Complainant

Respondent

Parties

Caitríona  Ní Cheallaigh

Donegal Travellers Project (Limited by Guarantee)

Representatives

  In person

Thomas Ryan Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039128-001

11/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00039128-002

11/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00039128-003

11/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00039128-005

11/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00039128-006

11/08/2020

CA-00039128-005 and CA-00039128-006 were withdrawn at the adjudication hearing on 22 September 2021 on the basis that these complaints were duplicates of CA-00039128-003, a Terms of Employment (Information) complaint, which was pursued at hearing. The complaints that were presented at the Adjudication were as follows: A Pay complaint CA-00039128-002 (for failing to  pay the Complainant on the correct pay scale), an Unfair (Constructive) Dismissal complaint CA-00039128-001 (inter alia for paying on an incorrect pay grade, for a protracted grievance process, for bullying and poor management by the line manager and failing to follow the Respondent’s own grievance procedure);  a Terms of Employment (Information) complaint CA-00039128-003 (for failing to inform the Complainant of a change in the employment contract) and an Industrial Relations complaint  CA-00039128-004 - which, will be issued under a separate recommendation.

These complaints arose out of a dispute between the Complainant and the Respondent that started as a pay dispute but subsequently developed into a grievance concerning pay, allegations of bullying and poor line management, failing to address the Complainant’s work concerns in accordance with agreed procedures, failing to conduct a grievance in a timely manner.

In purporting to address the Complainant’s concerns the grievance process undertaken by the Respondent lacked fairness to a such an extent that the process was defective and was a grievance process in name only. The process was a disingenuous exercise and it was this that ultimately broke the Complainant’s trust and confidence in her employer.

The Complainant started working for the Respondent on 29 March 2005. The Respondent is a community development organisation which works with Travellers based in Donegal. The Complainant’s employment came to an end on 14 February 2020, when she resigned her position. Her resignation followed a grievance investigation into a bullying complaint that the Complainant made against her line manager, SMcL. The Complainant contends that the investigation was flawed and its outcome (her grievance was not upheld) was predetermined from the outset. There was never any genuine interest by management to resolve her grievances. She contends that after the conclusion of the grievance process, she was so disillusioned by the process that it was no longer possible for her to remain working for the Respondent and that this was a bitter end to the many years (15) of hard work she had given to the organisation.

At the Adjudication hearing the Complainant specifically contended as follows:

CA-00039128-002 [Pay] In accordance with an employment contract signed in 2005 she should have been on a higher point on the salary scale at the start of her employment, and that despite raising this with management continuously over many years, the Respondent disputed her entitlement to an increase in pay. She suffered considerable financial loss as a result.

CA-00039128-003 [T&C] The Respondent amended her employment contract at some stage, in the first few years of her employment, without informing her and this permitted the Respondent to maintain that she started on a lower point in the salary scale than she had.

CA-00039128-001 [UD] The Complainant raised a grievance in respect of her line manager and the manner in which that grievance was conducted resulted in her resignation.  The Complainant submits that following the conclusion of the grievance process, she felt that she had no option other than to resign.

She contends that there were a number of defects in the grievance process, not least being the amount of time that it took to complete (14 months) but also that process itself was replete with breaches of fair procedures.

Persons against who complaints were made, were involved in the investigation of the Complainant’s grievance and for this reason the process was unfair and its outcome, unsatisfactory.

When the Complainant raised a grievance informally, nothing at all was done. When she raised it to a formal grievance the time guideline to conclude a grievance process were not adhered to. The independent investigator that was appointed to conduct the grievance hearing (Graphite) was not agreed by the Complainant (as should have occurred under her contract) The grievance meeting that took place on 14 February 2019 resulted in the investigator upholding some of her complaints, but the Complainant was dissatisfied with the investigators findings and she appealed these.

The Respondent offered her an appeal of the investigators findings but the person who was appointed to conduct the grievance appeal (MM) was the chair of the board but he also worked closely alongside the Complainant’s line-manager, against whom the Complainant had brought a bullying complaint. In other words, the appeal of the independent investigation reverted to an in-house appeal. In addition, MM was married to an employee of the Respondent (MM2) who had shouted at the Complainant (an incident which had in part led to the Complainant bringing her grievance against her line manager - for her line managers failure to adequately reprimand MM2 for the shouting at her). The proposition that MM could have been an impartial arbiter in such circumstances was ludicrous. All in all, it was highly improper and inappropriate that MM was the person appointed by the Respondent to conduct the appeal of her grievance outcome.   Apart from the prima facie unfairness and clear bias that MM had on a number of bases, the Respondent’s grievance policy also states that an independent arbitrator should be agreed with the Complainant and appointed to deal with the grievance hearing. This should have pertained to the appeal as well as the investigation, but it was not. The fact that the independent investigation was being appealed back to a person who was either married to or had a close working relationship with persons against whom the grievances were brought rendered the whole grievance process to be defective.

The Complainant contends that while she may not have had sufficient reason to leave her employment at the start of the grievance process (she accepts that her grievances did not give her a sufficient basis to leave) by the time the grievance process had come to an end, because of the way the process was conducted, particularly the appeal process,  was so unfair that she had no option other than to leave the job.

In response to the Respondent’s point that the Complainant failed to exhaust internal remedies before resigning, the Complainant responds as follows: 

Faced with an eleventh hour offer by the Respondent to adjourn the appeal hearing and appoint an alternative appeal arbitrator, the Complainant felt bounced into continuing with the hearing. She did not want to delay further what had already been a long-delayed process. She contends that appointing  an appropriate person to conduct the grievance appeal was a matter for the Respondent to manage, it was not up to the Complainant to manage and she should not be penalised for not wishing any further postponement of the outcome, particularly in circumstances where her representative had advised the Respondent well before the hearing that MM was biased and should not conduct the appeal,  however this correspondence was ignored by the Respondent.

In response to the Respondents’ submission that the Complainant failed to avail of mediation that was suggested following the appeal, the Complainant says that, by that point, she had lost any hope of fairness being adhered to by the Respondent and given what had happened, it was reasonable to assume that nothing of benefit would come out of a mediation process. She had reached a point of departure when the appeal outcome simply endorsed the original investigation findings. It was then that she thought the whole process had been disingenuous.

Given the evidence it was her belief that bias was inherent in the grievance process from the outset and the negative outcome for her was a pre-determined one. Following this her trust with her employer was broken and she had no option other than to consider her contract had been terminated by the Respondent’s unfair conduct.

CA-00039128-002 [Pay] The Respondent submits that this complaint is out of time in that it relates to a historic dispute that arose between the Complainant and her employer following the start of her employment in 2005. This complaint had been an ongoing debate for years between the complainant and the Respondent. For the purpose of this Adjudication, this complaint is well out of time and the Adjudicator has no jurisdiction to consider this complaint.

CA-00039128-003 [T&C] The Respondent submits that this complaint is out of time in that it relates to a complaint that arose between the Complainant and her employer in the first 2 or 3 years of her employment, which she accepts.  This complaint is out of time and the Adjudicator has no jurisdiction to consider this complaint.

CA-00039128-001 [UD] The Respondent does not accept that the grievance process was flawed.

The Complainant’s pay was not within the Respondent’s remit to increase. The Respondent tried but was unable to increase the Complainant’s salary. Funding for the organisation was restricted and was still impacted by the public pay freeze following the 2008 economic crash.  The Respondent points to the fact that every effort was made to advocate for a salary increase on her behalf, but the funding was not available. Ameliorative steps were undertaken by the Respondent namely that the Complainant pay was maintained but she worked reduced hours. However, while the Respondent wanted to obtain funding to increase the Complainant’s wages, management consistently denied that the Complainant was entitled to be paid on a higher grade in the absence of having higher educational qualifications.

The Respondent denies that the grievance process was flawed. The Complainant’s line manager initially dealt with her complaints informally. This was in accordance with the Company grievance policy.  When complaints were made against the line manager, she stepped away and stayed away from the grievance process. After the Complainant raised a formal grievance the Respondent went to considerable expense, which it could not afford, to engage a third party, Graphite, to conduct an independent investigation. This investigation was thorough, independent and fair and upheld the Complainant’s grievances in part. The Respondent was not obliged to provide an appeal but it did and the appeal which followed the investigation, was conducted in a manner that the Respondent could afford having limited resources available to it. The appeal process was fair and most importantly it was agreed to by the Complainant.  The chairperson (of the board) who conducted the hearing did so impartially and just because the Complainant was unhappy with the appeal outcome does not render the process to be unfair.

The Complainant’s assertion that the grievance appeal outcome was predetermined is denied.  At all stages the Respondent attempted genuinely to sort out the Complainant’s concerns but every time an outcome went against the Complainant this prompted another grievance complaint to be made.

At all stages of the grievance process the Complainant had the benefit of her trade union representative. She was not isolated as she suggests.

The Respondent appointed an independent investigator to deal with the Complainant’s grievances and this accorded with the Respondent grievance policy process, however when the Complainant appealed the outcome the Respondent simply did not have the funds for the appeal process to be conducted by another third party. The Respondent is an organisation with limited financial resources. It was necessary that an internal person be used for the appeal and their legal advisors advised that this would be appropriate. The chair of the board was chosen to conduct the appeal because he always had enjoyed a very good working relationship with the Complainant. The Complainant was asked if she was happy with his appointment and she said that she was. In fact, at the appeal hearing she stated that “she would trust MM with the keys of her house.” The Respondent in good faith. MM was an appropriate person to conduct the appeal and the correspondence from the Complainant’s representative objecting to his appointment was not noticed until the day of the appeal hearing and was never raised by the Complainant herself directly.

Every step that could have been taken to assist the Complainant during the grievance process was taken. The process did not contain the option of an appeal but this was offered because the Complainant had been unhappy with the fact that she had not been asked to agree the appointment of the investigator as per the grievance policy. It was because of this that an additional layer agreed to be added to the grievance procedure, namely the appeal. 

Despite the criticisms that the Complainant is now laying at MM, these were only stated after he decided the appeal - an outcome that did not accord with the result that the Complainant wanted. The allegation of bias against MM are denied. The Complainant’s grievance was against the Complainant’s line manager for failing to adequately reprimand MM’s wife when she had shouted at her. No bias arises in such circumstances.

The Complainant failed to exhaust internal remedies before deciding to resign her post and this failure was unreasonable (and defeats her complaint of unfair dismissal) because (a) she did not warn the Respondent of her intention to leave if the appeal outcome went against her (b) she failed to agree to a postponement of the appeal hearing to appoint a fresh chairperson when asked and (c) she failed to engage with the option of mediation following the appeal outcome.

In order for a constructive dismissal to be successfully pursued the authorities make it clear that unhappiness with the outcome of a grievance process is not a good reason for an employee to leave their job. The manner in which the Complainant’s grievances were dealt with arose out of the limited resources of the Respondent and, the process overall was fair and reasonable. The assertions that the appeal was flawed fall very far short of amounting to a constructive dismissal and had the Complainant agreed to mediation, it was likely that the issues that led to her bringing the grievance in the first place could have been ironed out.

CA-00039128-002 [Pay]. I am satisfied that this complaint arises from a breach that occurred towards the start of the Complainant’s employment and that the alleged breach(es) did not arise either six or twelve months prior to the initiation of this complaint. I find that this complaint is outside the time limits permitted by legislation and that I have no jurisdiction to consider this complaint

CA-00039128-003 [T&C] I am satisfied that this complaint arises from a breach that occurred towards the start of the Complainant’s employment and that the alleged breach(es) did not arise either six or twelve months prior to the initiation of this complaint. I find that this complaint is outside the time limits permitted by legislation and that I have no jurisdiction to consider this complaint

CA-00039128-001 [UD] Having heard the parties over several days at hearing I am satisfied that the Complainant’s decision to leave her employment arose because taken because she felt that her position with the Respondent was no longer tenable.

The test to be applied in a Constructive Dismissal case is whether, due to the conduct of an Employer it was reasonable for the Employee to resign because the conduct was a repudiatory breach of the Complainant’s contract of employment.

Constructive Dismissal is defined in section 1 of the 1977 Unfair Dismissals Act as:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The present case is a somewhat unusual. It is not contended by the Complainant that the pay issue alone, nor indeed the various issues that led to her to bring a grievance to her employer in the first place were sufficient to justify her departure. It is not how the investigation was handled that justified her departure.  Rather it is the time that it took and how the grievance process was conducted, particularly towards the end of that process (the appeal)  that made it reasonable for her to believe that her trust with her employer was irrevocably broken

The origins of the Complainant’s dispute with the Respondent lay in the pay issue, which while I have no jurisdiction to consider in the context of the Pay complaint I am entitled to refer to it the context of the Unfair Dismissal complaint, because it was the pay issue that was the spark which started the Complainant’s grievance which then was added to, as time went on. 

The Complainant brought a grievance because the line manager did not accept her claim for a higher pay grade. She then raised a complaint of bullying and intimidation and that work place incidents were not adequately dealt with by her line manager. She complained that the grievance process was taking too long (it took 14 months to conclude) As time went on the grievance process became a rolling one which grew as the relationship between her and her employer deteriorated.

I accept why this dynamic developed. The fact that the grievance investigation was protracted did not help matters. But I note too that rolling/ growing grievances can be difficult for a small organisation to manage for two reasons (1) there are a growing number of grievances to investigate and (2) the higher up one’s complaints are directed, the more difficult it becomes for the Employer to identify an appropriate person to consider and decide the grievance outcome without the expense of referring the matter to a third party.

In my view the Respondent correctly applied its grievance policy when it appointed an external investigator to investigate the Complainant’s grievances. I realise that this appointment should have been agreed with the Complainant but the failure to do so was not in my view fatal to the investigation that followed or the findings of the investigator – which upheld her grievances in-part. I am critical however of the length of time that it took for this investigation to conclude and I think this compounded the worsening work relationship.

When the investigation outcome was issued – it is my view that the Respondent would have been free at that point, to inform the Complainant, as unhappy as she may have been, that the investigator’s findings were to be considered the end of the matter. But this is not what occurred. There was no obligation on the Respondent to conduct an appeal, and yet that is what the Respondent did.  I accept that this was most likely done in good faith to demonstrate to the Complainant that they were responding to her concerns.

However, the appeal process was quite calamitous from a fair procedures point of view. It was entirely inappropriate that MM was appointed as the appeals officer. Not only did he have a working relationship with the Complainant’s line manager, against whom the Complainant’s grievance had been brought but also his wife had also been involved in a previous argument with the Complainant which had led in part to the grievance against the Complainant’s line manager being brought. Even if bias has not been proven, I am satisfied that a perception of bias attached to MM (given his position and connections to those involved in the Complainant’s grievances) and it was inappropriate that he was appointed to decide the appeal. I should add that I do not hold him to blame for this, the blame lies instead with the person who advised or who decided that he be appointed.  

Once the decision was taken to conduct an appeal this should have been conducted in accordance with the Respondent’s grievance policy and an independent person in respect of whose appointment the Complainant agreed as had occurred earlier in the process. If the Respondent was unable to afford this, its grievance policy did not oblige it to conduct an appeal at all.  However, what the Respondent was certainly not entitled to do was to decide to hold an appeal which then was manifestly unfair.

I do not accept the Respondent’s claim that the Complainant agreed with the appointment of MM. The correspondence produced during the adjudication indicated that the Complainant’s legal representative expressly objected to MM’s appointment weeks in advance of the appeal hearing.

Furthermore, I do not consider that the Respondent’s last-minute suggestion to adjourn the hearing to allow for an alternative appeal officer to be appointed, saves the Respondent either. Or that the Complainant failure to agree to this suggestion should be used against her. This was a difficult process, I have no doubt that the Complainant was anxious as she went into the hearing that morning. I expect that she was looking for anchors that she could have faith in. She liked MM. The question is not an issue of conscious bias of MM. It is that, given his connections to those involved in the investigation, he should never have been considered as a candidate for appeal officer role.  No reason was provided why the written request to replace MM with a non-biased party was not noticed before the appeal hearing took place. The first time this offer was put to the Complainant was as she was sitting across from MM. It would have been difficult for her to agree in these affronting circumstances. I do not accept that the Complainant’s assent to proceed that day in those circumstances, constituted a failure by her to exhaust internal remedies.

And with respect of to the failure to avail of the offer of mediation I am of the view that the contract was already broken when this was offered. It was the appeal process - not its outcome but a how it was conducted - that breached the Respondent’s grievance policy and rules of fair procedure. The flaws in the appeal process were manifest and I accept that these flaws allowed the Complainant to form a reasonable belief that the appeal was not a genuine appeal process, that it was an appeal in name only, that the Respondent wanted the grievance process to end, that her grievances were ultimately not important and consequently, that she was not valued in the workplace.

I observe this not make this finding and indeed having heard the Respondent witnesses I do not believe that this was actually the case, the relevant question however is – at the time the Complainant decided to leave – on foot of a manifestly defective appeal – was it reasonable for her to believe as she did, and unfortunately, I think that this was reasonable.

It was noteworthy that she went into the appeal hearing that morning thinking that her representative’s request - that MM step aside - had simply been ignored. No explanation was provided at the Adjudication hearing as to why this request remained unnoticed until the morning of the appeal. Such an oversight would not be a normal feature of a conscientious employer going into an appeal hearing.

Had the Respondent not conducted an appeal – and (as already stated) it did not need to, or had the appeal been conducted fairly, the outcome of this decision might well be other than it is. However, the Respondent decided to conduct an appeal and in doing so it should have ensured that fair procedures were applied throughout.

I am satisfied that, given the conduct of the appeal, that it was reasonable for the Complainant to terminate her employment. I accept that she reached a point where she felt manifestly undervalued in the job, given her years of service to the Respondent and given that members of the board of management that she had always respected no longer appeared to value her. I am of the view that her belief that her employment had become untenable was reasonable and I accept that she lost trust and confidence in her employer.

I find that the Complainant was unfairly dismissed. I award the Complainant four months loss of salary, in the amount of €8960.00. I base this on the financial loss that the Complainant sustained as a result of the dismissal. As the Covid pandemic lockdown started in March 2020 and given that her loss in salary ran from February 2020 to January 2021, I am obliged to consider that had she remained at work her salary would likely have been reduced in any event during this period. I consider that this sum is just and equitable having regard to all the circumstances of the case and in making this award I do not make any contribution reduction under section 7 (2) (a) of the Unfair Dismissals Act 1977-2016.

CA-00039128-001 [UD] I find the Complainant was unfairly dismissed and award the Complainant compensation redress in the sum of €8960.00

CA-00039128-002 [Pay] There is no jurisdiction to hear this complaint

CA-00039128-003 [T&C] There is no jurisdiction to hear this complaint

CA-00039128-005 [T&C] This complaint was withdrawn at hearing

CA-00039128-006 [T&C] This complaint was withdrawn at hearing