Employee

Employer

Anonymised Parties

An Account Manager

A Financial Services Company

Representatives

 Caoimhe Ruigrok BL

Fiona Egan, Peninsula Group

Act

Dispute Reference No.

Date of Receipt

Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00040360-001

09/10/2020

AB is an account manager and he started working for this employer on September 1st 2018.  He earns an annual salary of €26,000 plus commission and he is a permanent and full-time employee.  In July 2019, he complained that he was being bullied and harassed by his manager.  He claims that the company has not properly investigated his complaint and that the bullying is continuing.

Chronology

In the documents he sent to the WRC in preparation for this hearing, AB included copies of emails sent to him by his manager between October 2018 and January 2019.  He claims that these emails are examples of bullying and lies.

On April 6th 2019, AB said that his role was changed.  The emails he included in his book of documents show that recruitment of new agents was suspended around that time and that he was asked to assist with Brexit-related work.

AB’s probation was due to end in February 2019 but was extended for three months and on May 31st 2019, he received an email from the HR manager to inform him that he successfully completed his probation on May 3rd 2019.

On June 11th 2019, AB sent an email to his manager regarding the company’s annual leave policy.  The previous January, he had been asked to complete a holiday planner and he did not do so.  His manager asked him “for the last time” to tell him when he was taking his 2019 annual leave.  On the same day, the manager also sent an email to AB regarding how he should report on client visits.

On June 12th 2019, AB submitted a formal complaint regarding his manager’s conduct.  In an email to the HR manager, he made four specific points.

1.              He said that his manager did not trust him.

2.              He said that his manager openly ridicules him.

3.              He said that his manager does not support him but that, outwardly, he pretends to support him.

4.              He said that the way his manager manages him is different on email compared to what happens in reality.

The HR manager summarised AB’s complaints in a replying email:

§    He said that he felt that his consent was not obtained when his manager sought a reference about him from a client.

§    At a meeting with the HR manager on June 10th 2019, he reported difficulties with agents and he felt that his manager responded in an inappropriate and patronising manner.

§    He was asked to look after a list of under 30 agents but he was given conflicting instructions regarding how to proceed.

§    He was asked to work on what were referred to as “Orange Days” but was not given training.

§    He was asked to say “hello” and “goodbye” to his colleagues and he felt that this was inappropriate.

§    He was requested to send a “visit report template” only a few days previously, when he was not previously notified of this requirement.

On June 13th, AB met with the HR manager to discuss his complaints.  He was then out sick as a result of stress.  He returned on July 8th.  On his return, the HR manager wrote to AB regarding his return to work.  She informed him that his manager was going to “adjust as much as possible” to facilitate him, and she asked him to adjust also, so that his and his manager’s different working styles could be accommodated. 

On July 10th, the HR manager provided the outcome to her investigation into AB’s complaint about his manager:

Given all the above, I decided not to uphold your matters raised as sufficient for any further formal process. We will continue working with Raghib to further improve his managerial skills and handling of different scenario working situations.”

On July 19th 2019, AB submitted an appeal, and on July 29th, the HR manager wrote to AB and informed him that she received  his appeal and that a higher-ranking manager would be appointed to hear it.

The appeal was not scheduled and on October 2nd 2019, the HR manager, having received copies of terse email correspondence between AB and his manager, instructed them to stop writing to each other in that manner.

On May 22nd 2020, AB sought an update from the company’s UK HR department concerning his appeal.   

On June 19th 2020, a HR manager in the company’s UK office requested AB to attend an appeal meeting on June 24th over Microsoft Teams.  AB replied and said that would not have time to prepare and he wanted the appeal to be scheduled for after he returned from his holidays.  Also, his witnesses were not available and he wanted to attend a meeting in person, rather than over Microsoft Teams.  His request was refused.  Due to Covid restrictions, the HR manager in the UK decided that she would not travel to Ireland for the appeal, which went ahead despite the fact that AB did not attend.  The outcome was unchanged.

AB was on annual leave from July 13th and he was due to return to work on August 17th 2020.  However, on August 14th 2020, he sent an email to his manager and to the HR department informing them that, because of work-related stress, he would be absent until September 1st.  He asked for counselling and for this to be paid for by his employer.

When he returned to work (remotely), AB couldn’t access the company’s system on his “surface” tablet and he was advised by the IT department to attend at the office and to log there to update his access and to collect a laptop.

It appears that AB was absent again in September and that he returned to work on September 29th.  He was requested to complete a sick leave form and he objected, on the basis that there was no provision in Irish law that required him to do so and the form he was given referred to UK legislation.

On October 12th 2020, AB was informed that he was to work from a new location in Dublin city centre.  Also, in October, AB had a difference of opinion with his manager regarding his contact with agents.  He claimed that his manager advised him not to deal with what were referred to as “the top three agents” but the manager denied this.

Two meetings took place on October 21st 2020, hosted by the country manager.  On October 23rd 2020, AB made a complaint about the conduct of the country manager at the meetings.  He made the following allegations:

1.              The country manager accused him of misleading the conversation at the meeting;

2.              He alleged that AB had private meetings with staff;

3.              He stated that AB “beats around the bush;”

4.              He said that AB always talks and never gives anyone else a chance;

5.              He asked if AB was threatening to make a complaint to the WRC or to a court.

AB requested that this matter be addressed through formal mediation using an external third party.  A HR consultant was appointed and an investigation commenced in November 2020.  AB attended meetings on his own, although he was advised of his right to be accompanied.  As part of his investigation, the country manager and the HR manager were also interviewed, as was one of AB’s colleagues.  In his final report of April 2021 (after this complaint was submitted to the WRC on October 9th 2020), the investigator reached the following conclusions:

1.              Regarding the allegation that the country manager accused AB of being “misleading,” the investigator found that the manager made this remark and that it was made for “a genuine reason as he considered the conversation to have been misled and [he] attempted to add clarity.”

2.              The investigator found that the country manager also remarked that AB had private conversations with employees and that they disagreed about the meaning of this comment. 

3.              The investigator found that, it was more than likely that the country manager made the comment that AB “beats around the bush.”

4.               While the manager told the investigator that AB never lets anyone speak and that he talks over people, the investigator’s finding regarding the comments at point 4 in the list above were inconclusive.

5.              Regarding the allegation that the country manager suggested that AB threatened to make a complaint to the WRC, the investigator concluded that this suggestion was made.

Concluding his report, the investigator recommended that AB was provided with clarification regarding the purpose of the daily meetings and clarification about his duties and responsibilities.  He also recommended mediation to improve communication between AB and the country manager.

In a submission sent to the WRC in advance of the hearing of this dispute, Mr Nwadike set out the substance of AB’s complaints regarding how he was treated by his employer.  He alleged that AB was bullied and belittled by his manager and by the country manager for Ireland.  He said that the manager bullied and belittled AB at meetings and in emails that were copied to multiple recipients.  He claims that the emails did not reflect what was said in conversations or the tone of the conversations.  Mr Nwadike said that this behaviour is not constructive or helpful and does not fall within the Supreme Court’s judgment in Ruffley v The Board of Management of St Anne’s School[1] where the Court held that,

“Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work in engaged in.  It may be necessary to point out faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours.  It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention.  Bullying is not about being tough on employees.  Appropriate interventions may not be pleasant and must simply be taken in the right spirit.”

AB’s position regarding his treatment is that the “tactics” deployed had the objective of diminishing his status in the company.  He said that ridicule, personal antagonism, public admonishments and disparaging remarks in public meetings along with requests to do tasks that he was not trained in were intended to set him up to fail.

Examples of Bullying

In his submission, Mr Nwadike gave examples of the behaviours of the manager that AB considered to be belittling and bullying:

1.              Assigning him tasks that he was not trained to do or not fully trained to do;

2.              Making disparaging remarks to AB in public meetings;

3.              Berating him for the routes he took to meetings and his use of tolled routes;

4.              Criticising him for not availing of free parking;

5.              Engaging in over-bearing supervision and monitoring;

6.              Verbal abuse at meetings in the presence of other employees;

7.              Setting unreasonable targets;

8.              Requiring additional work to be done without providing training;

9.              Sending him emails outside normal working hours;

10.          Requiring him to book his annual leave for the current year in January of that year.

Regarding the country manager, AB complained that he was required to attend meetings too frequently, and that the purpose of the meetings was unclear.  He also claimed that, at the meetings, the country manager made inappropriate comments.  These meetings were suspended when AB was on sick leave, but started up again on his return.  AB’s case is that the meetings “were orchestrated to cause maximum upset” for him.

AB complains that out of hours emails and late night emails have led to elevated stress levels, and that these communications and the outcome of the investigation into his grievance about his manager resulted in him being absent due to work-related stress.

Mr Nwadike’s submission refers to the fact that AB’s appeal of the outcome of his grievance in July 2019 was not dealt with until June 2020.  He asserted that he was not given an opportunity to attend the appeal and that this rendered the process unfair. 

In his findings regarding his complaints about the country manager, Mr Nwadike submitted that the investigator generally upheld AB’s complaints.  He said that the purpose of the daily team meetings was meant to be clarified, but that this has not happened.  Also, he received no explanation about why the meetings were suspended when he was out sick.

The person who investigated AB’s complaint about the country manager recommended that he was provided with clarification when he was given additional duties.  He claims that his position has become more difficult as he perceives that the employer wants him to leave the company. 

Mr Nwadike suggested that that there appears to be “an agenda and desire for the complainant’s exit from the organisation.”  He said that the “botched grievance procedure” and the findings of the external investigation have not resulted in any changes in the attitude of the managers.

The Employee’s Case

At the hearing, Mr Ruigrok referred to the fact that AB’s appeal of the findings of the grievance he submitted in June 2019 was delayed for ahis managerost one year and that this was unfair.  The appeal hearing itself was then scheduled to take place one week before he went on his holidays and his request for an adjournment was refused.  As a result, he did not attend the appeal, the outcome of which was that the employer’s position was upheld.

Following his second complaint, on October 23rd 2020, against the country manager, the investigator concluded that some of AB’s allegations were upheld.  Ms Ruigrok submitted that this shows that “a certain tone was accepted in the company,” which, she argued, was identified by the investigator as not appropriate.  She said that “loose language has given rise to ongoing issues.” 

The Employee’s Description of His Experience

At the hearing, AB described what he considered to be bullying and unfair treatment by his manager.  He said that, in October 2018, when he was still on probation, he complained to the HR manager about difficulties he was having with his manager.  He said that, despite being on probation, he couldn’t accept what was happening.  He said that he felt uncomfortable at sales meetings and that he didn’t attend them.

Regarding the investigation into the complaint he submitted to the HR manager in June 2019, AB said that he was surprised that she could issue a conclusion without conducting a hearing.

He complained about the tone of the emails sent to him by his manager and he complained that many of the mails were copied to his team.  He referred to an email from his manager on Sunday, May 26th 2021, where his manager stated:

“Hi (name of employee),

According to the update you provided, none of the agreements were either submitted or the rejection fixed.

Due to this delay the country is being held back & can't start recruitment, everyone else has completed 99% of their Brexit tasks.

You now have a deadline until 31st May to submit and fix all Brexit assignments.

Kind regards…”

He also referred to an email from his manager on Wednesday, May 29th 2021, in which the manager said,

“Hi (name of employee),

When training an agent, it's vital to check if agent's system is working 100% i.e fee is being charged,

amount is in Euro etc.

See email below, there were 8 initial transactions sent by the agent with no fee charges, which means the customer didn't get charged. This is a loss for the company & agent.

I hope you will be more careful in future and there will not be a repeat of such a case again.

Kind regards…”

This email was followed by a mail from another employee to the manager, asking, “is this issue sorted?”  This was copied to AB.

When I asked him what he thought would be a solution, AB said that he wanted to be supervised by a different manager.  He said that he also asked to be referred to a counsellor.  He then revealed that he now reports to a different manager, but he said that nothing has changed.

In his closing remarks, AB agreed with the HR manager’s conclusion that his relationship with his employer has broken down.  He said that he is complying with what he is asked to do, although he is not achieving his sales targets.  He said that he is concerned about “what tomorrow holds.”

In her submission in preparation for the hearing of this dispute, Ms Egan outlined the chronology of events up to October 2020, when AB submitted this complaint to the WRC.  These have been outlined above in the “Background” section.

Setting out the employer’s response, Ms Egan said that the employer’s position is that AB was never bullied or treated adversely during his employment by any member of staff.  She also referred to the decision of the Supreme Court in Ruffley (cited on page 5 above) where bullying is defined as “repeated inappropriate behaviour reasonably capable of undermining dignity at work.”  The employer’s case is that AB has failed to adduce any credible evidence of the very serious allegations he has made.

The employer acknowledges that, in his short time with the company, AB has “failed to exhibit his desire to work collaboratively and / or accept guidance / instruction from his peers.”

Ms Egan quoted from the Ruffley decision regarding the need for reasonable supervision and the need not to equate this with bullying.

The employer’s submission concludes by saying that they have engaged with AB at all stages but without any positive outcome.

At the hearing, Ms Egan said that it is unclear what this dispute is about.  She said that an investigation took place into AB’s first grievance and a report was produced in July 2019.  All of AB’s allegations were addressed.  One of the findings of this investigation was that, contrary to his allegations, AB’s colleagues observed no ridiculing of AB by his manager, as he had alleged.  Ms Egan said that there was a delay in conducting an appeal hearing because there was a discussion about the possibility of mediation.  While AB didn’t attend the appeal hearing because he said that he hadn’t got time to prepare, an appeal was conducted.

For his second complaint, the investigation was outsourced to a consultant from Graphite Human Resources.  From a procedural perspective, Ms Egan said that the company has engaged appropriately with AB.

At the hearing, the HR manager said that the company has tried to support AB.  He was provided with access to counselling through their employee assistance programme.  She said that they tried to resolve the situation between him and his manager.  The outcome of the second investigation was that mediation should take place, but AB said that his lawyer was dealing with matters.  At this stage, the HR manager said that they feel that their relationship with AB has broken down.  He appears to be very reluctant to engage with his managers or to adhere to company’s procedures. 

I have given very serious consideration to AB’s complaints about his manager and the country manager.  His submission for the hearing included more than 200 pages of documents and emails, which were not in date order, some of which were duplicates and many of which were not relevant.  I have reviewed these documents, which took much longer than should have been necessary.  In view of the fact that he was represented by a solicitor and a barrister, this is disappointing and I can only conclude that it was intended to be add confusion to his case and to make it difficult to investigate.

I have examined the correspondence between AB and his manager.  I have also considered the outcome of the two investigations carried out by the employer and I have taken account of the submissions of the representatives and of the statements of AB and the HR manager at the hearing of this dispute.

Findings

In my task to enquire into this dispute, my job is not to re-open the investigations into AB’s grievances, but to consider if the response of his employer was reasonable and to recommend a possible solution to the difficulties in their working relationship.  Having considered all of the information presented to me, it is my view that the response of the HR department was reasonable, and further, I think that most HR managers in most organisations faced with similar complaints would have reached much the same conclusion.

One of the common threads in all of the interactions between AB and his manager highlights the effort of the manager to instruct and encourage AB to do his job in accordance with the requirements and standards of the company.  In one example, the manager asked AB to correspond by email in a “string” format, so that communications could be easily followed and understood and to make it easy to follow up with agents and to close off on sales.  This was a request that AB should have been doing anyway, and his reluctance to follow this simple guidance is an example of how he resisted order and transparency in his work.  This is reflected in the disorder in his submission for this hearing.

I note from the emails that the manager frequently asked AB to use toll roads and paid parking so that there was a record of his travel and routes taken.  Another confusing aspect at the hearing was the fact that his solicitor mis-interpreted this issue, as he alleged that AB was instructed not to use toll roads and paid parking in order to save money.  This was not the case.  Having examined all the email correspondence that was submitted in preparation for the hearing, and having listened to AB’s description of his experience, it is my view that, from an early stage in his employment with this company, AB resisted being asked to do his work in a certain way.

In his book of documents, the first email included by AB from his manager is dated October 8th 2018, at the beginning of his third month in the company.  It reads as follows:

“Hi (name of employee),

Further to our earlier discussion today please find the details below:

Currently You have 3 applications on AOB

- 2 Rejected in 1st review

- 1 Pending in local Credit

Your target for the month of October is 5 approved applications from central, as already mentioned on numerous occasions you need to aim to have at least 80% approval by 15th October.

I am aware you have a strong pipeline that you are looking to close this week, please also concentrate to fix the above rejections at the earliest

Good luck and I am confident you would be able to achieve your October target.

Kind regards…”

Although there is a reference to having been informed “on numerous occasions” that he had to have an 80% approval rate, the manager also expresses confidence that he can do his job to the standard required.  I don’t think any employee would take issue with receiving such an email from their manager and it is apparent to me that there is no intention here to undermine or harass AB to get the work done.

I note that AB and his colleagues were required to travel to clients and that they generally worked remotely.  From the onset of the Covid-19 pandemic in March 2020, they were working remotely all the time.  To manage his team, the manager used certain reports to track the completion of tasks, and he expected AB to provide information in a standard format, on time and accurately.  I note from the correspondence, that the manager repeatedly asked AB to fill in reports and to provide information about his work.  For example, on May 6th 2019, the manager asked AB to fill in the correct and full details regarding his expenses claims and he said that he has been asked to do this on previous occasions.  This correspondence was direct and not unreasonable.  In another email, on Sunday, May 26th 2020, the manager wrote to AB and informed him that,

“According to the update you provided, none of the agreements were either submitted or the rejection fixed.”

AB was told that he had a deadline of May 31st to “submit and fix the Brexit rejections.” He took issue with this email because it was sent on a Sunday.  However, it is my view, that, in the context of remote working, it was open to the manager to send an email outside normal office hours and, equally, it was open to AB not to read it until he was at work.   In any event, AB was given five days to complete the work and I do not consider this to be undermining of his right to dignity. 

I find that the tone of some of the correspondence sent by AB to his manager was not what a manager would expect from a team member.  For example, on October 19th 2018, again, in the third month of his employment, the manager queried AB’s expenses claim.  The tone of AB’s email in response was abrupt and lacking a salutation or sign-off, the norm in correspondence between colleagues:

“(Name of manager)

I sent you my mileage according to where I was.

This is highly inappropriate you told me i sent expenses on 9th it was 6th

You told me you had issues with expenses in UK yet failed to produce

Now you labour under mistaken belief if you are suggesting something adverse to what I am advising.

I am really starting to be discontent with this if i chose not to use tolls because its practical for me , likewise if i chose not to use ilac centre at times because if i can avail of free parking I will.

I will not be patronized for using my initiative

If you so choose not to approve my expenses you at liberty to however i will seek redress elsewhere

(Name of employee)”

The following month, on November 8th 2018, the manager again queried the expenses claims submitted by AB for October.  This email was submitted by AB as an example of bullying:

“Hi (name of employee,

There are many discrepancies in October expenses, can you please explain the below:

2/10 - Claiming to be in Celbridge/Lucan/Fonthill but on your weekly plan it mentions you were in Lucan

9/10 - Claiming to be in Clondalkin/Lexlip/Lucan but you weekly plan mentions you were in Lucan

11/10 - Claiming to be in Balbriggan/Drogheda/Dundalk but your weekly plan mentions you were in

Dundalk

12/10 - Claiming to be in Blanchstown & Navan but your weekly plan only mentions you were in Navan.

17/10 - Claiming to be in D8/D4/Blackrock/Shankhill/Bray but your weekly plan mentions you were

in D4/Bray/Blackrock

24/10 - Claiming to be in D8 & Naas but your weekly plan mentions you were in Carlow & Athy ( you were advised not to travel to Carlow & Athy), but it doesn't reflect your weekly plan)

25/10 - Claiming to be in D3/D16/D12 but your weekly plan mentions Wicklow/Arklow

26/10 - Claiming to be in Wicklow Arklow/Lucan but your weekly plan suggests you were in Wexford

29/10 - Claiming to be in D16 but it was a bank holiday

30/10 - Claiming to be in Rathfarnham/Clondalkin Lucan plan mentions you were in Clondalkin & Lucan

There are many discrepancies again in each week, these have been repeating each month when you are sending your claim. Can you please also explain how will this be fixed?

Kind regards…”

In May 2019, the manager again queried AB’s expenses claim, as his weekly plan indicated that he would be in Sligo, but he indicated that he did not make a collection while he was there.  AB referred to this as an example of “deliberate bullying.”

It appears from the documents submitted, that, in the Spring of 2019, account managers were requested to focus on an issue related to Brexit and not to recruit new agents.  In an email on May 26th 2019, AB said that he was bullied when his manager asked him to submit agreements and to fix rejections.  He said that he wasn’t trained or employed to do this work; however, he never indicated what it was that he couldn’t do and he didn’t ask for help.

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”.

In support of his allegation that he has been subjected to bullying, AB submitted a selection of emails like those referred to above.  Most are concerned with the manager asking AB to carry out his job in a particular way and to adhere to company policy regarding expense claims.  The emails show that he was repeatedly asked to follow procedures and to complete his assigned work.  Following the guidance provided by the Supreme Court in the Ruffley decision (cited on page 5), I find that these are not examples of bullying, but an effort by the manager to get AB to do his job to a satisfactory standard.  At the hearing, AB claimed that the “emails are different to reality,” but he provided no explanation of what the difference was. 

AB’s complaint about the country manager is grounded on statements made by the manager at a meeting on October 21st 2020.  While AB objected to the person appointed to investigate this matter, as he was employed by a company associated with the employer’s representative, I find that the complaint was properly investigated and that it concluded that the manager made certain comments, such as “you’re beating around the bush,” you don’t allow others to talk” and “you are being misleading.”  It is my view that none of the comments made fall within the definition of bullying as set out above.

I find that the company properly investigated AB’s grievances of July 2019 and October 2020.  I have no issue with the HR manager not holding a formal hearing into the first complaint, as it is apparent that she spoke to AB, his manager and his colleagues.  The fact that his appeal of the outcome of the June 2019 investigation was delayed for a year, is regrettable; however, I note that he did not pursue his request for an appeal until May 2020 .

Conclusion

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[2], 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 that AB is very unhappy in his job, and he claims to have suffered from work-related stress.  Having examined his grievances, it is my view that his unhappiness and stress are related to his resistance to being managed, to following reasonable instructions and to doing his job in accordance with the company’s standards and procedures.  I find no evidence of the “calibrated inappropriateness” described by Mr Justice Kearns which has the objective of corroding an individual’s confidence and self-esteem.  I find that the company dealt with AB’s grievances in a reasonable and patient manner, and that the HR manager tried to support him by giving him guidance and also by mentoring his manager to improve the communications between them. 

In respect of this dispute, I have reached the conclusion that AB is in the wrong company, as his way of working is not aligned with its expectations and standards.  In the current market, where there are opportunities available for people with his skills and experience,  I recommend that he wastes no more time and that he finds a suitable job elsewhere.

Bullying, supervision