Worker

Employer

Anonymised Parties

HR Generalist

A multi-national manufacturing company

Representatives

  Self-represented

 N/A

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-47843-001

26/12/2021

The worker filed a complaint under the Industrial Relations Act 1969.

There was no objection to the investigation of the dispute from the Employer, in the time prescribed by statute.

There was no appearance by the Employer.

I am satisfied that the Employer was on notice of the investigation, and of the hearing convened for that purpose, by letters dated January 12th, 2022, and July 25th, 2022, respectively.

The Worker left a permanent position, which she had held for 2.5 years and in which she was happy in order to take up a HR generalist management role with the Employer, which represented a promotion for her. The interview process for the new job consisted of four interviews with the manager based in the USA to whom she would report (SV).

The Employer had one site in Ireland. The Employer’s first European manufacturing plant was on-site; all others were in the USA. The Employer produces essential oils.

The Worker commenced work with the Employer on February 1st, 2021.

First red flag:

The Worker described that when she joined the company, it was ‘basically a start-up.’ When she joined, initially there were approximately 25-30 employees and there were three senior managers on-site in Ireland along with the Worker’s role, which was also at managerial level.

Previously, there had been an external HR consultant who had worked 1-2 days per week. There were some HR/employee relations matters to be addressed, so management in the USA had decided that a full-time HR person on-site was required. Within her first week in the new job, the Worker said that Irish-based management expressed their surprise at having a new full-time HR person on-site, expressed their view to the Worker that it was not required, and said the USA-based management had forced it on them. The Worker flagged this with her line manager (SV) who was based in the USA. He responded by saying that the Worker’s new role was required and that it was not the decision of Irish management to make.

The Worker said that she received commendations, in particular, from the Operations Manager in the USA in relation to her culture and engagement initiatives, that the feedback she received from the USA-based management was that employees were speaking to the USA, saying they were ‘delighted with the initiative’. She said that she was happy, that she poured her energy into the role and that she was being consistently thanked for her energy and effort. She had expected that that would ‘stand for her.’

The first incident:

There was a particular issue in relation to the Quality Assurance Manager role, which came to a head when the Worker was in the job approximately two weeks. One of the three managers based in Ireland had been doing two jobs - he had been doing both the Quality Control Manager role and also the interim Quality Assurance (QA) Manager role. The Worker said that he was very angry, as he wanted to keep both roles, but management in the USA had sent on candidates for the QA role. The situation came to ahead at an off-site meeting, and that manager only calmed down and he apologised briefly when another of the three Irish-based managers stepped in. He apologised again subsequently, saying that the problem for him was with the USA [rather than with the Worker]. The Worker informed her line manager in the USA (SV) of the incident.

Second red flag: Interviewing for the role of Quality Assurance (QA) Manager

An external recruiter was sourcing candidates for the role of Quality Assurance Manager. Those candidates were then being screened by senior management in the USA and the candidates who received interviews in Ireland were hand-picked by the USA.

The interview board was based in Ireland and comprised three people: the Worker (HR), the manager who was doing the role on an interim basis (along with his other role) and who wished to continue in the role, and the QA team lead.

There was a difficult dynamic in relation to the hiring of a Quality Assurance Manager, as the person who was hoping to hold on to both roles was on the interview panel. When the interviews were held, the Irish-based interview board spoke amongst themselves first, and then gave feedback to senior management in the USA, so as to be on the same page. A particular candidate was identified by all three to be excellent. The Worker had a conversation with each of the other two interview board members to confirm their feedback and then fed back to the USA. Then, it subsequently emerged that the Worker’s line manager’s (SV) manager who was USA-based then had a meeting with the three Irish managers, and that the feedback given at that meeting was different to what the Worker had fed back – in particular, the interim Quality Assurance Manager contradicted the feedback he had given, claiming his feedback had been ‘misunderstood’. Nevertheless, the USA-based management hired the candidate, countermanding the interim Quality Assurance Manager’s new (and contradictory) feedback.

Second incident: Returning employee post-sick-leave

There was a second incident with the same manager. An employee who had been out sick with long Covid, prior to the Worker taking up her role, was due back at work.

The interim QA Manager said that he had made agreements with the employee in question, and he intended to implement those agreements. His view was that the returning employee ‘reported to him.’

The Worker highlighted to the manager that the employee would need to be assessed, prior to her return. She queried whether a GP had certified the returning employee fit to work, whether the returning employee needed any special accommodations. She highlighted to the manager than some of his proposals created a potential health and safety risk for the returning employee and queried whether there was another approach that could be taken. The Worker was particularly concerned that the proposed agreement would create a situation where the returning employee would be working alone.

The Worker said that the manager was very disagreeable and said that she ‘had no business interfering’, that ‘he was going to deliver on his promises’, that ‘that was the kind of manager [he] was.’ She emphasised that there had been no involvement of the HR function and no communication with USA-based management, in respect of the decisions the manager had made in relation to the returning employee’s return to work. The Occupational Health policy had not been applied. The manager had not told the USA-based management, internal HR or the external HR consultant, of his proposed arrangements. The Worker said that her role was about employee safety and business safety.

The Worker said that the manager was frustrated and angry, that he raised his voice at her again, that he was not happy with a lot of different things (including the recruitment process). She calmed him down. He apologised. They ended up having ‘a reasonable conversation.’ The Worker said that she outlined to him that she did not understand what was going on, that there appeared to be a personality clash, but that they needed to work with each other. She urged him to see her role, the HR function, as available to the managers for support and advice.

The Worker said that the feedback she received from the manager (SV) was that she was doing a great job, that everyone was happy with her - in particular, the Manufacturing Manager was very happy.

The Worker said, that at that stage, she still thought ‘we’ll iron out the wrinkles’ and she took solace from the fact that her own manager had been informed of everything that had occurred, as it happened, in real time.

Pre-existing context & third incident:

The Worker outlined how six (6) months earlier, prior to her taking up her role, one-to-one interviews with staff had been implemented by the external HR consultant. The Worker’s line manager in the USA (SV) asked her to do them this time around. The external HR Consultant was going to do them with her, for continuity.

They conducted two days of meetings, interviewing fifteen people per day, managers included. There had been lots of grievances previously.

During his one-to-one meeting, the interim QA Manager apologised to the Worker again in front of the external HR consultant and said that ‘things had been a bit rocky.’ The Worker said to him that ‘there was no need for that’ [i.e. the additional apology].

The Worker described the interviews as ‘a bit of an eye-opener.’

The external HR consultant gave the Worker some background information, but she wanted to approach the interviews with a clean slate: General background information provided included that previously the manufacturing staff had highlighted issues, the quality department had some issues but not as many and the Finance Manager only had the receptionist reporting to him.

Having conducted the two days of meetings this time around, the feedback to the Worker’s line manager (SV) took two hours.

The issues raised were a mix of job-related issues and interpersonal issues. There were a few areas of concern which the Worker felt could be turned around quickly for some ‘quick wins.’ The Worker met with the external HR consultant via phone, and they put their notes together.

The Worker decided that she would give the feedback to the three Irish managers on her own, as she didn’t want the managers ‘to feel that we’re ganging up on them.’ The Worker outlined that the external HR consultant had no difficulty with that and thought it was a good idea. The Worker met with all three managers. She initially met with them together and gave a general overview in relation to the company, and then she met with each manager individually for approximately 15-25 minutes in order to give the individual feedback. She said that she sat with each manager afterwards and offered supports – ‘you tell me whatever you need to move forward on it’ and she said that she left each of the conversations on a positive note. That was March 8th, 2021, and the Worker said: ‘That was the last day I felt in any way comfortable on the site.’

The Worker said that the Manufacturing Manager was upset by some of the feedback. He was disappointed.  She went to check in with him and to re-assure him and she found him ‘stomping around the place, kicking boxes.’ He was in an office with the interim QA Manager – the Worker said they were not inclined to let her in, so she went back to her own office.

She said that she then fed that back to her line manager in the USA (SV).

Change in attitude – hostility:

The Worker said that March 8th, 2021, represented a turning point. That, after that, there was a change in attitude towards her by the interim QA Manager (with whom there had been a ‘rockiness’ anyway) and the Manufacturing Manager (with whom up until this point, there had been no difficulties). She said that their attitude became hostile towards her. She identified that almost immediately thereafter, she was aware of being the subject of open hostility and dismissiveness by the interim QA Manager and the Manufacturing Manager.

Third red flag:

The Worker had to send a weekly report to the USA-based management, in order to give an HR update. At this point, the Irish-based managers started sending the weekly reports without consultation with her, filling in the HR section themselves. The Worker said that the information that was going back was not accurate and included obvious errors. The Worker said that she emailed the Irish-based managers and said that she would provide the slides for the reports (HR section).

Fourth incident:

On foot of the one-to-one interviews and the feedback received, there were some updates to be implemented – some of those ‘quick wins’ that the Worker had identified. Specifically, there were agreed pay rises and agreed cut-off times for overtime. The Worker relayed this to the Manufacturing Manager but a couple of days later, he still had not informed the staff reporting to him. When the Worker queried it, the Manufacturing Manager said: ‘I never had this conversation with you.’ The Worker described herself as ‘flabbergasted’ by the interaction – she said that she had sat with him, discussed the updates and that he was delighted and his response now was that she never told him. The second conversation was had in the presence of the manufacturing supervisor, who was growing increasingly uncomfortable.

The Manufacturing Manager said to the Worker: ‘I’m the manager. You have no say. I make decisions about manufacturing.’ He said: ‘Why are you getting aggravated?’ and told her to ‘Calm down.’ She said that she felt flustered and left the meeting, saying: ‘We’ll leave it here for now. Have you anything more to add?’ He said ‘No.’ The Worker left - she went home to work from home for the rest of the day and she told her manager that she was working from home, by email.

The Worker reported this incident to her manager (SV) the same date and asked for assistance with the situation.

Disharmony

After that, the Worker said that there were a number of different instances whereby she correctly relayed information from the USA-based management to the Irish-based managers that certain things had been approved but on-site, she was being undermined and it was being suggested that only the Worker had approved them, that it had never been approved by the USA.

She wanted to particularly highlight that no grievance was raised against her, that she kept doing the job, recruiting the staff, building the departments; that she had one-to-one meetings with her manager weekly or sometimes twice a week, and it was acknowledged in those meetings that she was in an ‘awkward’ situation and he praised her for enduring it.

There were instances where she was asked to do things, by the managers on-site in Ireland, which were outside the HR function, and outside her area of expertise, and she had to get her USA-based manager to intervene, which ‘quietened the matter for a bit.’

The Worker said that she again spoke to her manager (SV) about the situation on-site in Ireland, that it was ‘hostile’, that she was ‘finding it difficult’, that she was being actively undermined and derogatory things were being said about her in the workplace, that her professionalism was being questioned.

Grievance raised?

It appears that a grievance may have been raised against the Worker, at this stage. However, she never had any sight of the grievance raised. Two of the Irish-based managers – the interim QA Manager and the Manufacturing Manager had issues with the feedback they had received on foot of the one-to-one interviews. One stated that he was sure that the feedback he had received was not the feedback the employees had provided to the Worker. The other had a multitude of issues with the feedback he received. The Worker offered to produce her notes to management and was told that it was not necessary.

She was then subsequently asked to produce all her feedback notes from the employees and managers on-site in the Irish plant. She said she felt uncomfortable at the request. She felt that was going to damage her working relationship with the managers on the Irish site. She was contacted by the USA-based director with responsibility for Ireland (MR), in relation to it. She felt that it went against everything – all the promises that she had made to staff – but she said the notes were owned by the Employer, and if she was being asked to produce them, she would hand them over. She emphasised that she had followed a direct instruction, and that she felt that she had no choice.

The Worker said that from that point forward she was the subject of undermining by those two managers on-site in Ireland, that obstacles were put in her way, and she was being prevented from doing her job and that everything she did was being ‘questioned and blocked.’ She said that she was never told what issues were raised against her – she had no sight of any grievance.

The Worker was rung by the director (MR) who said that he would be sending a communication to all of them and setting up a Teams meeting with all of them (the Worker and the other Irish-based managers), so that they could move forward. She was sent a communication by the Director (MR) on April 8th, 2021, but no meeting took place. There was a back-and-forth by email, over a period of days, between Ireland and the USA, and the Worker expressly raised concerns, but the Worker’s concerns were never properly addressed. Her perception was that MR’s approach was to try to ‘pour oil on troubled waters.’

The Worker said that her own manager advised her to take the managers out for a meal and to pay for the meal on the company expenses. She said that she told him she felt it was ‘not the time’, in light of the way things were interpersonally. She responded to him that ‘maybe in a few weeks’ down the road’ and he told her that ‘the expense account is there when you need it.’ She said that she ‘heard nothing more.’

The Worker emphasised that she thought that the manner in which the Employer dealt with the situation was very unfair; that her ‘notes were given over’ and the Employer contacted the external HR consultant ‘to check that [the Worker’s] notes were accurate.’ She said that she tried to ‘take it on the chin’, tried to ‘help the situation.’

She said that things ‘quietened down a bit with the Manufacturing Manager’ but that with the interim QA Manager, ‘from then on, it was about putting me in my place.’

June

Examples of his behaviour included: Scheduling a large number of recruitment interviews, many of which conflicted with the Worker’s diary, without consulting her or considering her other diary commitments; and when she raised it with him, he ‘said he didn’t need me.’ The Worker’s boss (SV) in the USA attempted to intervene but the interim QA manager did not respond. The Worker said she had to re-organise everything around the interviews, and that she ‘lost a week on it.’ This happened at a time when the Directors from the USA were coming to visit the Irish site the following week for a site visit, and the site was busy preparing for the visit.

She said that when SV enquired of her how things were going. The Worker said that it was ‘difficult’ but that she was ‘moving along the processes’ and ‘working with each manager.’ SV suggested a one-to-one meeting with the interim QA Manager.

MR, the Operations Director (and SV’s boss) attended at the Irish site. MR met with every person on-site. The Worker said that, despite this, ‘there was no meeting arranged for me – so I tried to grab an hour with him before he flew back to the US[A].’ She said he seemed ‘disinterested’ in the issue and said to her ‘why don’t you two guys get in a room and sort it out?’

On foot of this, the Worker went to the Finance Manager later that day and asked whether he would facilitate a one-to-one meeting between her and the interim QA Manager to address the ongoing issues – friction; the Worker being left out of management meetings. He agreed.

The Worker then emailed the interim QA Manager and asked if he would be willing to meet with her. He agreed and the meeting went ahead (11/06/2021). The Worker outlined that it was bothering her ‘that our relationship wasn’t progressing like I hoped’ and discussed ‘how I can be a benefit to them’ and that she wished to ‘help them to be a benefit to the employees.’ She went through her job specification and outlined what her function was within the company. She said that, at this point, the interim QA Manager became ‘very disgruntled.’ He outlined a list of things to which he objected:

1.       The Worker should not be attending management meetings, as she is not management.

2.       Her name should not be highlighted in green on the organisational chart, as only managers’ names are highlighted in green.

3.       He objected to her speaking at management meetings, as she is not a manager.

4.       He objected to her reporting off-site. He thought that she should report on-site.

The Worker expressed the view that ‘it was all very much about putting me in the place where he wanted me to be.’ She highlighted that none of the things he had identified were within her gift to alter – they were all decisions that had been taken by other people, or structures that had been put in place, by other people.

She said that she asked him why he was so angry with her. She said: ‘He was clearly extremely angry with me’, that he was raising his voice, and the Finance Manager had to intervene and say: ‘Let her speak’, ‘chill out.’ She said that the interim QA Manager was waving his hand dismissively at the Finance Manager. The Worker said that she found it disrespectful to her and to the Finance Manager, and that she was finding the behaviour and tone exhibited difficult.

She said that the meeting was ‘not going anywhere’, that it was ‘getting quite heated.’ So, she sought to end the meeting and to ‘talk about this at another time when everyone [was] calmer.’ She said that the Finance Manager ‘jumped in’ and said to the Worker, words to the effect of: ‘What’s wrong with you? This is how we do things. It’s just talk. It’s how we do things at management meetings.’ The Worker said that she sat back down. When she was ultimately leaving the meeting, the interim QA Manager passed a comment that ‘he was glad [the Finance Manager] was in the room so he could back [the interim QA Manager] up.’ The Worker said that she had ‘never been in a situation like that before, in a professional environment’ and that she was ‘shocked and disappointed’ by the meeting. The Worker said that the ‘conversation was extremely loud’ and that she ‘would be shocked if the people outside the meeting room doors hadn’t heard.’ She said that she went back to her office, stayed there for about a half an hour and then emailed her manager (SV) informing him of the events. She raised a grievance: She outlined that it was a hostile environment, that she was being subjected to anger, which was directed at her, but which did not seem to be about her. It seemed to be about USA-based management. She asked if she could work from home. SV declined her request. He said she could take sick leave but that if she was working, he would prefer her to work on-site. He said that he was sorry to hear about the events of the meeting, and that and would speak to her later.

‘Follow-up meeting’

23/06/2021 – The Worker was invited to a meeting by her manager entitled ‘follow up’ by email. She said that she thought this was a follow-up to the grievance she had raised in relation to the events of 11/06/2021. However, at the meeting, the Worker said that it appeared that she was ‘being disciplined’ but that she ‘never received any grievances or processes or anything.’ She expressed extreme disappointment: She said that she felt ‘gutted. Absolutely gutted.’ She said that she was ‘shocked’, that it ‘came out of the blue’ and that while she was aware the managers on the Irish site were upset/angry, and that the ‘relationship on-site wasn’t friendly’, she simply had no knowledge of this and did not see it coming.

SV also said to her, at that meeting, that she ‘shut down production for an Easter egg hunt for charity.’ The Worker said to him that she was ‘HR’ and that she had ‘no say in when production shuts down’, that her only involvement in the Easter egg hunt was that she donated some money. She said that it had been organised for charity, by another Worker, and that the Manufacturing Manager had agreed to shut down production. She said that she said to SV that he ‘needed to tell her what was going on here’ that he could not make an allegation like that and ‘provide no details.’ She said that she was given ‘no right of reply.’

Later that day, the Worker received an email, which raised issues of which she had no knowledge, for the first time, and which set out that ‘due to these concerns’, that she would be evaluated on her progress weekly for the next month, and that at the last day of July, the Employer would ‘determine whether or not to continue employment’ and that, if it was to be continued, ‘it would be extended by 6 months.’ From the start of August (if employment continued), she would report to the Finance Manager on the site in Ireland, with a dotted line to her current manager (SV).

The Worker said that on receipt of the email, and in light of its contents, ‘at that juncture, I had no choice. I had to resign.’ She said that she felt that she was ‘being handed to the wolves.’ She characterised the contents of the email as ‘shocking’ – she had had ‘no sight of any complaints’, that there was ‘no justification’ for the course of action being outlined, that she was being treated like this ‘despite asking for help, for mediation, etc.’ She said it was ‘untenable.’

At the hearing, the Adjudication Officer enquired as to whether the Worker thought the purpose of the email was to get her to resign. She said: ‘I don’t know.’

The Worker tendered her resignation, at the first opportunity, on June 30th ,2021.

The Worker said that she was ‘hoping that [the Employer] would make some sort of effort.’ She felt ‘forced into a situation, that [she] had no other choice’, that she was ‘miserable going to work.’ She said that SV ‘had interviewed me four times for that job’, ‘I was leaving a place I was happy’ (her previous job), that she ‘put energy into that role’, ‘[they] were constantly thanking me for my energy and effort.’ ‘I thought it would have stood for me.’

The Worker concluded by saying that she understood the law, that it was her understanding ‘the grievance and disciplinary processes do not have to be applied fully’, as she was on probation. However, the Employer did not give her notice of what was, ‘in reality, a disciplinary meeting’ – the Worker was ‘blindsided’ by the meeting. She was informed that she was going to be reporting to somebody else. Furthermore, she was informed that her probation period was going to be extended by six (6) months, in circumstances where if an extension to a probationary period were to take place, the normal extension was three (3) months in that company and in her contract.

She highlighted that in her view, the issues were ‘largely conduct’, not performance and that it was her view that the Employer should have followed procedure, that she ‘should have been given the respect of that.’ Instead, ‘I was going to be given a disciplinary outcome without even knowing that I was going to be investigated.’ She also highlighted that she never got any answers to her grievances, that ‘the grievance procedure was never followed.’

At the hearing, the Adjudication Officer enquired as to the impact on the Worker.

The Worker outlined the financial impact as follows: Her previous role had an annual salary of approximately €43,000 per annum. The role which is the subject matter of this investigation had a salary of €48,000, to be increased to €49,000 after probation. She was out of work for four months – from the end of June to the start of November. Her new role has a salary of €42,000.

She further outlined that the events had hugely impacted her confidence; that she had worked all her life since the age of fifteen and had ‘never come up against anything like this’, had ‘never been fired, never been let go’, that she was ‘still friends with people I worked with twenty years ago.’ She stated that when she started to look for work she ‘couldn’t put [her] best foot forward’ as she ‘didn’t believe in [her] capability’ due to the experiences she had in this employment and how she was treated.

The Worker further outlined that she had sought the help of a psychotherapist and had needed to attend sessions from October 2021 to February 2022.

No appearance was entered by the Employer or on its behalf.

No submissions were made by the Employer.

In conducting my investigation, I have taken into account all relevant submissions presented to me. The Worker attended at the investigation, and I found her to be very credible.

Reporting structure and communication issues

It is my finding that there was a fundamental problem with the Employer’s reporting structure. The USA-based management considered the Worker to be a peer of the three existing managers on-site in Ireland and told her when she started the role that she ‘would have a seat at the table’, her title included the word ‘manager’, her name was highlighted in green on the organogram (which only managers’ names were) and her reporting line was directly to the USA. However, she was not viewed as a peer by the managers on-site in Ireland. The Worker found herself essentially ‘caught in the crossfire.’ Ultimately, this was putatively ‘remedied’ by USA-based management demoting her and causing her to report to one of the Irish managers on-site in Ireland, with a dotted line to her previous USA-based line manager.

It is my finding that there were very significant communication failures by the Employer’s USA-based management: Specifically, it appears that neither the changes being introduced by the creation of the Worker’s role, nor the function and status of the Worker’s role were clearly communicated to the Irish-based management or staff.

There were a number of incidences in which the Worker was actively undermined in the carrying out of her role, right from the start of her employment. I accept the Worker’s position, that she informed her line manager of each incident in real time, as it occurred. It is my finding that the Employer did not address those incidents, adequately or at all, and ultimately that the working environment in which the Worker found herself was actively hostile. I accept the Worker’s version of events – that she received praise and commendations for her work from USA-based management and praise for her endurance (also from USA-based management), and that she was blindsided by the turn of events that precipitated her tendering her resignation. It is particularly troubling that the grievance the Worker raised was not addressed, adequately or at all.

It is also worthy of note, in my view, that the Worker came into a role where there were pre-existing HR issues to be managed on-site, which is why she was hired for a full-time internal HR role by the USA-based management, and that other staff at the Irish site were relatively new in their roles too - approximately 6-8 months, e.g. the Manufacturing Manager was there about 7 months when the Worker started her role. In that context, I find that the manner in which she was treated, and in which the USA-based management allowed her to be treated over a period of months despite being on notice of the conduct to which she was being subjected on-site in Ireland, and ultimately the manner in which the USA-based management treated her themselves, is really very stark and speaks very poorly of their processes and procedures.

Disciplinary process:

I am mindful of the Court of Appeal’s decision in O’Donovan V Over-C Technology Ltd. [2021] IECA 37, wherein the Court of Appeal rejected the idea that a Court can imply a right to fair procedures in relation to the assessment of an employee’s performance by an employer during the probationary period of the employee’s contract (other than for misconduct which did not arise, in that case), as this would negate the purpose of a probationary period.

In the instant case, however, I find that the putative ‘process’ to which the Complainant was subjected was actually disciplinary in nature, i.e. while the Worker was not accused of misconduct and given an opportunity to respond, she was – it turns out – at jeopardy of punishment. Punishment (‘discipline’) of an employee can only legitimately occur on foot of a disciplinary process occurring within the parameters of the employee’s contract of employment, and in compliance with the requirements of due process, natural justice and fair procedures.

In addition, the Worker was told that she was at risk of dismissal on foot of allegations of which she never had sight and to which she was given no opportunity to respond, and by which she was blindsided at a meeting of Jue 23rd, 2021. It is worthy of note in respect of one of the allegations that she flatly denied it immediately when it was brought to her attention – the allegation that she had shut down production for an Easter Egg hunt - explaining to her manager that not only had it not happened, it simply could not have happened, since as HR Manager, she had no ability to shut down manufacturing/production. When she requested the name of the person who had made the allegation against her, she was told to ‘forget about it.’ She challenged the Employer’s approach to this immediately also, despite being blindsided by the allegation, pointing out to her manager that the Employer was breaching its own disciplinary and grievance procedures and that she felt that the manner in which she was being treated was very ‘unfair.’ It is my finding that she is correct. I find that the Employer was entirely unjust in its treatment of the Worker, and I find it particularly telling that despite the fact the Employer was expressly told by the Worker (herself a HR professional) that it was in breach of fair procedures, the Employer proceeded anyway, simply ignoring the Worker’s protests and legitimate objections. In my view, these are not the actions of a reasonable employer.

It is specifically of note, in my view, that the Complainant was informed that she was at risk of dismissal, and that if she were not dismissed, her probationary employment would be extended by six months. Even, allowing for any potential argument the Employer may have advanced had it appeared with respect to the six month period of the original probationary contract, there is simply no lawful basis for what was proposed in the instant case whereby the Complainant, if she was not dismissed on July 31st, would undergo a six month extension to her probation, for which there was no provision whatsoever (contractual or otherwise). The Employer’s own policies and contracts only allowed for a potential extension to probation of three months. It appears to have been plucked out of thin air. I find that what was proposed, by its nature, constitutes a demotion, and therefore a punishment, which triggers the necessity for fair procedures and due process. There was also a financial consequence for the Worker, as her salary was due to be increased by €1,000 per annum upon the successful completion of her probation, which could occur, at the latest, 9 months after she took up employment – what was proposed instead simply did not exist in her contract. There was a final sting in the tail to the proposed changes – the Worker was henceforth going to report to a person/role who heretofore had been her peer, one of the three Irish-based site managers.

Further, I find that on the facts of what occurred in this case, the Employer cannot shelter behind the protection of O’Donovan V. Over-C Technology [2021] IECA 37, and that the Employer’s mismanagement triggers the Worker’s right to fair procedures and due process: In this case, it is of note that no accusations or grievances were put to the Worker, she was not given an opportunity to respond, nor was an opportunity to be represented afforded to her but she was, in fact, disciplined. The Employer failed to follow any or any adequate procedures, including its own. I find that this went well beyond the scope of anything that could possibly be viewed to be reasonable, by the Employer. I further find that it was outside the scope of her probation.

This is an industrial relations investigation. Nevertheless, I am still guided by certain broad general realities: Notably, the imbalance of power between the Employer and the Worker in the employer-employee relationship; and the consequent necessity to narrowly construe an employer’s contract/handbook against the commissioning party, i.e. the Employer - I am guided by the Supreme Court case of McKelvey V Iarnrod Eireann [2019] IESC 79, in this regard.

I find that trust and confidence had broken down irretrievably in the relationship due to the Employer’s handling of the events and the proposed punishment of the Worker absent any process or fair procedures. It is also of note that the Worker had consistently engaged with the Employer throughout her employment and had notified her line manager of all incidents, events and hostilities in real time. Furthermore, I find that she raised a grievance which was not addressed adequately or at all. I am guided by the contents of S.I. 146/2000 and find that the Employer fell well short of any approach which a reasonable employer could lawfully adopt, in line with the statutory requirements.

In the totality of those circumstances, I find that, it was therefore reasonable for the Worker to resign her employment in the circumstances of this case and that her resignation constitutes a constructive dismissal.

Industrial Relations