ADJ-00033681

Employee

Employer

Anonymised Parties

A Customer and Service Provider

A Hardware and Electrical Business

Representatives

Not represented

IBEC

The company is engaged in the wholesale hardware and electrical business and the employee started working there on April 3rd 2017 as a customer and service provider.  Her job involved the management of online sales orders and the processing of documents for the warehouse as well as providing sales and customer support.  She was a full-time employee and she earned €470 per week.  She resigned on January 15th 2021 and went to work in a legal firm.  She claims that her former employer failed to properly investigate incidents of bullying which she said occurred in 2019 and 2020.  The employer’s position is that the issues raised by the employee were interpersonal differences between her and another employee and not bullying or harassment.

In her role as a customer and service provider, the employee provided support to the credit control function.  Although she reported to the managing director, she worked closely with the credit controller, who is the person against whom she made the allegations of bullying and harassment. 

For convenience, in the remainder of this document, I will use the following abbreviations:

MD:  The managing director

CC:  The credit controller

HS:  The health and safety and operations manager

Chronology Leading to the Employee’s Resignation

In October 2019, the employee said that she sent an email to MD about CC’s behaviour but that nothing was done about it.

In May 2020, when work-spaces were re-arranged due to the Covid-19 pandemic, CC was assigned to a desk in the same office as the employee and a colleague.

In July, the employee said that she sent an email to HS and copied the owner of the company, reporting what she described as “continued harassment by CC.” HS suggested that they have a meeting with MD.

On August 6th, the employee said that she had a meeting with MD, who focussed on errors that she was making in her work with no attention given to her grievance.  About a week later, HS sent the employee an email saying he hoped that the issues were resolved.  The employee said that she replied saying that although she was “not entirely happy with the manner of the conversation” with MD, that she would “give it another chance.”

On November 26th, following what she described as “an extremely unpleasant encounter” with CC regarding the spare desk in their shared office, the employee reported the incident to a senior staff member.  MD was not in work that day.  A few days later, the employee said that MD spoke to CC about the difficulties they were having and this resulted in a disagreement between the two men.

On December 2nd, when her co-worker was absent, the employee refused to work in the office with CC with the door closed.  CC called MD for advice and he told them to close the door.  The employee said that she felt that she had “no other option but to remove myself from the situation and I went home.”  She attended her doctor the next day and was diagnosed as suffering from work-related stress.  She was referred to a psychotherapist.  She then sent an email to the owner of the company and asked for his assistance to resolve the issues between her and CC.

On December 4th, the owner replied and said that he would conduct an enquiry into the employee’s  complaints.  As he was travelling back to Ireland from abroad, he had to isolate for five days before coming into the office. 

On December 10th, the owner had a meeting with CC.

On December 15th, the owner met the employee in the office at 12.00 midday.  The employee’s note of the meeting records that she outlined the problem she was having with CC.  She complained that she was never issued with a contract of employment.  She said that this is relevant because, without a job description, “more senior staff members could abuse it by trying to have me to do tasks that supposed to be their job (sic).”  She also complained that she was never issued with a company handbook.  She said that the owner was surprised that she wasn’t given a contract, but he said that he didn’t know anything about a handbook.

The employee noted that the owner reassured her that he was determined to sort out the problem and he proposed to have a meeting the following day with the employee and CC.

On December 16th at 11.00am, the employee attended another meeting with the owner.  She was provided with a contract of employment and asked to sign it.  She said that she read the contract quickly and signed it.  The owner said that the company hasn’t got a staff handbook and she replied that this is an important document because it should include the company’s policy on bullying and harassment.

CC was called in and the owner explained the purpose of the meeting to him.  The employee’s notes show that the owner said that he knew CC for 10 years and that he is a gentleman and that her problems are a result of a misunderstanding and that he is determined to resolve it.  The employee noted that the owner said that he trusts CC, but that he doesn’t know the employee well enough to have the same level of trust in her.

The employee noted that, with every incident she mentioned, CC said that he didn’t remember.  She stressed  how CC’s treatment of her makes her feel intimidated and undermined.  She felt under pressure to complete tasks that she was not trained or authorised to do.  She gave specific examples of incidents, the language used and what exactly was said.  She addressed CC directly and told him that she felt that “he was pushing my boundaries on a daily basis and that the fights we were having were a result of me simply being assertive and standing up to myself.”  She said that CC made no reply to this.  Instead, she said that the owner talked about the specific ways that Irish people use English and suggested that her feelings could be because she did not understand the nuances of the English language.  The employee said that she told them that CC’s intention was to offend or intimidate her.

When she was asked by the owner what she thought was the solution to the problem, the employee suggested that CC should have his own office.  She said that this idea was dismissed.  She also suggested that they all have training on bullying and harassment in the workplace.  She said that this idea was also dismissed.  The final issue brought up at the meeting was the table in the shared office that the employee used as her “eating corner.”  The owner said that this was a shared space and that it should not be used by the employee to eat her lunch.  The employee replied that she was given permission to do so by MD.

The employee’s notes show that, at the end of the meeting, the owner “pressured” CC to apologise to the employee, but she said that he apologised to the owner and not to her.  The employee said that she didn’t feel ready to come back to work as stress was a significant factor worsening her medical condition.

Evidence of the Employee

At the hearing, the employee said that, as there was no solution to her complaints, she resigned on January 15th 2021.  She said that she didn’t feel comfortable at work because of the behaviour of CC.  When I asked her what was unsafe about CC’s behaviour, she said that she was asked to do tasks that were outside her authority and that she refused.  She said that she was asked to take payments over the phone and she refused.  She said that she told MD who said that she didn’t have to do this work, but that CC over-ruled MD and said that she had to do it.   She said that she was asked to do work that CC should do, and that she is not a credit controller.  She said that CC does not treat her with respect and that his tone is unpleasant.  She said that he treats her as if she knows nothing and is useless.  She said that at one point, he told her, “I have the dirt on you.”

The employee said that she set up an “eating corner” in the office, with a fridge and a microwave.  She said that CC would take up the whole desk in that corner, preventing people from using it as an eating corner.

On Wednesday, December 2nd, the employee said that she and CC were engaged in a shouting match.  She said that there were no witnesses present, and that this was a “turning point.” 

The employee said that she is seeking a formal apology from CC and a recognition that CC’s treatment of her was bullying.  She said that, while he apologised, she feels that this was directed towards the owner and not to her.  She said that it was only when she had a  meeting with the owner on December 15th 2020 that she was properly heard, but she said that her proposals for a solution were dismissed.

Cross-examining of the Employee

On behalf of the employer, Mr Dwyer asked the employee some further questions.  He asked her when she compiled her notes of the meetings on December 15th and 16th 2020.  She replied that she made the notes immediately after the meetings.  Mr Dwyer asked her if she recalled any issues raised by CC at the meeting on December 16th.  She said that she didn’t remember CC referring to mistakes in her work, although she said she isn’t suggesting that she never made a mistake.  She said that there was no reference at the meeting to errors. 

Mr Dwyer asked the employee what it was about CC’s behaviour that made her feel unsafe.  She said that he made comments that were “not nice” and which made her feel uncomfortable, such as “I have the dirt on you,” and “you are on my books.”  She said that another employee witnessed these comments.

The employee said that she didn’t complain about feeling threatened, but that she said that CC’s conduct was unacceptable.

Asked if she raised her voice in conversations with CC, the employee said, “yes.”

Asked if there was work that she refused to do, the employee said that she was not trained to do a statement of accounts, but that CC insisted that she do this work.  She was also instructed to take payments over the phone from customers and to write down the customer’s credit card number.  She said that she refused to do this because she said that she hadn’t got the authority and she wasn’t trained.  She said that when CC moved into the same office as her and her colleague, he insisted that the do this work.  Mr Dwyer asked the employee if she asked CC to show her how to do the work and she said that three people told her that it wasn’t her job.  In the end, she said that she asked the financial director how to do it.

Regarding the statement of account, the employee said that she worked on this twice, to fill in for CC, but that it was his responsibility.

Considering the outcome of the meeting with the owner and CC on December 15th 2020, the employee said that the owner was biased, saying that he knew CC for 15 years.  She said that, at the meeting, she suggested that CC should have an office of his own.  The owner said that he would look at this in January.  She also suggested that the employer organise a workshop on bullying and harassment so that people are aware of the issue.

The employee and her colleague worked as customer and service providers, both providing support to the credit control function in the company.  The employer’s submission notes that the job requires a high level of accuracy to ensure that customers are billed on time and with the correct amount.  The final bills are passed to CC for approval and for ensuring that customers’ accounts are correct.  The employee did not report to CC, but she was required to ensure that the orders and customer claims and queries that she dealt with were accurate and processed in a timely manner.

Tensions arose between the employee and CC because of errors and delays in her processing of queries and claims.  Whenever CC would attempt to address the errors, he felt that the employee responded defensively and aggressively, treating his comments as criticism.

Chronology of Events

On October 23rd 2019, CC sent an email to MD describing his interactions with the employee that day and two days previously.  It is apparent from the email, which was submitted in the employer’s book of papers for the hearing, that there were differences of opinion on the part of CC and the employee regarding her work and how it was to be done.  The next day, the employee sent an email to MD about the same issues that had arisen on October 23rd.  In her email, the employee said that she felt bullied and that the only way to maintain her dignity and integrity was to raise her voice and say, “you will not speak to me that way.”    

The employee worked with a colleague in an office with three work-stations and two other desks.  Due to the need to re-allocate space during the Covid-19 pandemic, in May 2020, CC moved into the office with the employee and her colleague, taking the third work-station.  The employee complained that this was done without notification or consultation with her.

In an email to HS on July 29th 2020, the employee complained about “the general level of cleanliness in our company” and the “very dirty” canteen which necessitated her setting up an “eating corner” at one of the unused desks in the office where she worked.  She complained to MD that CC was using the desk which she had designated as the “eating corner” to work on documents.  She said that he could have used the other spare desk for this purpose.  In the same email to HS, the employee complained that she found “talking to my manager very difficult and frustrating”.  She said that, whenever she speaks to her manager she feels that her issues are being dismissed and that there is no follow-up.  She concluded her email by saying that, as the only female in the sales division, “it feels like discrimination and I increasingly feel picked on and bullied by couple of co-workers who seem to have a special connection with manager (sic).”  HS had an informal chat with the employee before bringing these matters to the attention of MD.

On August 6th 2020, MD met the employee to attempt to resolve her concerns on an informal basis.  The employee never mentioned that she expected HS to be at the meeting and he would have been if she had asked him to attend.  When the meeting ended, the employee appeared to be satisfied with the outcome.  On September 9th, after they had both returned from holidays, HS sent an email to the employee, referring to her meeting on August 6th with MD.  He said that he hoped that the meeting “went some way to resolving things to your satisfaction” and he told her to contact him if there are more problems in the future.

On November 29th 2020, the employee sent an email to MD in which she described an altercation with CC, because he was sorting out papers on a spare desk.  She alleged that CC spoke to her in a “very derogatory manner” and that she had to raise her voice to asset herself.  In this email, she claims that she has interpersonal issues with CC and another colleague in the office.

On November 30th, MD met the employee and CC with the objective of acting as a mediator to sort out the difficulties between them.  MD offered CC and the employee a spare desk each to work on.  CC was unhappy with the outcome and he was offered the option of going home early that day, which he did.

On December 2nd, the employee went home early because CC refused to leave the door of their office open.  The employee said that she didn’t want to work in a closed office with him.

The next day, the employee didn’t come to work, but she submitted a medical certificate stating that she would be absent for two weeks due to “a medical condition.”  She submitted further certs up to January 15th 2021, when she resigned.  All the certs stated that her absence was due to a medical condition, but with no medical condition specified.

On December 3rd, the employee sent an email to the owner of the company, saying that her absence was as a result of “work-related stress sick leave.”  She said that she was reaching out to him in a final attempt to resolve the issues between her and CC.  He replied and said that he would conduct a full enquiry into the matter.  On December 9th, the owner wrote again to update the employee, telling her that he planned to meet CC on December 10th and that he would like to meet her to discuss her concerns.  The employee said that she would consult her solicitor, and she agreed to meet the owner on December 15th.

At a meeting with the owner on December 10th, CC told him that he felt that he was being bullied by the employee.  He said that their main items of contention were her performance in her job and disputes over the spare desk.  At his meeting with the employee on December 15th, she complained that she had no contract and no employee handbook.  The following day, the owner met the employee again and gave her a contract.  He informed her that the company had not produced an employee handbook.  When the employee signed her contract, the owner invited CC into the meeting to attempt to mediate between them and to resolve their differences.  The owner expressed his view that bullying was not taking place, but that there were interpersonal differences between CC and the employee.  He advised that, in the new year, he would look at the possibility of placing them in separate offices.  CC apologised to the employee, and she accepted his apology.  The owner felt that when the employee was well enough to return to work, that matters would be resolved.

On January 13th, the employee phoned MD to let him know that she had found a new job and that she was resigning.  She confirmed this in writing the following day.  Her resignation email made no reference to work-related stress, but she thanked him for “everything during my time in the company” and wished him well for the future.

The Employer’s Case that Bullying Did not Occur

On behalf of the employer, Mr Dwyer said that the management investigated the employee’s allegations of bullying and harassment in line with their normal practice for dealing with workplace issues and in accordance with their grievance procedure.  The grievances raised by the employee on July 29th, November 29th and December 2nd 2020 were responded to by the employer on an informal basis.  The grievances were dealt with by a more senior manager on each occasion, starting with the health and safety manager, then the MD and then the owner.  Mr Dwyer accepted that the company’s approach to the employee’s complaints was informal, and they have since update the grievance procedure; however, he said that the employer addressed each of the issues raised by the employee.  Having examined the employee’s grievances, the managers were satisfied that bullying did not take place and the problem was the interpersonal differences between the employee and CC.  In the end, the owner said that he would assign the employee and CC to separate offices, but the employee did not return to work after December 2nd 2020.

Evidence of the Managing Director

MD said that the employee reported to him.  He works on the distribution side of the business, where customers make purchases “on account.”  The employee’s job was to process orders from the sales representatives or directly from customers and to deal with queries and discrepancies.  The employee and her colleague in the office prepared the paperwork and submitted it to CC for approval.

On October 23rd 2019, CC sent an email to MD regarding “a loud exchange” that took place between him and the employee within earshot of a customer.  The following day, the employee sent an email to MD in which she complained about how she was spoken to by CC.  She said that her behaviour during the exchange was “out of character” and caused by the stress of working with CC.

Arising from the correspondence from the employee and CC, MD said that he met them both and they discussed their responsibilities.  He said that both employees had raised their voices to each other and that there was a clash of personalities.  At the end of the meeting, MD said that they both agreed to be more observant in their interactions and to respect each other.

MD said that there were no further issues until May 2020.  The business of the employer was considered to be an essential service and employees were at work.  Some people were re-positioned and, to facilitate social distancing, CC moved into the office with the employee and her colleague.  There were already three work-stations in the office.

On July 29th 2020, the employee sent an email to the health and safety manager, and copied the owner of the company.  She complained about not being consulted before CC moved into the office with her and her colleague.  She also complained about the canteen being dirty, and she said that she had to “wait for weeks at a time and chase manager to be able to talk (sic).”  MD said that he met the employee on August 6th, and that she didn’t mention her wish to have HS present at the meeting.  While the employee said that she was reduced to tears at this meeting, MD said that he doesn’t recall her crying.  At the end of the meeting, the employee said that she was keen to give things another go.

MD said that on Friday, November 27th, he got a phone call from another manager who told him that there had been a row between the employee and CC and that the employee was upset and angry.  That Sunday, the employee sent an email to MD about the incident, during which she said that CC’s behaviour made her react in an assertive way and raise her voice to make her point.  This was an argument about the use of the spare desk.

On Monday, November 30th, MD said that he met the employee and CC and that they had a heated debate.  He said that at the end of each month, there is a lot of paperwork to deal with and there is a need for a spare desk to process that work.  To resolve matters, he decided to put another desk in the office so that they would both have a spare desk.  He said that CC was more upset than the employee and he advised him to go home.      

On January 13th, MD got a phone call from the employee in which she told him that she had got another job in a legal firm and that she was resigning.  He said that he invited her to come into the office to clear out her desk.  He said that she didn’t raise any issues when she resigned and that she seemed happy to be moving on.

Evidence of the Owner

The owner said that his father started the business in the 1940s and that they always had good relations with their employees.  They have 44 staff and they deal with the rare grievances that come up on an informal basis.  Most of the people in the company have more than 20 years of service.  He said that he retired from day-to-day working 12 years ago, but he still has a close relationship with the staff.  The said that the employee’s brother has been working in the company for the last 17 years.

When he received a complaint of bullying from the employee on December 3rd 2020, the owner said that he was anxious and appalled.  He replied saying that he was back in Ireland and would meet her after he had isolated for five days.  In his email, he said, “I assure you, I will get to the bottom of this.”  Following his meetings with CC and the employee, the owner came to the conclusion that the employee was not being bullied but that there was a “bad clash of personalities.”  He thought that things might improve if they had separate offices.  CC apologised to the employee.  After the meeting, they both sent him an email expressing their thanks and he thought that the problem was sorted out.

Evidence of the Health and Safety Manager

Following the employee’s complaint in her email of July 29th, HS said that he brought the issue to the attention of MD.  He said that he also had an informal chat with the employee and on September 9th, following her meeting with MD, he sent her another email saying that he hoped that things were resolved.  He asked her to contact him if there were further problems.  He said that the employee told him that she was prepared to “give it another go” and he thought that things were resolved.

Bullying

A new Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work (Statutory Instrument 674/2020) was published on January 5th 2021.  The definition of bullying is the same as the definition in the previous Code, under Statutory Instrument 17/2002: 

“Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual‘s right to dignity at work.  An isolated incident of the behaviour described in this definition may be an affront to dignity at work, but, as a once off incident, is not considered to be bullying”.

As this definition explains, the objective of bullying is to undermine a person’s dignity.  The intention of the bully is to engender a feeling of inferiority and shame and to inhibit the victim’s ability to stand up for themselves.  In my experience, bullying is rarely immediately recognisable as such, and, sometimes it takes a long time, even years, for a victim to realise that they are being bullied, by which time they feel ashamed and foolish for having accepted the behaviour all along. 

Was the Employee Bullied?

On October 23rd 2019, CC complained that the employee was wasting his time.  She said that she felt bullied and raised her voice in response.  A few days after this incident, MD said that he had a meeting with the employee and CC and that they agreed to be more observant of each other. 

Seven months later, In May 2020, CC moved into the office with the employee.  At month-end in July, when he was working on customers’ accounts, she complained that he was using the spare desk in the “eating corner” to process paperwork.  She said that she felt bullied and picked-on by him and another worker and she claimed that she had to chase MD to get a hearing.  A meeting followed on August 6th 2020.  While the employee said that she was not entirely happy with the outcome of the meeting, she agreed to give things another chance.

Four months later, again at month-end in November 2020, CC was using the spare desk in the office.  A row ensured and the employee ended up raising her voice.  The employee wrote to MD saying that she expected action to be taken.  The following Monday, MD met the employee and CC.  Following what MD described as “a heated debate,” he agreed to put another spare desk into their shared office.

On December 2nd, CC and the employee had a row when she insisted on keeping their office door open.  The employee went home when MD instructed her to close the door.  Arising from a complaint about this incident to the owner of the company, he had a meeting with her on December 15th.   

From the employee’s evidence at the hearing, it is apparent that she disagreed with CC about her responsibilities and she felt that he expected her to do work that she considered to be his.  For his part, it seems that he thought she didn’t do her job to a satisfactory standard, and she chafed at his criticism.  While the employee may have been annoyed by CC’s interactions with her, even if it was unfair, I do not accept that his expectation that she would do work that she was unhappy to do, or that she would do her work in a certain way is bullying.  Generally, criticism is painful and unpleasant, but its focus is on behaviour or performance.  Regarding the argument about the desk in the “eating corner,” I find that it was not appropriate to dedicate a separate desk in an office for eating.  There is a canteen in the company where employees can take their breaks.  If the employee considered that the canteen was not clean enough, this was a matter that could have been resolved by discussion with the management.

Conflict is unavoidable in workplaces, and, among the myriad of possible causes of friction, people have disagreements about standards of work, who is responsible for what, opening of doors and windows and eating food at desks.  It is important not to consider bullying, which is generally silent, stealthy and insidious as equal to the failure of two people to manage their disagreements. 

In the High Court in 2014, in the case of Catherine Glynn v the Minister for Justice Equality and Law Reform and the Attorney General[1], Mr Justice Kearns considered Ms Glynn’s claim of psychiatric injury as a result of bullying in her workplace.  Considering the definition of bullying and finding against Ms Glynn, Justice Kearns said, 

“It follows that the first question that must be asked in every bullying case is whether the behaviour complained of, by reference to an objective test, imports that degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or occupational stress.”

It is apparent to me that the interpersonal disputes between CC and the employee caused some anxiety and unpleasantness for them both.  Without having heard any evidence from CC, it seems to me that they were equally matched in their ill-temperedness.  CC was critical of the way that the employee carried out her work, and he asserted his right to use the desk in their shared office for work and not for eating.  I find that the treatment of the employee by CC does not meet the test of “calibrated inappropriateness and repetition” described by Mr Justice Kearns above.    

The Handling of the Employee’s Complaints

My role is not to re-open the investigation into the employee’ complaints, but to consider if the way they were handled by the employer was fair and in line with the Code of Practice on the Prevention and Resolution of Bullying at Work. 

In disputes like this one, where there is an allegation of mishandling by an employer of complaints of bullying and harassment, the Labour Court has established that, to present an adequate defence, the employer must demonstrate that,

1.              A comprehensive Dignity at Work Policy is in place that reflects the principles set out in the Health and Safety Authority’s Code of Practice on the Prevention of Bullying in the Workplace;

2.              That the policy is effectively communicated to all staff through training, especially of managers;

3.              That complaints of bullying and harassment are fully investigated.

In a small company employing less than 50 people, most of whom have very long service, grievances are generally resolved informally.  As this company did not have a dignity at work policy when these issues arose, the employee felt that the management had no reference point to deal with her complaints, and that they lacked a resource that could have helped to resolve matters.  I find myself agreeing with her on this point.  If there had been a comprehensive policy available with clear definitions, both sides would have had a better understanding of what constitutes bullying and would have been able to identify the difference between bullying and difficult communications about work and work-related matters.

That said, even in the absence of such a policy, it is my view that the management were attentive to the employee’s concerns and that, at no stage, were her complaints ignored or brushed aside.  She had the benefit of the involvement of the health and safety manager, her own line manager, who is the managing director, and, finally, the owner and chairman of the company.  All of these took her complaints seriously and were committed to resolving her difficulties.  I am satisfied that, if she had returned to work, the option of working in a separate office from CC would have resolved the employee’s difficulties to a considerable degree, and would have provided some relief to CC as well.

I recommend that the employer put in place a dignity at work policy and that it is communicated to employees and managers so that it can be referred to in the future in the event of a complaint of bullying or harassment.

Bullying and harassment, interpersonal difficulties