FULL RECOMMENDATION
PARTIES : NOONAN SERVICES GROUP LIMITED DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No. Adj-00017412 This is an appeal by Ms Edyta Plajzer (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00017412, dated 11 July 2019) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer held that the Complainant’s claim of constructive unfair dismissal was not well-founded. The Complainant’s Notice of Appeal was received by the Court on 19 August 2019. The Court heard the appeal in Dublin on 16 September 2021. The Factual Matrix The Complainant commenced employment with Bidvest Noonan (ROI) Limited (formerly known as Noonan Services Group Limited) (‘the Respondent’) as a part-time cleaner in 2015. She initiated a formal complaint of bullying and harassment on 27 November 2017. The Complainant had gone out on certified sick leave on 16 November 2017. She did not return to work for the Respondent thereafter. She was in receipt of illness benefit until late November 2018. Prior to commencing her sick leave, the Complainant had been working thirty hours per week and was paid €10.00 per hour. The Respondent appointed an investigator (PH) who convened a meeting with the Complainant and her trade union representative on 15 January 2018. That meeting was adjourned and the investigator stepped down as the Complainant expressed concerns about his independence and the manner in which he proposed to proceed with the investigation. A second investigator – Ms Caroline Tuohy - was appointed. Ms Tuohy held an initial meeting with the Complainant and her trade union representative on 19 April 2018. Thereafter, Ms Touhy proceeded to interview all relevant parties and witnesses. She met with the Complainant again on 19 July 2018 and informed the Complainant verbally that her complaints of bullying had not been upheld. Ms Tuohy’s written report and decision issued on 20 August 2018. The Complainant exercised her right to appeal against that decision. The Complainant resigned her employment on 21 September 2018. Her letter of resignation crossed with a letter from the Respondent advising the Complainant of the details of the appeals meeting which the Complainant received two days after submitting her resignation. This meeting did not go ahead and the Complainant referred her complaint of constructive unfair dismissal to the Workplace Commission on 8 October 2018. In evidence, the Complainant said that the matter had become very burdensome on her family at that stage and she no longer trusted the Respondent. The Complainant’s Case When asked by the Court to set out her reasons for resigning her employment, the Complainant said that she resigned because she had lost confidence in the Respondent, that Ms Tuohy was not independent in her role as investigator and the investigation process had not sufficiently respected her rights to privacy and confidentiality. She also referred to the fact that she lodged her appeal against the outcome of the bullying investigation on 27 August 2018 but over three weeks passed after that date during which she had not received any reply from the Respondent. Hence her decision to resign on 21 September 2018. In her letter of resignation, dated 21 September 2018, the Complainant states: “Herewith I wish to terminate my employment with your company with immediate effect on the grounds of constructive dismissal due to bullying at work and failure to address the issue adequately.” The Complainant told the Court that she had consulted her Solicitors prior to writing her letter of resignation and that she had been assisted in drafting it by her husband. The Complainant’s Solicitors wrote to the Respondent by letter dated 27 September 2018 stating inter alia: “You will note that our client filed her resignation, therefore she will not be attending the appeal hearing scheduled for 4thOctober 2018.” Evidence of Ms Caroline Tuohy The witness told the Court that her job title is Human Resources Manager – Integrated Solutions. She said that she had received a telephone call on 29 November 2017 from Mr Dermot Murphy in relation to the Complainant’s formal complaint under the Respondent’s Anti-Bullying Policy. As she was unable to identify an appropriate manager locally to investigate the complaint, she arranged to have PH appointed to do so. Following PH’s first meeting with the Complainant and her trade union representative on 15 January 2018, the witness received a telephone call from the representative requesting that an alternative and more experienced investigator be appointed. The witness herself then assumed responsibility for the investigation. As the Complainant was absent on sick leave, the witness requested a ‘fitness to attend’ letter from the Complainant’s General Practitioner before commencing her investigation. She received this letter on 5 February 2018 and arranged to meet with the Complainant and her representative on 15 February 2018. According to the witness, the Complainant’s trade union representative sought an adjournment of that meeting and a second meeting arranged by the witness. The witness met the Complainant on 19 April 2019 and again on 19 July 2018. She had found it difficult to find dates between the first and last of those meetings that suited the trade union representative’s schedule. The witness told the Court that although an interpreter had been present at both meetings, a further delay was occasioned to the process by the Complainant’s initial request to have the minutes of the meeting of 19 July 2018 translated. She subsequently changed her mind in this regard and the witness furnished the minutes of the July meeting to the Complainant and her representative on 15 August 2018. She furnished her final report to the parties on 20 August 2018. The Complainant made various allegations in relation to the manner in which the witness conducted her investigation. She complains in particular that two witnesses (named) identified by her had not been contacted by the witness. The witness told the Court that one of those individuals (Ms D) had informed her that she was being harassed by the Complainant and was too ill at the time to engage in the investigation. The second named person (Mr K) had move to Great Britain and had not provided the Respondent with a forwarding address. The witness had tried to contact him via his last known email address but he did not reply to her. Following the completion of her investigation and issuing her report, the witness commenced a period of maternity leave and had no involvement in the appeals process. She said she was aware the person assigned to manage the appeal (GC) had a bereavement of a close family member in late August 2018 that necessitated his being out of the country for some time. This, she told the Court, was the likely explanation for the Respondent’s delay in arranging a date for the appeal meeting. She also told the Court that GC had an ‘out-of-office’ message on his email account indicating his absence and the name of another colleague who could be contacted in his place. Finally, Ms Tuohy concluded that, as the Complainant submitted her appeal request by email to GC, she must have been aware of the fact of GC’s unavailability at that time. Discussion and Decision As stated previously, when pressed by the Court to explain the reason for her resignation, the Complainant replied that she had lost trust in the Respondent. Her Counsel submitted that the investigation of the Complainant’s complaints of bullying and harassment was protracted and this, coupled with the initial aborted investigation by PH, rendered his client’s decision to resign her employment, prior to the conclusion of the appeals stage which she had initiated, reasonable in all the circumstances. The Court found Ms Touhy’s evidence to be credible, coherent and convincing. She accepts that the investigation was protracted. However, her undisputed evidence to the Court is that the delays were due in very large part to the Complainant’s objections to the first investigator and the ongoing difficulties she (MsTuohy) had throughout the process in identifying dates that were suitable to the Complainant’s trade union representative. The Complainant delayed the process further by requesting that the extensive minutes of the July meeting be translated into her native language. There was a delay on the Respondent’s side in processing the Complainant’s request for an appeal meeting but this is entirely explained by the absence of the person assigned to conduct the appeal due to a bereavement. Having carefully considered the evidence of both Parties, the Court finds that the Complainant has not made out a case that justifies her decision to resign her employment. There was no breach of contract on the Respondent’s part and the Respondent’s acted reasonably in so far as it has an Anti-Bullying Policy in place and it conducted a comprehensive investigation of the Complainant’s allegations against her co-workers in accordance with the procedures set out in that policy. The Complainant was afforded the opportunity to appeal Ms Tuohy’s findings. While she initiated an appeal she did not follow through – having received legal advice – and decided to resign her employment before the appeal meeting was due to take place. For the above reasons, the Court finds that the within appeal fails. The decision of the Adjudication Officer is upheld. The Court so determines.
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