Complainant

Respondent

Parties

Jennifer  Healy

De Paul

Representatives

In person

Fiona Egan, 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-00033297-001

18/12/2019

The complainant was employed as a Relief Worker accepting work on a case by case basis.

Employment commenced on 1st December 2013 and ended on 30th June 2019.

The Complainant worked between 20 to 25 hours per week at a rate of €14.64 per hour.

This complaint was received by the Workplace Relations Commission on 18th December 2019.

The Complainant felt that she had been bullied for approximately six months when she approached three line managers, at different times, with no results.

The Complainant finally felt that she had no alternative than to make a formal complaint to her line manager in writing in line with the Respondent’s Grievance Procedure. This Policy states all complaints should be dealt with within 5 working days.

The said complaint was acknowledged 3 weeks later by the line manager. Some weeks after this the line manager approached the Complainant and handed her the written complaint, it had not been forwarded to the HR Department or the appropriate person, the complaint had been held by the line manager for a period of weeks during which the Complainant had been going through an extremely difficult time.

The Complainant then worked in an alternative location for some time.

A second manager assured the Complainant that if she returned to the original location the perpetrator would be spoken to and made aware that his behaviour was not acceptable. The Complainant agreed to this and was shocked to discover that on her first shift back in the original location she had been scheduled to work with the perpetrator. The Complainant contends that she had numerous panic attacks during this period.

When the investigation commenced the Complainant and the perpetrator were interviewed by the investigating officer. No other witnesses named by the Complainant were interviewed as part of the investigation.

The Complainant contends that after being bullied for over six months during which she had repeatedly asked management for help she was then sent an investigation outcome which she found to be of poor quality and highly offensive to her.

The Complainant felt that she had to leave her job due to the conduct of her employer or others at work.

Background:

The claimant was employed as a Relief Worker accepting work on a case by case basis.

The claimant raised a grievance in line with the Company procedures.

Initially the grievance was not progressed in a way that could have been considered  expedient.

The matter was escalated to a more senior manager who offered mediation as a way forward.

Initially, this seemed to be working but the matter was formally raised with the HR  Department and an investigating officer was appointed to look into the issues.

The grievance hearing notification was sent on the 20th June with a hearing scheduled for the 27th June.

Grievance Hearing

There appear to be five areas for the grievance:

•         Incident report on a burn to the leg of the claimant

•         Nonattendance at a Christmas party

•         Misplacement/theft of Christmas gift and words spoken after it

•         Leaving early on a shift

•         Allegation made through the Whistleblower system.

The company carried out the grievance hearing and then sought to interview staff connected with the incident.

Most staff were interviewed; however, it is true that some could not be owing to sickness and one staff member being on holidays for a 4-week period.

While the hearing was held on the 27th June the claimant states that her end date is the 30th June.

The claimant was clearly in the process of looking for a new role and appears to have secured it, beginning with a new role on the 8th July.

The respondent, having gathered the relevant information, published its findings on the 9th August.

Within the letter it clearly states the following:

“4.2 Stage 2

4.2.1 If dissatisfied with the decision at Stage 1 or if the grievance is against an employee’s Line Manager, the employee may put their grievance in writing to the Services Manager. The letter should state whom the grievance is against, what the grievance is about and how the aggrieved employee thinks the grievance can be resolved. Where applicable, it should also state the reasons why the employee is dissatisfied with proposed resolution at Stage 1.

This is part of an extensive grievance procedure available to all staff.

The appeal contained a list of recommendations on how to manage future situations.

The claimant never appealed the findings in Stage 1.

The first the respondent heard about any dissatisfaction with the outcome was a  claim being made to the WRC in December.

Conclusions:

The employee did not exhaust the internal procedures available to her to try and resolve the issues she had made claims about.

With due respect to the claimant, none of the matters in her grievance could amount to a successful claim of constructive dismissal. Specifically, on her grievances:

1.       There was no evidence to support any conclusion that an incident report was altered. This is not backed up by any person or other evidence. Mr. Hwas obliged to report the incident, the claimant acknowledges this herself in her grievance hearing. The report itself does not support any allegations of throwing her “under the bus”. Indeed, if Mr. H had wished to generate some issue with claimant then he could have taken some action on her being in a location (kitchen) that was supposed to be off limits to staff unless they were working there.

2.       There would appear to be a conflict of evidence on the issue of notifications on What’s Apps group, so it was difficult to support one version of events over another. The claimant was found to have a grievance upheld on the attendance at their Christmas party. Again, though it is difficult to conclude   that this supports a claim for constructive dismissal. It was a rather unorthodox thing to do with due respect to Mr. H.

3.       Again, there appears to have been a disagreement. Again, there is a conflict of evidence, while attempts were made to speak with the people involved, it was not possible to contact within a reasonable time frame. The organisation was conscious of replying to the grievances even though the claimant had left.

4.       Again, an issue where it does not appear that a message was relayed when it could have been. At best, it appears to be more of a breakdown in communication than anything else. Again, there is no detriment for the claimant.

5.       Issues to the Whistleblower system, the claimant has no evidence that the claimant was made by DH. No evidence was suggested in the grievance letter and none was produced in the hearing. No action was taken against the claimant, indeed there was no evidence to suggest anything should have been raised against her. Both sides of this come down to little by way of evidence, no evidence against the claimant and none against the person named in her statement. Again, no detriment to the claimant was shown. Local management investigated it at the time and moved on. Given the nature of the respondent’s sector it is important that the integrity of the Whistle-blowing policy is maintained.

Many of these issues would appear to have been concentrated around the Christmas time but in truth it is difficult to see these as a campaign against the claimant.

These issues are minor in nature. While it is not suggested that the claimant was not feeling under stress at the time, it would look like more of a clash over some, what would generally be described as minor enough issues rather than a series of actions warranting a claim of constructive dismissal.

The respondent had a duly to both parties to investigate fairly. It did this, it followed their procedures and arrived at a conclusion with a series of recommendations.

The claimant never appealed the findings or otherwise engaged outside of the initial grievance hearing as she had left the business.

CA-00033297-001

The Complainant contends that she had been bullied by a male member of staff for a period of approximately six months, sought the help of three of her line managers to address the situation who all failed to address the problem. The Complainant then felt she had no alternative but to make a written complaint to management in line with the Respondent procedures. 

After a period of some weeks her line manager handed her back her written complaint informing her that “we will have a cup of tea and a chat about things”.

Nothing had been done to address the problem. The matter was escalated to a more senior manager who offered mediation as a way  forward. Initially, this seemed to be working but the matter was formally raised with the HR  Department and an investigating officer was appointed to look into the issues.

The company carried out the grievance hearing and then sought to interview staff connected with the incident.

I note that no ‘terms of reference’ were drawn up for this investigation.

I also noted that Clause 8.1 of the Respondent’s Grievance Policy reads as follows:

‘If there are any witnesses to the events which have led to the grievance, their names should be given to the person hearing the case. Witnesses will be interviewed by whoever is hearing the case and they will be asked to sign a written statement. All parties will have access to witness statements whilst the grievance is being investigated’.

In the instant case five individuals were named who the Complainant felt should have been interviewed, none of these individuals were interviewed.

On 20th June 2019 the Complainant received a letter from the HR Manager stating that a grievance process had commenced and that she would be interviewed on 27th June 2019.

On 23rd July 2019 the alleged perpetrator was written to and he was interviewed on 29th July 2019.

On 14th August 2019 Mr. AO was written to inviting him to a meeting on 21st August 2019.

This letter to Mr.AO dated 14th August 2019 included the following:

“An investigation is being carried out following an allegation made against your colleague, (name redacted). You were named as a potential witness in relation to incident whereby (name redacted) allegedly became aggressive and shouted at another colleague (name redacted)”.

What is very surprising is the fact that this latter dated 14th August 2019 was issued five days after the Grievance Outcome letter dated 9th August 2019 was sent to the Complainant.

I have considered the submissions from both parties and now conclude that the Respondent’s actions from start to finish were flawed. Initially nothing was done in relation to the complaint submitted. When the matter was formally submitted as a grievance and an investigation was commenced, it too was flawed.

In having no Terms of Reference for the investigation it would appear that the Investigating Officer was unsure of what she was being asked to investigate.

I now decide that the complaint as submitted under the Unfair Dismissals Act, 1977 is well founded.

The Complainant commenced new employment within one week of resigning from the Respondent’s employment. In her new employment she is working fewer hours than she was with the Respondent. I estimate that her earnings with the new employer are approximately €130 less per week.

I now order the Respondent to pay compensation of four weeks wages (€1,171.20) plus the difference in wages for 52 weeks (€130 x 52 = €6,864), a total of €8,036.20.

Amounts awarded should be paid to the Complainant within 42 days from the date of this decision.

As outlined above.

Constructive Dismissal.