent that she was not satisfied with the report and received no reply. This prevented her making an appeal as provided for in the Policy.         

Unfair Dismissals Act 1977-2016

The Respondent set out the detail of the processes in train with the Complainant in between November 13 and December 2nd, 2019. The processes were related to performance/conduct  issues. At one point the Complainant was suspended. On December 4th the suspension was changed to an unpaid sick absence in accordance with the procedures where a employee is out on sick leave during a disciplinary process. On December 5th,   the Complainant was informed of the findings from an investigation meeting on December 2nd . Later the same day, she raised a formal allegation of bullying against her team leader who had conducted the first investigation commencing on November 14th.

From the Respondents perspective, this date-December 5th is the date from which the handling of the allegation of bullying and the handling of the allegation is to be considered-and not a period commencing in November 15th as maintained by the Complainant. The Complainant did contact HR but was informed and knew that she must use a certain form for submitting a complaint but did not do so until December 5th, 2019. On receipt of the complaint-a named member of the HR team immediately replied to the Complainant and set out in detail the process for investigating the complaint and advised her regarding the support channels available to her. The contention that the Complainant had, according to herself, no other options but to resign is rejected. Witness RA gave evidence of the changes which were occurring within the HR Department in December/ January 2021 and the reorganizational changes of responsibility and personnel which led to the change from one intended investigator(the person who had engaged with the Complainant on December 5th) to another(the person who ultimately conducted the investigation). Before the investigation could commence, given that the Complainant was on stress related sick leave, she was required to attend an external medical assessment to establish if she was fit to participate in the various investigations, including her own complaint. This also contributed to the delay in commencing the investigation. The medical assessment took place in late January.

The Respondent described the decision of the Complainant to resign on February 20th, 2020 as ’curious’   in circumstances where the second person appointed to investigate her complaint-Mr X-had contacted  the complainant the day before with a view to engaging her in the investigation of her complaint and proposing to meet with her the following day. The Respondent submitted ‘that these circumstances clearly undermine the Complainants assertions that the Respondent was awaiting confirmation that the Complainants assertions that the Respondent had no intention of progressing matters for her. Further the Respondent submits that the Complainants decision to resign was precipitous.’

Any complaint that a failure of  Mr X to reply to the request to delay the meeting on February 20th for a further period justified the decision to resign is rejected. He did acknowledge her letter of resignation and replied that he would forward it to the HRBP witness RA. The witness was absent on sick leave for a period but contacted the Complainant on her return from sick leave and on March 4th offered the opportunity to the Complainant to withdraw her resignation and to allow the investigation to proceed. It was the Complainant who insisted on resigning even though she was assured that the investigation process would take place. In the event Mr X commenced his investigation by meeting with the Complainant on March 19th, 2020.

Witness RA confirmed that the team leader was aware there was a complaint against her and did receive approval before contacting the Complainant regarding the year end conversation. The witness added that the type of issues which had arisen in the disciplinary process were not regarded as gross misconduct and would not have resulted in a dismissal.

The Respondent submitted that the Complainant had failed to discharge the burden of proof required to sustain a complaint of constructive dismissal. This conclusion is supported by the offer of the Complainant to work her period of notice. The investigation of her complaint was in hand, she was willing to return to the workplace-her complaint that her resignation was not justified by reference to the tests set by various third parties to reach the threshold for a finding of constructive dismissal.

Precedents decisions were provided by  Respondent where the deciding body had ruled against a complainant when they had failed to complete the internal grievance procedures within the employment before resigning.

Industrial Relations Act 1969-Section 13

The Respondent submitted that the complaint was ‘essentially a carbon copy of much of her account of the facts which she alleges gave rise to her alleged constructive dismissal.’  ‘Further or in the alternative, the Respondent substantively refutes all of the complaints made in relation to the Industrial Relations Act.’ At the hearing the HRBP said she had no information regarding the conduct of the investigation process other than the report. When the report did not uphold the allegation, she did not inquire into the matter further. None of the allegations made by the employee were upheld by the Investigator. One of the witnesses named by the employee was a witness at the investigation meeting; one was a person who saw the Complainant upset coming out of a meeting on November 14th     (not disputed) another was not mentioned as to why he was necessary; another was mentioned in the investigators notes(left the company); the last was not mentioned as to why necessary.

Unfair Dismissals Act 1977-2016

Where an employee resigns from an employment and is effectively holding the employer responsible for their decision, they are required to demonstrate the  conduct or alternatively the neglect of the employer rendered the decision to resign more than reasonable in all the circumstances. In cases concerned with conduct ,it might be expected that the decision was prompted by something immediate or at least in a recent timeframe to the decision to resign. In a case of neglect, such as a failure to investigate a complaint of bullying or similar serious allegation, the neglect is likely to occur or exist over a period of time, involving a failure to investigate or  perhaps a pattern of neglect for example in respect of health and safety issues.

At the hearing of this complaint ,the Complainant referred to both a specific incident and neglect as prompting and therefore justifying her decision to resign grounded in both the conduct and the neglect of the employer.

The specific incident related to the contact from the person accused of bullying directly to the Complainant on February 20th 2020, regarding, among other matters, the year end conversation. Allowing that the decision to authorise a person accused of bullying to make direct contact with her accuser, out of the blue, while the aggrieved person was on sick leave must be regarded as extraordinary( the team leader herself appeared to have some doubts)-the difficulty for the Complainant is that her letter of resignation makes no reference to this contact as contributing in any way to her decision to resign. A letter of resignation which forms the basis of a claim of constructive dismissal is important and is reflects the reasoning behind the decision to resign and it is to that letter the Respondent in this instance replied on March 4th. Crucially, in her letter of resignation, the Complainant referred at all times to the failure of the Respondent to investigate her complaint. And it was to this allegation of a failure to investigate that the HRBP(witness RA) replied on March 4th assuring the Complainant that the investigation was proceeding and urging her to co-operate and to withdraw her resignation. In failing to reference the contact by the team leader, the Complainant neither brought the issue to the attention of the Respondent or gave the Respondent an opportunity to address the Complainants concerns regarding that contact. In general, and to ensure the reach out to an employee encouraging them to change their mind and to withdraw their resignation is an offer of substance, such contacts are more meaningful if they are in person rather than by email. Otherwise sending someone an email runs the risk of being regarded as an effort to protect the Respondent, especially where as in this case, the Complainant had indicated that hers was to be regarded as a case of constructive dismissal. Nonetheless, the fact remains that  the Complainant based her decision on the second test to be considered(neglect) and not the conduct of the Respondent in approving the direct contact by the team leader with the Complainant.

In this complaint the question of neglect by the Respondent formed the basis of the decision to resign and the consequent case for constructive dismissal. There is little to justify the failure of the Respondent to initiate the process for an investigation of the allegation bullying prior to February 20th, 2020. In arriving at this conclusion-it is accepted that in terms of responding to a complaint and setting in train the requisite process, the starting date is December 5th, 2019. Equally it is accepted that the Complainant was trying to get into a process from an earlier date in November and was not assisted in any meaningful way by the HR system including access to software while suspended. The response of the HR person on December 5th was the first meaningful engagement with the Complainant. That the promised investigation did not commence for a further two months is down entirely to neglect by HR after that date where their priority was their own internal reorganisation whereas the Complainant was out of the workplace, isolated and with neither contact or consideration. Terms of reference could have been drawn up, ready to go once she was certified fit to participate. Instead she was left to wait until that assessment was completed and then a further two weeks before there was a contact with her regarding the investigation informing her of the change of investigator. Then the investigator makes his first contact with her a week later telling her she was to be available at twenty-four hours’ notice. Contrast the investigation process for the complainant’s own complaint with the employers concerns about her conduct and performance. In the space of approximately three weeks, the internal systems dealing with her conduct and performance managed to issue letters setting out issues to be investigated ,conduct two investigation meetings, provide detailed notes of interviews, suspend her with pay and then covert that suspension to unpaid sick leave. When it came to her issues to be investigated - once she made a formal complaint, she received one same day email on December 5th,was sent to a medical referee which took almost two months and received one further email on 18 February informing her of a change of investigator and that the investigator would be in contact with her. At no point was she informed what process would be followed by way of terms of reference or reference to the Company Policy. The comparisons in terms of timely action versus neglect do not favour the Respondent.

Thus far in the analysis, the facts favour the Complainant more than the Respondent. However, and again this is crucial, the timing of her resignation and the content of the  letter of resignation are so significant that they undermine the case for constructive dismissal as a charge of neglect. Whatever flaws are found in the Respondents management of the complaint of bullying prior to February 20th , on the date of her resignation the Complainant knew who would be investigating the complaint and that the process was now underway. Indeed, on February 18th just the day before the Investigator sought a meeting with her and two days before her resignation, she had replied to an email informing her of the change of investigator which she received on February 12th-acknowledging receipt of the earlier email, making no complaint but confirming that she would wait for someone to reach out to her-which then occurred the following day. She cannot therefore make an argument of sustained neglect at the time of her resignation when the Respondent had taken the necessary steps to address their responsibilities in the week or so  prior to the Complainants decision to resign. The twenty-four hours notice of the first investigation meeting was careless and poor practice, but the Complainant resisted the timeline and was not compelled to attend.  Poor and insensitive contact by the investigator did  not justify a constructive dismissal on February 20th, 2020 in terms of neglect i.e.  breaking its duty of care, or that the Respondent has no processes or procedures in place locally to tackle such issues, or that the Respondent had not provided a safe environment for the Complainant to work in-all expressions and terms used by the Complainant in her letter of resignation.

In arriving at these findings consideration was given to the three ADJ precedents submitted by the Complainant. In ADJ17335 the Complainant remained at work for a period, was penalised and the actual conduct of the investigator in her dealings with the Complainant were found to be flawed and discriminatory. In ADJ11215-it was the alleged conduct of the Complainant which was to be investigated . In that case it took eight months to complete a preliminary screening process and a further period before a formal process was concluded with issues arising as to how the processes were conducted while it was in place and an alleged breach of confidentiality and trust. The facts in this case are not comparable with the experience of the Complainant in that case. In ADJ11116 the issue was the conduct of an investigation by a relative of the Respondent where the Respondent himself conducted the investigation in circumstances where was no dignity at work policy or terms and conditions of employment. Again, the circumstances of the current case do not bear comparison with the case cited.

The complaint of unfair dismissal as a complaint of constructive dismissal is not well founded.

Industrial Relations Act 1969-Section 13

The procedure for investigating complaints under the Dignity at Work Policy in the employment is set out under Section 2-the formal procedure. The process contains 4 steps which it must be said a bit hard to follow in terms of how they are to proceed. There is a fact-finding stage followed by an investigation stage if it is found there is a case to answer at Step 2 which is part of the investigation process but then based on those facts it will be decided if the investigation process will continue to the next step. According to the process, the alleged perpetrator is not informed of the allegation until Step 3 at which stage they are requested to provide a written statement of response. At Step 4 there is reference to interviews and witness statements being circulated to the complainant and alleged perpetrator  for their comments-and then Step 5 provides for a report with findings.

There is no reference in any correspondence as to what stage of the process was being followed in the case of the employee. There were no terms of reference giving any detail of the process which would be followed. If there was a statement or interview with the alleged perpetrator-the Compliant got no sight of it.  If there were any interviews she received no notes. She did receive a report which in turn implied that hers was a malicious complaint and she would have been subject to disciplinary action were she still an employee. There was no preliminary report containing this finding and therefore she had no notice that such a finding was receiving consideration and therefore had no opportunity to respond to such a potential finding. In the report she received no indication of how the investigation was conducted or why it took until May to issue a report which contains opinions without justification not based on any evidence.

With the report she was not notified of her right to appeal within five days. This is important because while the procedure provides an appeal stage with a five-day limit for lodging an appeal-that appeal must be lodged through MYHR using a prescribed ‘Appeal Form’. However, having left the employment the Investigator knew that the employee did not have any access to the internal HR systems. The appeal process should have been separate from the inquiry stage and the report should have been issued by or on behalf of the final decision maker in a proper fashion setting out  the appeal process. The HRBP or some person other than the Investigator should have reviewed the process followed by the Investigator to ensure that fair procedures were followed.

When examining an investigation process in cases of bullying, once it is decided that a formal investigation is to take place, both parties are entitled to due process, open, fair and equal treatment in terms of procedures. The fair process requires that they have sight of the evidence that the investigator intends to rely  on before arriving at conclusions and a reasonable opportunity to respond to the evidence allowing that all processes must conclude without endless commentary. It is important to note that the same procedures apply within this employment for complaints of statute-based allegations of harassment  and discrimination as well as bullying. The procedure they have in place is a bit of a mystery.  The one which they applied to the complaint of their former employee in this case, had, to be blunt and unequivocal, all the hall marks of a procedure made up on the back of a postage stamp. The employee in this case was quite within her rights to dispute the process.

The recommendation below is intended to resolve this dispute and in doing so to encourage the employer to review their procedures and investigative approach to complaints under the heading of a  Dignity at Work Policy. A review of the principles of procedures required in cases of grievance and disciplinary action-S.I.146 would give a good basis for any investigation procedures-provided they are applied equally to all parties directly involved.

Unfair Dismissals Act, 1977-2014 CA-00035712-001

The complaint of constructive dismissal brought by the Complainant is not well-founded.

Industrial Relations Act,1969 CA-000035712-003

I recommend the employer pay the employee €7000 in settlement of her dispute regarding the procedures followed in the investigation of her allegation of bullying and I recommend that the employer reviews their own investigation processes and procedures for the investigation of allegations under the Dignity at Work Policy.

Constructive Dismissal/ Procedures for Investigation of Bullying