Complainant

Respondent

Anonymised Parties

Customer service administrator

Sales, marketing and distributor of medical products.

Representatives

Murphys Solicitors. Ms Siobhan Gaffney, B.L.

 IBEC. Respondent HR representatives

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-00032301-001

18/11/2019

This is a complaint of constructive dismissal. The dismissal is contested.

The Complainant commenced employment on 3 October 2007 with the respondent, a provider of medical and healthcare services and products. She submits that she was unfairly dismissed by the respondent pursuant to section 6 of the Unfair Dismissals Act 1977 (as amended) on 5/6/ 2019.

Her gross monthly salary was €2817  

 She submitted her complaint to the WRC on 18 November 2019.

The complainant’s barrister request for an adjournment due to late delivery of some documents was not accepted. The adjudicator decided to proceed with the hearing.

On the second day of the hearing, the complainant’s barrister suggested that evidence should be heard from another witness as to why the complainant left the company. But as this witness was on sick leave during the relevant period, the adjudicator did not deem it material to the complaint.

Since 2007, the complainant was employed as a customer services administrator within a customer services team. Her work included processing and organising the dispatch of customer orders, compiling indicator reports and supporting the sales team and managers. She had loved her job.

A new employee, Ms. A, started in the customer services department in September 2017.In the beginning, the complainant offered to help her. The complainant witnessed a number of serious altercations on the floor involving Ms. A. The complainant and a number of other members of the department voiced their concerns concerning Ms. A’s behaviour to the department manager on a number of occasions. On or about January 2018, the complainant voiced her concerns to the department manager. The complainant was "turned upon". and offered no support. The complainant was stressed by this encounter and had to take a day’s leave the following day.

The complainant emailed the respondent customer services manager, her line manager, Ms. C, on 31 /10/2018. She stated that she was "feeling very stressed" due to behavioural and performance issues of Ms. A who “never admitted to errors and blamed others” The complainant stated that was being abused", "talked down to" and "ignored “by Ms. A who spoke to the complainant and customers in a rude manner, and “like a fool". She advised the department manager that the situation was deteriorating, it was “unbearable to work under these conditions”. The complainant referred to the fact that she had submitted the exact same complaints nine months previously in January 2018, and the situation was unchanged.

The complainant’s barrister stated that in spite of this clear and unambiguous report of bullying and harassment by Ms. A, as well as severe ongoing stress and upset experienced by the complainant, the complainant’s concerns were not addressed in any way. The respondent failed to investigate the behaviour of Ms. A in spite of her behaviour and persistent breaches of the code of conduct. The employer took no action to remedy the situation. The respondent failed to comply with its own Anti -Bullying Policy which obliges a manager/ supervisor to deal with the matter regardless of whether a complaint of bullying is received and to “respond sensitively and confidentially to all situations where bullying behaviour is observed or alleged to have occurred”

The colleague, Ms A, due to her work habits, imposed a lot of extra work on the complainant. The complainant found the environment very stressful because of this. The customer services manager told her that her complaints were being addressed but, yet nothing changed.

On or about December 2018, Ms. A resigned.

The respondent launched an investigation on 13 December into the emails circulating within the customer services department. This was triggered by an exit interview conducted with a departing colleague, the subject matter of which concerned criticisms of the complainant which were not put to the complainant, nor was the complainant given an opportunity to cross examine this colleague’s statements. The respondent failed to import the context into the impugned emails. A considerable volume of documentation accompanied the invitation to the investigation. The complainant was afforded no reasonable opportunity to consider the contents of the documentation, which included emails requiring contextualising, nor a reasonable opportunity to arrange for a colleague to attend with her as the meeting was the following morning. The meeting proceeded on l3 December 2018 and reconvened on l7 December 2018. In attendance were the complainant, her representative and the HR Projects Manager. The complainant accepts that she should not have sent the emails, but they were the product of frustration at nothing being done to rectify the situation.

The complainant’s barrister observed that notes of meeting between the HR Projects Manager and the Operations Director which decided that the complainant should be investigated were not given to complainant, yet this set the ball rolling against the complainant.

Complainant’s evidence

The complainant experienced no problems until she was 11 years into the job, in January 2018.

A new colleague, Ms A, joined the customer service team in September 2017. She was rude and abusive towards the complainant. She refused to respond to the complainant’s emails to her. She used to put up her hand to the complainant signalling that the complainant was not to talk to her. The complainant discussed Ms. A in January 2018 with her line manager, Ms C. She left the meeting very upset as the line manager offered no support to her. The complainant went to the Hr Project Manager who offered no support to the complainant.

By this stage the complainant dreaded going to work. The complaints from customers all related to Ms A. They couldn’t understand the repeated mistakes. The complainant advised HR of the many customer complaints. This went on from January to September 2018.

 When the complainant emailed Ms. C with her complaints concerning Ms A’s behaviour on 31 October 2018, Ms. C told her that it was unacceptable to send an email as it was making it official and she had given the complainant’s complaints to the Operations Director. There was no follow up to the complainant’s email of 31 October. No interview. She was very upset. It was a busy time. Ms. C mentioned the grievance procedure.

 The complainant informed the Operations Director in October of the difficulties. He said, yes, you have an underperformer, told her to accept it but to put it to him in an email.

In October 2018 a new staff member was upset due to an incident involving the complainant.

In mid- December, the Operations Director met the complainant and 5 other staff members. He told them that 2 members of staff, Ms. A included, were leaving. The second person to leave was a temporary employee with whom the respondent conducted an exit interview. It emerged at that interview that there had been a breach of email policy to which the complainant was a party.

At 8pm on the 12 December the complainant was invited to attend a meeting the following morning, 13 December. The person accompanying her at the meeting had 10 minutes to read the documents. The complainant was shocked to discover that this meeting of 13 December did not include her email of 31 October but was only about her involvement in the emails which had been circulating within the department. The complainant advised the respondent reps at the meeting on the 13 December that she should not have put the material emails into circulation, that she was upset and frustrated at the disregard for her concerns. There had been no follow up or interview with Ms. A on foot of the complainant’s complaints.

Following the investigative meeting a disciplinary hearing was convened for 15 January. The complainant was very upset at the turn of events. She couldn’t attend the disciplinary hearing in January due to her absence on sick leave.

She was referred to an Occupational Health Doctor to confirm her fitness to engage in disciplinary proceedings. This was confirmed on 26 March.

In cross- examination and in response to the respondent’s statement that there was no indication of workplace stress on her certificates during the period of her sick leave, the complainant stated that she had told the Occupational Health doctor of her stress and its connection to workplace issues.

In response to the respondent’s assertion that she was advised of the grievance procedure, the complainant stated that she believed the letter of 31 October constituted an activation of the grievance process.

 Factors compelling the complainant to resign.

The complainant’s barrister stated that the respondent viewed the complainant as the problem and failed to address her complaints. The Grievance Procedure was referred to informally and the complainant’s complaints went nowhere.

The respondent commenced a disciplinary process which included the emails sent by the complainant at a time when she was severely frustrated, upset and stressed by the abuse suffered by her at the hands of Ms A, and by the inaction of the respondent. She had eleven years’ service and was subject to an investigation based on unsubstantiated claims and verbal complaints.

The respondent failed to have regard to the complainant ‘s stress reported by the complainant to the respondent in the form of her statements in January 2018, throughout the year, her email of October 2018, all of which went unheeded. The Occupational Health assessment on the 26 March established to assess her fitness to engage in a disciplinary process, refers to workplace stress as factor underpinning her absence on sick leave. It recommends that she be provided with the services of an EAP. The respondent failed to advise the complainant of this facility until 22/5/2019.

On her return to work on 1 May she was micro -managed, treated like a “beginner” and was isolated. The respondent excluded the complainant from meetings, appraisals and briefings to which she would normally have been involved. She felt demeaned.

She had loved her job.

She felt she had no other choice but to leave the employment on 5/6/2019.The respondent accepted her resignation letter a week later.

The complainant relies on the decision of a General operative V A Religious Society, ADJ  00002814 which allowed for the resignation where the employer’s conduct was so unreasonable as to leave the complainant with no option other than resignation.

Mitigation of Loss.

The complainant commenced her new job on 6 June 2019 on a salary of €1,600 per month.

The loss from January 2019 to February 2021 is €12,597.

The complainant seeks compensation under the provisions of Section 7 of the Act.

The respondent disputes that a dismissal occurred. The complainant resigned voluntarily, unnecessarily and prematurely. While a disciplinary process can be difficult it is not a reason to resign.

Three witnesses gave evidence for the respondent

Evidence of witness 1, Ms B

Ms. B was the HR Projects Manager at the material time but is now the training manager.

In December 2018, she was appointed to investigate the complainant’s and six other employees’ involvement in emails circulating within the customer service department. She had had no previous involvement with any of the parties. All seven were treated exactly the same and got the same notice, same duration of the meeting. The witness was alone in the meeting. She stated that she had no connection with the disciplinary proceedings.

At the meeting of 13 December 2018, she found the complainant to be defensive. The witness adjourned the meeting to the following Monday 17 December at which stage the complainant was more relaxed. At the end of the investigative meeting the witness advised the complainant that disciplinary proceedings could ensue. On the basis of the emails, she recommended a disciplinary process for the complainant plus one other employee of the seven interviewed as the emails circulated by the complaiant and other employees contained name calling, monitoring of a fellow employee and a fixation on one individual, Ms A. She concluded that the emails constituted a breach of the company’s IT Acceptable Use Policy, Disciplinary, Gross Misconduct, Dismissal, Appeals Procedure, Respect and Dignity Policy and Anti- Bullying and Harassment Policy.

Cross - examination of Ms. B.

The witness stated that she was advised by the Group Operations Director of unrest within the customer services department owing to the emails in circulation. She was first told on 12 Dec that an investigation would commence on the 13 December of all staff in the customer service department. The witness had no first-hand experience of any unrest.

She hadn’t received an exit statement previously from any employee.

Witness 2. Ms. C, Customer Services Manager.

The line manager, Ms C, found the complainant to be a great worker. She enjoyed a good relationship with the complainant both in and out of work. She was very surprised at the turn of events.

During the period January – 31 October 2018, the complainant did not advise that she was stressed.

The witness advised the Operations Director of the complainant’s email of 31 October as she was going on leave. She met the complainant on the 2 November and advised that she was managing Ms A’s performance as this was her role. Towards the end of this meeting on the 2 November the complainant stated that she should not have put it in writing. After the meeting when standing at the lift, the witness told the complainant about the grievance procedure option. She understood that the matter was then resolved. The complainant did not raise any of the issues contained in the email with the witness again.

In cross -examination the witness advised that she had had frequent chats with the complainant concerning Ms. A during January -31 October 2018. Sometimes she dealt with the issues, often small, on the spot, sometimes the witness stated that she asked the complaiant to email her. Tension seemed to arise when the witness was away from the office.

The witness stated that she did not know if the complainant’s email of the 31 October was an invocation of the grievance procedure. The witness advised the complainant that she could not deal with the content and brought the email to the attention of her Manager, HR Manager for Ireland, Ms. D. The witness did not give a copy of the email to Ms. A, the subject of the complaint. Ms A went on sick leave and subsequently resigned. The witness kept no notes of the Friday meeting of the 2 November.

The reason the Group Operations Director called the 12 December meeting with staff was that the complainant, who had an allergy to perfume, had asked the newly appointed temporary colleague who was wearing perfume to move to the other side of the room. The temporary worker used the term bullying to describe this request. The complainant tried to prevent the temporary worker from taking a phone call from HR. She was upset and went to HR. She left the company.

The witness stated she was unclear if this incident was ever put to the complainant. The witness confirmed that the HR Projects Manager interviewed her on 5 December concerning the emails and she was given a copy of the investigation notes. She does not know if the complaiant received a copy of the notes of her meeting with the HR Projects Manager.

She confirmed that the complainant had worked with many starters in her 11 years with the company.

The complainant was on sick leave for a lengthy period. After the complainant’s return from sick leave on 1 May 2019, she welcomed the complainant back to work.

Upon being questioned as to why she did not slot the complaiant back into her normal role, the witness explained that the complainant had been absent for 4 months. She wanted her to concentrate on emails. The complainant raised no concerns with the witness during the 3 weeks following her return to work on 1 May and prior to her resignation.

Witness 3. Ms D, HR Manager for Ireland.

Ms D. stated that she asked the current training manager to investigate the reported  unrest in the customer services department. Ms. D was to be involved in the disciplinary process should one prove necessary so was not involved in the Investigative process.

The complainant was on annual leave from late December until 15 January 2019. The disciplinary hearing scheduled for 15 Jan 2019 was postponed as the complainant was out on sick leave.

Ms D sent her to the Occupational Health Doctor who advised a phased return to work. The doctor also stated that the complainant was fit to engage with the disciplinary process. The witness kept in touch with the complainant while she was on leave and gave her the option of availing of unpaid leave or annual leave as she had exhausted paid sick leave entitlements. The complainant mentioned no concerns to her during this period of sick leave from January to May 2019. The witness did advise the complainant that the disciplinary process would have to proceed.

The complainant returned to work on 1 May. Ms. D suggested the 14 May for the reconvened hearing with the complainant. The disciplinary hearing never took place as the complainant’s request for a full data access request had to be met.The complainant went back out on sick leave on 20 May 2019 on work -related stress. The witness wrote and advised her of the option of the EAP service on 22 May 2019 as she had not had time previously.

The complainant resigned on the 5 June citing work -related stress. Though surprised, the respondent accepted the resignation 6 days later. The witness sent a letter to the complainant’s line manager acknowledging that this was the first notification to the company of work place stress.

The complainant never invoked a formal process against the company.

Cross -examination of Witness, Ms. D.

The witness confirmed that she received the complainant’s email of 31 October on 1 November. The witness confirmed that her only role in the investigative process was to identify the seven employees who were to be investigated to the HR projects manager. She did not retain notes of this verbal conversation which lasted about 5 minutes. The witness stated that she could not have known at that time of the impact which an investigation could have on the complainant. The witness denied that any bias was at play against the complainant or could be perceived to be at play.

This witness attended the meeting on 12 December, convened by the Group Operations Director with the customer service team at which he referred to the concerns of the temporary agency worker, Ms. E.

The witness agreed that best practice would have been to give more than one day’s notice of the investigation meeting. She did not guide Ms C, who conducted the investigation meeting on the 13 December, merely provided her with relevant policies. The witness decided what material the complainant should receive.

A couple of issues kicked off the investigation on 13 December. A temporary staff member, Ms E, wanted to meet with the witness after one week in the job. She felt the discourse between staff in the customer service department was disrespectful.  This new employee didn’t feel comfortable returning to the office. The witness and the Operations Director met the temporary agency worker in December. The witness had also heard that team members had been quite upset. The notes of this meeting had not been given to the complainant. Ms. D had no function other than to take notes. Ms A requested a copy of the grievance procedure. She said her absence was due to behaviour of colleagues. Ms. A did not name names, nor provide details. She did not activate the grievance procedure. Later, Ms A told her that her absence on sick leave was due to family reasons.

The witness accepted that while the complainant’s stress related issues were not submitted to her directly, a reference to stress related symptoms was contained in the March 26 Occupational Health report.

On her return to work in May 2019 the complainant never mentioned that she had been given menial tasks or that she felt isolated. The witness was not involved in any reviews though her immediate manager was entrusted with a review.

She was unaware of any issues until October 2018. The line manager in the customer services department was an experienced manager who could deal with problems.

The witness clarified that the notes which Ms. B, the HR Projects Manager took during her meeting with the complainant’s line manager were not given to complainant.

Redirect by IBEC representative.

The witness responded to the complainant’s statement that she did not engage with Ms D about her concerns because Ms. D was to be involved in the disciplinary process. Her function at the impending disciplinary hearing was confined to taking notes. The Operations Director was scheduled to manage the disciplinary meeting.

In response to a question, the witness stated that no procedure had been invoked by any of the persons complaining about the complainant.

Conclusion

The complainant’s line manager believed that the issues raised by the complaiant had been resolved.

Legal arguments.

The respondent points to section 1(b) of the Act and to the established principles and requirements which courts and tribunals have issued based on this provision. For a complainant to succeed in a complaint of constructive dismissal, she will have to prove that a breach of her contract occurred and or that the employer’s behaviour was so unreasonable as to leave her with no choice but to resign. In the instant case the employer operated within the terms of the complainant’s contract and the agreed policies of the organisation.

The respondent maintains that the complainant cannot rely on the behaviour of the employer to justify her resignation as she failed to use the procedures in place. The respondent points to McCormack V Dunnes Stores in support of this argument. The respondent relies on Conway V Ulster Bank, UDA 474/1981 to underscore this point. The complainant must satisfy the high burden required in a case of constructive dismissal that she has satisfied the burden of exhausting all procedures. She has not done so, and she cannot succeed in her complaiant.

I am obliged to establish if section 1 (b) of the Act of 1977 operates to validate this complaint of constructive dismissal. Section 1 (b) of the Act states

 “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.”

In light of the statutory definition contained in section 1 of the Act of 1977 as amended, the resultant and established principles adopted by the relevant fora and the courts, the onus lies with the complainant to demonstrate that her resignation was justified.

In justifying her decision to terminate her employment the complainant will have to demonstrate that the circumstances of her dismissal met the tests as set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) ICR 221 and described thus:

 “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 discharged from any further performance”.

and the reasonable test which was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected to put up with it any longer, the employee is justified in leaving”

These tests were followed in a line of Irish authorities.

Applying the above tests to the circumstances of the instant case, the complainant’s case rests on what she maintains is the unreasonableness of the respondent’s ’s behaviour manifested in;

•            The respondent’s failure to address her complaints or to activate their own anti-bullying or grievance procedure to investigate her complaints, while at the same time, when alerted by colleagues to the complainant’s involvement in unacceptable emails, did act and instigated a disciplinary procedure against her.

•            Instigating a disciplinary process against her in a flawed manner and devoid of context

•            A biased approach to the conflictual relationships in her department

•            The respondent’s disregard for her health

•            The reduction of her role on her return from sick leave.

Failure to address her complaints.

The essence of this complaint is that the respondent ignored the many complaints which the complainant frequently put to her line manager concerning the reported abusive, demeaning behaviour of a third party, a colleague, Ms. A.

This is a complex complaint. The respondent accepts that they didn’t investigate the complainant’s written complaints of 31 October 2018 owing, they say, to the failure of the complainant to invoke a procedure. But did she? Is the mere fact that she did not brand or headline her email of 31 October as a complaint under the Grievance Procedure or Anti- Bullying and Harassment Procedure sufficient to relieve the employer of responsibility to investigate it? While the complainant’s  email of 31 October was predominantly about the failures of the co-worker – and this could not be said to amount to bullying and harassment , it also cites behaviours such as “being abused, talked down to, she is rude, ignores the complainant, abusive comments, blaming another for one’s mistakes”  which are listed as instances of bullying in the respondent’s own procedure. The email also refers to the stress and additional workload flowing from a colleague’s difficulties with her job and the manner in which she engaged with the complainant. The respondent’s notes of the investigative meeting of the 13 December which they submitted include comments from the accounts manager who accompanied the complainant to the meeting, corroborating the complainant’s description of the impact of Ms A’s behaviour on her and the team.

The line manager stated in evidence that she was unclear as to whether the email of 31 October was the stuff of a grievance and so she passed it on. She informed the Operations Director. The HR Manager stated that she was notified of the email of the 31 October on 1 November. Neither the HR Manager or Operations Director contacted the complaint to advise her how they would deal with her complaints or what steps she fell short of in her email.  The respondent’s grievance procedure requires that once a matter is referred to the immediate supervisor a decision will issue within two working days. Once HR is notified, a meeting will be arranged with the department head within 7 days. The respondent offered no reason as to why the email of the 31 October could not be considered to be the invocation of the grievance procedure; in fact, admitted that it could. The respondent did not follow the steps set out in their procedures upon receipt of the email. The complainant regretted having to lay these concerns at the door of Ms. C with whom she enjoyed a very good working relationship.  The complainant had been advised that the line manager and a more senior manager would manage the co-worker’s underperformance. But there was no information back to the complainant as to how they intended to separate out Ms A’s performance issues from Ms A’s conduct towards the complainant or the impact which Ms A’s working methods were having on the complainant.

The respondent did not challenge the complainant’s statement that they were unhappy that she had put her concerns in writing. No matter how insignificant her complaints might have proven to be, or that the complainant’s own behaviour may have influenced how Ms A engaged with her, that possible outcome should not have obviated the need for an examination of the issues raised by the complainant. They deserved to be considered rather than ignored.

Equally, the respondent’s bullying procedure provides for an informal process in the first instance which requires the respondent to discuss the complaints with the subject of the complaint. There was no evidence that the complainant’s concerns were put to Ms A. The Anti- Bullying procedure requires the respondent managers and supervisors to respond “promptly, sensitively and confidentially to allegations of bullying”

I find that the respondent did not implement the terms of either its own Grievance Procedure or the Anti -Bullying procedure to investigate her complaints. Her concerns deserved more than a throwaway suggestion after the meeting with the line manager about the grievance procedure. Her statement that she believed her email did constitute the first step in a complaint is not unreasonable and is in keeping with the respondent’s procedures. I find that it was unreasonable of the respondent to do nothing on foot of her email of 31 October. Her complaint came first in time.

The resignation of the subject of her complaints 6 weeks after the lodgement of her complaint did not prevent the complainant from being aggrieved at the respondent’s failure to act in the 6-week period between the submission of the email and Ms. A’s resignation.

Instigating a disciplinary process against her in a flawed manner.

The next element in the complainant’s decision to resign was the reasonableness or otherwise of how she was initially ushered into an investigation of emails which she and others had circulated concerning Ms A, and thereafter into a disciplinary process. I find that the respondent was justified and obliged to investigate the content of the emails in circulation within the customer services team which were meanspirited and gratuitously pejorative towards Ms. A. The complainant did not dispute except with some minor adjustments the content of the emails nor her involvement in them. The respondent’s disciplinary code provides for its exercise in circumstances where there is a breach of email policy procedure and allows for an investigation.

The complainant makes the case that the activation of the disciplinary procedure was flawed and amounts to a breach of their own policies. It is correct that she got, unfairly, less than 24 hours’ notice of the notice of the hearing on the 13 December, but she was offered an adjournment and a chance to reconvene a few days later. . It was a one-sided response to the situation.

She accepted her emails were unacceptable, should not have been sent but explains that they were the product of the respondent’s inaction to her complaints. She does not justify their circulation.

I find that  complainant was invited to an investigation which might have been intended under any of  the 4 policies as the invite to the investigative meeting , sent to the complainant on 12 December, was accompanied by copies of  the Conduct Standard and Disciplinary Policy, the Dignity and Respect Policy, The Prohibiting of Harassment and Discrimination policy and the IT Acceptable Use Policy and  copies of her emails which the employer believed to be an infringement of their email policy. She was advised at the investigative meeting on 13 December that a possible outcome to this investigation would be the initiation of the disciplinary procedure.

The impugned emails were sent in August, September and October. No later samples were submitted in evidence.

The investigation of the 13 December concluded that the complainant had breached the Acceptable Use Policy, Anti-bullying and Harassment Policy, (although no complaint under this policy was lodged against her.), Dignity and Respect Policy and she was found to have a case to answer under the heading of Gross Misconduct under the Respondent’s Disciplinary Policy. A disciplinary hearing was set up for January.

I find that the respondent skipped over the first three stages of its Disciplinary, Gross Misconduct, Dismissal, Appeals Procedure which in stage 1 provides for counselling and informal methods of dissuasion. Stage 2 and stage 3 leave the sanctions at the discretion of the Department manager, Ms C.  All of these stages have to be recorded. This did not happen, and the disciplinary process was activated at the level of the Operations Director and the HR manager for Ireland. None of the witnesses presented evidence at the hearing of having advised the complainant of the consequences of persisting with her actions.

The Anti Bullying and Harassment Policy recommends an informal approach to the perpetrator in the first instance. There was no evidence presented that this occurred.

Biased approach to the conflictual relationships in her department.

The complainant was not privy to the fact that the complaints about her behaviour which prompted the investigation were made verbally and outside of the ambit of a procedure in contrast to the approach to her complaints, so it could not have been material to her decision to resign. But she was aware that the trigger for the investigative processes, initiated on the 13 December, was the exit interview with one employee and a discussion with Ms. A which contained (then undisclosed) complaints about her. She was aware that her complaints received no such response. She claimed that she was being held entirely responsible for the conflictual relationships within the department and for the complaints submitted by two employees.

I find that the respondent’s contrasting approaches to and unwillingness to act on complaints by the complainant as compared to two other employees lacks fairness.

 The respondent’s disregard for her health

The fourth element influencing her decision to resign was the respondent’s disregard for her workplace stress to which the respondent was alerted in January and October 2018, January 2019 and identified in 26 March 2019. While absence on illness in January is attributed to a shoulder injury, her own evidence is that she was very stressed during this period due to the one- sided approach of the respondent.

The report of the Occupational Health Doctor notes that her absence on illness, is attributable, in part, to the impending disciplinary process. The Occupational Health physician recommended that the respondent provide her with the services of the Employee Assistance Programme. This recommendation elicited no response until two months later in contrast to the recommendation that she was fit to participate in a disciplinary process and which was acted upon promptly. The respondent failed the complainant in not assisting her or enabling her to come to terms via the EAP with the inevitability of the disciplinary process when it had been so recommended. The complainant’s belief that the respondent was indifferent to her work place stress is understandable in the face of their lengthy silence.

I find this unreasonable behaviour on the respondent’s part.

A reduced role on return from sick leave.

The fifth factor influencing her decision to resign was her reduced responsibilities upon return in May 2019.

Based on the evidence, I accept that there were legitimate reasons to reorganise her role.

Based on the evidence in her submission, I accept that the complainant experienced a degree of isolation from colleagues.

Obligation to exhaust procedures.

The Labour Court in Rehab Group v Ms Anette Roberts, UDD 2026, considered a complaint of constructive dismissal where the respondent maintained that the complainant could not succeed because of her failure to activate a procedure. The Court  acknowledged the obligation to utilise the procedures to the full as decided in  Travers v MBNA Ireland ltd, UD720/2006, where the Court had found that though that respondent changed the complainant’s role” in a manner not in keeping  with his contract of employment” , that did not relieve the complainant of the obligation to exhaust the grievance procedure and his complaint of constructive dismissal did not succeed.

In Rehab Group v Ms Anette Roberts, UDD 2026 the Court observed that sometimes other factors intervene to affect the uncontested supremacy of this requirement. The Court looked at the respondent’s failure to address a complaint of bullying and did not accept that respondent’s argument that

 “they were constrained from engaging with the subject of the complainant because the complainant hadn’t lodged a formal complaint.”

The Court further stated

“Any manager who receives a complaint is entitled to speak to the person against whom such complaint is made. Indeed, were that not the case, it could be argued that there is no need to provide for an informal approach to the resolution of such matters”.

The Court found that the respondent’s procedures allowed for intervention by the management and that their failure to do so was in breach of their own procedures.

“The Court is clear that the behaviour of the Respondent in not dealing with a complaint by the Complainant was unreasonable behaviour such that it was reasonable for the Complainant to resign from her employment. The Court determines that this is a case of constructive dismissal.”

The Court criticised the respondent’s failure to give “prompt attention” to the complaint.

That case was decided on two points; the failure of the employer to address a complaint of bullying submitted in an email which the employer argued did not meet the requirements of their procedures, and their delayed response to an Occupational Health report for a period of 5 weeks.

While in the instant case the subject of  this complainant’s complaint left the employment within  6 weeks of the complainant having made her complaint, the instant complaint bears a striking similarity to the above determination; inaction in the face of complaints by the complainant and indifference  to a medical report recommending the provision of Employee Assistance Services for an even lengthier period of two months than the  5 weeks of inaction which influenced the Court in determination No. UDD2026.

I find that the respondent rightfully  investigated  the complainant’s behaviour,  unfairly disregarded  her own complaints, leapfrogged over the earlier stages of the disciplinary process where persuasion, dissuasion and alerting the complainant to the consequences of persisting with her behaviour were eschewed in favour of the later stages of a disciplinary process for this employee who had worked with many starters and had never in her previous 11 years been subject to a disciplinary process.  Furthermore, while the respondent acted on the Occupational Health Doctor’s recommendation that the complainant was fit to engage in a disciplinary process and proceeded to arrange one, they failed to act on the other recommendation contained in the report – the provision of EAP services.

I find on the basis of the evidence that the respondent’s behaviour as outlined in their actions and inaction, justifies the complainant’s resignation.

I find that this complaint is well. I  find that the complainant was unfairly dismissed.

Redress.

The complainant’s loss was €12,597.

I decide that the respondent should pay compensation to the amount of €7000 to the complainant for this breach of the Unfair Dismissals Acts 1977-2015.

I find that the complaint is well founded. I find that the complainant was unfairly dismissed. I decide that the respondent should pay the sum of €7000 in compensation to the complainant.

Constructive dismissal; failure to respond to complaints; delay in notifying the complainant of the Employee Assistance Service.