Employee

Employer

Anonymised Parties

A Payments Processing Analyst

A Financial Services Company

Representatives

  Self Represented

Ms. Emma Davey BL instructed by  DLA Piper Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041906-001

11/01/2021

The Employee complained he was bullied and harassed by his Line Manager.

The Employee relied on his complaint form primarily to state his case. He stated his Manager had not wanted to hire him but when he re-applied  for the role she was not party to the hiring decision and she was disappointed to see him hired.  He stated she gave him no assistance, treated him like a second-class citizen, he got offered very little training or guidance and his Line Manager was very unapproachable. He said he was not advised of what was expected of him.

The Employee was employed from 25/11/2019 to 23/7/2020. He alleged he was bullied and harassed by his Line Manager. Before that, since February 2015 until November 2019 he worked successfully for two large Irish financial institutions and gained very a good reputation and references. Earlier he had worked for over 8 years for another company, and before coming to Ireland for 9 years as a social welfare inspector in his native country.

In September 2019 he decided to change his job and applied for a payment processing analyst position advertised by the Employer. His goal was to progress in the banking sector, however he was unsuccessful on 1st interview, which was led by his future Line Manager.

Two months later he reapplied for the same position and got the job (on the second interview, the above mentioned Manager was absent).

As a new employee he stated he did not receive appropriate induction. He alleged from the beginning of his probation period there was very little training offered to him, there was no assistance and guidance, and his Line Manager was both difficult and unapproachable.  He stated he did not receive any kind of ongoing support to help him succeed.  For instance, when he asked some training related questions, or if somebody could show him something he could learn, the answer was ‘they don’t have time’.

He also wasn’t advised, as a new employee, what exactly was expected from him at the various stages throughout his probation.   He alleged his Manager kept changing work arrangements, setting tasks that were unreasonably below or beyond his skill level.

He alleged he found his Line Manager being negative and having a very rude attitude towards his person. When he asked any work-related questions, his Line Manager used to reply: ‘doesn’t matter’.

He recalled a situation, when he approached his Line Managers desk with a query, she replied: “Can I have my breakfast first?!” 

He alleged his Line Manager was also sending him skype messages or e-mails, saying something in rude and negative way.

He had a serious concern that the Line Manager was manipulating his job content and targets, applying blame for things beyond his control and she was excessively monitoring all of his work in order to find errors.

He alleged it was obvious that he was treated less favourably than colleagues and that all the time his Line Manager was trying to show him that he was not a good person for this job, any way not good enough.

In May 2020 he got an email from his Line Manager saying that his probation contract would be extended by two months, and that she needed him to be fully proficient with five of his job points listed in her e-mail (4 of these things mentioned in the email he said he was confident to do for months).

The Employee said the Line Manager had booked weekly training sessions with him (1 hour each) and also biweekly one-to-one meetings, to review his training progress. All of the training sessions were either cancelled or rescheduled, and not even one lasted for 1hr, and one-to-one meetings (set to review his training progress) were also cancelled.

During the remaining training sessions, which he had, his Line Manager was doing her own work, or she was only trying simply to show him that he had training gaps. She did not specify where exactly the gaps were.

During that stressful time, he felt that the Line Manager was not going to extend his contract, but even though he was trying to be professional, giving the best of his knowledge and experience for the Company.

Three weeks to the end of his probation, the Employee asked his Line Manager about his situation. He said he needed to know if his contract will be extended. The Line Manager did not answer his question, but she mentioned that he was still asking work related questions. He said he felt confused, because that was what she asked him to do during extended probation weeks. He also felt that the decision was already made that she doesn’t want him in the team.

On the other hand, the Employee was hoping that his engagement and dedication would pay off, as he did get the performance award from senior management, just a week before he lost his job.

On 10th of July 2020 the Employee received a letter from Laya Healthcare Provider, saying that his Employer is no longer paying for his health insurance. When the Employee enquired about it with his Line Manager she said that Laya was aware about his probation, but when he checked it with Laya, he got the answer that they don’t have those type of information. 

Three days before the end of his probation contract the Employee got a phone call from his Line Manager, stating that she is not keeping him on. He requested a letter with reasons, as to why, but was not given any verbal answer, nor a written letter pointing out the reasons ‘why’.

All of that led to his health problems. In March he was diagnosed with anxiety disorder, and later since October 2020 suffer and being treated for depression.

He said he can provide all the records of conversations between his Manager and him, and also all of his medical documentation. 

The Employee has presented a complaint of alleged bullying and harassment against the Employer as an industrial relations issue pursuant to section 13 of the Industrial Relations Act, 1969.

PRELIMINARY ISSUES

The Employee has named (XYZ), an incorrect name as his employer. This entity was not the Employee’s employer at any time material to this claim. The Employee was employed by (XYZ) DAC which is not a party to the current complaint. The Employer’s correct title appears on the Employee’s contract of employment.

In the case of Sylwia Wach -v- Travelodge Management Ltd (EDA 1511) the Labour Court held that it would not add or substitute a party to proceedings where the limitation period in the action has expired as against that party. This was most recently affirmed by the WRC in A Sales Assistant -v- A Retail Store (ADJ-00025915). In these circumstances where no limitation period applies to an industrial relations dispute, it is nonetheless respectfully submitted that the within complaint has not been properly referred to the Workplace Relations Commission (“WRC”) and the WRC does not have jurisdiction to hear it. Furthermore, it cannot be credibly asserted by the Employee that he had difficulty in determining who his employer was.

It was submitted that the date of 20 July 2020 provided by the Employee in his WRC complaint form as the date his employment was terminated is incorrect.  The correct date upon which the Employee’s employment ended was 23 July 2020.

The Employee was employed as a Payment Processing Analyst and commenced his employment with the Employer on 25 November 2019. He reported directly to the Employer’s Payment Processing Manager. The Employee’s salary at the date of his termination of employment was €37,000 per annum. The Employee signed his contract of employment on 30 October 2019, acknowledging and accepting the terms and conditions of his employment. The Employer provides payment processing services for businesses and is a wholly owned subsidiary of a U.S. Company.

At paragraph 2.4 on page 3 of the Employee’s contract, an initial 6-month probation period is provided for. It reads:

“The first six months of your employment will be a probationary period. During this time your performance and conduct will be monitored. At the end of the probationary period your performance and conduct will be reviewed and if found satisfactory your appointment will be confirmed. If, however, your performance is deemed unsatisfactory at that time in the opinion of the Company, the probationary period may be extended or your employment terminated on one week’s notice in the Company’s absolute discretion by notice in writing to you. In all events, your probationary period will not exceed 11 months in total.”

Paragraph 12 on page 5 of the Employee’s contract is titled “Termination of Employment” and reads as follows:

“12.1 During your probationary period the notice required by either the Company or yourself to terminate your employment will be one week…

12.3 The Company reserves the right in its absolute discretion to pay you salary in lieu of notice. The payment shall consist solely of your basic salary for the period of notice and shall exclude any other entitlements or benefits referable to your employment and shall be subject to deductions for income tax and pay related social insurance contributions as appropriate.”

The Employer operates a probationary policy for new employees. It was submitted that actions taken by the Employer in dealing with the Employee during his probationary period were consistent with the processes under that policy, which was available to the Employee via Service Now (the HR Portal). Specifically, its extension of the Employee’s probationary period (section 10), a final probationary period (section 9) and his dismissal during probation (section 11).

The Employee received induction training on commencement of his employment when he began working from the Employer’s offices. Due to the Covid-19 pandemic and Government instruction, all of the Employer’s employees worked remotely from home from 13 March 2020. In his WRC complaint form, the Employee asserts that he did not receive an appropriate induction. The Employer strongly refuted this allegation. The Employee completed an induction programme upon commencement of his employment.  

There were three other payment processing analysts on the Employee’s team. All team members were treated equally and with respect by the Employer in accordance with its Workplace Respect Policy which was available to the Employee via Service Now.  

The Employer’s Workplace Respect Policy prohibits offensive behaviour and harassment as does the Company’s Bullying and Harassment Policy which was available to the Employee via Service Now.  

On 31 January 2020, the Employee had his first one-to-one meeting with his Line Manager to discuss his progress. This meeting took place at the Employer’s offices in person. Minutes of this meeting were compiled by the Line Manager and the Line Manager continued this practice regarding meeting notes for the remainder of the Employee’s tenure. 

At that meeting, the Line Manager noted the Employee was settling in well and commended his desire to learn new things, however, she also highlighted a number of issues and errors had been made by him. She explained that these mistakes would have been picked up by the Employee had he been more thorough; taking the time to pay more attention to detail. To address this, Line Manager instructed the Employee that his focus for the coming month should be a payment process named Gamma, to ensure that he became familiar with Return of Funds (“ROF”)/ Unable to Apply (“UTA”) queries and being able to deal with failed payments. The Line Manager explained that she would commence further training with him the following week. She explained that the Employee’s training was also his responsibility as well as hers. She further suggested that if he had some free time during work, he should use that to practice tasks and familiarise himself with the Employer’s procedures. The Line Manager commended the Employee on picking up inputting errors and payment differences. The Employee apologised for those mistakes and explained that in his previous role he had been so busy and under pressure that he now had a tendency to rush through tasks. The Employee further explained that he was adjusting to his new environment which allowed him sufficient time for thorough checks.

A second in-person one-to-one meeting was held between the Line Manager and the Employee on 13 February 2020 to again discuss and assess his progress. The Employee explained that he was doing well and had made a concerted effort to slow down and ensure that he was he fully confident on one task before moving onto another. The Line Manager confirmed she saw an improvement with the Employee taking more time on tasks, however, she noted there had been a number of issues and errors in recent weeks, including the following mistakes:

                              Bene [Beneficiary – standard payment process] set up form had typo in the

Sortcode- JS didn’t spot it and bene was set up incorrectly as a result 

                            GTX payments [An internal payment system] input with wrong header bic. 

 Expects all payments back up to be crystal clear- only checks the first couple of pages if he dosen’t see the info he starts asking me. 

 Was due to attend a project call- it was in his calendar just didn’t attend – the[n] emails me an hour and a half later saying he thinks he was supposed to be on a call. 

                          Set up bene wit no a/c number and bic in f59 

                         Set up bene that was already on the macro 

                           Payments in Gamma in status approved- didn’t query or investigate just left them 

The Employee’s first remote/telephone one-to-one meeting with the Line Manager was held on 16 April 2020. The Line Manager opened the meeting by thanking the Employee for his hard work during the difficult period due to Covid-19 and asked him how he was getting on working from home. The Employee said he did not find remote working too difficult and had no systems issues. The Line Manager proceeded to train the Employee on Peoplesoft (a HR platform), his performance management form and the updated generic Business/Core objectives. Thereafter, the Line Manager and the Employee reviewed his personal objectives for the year, which had already been agreed and discussed in January. The Line Manager highlighted the importance of his personal objectives form being his reference point to identify additional training/experience he needed which could be fed back to Line Manager to manage his training. The Line Manager  proceeded to recognise the pandemic’s effect on the Employee’s training. 

At this point, the Line Manager addressed the Employee’s errors that he had made on beneficiary set-ups and the resulting incorrect information that he provided to the Business Lines. She reminded the Employee that he had been provided with a detailed procedure to follow. In closing the meeting, Line Manager thanked the Employee for his hard work and acknowledged the difficult situation presented by remote working. She further invited the Employee to “just ask” if he needed anything. The Employee thanked her and advised he had no issues to raise.

A follow-up remote one-to-one meeting was held between the Employee and Line Manager on 19 May 2020 to discuss his performance and advise him that his probationary period had been extended by two months. This decision had been made after consultation between the Line Manager , the Vice President - Conventional Debt, Agency Services and Common Depository, and Human Resources Business Department, because the Employee was not as familiar with tasks as he should have been after approximately six months in his role and was continuing to experience difficulty in fully completing his tasks to a satisfactory standard. The Line Manager  acknowledged the Employee had not received the one-to-one training he would usually have received had he been working from the office. Notwithstanding this, the Employee was not picking things up as quickly as he should have. In particular, the Line Manager referred to the Employee’s reliance on her to query simple tasks such as beneficiary set-ups and she noted that she was seeing the same queries from him on a daily basis. She suggested the Employee create a Microsoft Word document as an aide memoir. She explained his probation was being extended due to remote work and his knowledge gaps which needed to be addressed. She said the Employee should not view this as a negative but instead the extension would allow for further training be provided to him. Line Manager then complimented the Employee on his work ethic and willingness to stay late and expressed that he was a good addition to the team.

The Line Manager devised the following training plan for the forthcoming two months to further train the Employee: 

“[Line Manager] will follow up meeting with an email providing letter of e(x)tension from HR and list of tasks that (employee)  needs to be proficient in by July (List below). The Line Manager will book in one hours training with Jack a week and also book in a bi weekly one to one to discuss training progress. 

Beneficiary set ups 

Beneficiary amendments 

Completion of Return of fun(d)s/Unable to apply queries 

Completion of all aspects of Reports and Queries job (Including mailbox mgmt) 

Completion of Monthly KPI’S (Jack states he is proficient on this)” 

The Line Manager advised that the first training session with the Employee would focus on beneficiary set-ups, “especially those outside the standard routing with multiple BICS or unclear backing documents]”. The Line Manager told the Employee that he also needed to take responsibility for his own training and to ensure he used any spare time at work to review the Employer’s procedures/processes e.g. to test beneficiary set-ups. The Line Manager then requested the Employee provide her with a list of his training needs as an action point by the following week. She reiterated her willingness “to support and assist him in any way she can but managing the training/ensuring his knowledge gaps are being addressed will be his responsibility…” 

In his WRC complaint form, the Complainant has asserted that he was confident in four out of the five above tasks. The Employer rejects this assertion and further submits that those five tasks were the bare minimum of proficiency required. The remaining three team members of the Employee’s team had gained proficiency in these tasks during their probationary periods. 

The Employer submitted a detailed four-page training checklist which it stated demonstrated the Employee’s training progress.  The training table showed the Employee was fully trained (FT) in 20 reports and queries, fully trained with a star (FT*) in 2 reports and queries, partially trained (PT) in 4 reports and queries and not trained (NT) in 19 reports and queries. The star beside “Bene Amendments” and “Bene set ups” delineated two specific areas where the Employee had been fully trained by the Employer but was continuing to struggle to fully complete these tasks.

Following the meeting on the 19 May the Line Manager emailed the Employee to follow up from their meeting and included a letter from HR confirming the extension of his probationary period. The Employee’s initial probationary period had been scheduled to end on 23 May 2020 subject to a satisfactory performance. The letter stated that further one-to one training would take place with the Line Manager to further develop his role and his performance would be monitored in accordance with the Employer’s procedures for the duration of the extension. This meant the Employee’s probationary period would end on 23 July 2020.

On 2 June, the Employee’s first training session was held with the Line Manager where she went through each step of the beneficiary set-up procedure with the Employee. She explained the requirements and differences of the business lines/Loan Agencies and the responsibilities held by the payments teams in carrying those out. 

A second training session was held on 4 June 2020 with the Line Manager. The Employee presented 6 examples of beneficiary set-ups that he had struggled with. The Line Manager went through each example with him and confirmed that he understood the set-up of each beneficiary. The Line Manager noted that the Employee struggled with 202s (a type of payment) which was evidenced by the test beneficiary they had completed together where he input incorrect information into the wrong fields. The Employee confirmed that he felt more confident after this training session.

A one-to-one meeting was held on 15 June 2020 between the Employee and the Line Manager to assess how his further training was going. The Employee said he found it had greatly helped him and he felt much more confident. The Line Manager asked what other areas he would like to receive further training in, to which he replied that he was not confident on failed payments/payment in repair tasks. The next training session was scheduled for 18 June 2020 to include these training points. The Line Manager commended the Employee on his improvement and encouraged him to continuing improving his knowledge. She explained that she felt he was relying on her and Mr McGovern too much and asked questions he already knew the answers to. The Line Manager told the Employee that he was “well able to do the job he just needs to have confidence in his abilities and decision making.” She confirmed that he had already received additional training on 202 beneficiary set-ups and he should not, therefore, need to continue asking the same questions again.

A third training session was held 22 June 2020 with the Line Manager where she went through each step of the failed payments process and how to identify who processed the payment and why it had failed. The same training was also provided to the Employee on payments falling into repair.

A one-to-one meeting between the Line Manager and the Employee took place on 2 July 2020 after the Employee had contacted Line Manager the previous day. In the meeting note, the Line Manager recorded the Employee’s attitude toward his probation period:

“*to note (the Employee)  had reached out to X (The Line Manager) on the 01/07 being rather pushy to know if he was going to pass probation – X reminded (the Employee) probation was not ending for a further 3 weeks- when questioned (The Employee)   advised he wanted to book a holiday in August and needed to know- X advised him we would have an answer next week. X  finds it concerning that (the Employee) isn’t asking what he needs to do to pass but seems more concerned about his holidays)”

The Line Manager discussed the Employee’s ongoing training and his extended probation date. She confirmed he was doing well on Gamma payments and his knowledge of beneficiary set-ups/payments had improved, however, she highlighted the Employee’s continued questions sent to her in relation to queries and decisions that he should have the knowledge and confidence to make himself. The Line Managers Director had also noted the high number of questions received from the Employee. The Line Manager advised the Employee that he was being given every opportunity to improve and show his potential by extending his probationary period. She said that although she has seen improvement in his work, there was more to be done. She stated that she would like the Employee to be more proactive and use his own initiative. 

The Line Manager advised the Employee that he had access to 90% of the Employer’s systems and that if a third-party payment came in, he should be picking up those to familiarise himself with the process. She further reminded him that there were detailed procedures for all the third-party systems so he should be able to complete input without any major issues. The Employee agreed that he would do this going forward. The Line Manager confirmed that she would train the Employee in group mailbox queries at their next training session. She further confirmed that a decision would be made with regard to his probation the next week and she would have an answer for him by 9 July. In response, the Line Manager noted:

“(The Employee) in a rather disrespectful fashion he said that X  is his manager and she must have some idea of whether he’s going to pass or not – X responded that she had seen some improvement but more was required and (the Employee) should use the coming weeks to address the issues raised above. X felt the Employee  was rude and argumentative and rather than asking for guidance as to what he needs to do to pass probation seems more intent on pushing for an answer).”

After the one-to-one call, the Employee sent his Line Manager the following email: 

“Hi X,

As per our phone conversation, I would like to concentrate on next week training session on mailbox management if possible and from my point of view I feel confident with areas of improvements listed below back in May

Thank you”  

The following note was inserted at the end of the email chain by the Line Manager:

“The Employee states above he is fully confident in jobs listed above however if he was he wouldn’t have been referring to X or Y as much has he has been in addition he hasn’t done any training on the group mailbox so his statement above is not correct. X clearly stats (sic) above Jacks training is his responsibility he has not been proactive in looking for training and X feels it’s a little late for him to be asking on the 2nd July for training on the mailbox when technically his probation should be over by now.”

On 9 July 2020, the Line Manager and the Employee met for another one-to-one meeting. The Line Manager noted the Employee was continuing to receive one-to one meetings and training sessions with her. The Employee confirmed to her that he was proficient in the items raised, however, she noted that his continued questions and queries suggested to her that was not the case. The Line Manager did recognise that those queries had lessened considerably but she felt that only happened after the Employee was told he had been excessively referring queries to her and her Director. The Line Manager was of the opinion that the Employee struggled with his time management and prioritising tasks even though he had the same workload as his other team members. The Line Manager noted the Employee had made the following errors that week:

“Training on the mailbox mgmt has been completed- X doesn’t think mailbox mgmt has gone well, one example being email left in the mailbox since Friday afternoon until Monday morning with no response.

*Lack of initiative GTX payment missed last week

*Not jumping in and picking up 3rd parties until he is asked

*Not being proactive /issues on busy days in you managing your time and feeling under pressure

*(The Employee) advised Loan agency an (sic) not set up in DMI that was incorrect and LA then ended up referring to me to fix the issue as they felt you weren’t able.

*Telling LA to reprocess a payment- that we actually processed on the payments team then telling them it was a bic issue but it wasn’t it was f72 and (sic) it told (the Employee) that in the rejection email- All of these meant X had to get involved and liase with the business Line to get the issue resolved- Managing gamma queues - multiple occasions where euro payments were in sent to GTX that you didn’t investigate - IMS account already added marking as query and leaving IT open.”

The Line Manager noted that the Employee had been on the team eight months and opined there should not have been that many issues and errors especially in circumstances where he had been provided with extra training. She noted the Employee was aware that his performance was lacking and had been aware of this since January, however, insufficient improvement had been made with two weeks left until the end of his extended probationary period.

On or about 13 June 2020, the Employee’s team was awarded a “Bronze Shield Award” for outstanding performance. This award was not conferred individually on the Employee.

Prior to the end of the Employee’s probationary period on 23 July 2020, a meeting was held between the Line Manager, HR  and the Employee on 20 July 2020 to discuss his probation period and to further terminate his employment with the Employer. The Line Manager thanked the Employee for his attendance and explained that even though his probation had been extended by two months due to performance issues in which some improvement had been observed, unfortunately the Employee had not improved enough to pass his extended probationary period. 

The Line Manager proceeded to highlight the Employee’s issues around beneficiary setups and explained that even with additional one-to-one training, he continued to refer queries to her and other team members on a daily basis for support. The Employee made no response to this but presented in an understanding and accepting fashion. Line Manager  informed the Employee that he would receive a letter terminating his employment and the reasons for same. She confirmed he would be paid up until 30 July 2020 and would receive any outstanding holiday payment due to him. Arrangements were made to collect the Employer’s equipment from him and return any personal items. 

The Employee confirmed he understood what would happen next and had no further comment. The Line Manager closed the meeting by saying that she understood this was a hard message for the Employee to receive and therefore, there was no requirement for the Employee to continue working after the call had ended. She finally asked the Employee to send her an email with any items for handover. This was agreed to by the Employee.

Shortly thereafter, the Employee sent the Line Manager his handover e-mail and his access was then revoked by the Employer.

A letter of termination was sent to the Employee by the Employer on 22 July 2020. The letter noted the Employee’s employment had been terminated: 

“on the grounds that you had failed to meet satisfactory standards to pass your probationary period as set out in your contract of employment. You were also advised of the standards which were required for the role but I regret that on your end of probation review it was found that you did not meet those standards.”

The Employee’s final pay cheque was issued to him on 22 July 2020 and the terms of his termination communicated to him at the meeting on 20 July 2020 were reiterated therein.

An undated email from Laya Healthcare was sent to the Employee informing him that his healthcare policy provided by the Employer would end on 24 July 2021. The Employee states that this email was dated 10 July 2020 and was sent before midday. Included in that bundle of documents is a screenshot of an email sent from the Line Manager to the Employee on 13 July 2020 providing an explanation for Laya Healthcare’s letter which reads:

“Hi  (Employee) ,

Laya were made aware of your probation extension and the extended date below is an automated email that goes out in advance of your probation end date. Obviously after our meeting next week any updates will be provided to them by HR.

Thanks

“X”

The Employer echoes the Line Manager ’s explanation in relation to Laya Healthcare’s letter ending the Employee’s healthcare policy and submitted that no decision to terminate the Employee’s employment had been made before or at the date of Laya Healthcare’s letter.

A letter dated 22 February 2021 was sent by the Employee to the Employer alleging he had suffered personal injuries as a result of workplace bulling by the Employer. The Employee alleged therein that he had been diagnosed with an anxiety disorder as a result of his treatment by the Employer. This was the first time any such allegation or complaint was communicated to the Employer. No medical certification or report was included or has been received by the Employer supporting these allegations. The Employee took no sick leave during his employment with the Employer. The Employees timecard is at . A letter acknowledging receipt of the above was sent by the Employer to the Employee on 12 March 2021.

Fifteen screenshots of a calendar were sent by the Employee to the WRC. These were received by the Employer from the WRC on or about 23 May 2021. As these screen shots are illegible, the Employer reserved its right to make further submissions at a time when legible copies are made available.

 Workplace Bullying

There is no statutory definition of “workplace bullying”. The Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020 (SI No. 674/2020) (“the Code”) provides the legal definition of bullying, which mirrors previous codes of practice and endorses the definition of Kearns P in Glynn -v- Minister for Justice Equality and Law Reform [2014] IEHC 133. Workplace bullying is defined in the Code as: 

“[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 be reasonably 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.” 

The Code stresses that “bullying” and “harassment” remain two distinct concepts and the Code solely addresses the question of workplace bullying. The Code elaborates and describes bullying as “a pattern or series of offensive, targeted behaviours which undermine a person’s esteem and standing in a harmful, sustained way”.  It further states that the behaviour must be “clearly wrong, undermining and humiliating”.  Moreover, in determining if the conduct is bullying, the “‘reasonableness’ of behaviours over time must be considered”.

An objective test is required to determine if bullying has occurred as was endorsed by the Supreme Court in Ruffley -v- Board of Management of Saint Anne’s School [2016] IESCDET 52, [23]. In his judgment, O’Donnell J noted that in order to be considered workplace bullying, “conduct must be repeated, not merely consist of a number of incidents; it must be inappropriate, not merely wrong; and it is not enough that it be inappropriate and even offensive: it must be capable of being reasonably regarded as undermining the individual’s right to dignity at work.”

Furthermore, in addressing whether the behaviour constitutes “repeated” behaviour for the purposes of workplace bullying, O’Donnell J stated that “What must be repeated is inappropriate behaviour undermining the personal dignity of the individual.” On the question of “inappropriate” behaviour, he noted that this test “looks to the question of propriety in human relations, rather than legality.”  Furthermore, O’Donnell J stressed that “dignity at work” is a distinct component of workplace bullying which “identifies the interests sought to be protected by the law, and just as importantly limits the claims which may be made to those which can be described as outrageous, unacceptable, and exceeding all bounds tolerated by decent society”.

It can therefore be deduced from the Code and the decision in Ruffley that is not sufficient for alleged behaviour to merely be repeated and inappropriate. The inappropriate nature of the alleged behaviour must meet a certain minimum threshold if it is to constitute bullying. 

Of note, the Code also provides clarity on what is not bullying. It holds that while disrespectful behaviour, conflicts and relationship breakdowns are not ideal in the workplace, they do not automatically reach the “adequate level of destructiveness” to be considered bullying. The Code provides a non-exhaustive list of what is not bullying, which includes:

strongly expressing differences of opinion;

offering constructive feedback, guidance, or advice about work-related behaviour, which is not of itself welcome; 

ordinary performance management;

reasonable corrective action taken by an employer or supervisor relating to the management and direction of employees (for example managing a worker’s performance, taking reasonable disciplinary actions, or assigning work); and

workplace conflict where people disagree or disregard the others’ point of view.

The Code also addresses the making of a malicious complaint, being “an allegation being made without foundation, and with malicious intent, where a person knowingly or without regard to whether it is true or not, accuses another person of allegedly bullying them”. Such complaints can have significant consequences in terms of reputational damage to the accused and may result in disciplinary action being brought against any employee making such complaints.

Under the Employer’s Bully and Harassment, employees who are being bullied, are encouraged to first informally ask the perpetrator to stop their offensive behaviour or to reach out to their manager or HR. Where the informal procedure does not work or where it is not practical, employees are encouraged to submit a formal, written complaint to the employee’s line manager, HR or by phone in line with the Employer’s Grievance procedure. The Employee chose not to do this.

Section 14A(7)(a)(i) of the Employment Equality Acts, 1998 – 2015 (as amended) provides that references to harassment are to “any form of unwanted conduct relating to any of the discriminatory grounds….being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”

The Employment Equality Acts do not apply to a complaint of generalised bullying or harassment which has no link to one of nine protected grounds of discrimination. 

The subjective nature of harassment was recognised by the Labour Court in the case of Nail Zone Ltd -v- A Worker (EDA1023, 10 November 2010) which defined the law in relation to harassment as follows:

“The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Employee, it constitutes harassment for the purpose of the Acts.”

Under the Employer’s Workplace Respect policy, employees are encouraged to promptly report any concerns relating to harassment, discrimination or retaliation carried out by a co-worker, manager or other stakeholder by making a report to a supervisor, manager or U.S. Bank Employee Services or on one of the Employer’s online platforms or by phone. The Employee chose not to do this.

At the beginning of his employment, the Employer was also required to undertake Code of Ethics and Business Conduct Training which involved a review of the Code of Ethics. The Code of Ethics also encourages employees to report harassment or discrimination to their manger or higher levels of management or HR or by phone. The Employee chose not to do this.

No specific allegation of harassment related to one of the nine protected grounds of discrimination has been made by the Employer. It is therefore respectfully submitted that the Employee has made an unsubstantiated, spurious and general claim of harassment against the Employer.  

The Employee failed to make a complaint or communicate any grievance he had to the Employer pursuant to its Grievance and Disciplinary procedures during his employment. As previously stated, a copy of the Employer’s Grievance and Disciplinary procedures was available to the Employee via Service Now. The Employee was informed of this policy at his induction in or around November 2019.

It was submitted that an employer, for reasons of fairness and natural justice, must fully complete its disciplinary procedures before dismissing an employee. So too must an employee invoke the employer’s grievance procedures in an effort to resolve his or her complaint. Borrowing from the law on constructive dismissal, where a grievance procedure exists, it should be followed as set down by the EAT in Conway v- Ulster Bank Ltd (UD474/1981).

It was further submitted that the Employee to the within complaint has not acted reasonably by failing to raise his grievance during his employment and only did so after his employment was terminated. He therefore prevented the Employer having an opportunity to investigate, address and remedy his grievances which allegedly occurred during the course of his employment. This was further endorsed by the EAT in Beatty -v- Bayside Supermarket (UD 142/1987) when it held the following:

“The Tribunal considers that it is reasonable to expect that procedures laid down in such agreements be substantially followed in appropriate access by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway -v- Ulster Bank Ltd 4747/1981. In this case the Tribunal considers that procedure was not followed by the Claimant and that it was unreasonable for him not to do so. Accordingly, we consider that applying the test of reasonableness to the Claimant’s resignation he was no constructively dismissed.”

The Employee’s employment was terminated before the end of his extended probationary period pursuant to the terms and conditions of his employment contract. He was paid his contractual right to one week’s payment in lieu of notice.  The Labour Court held in Beechside Company Limited T/A Park Hotel Kenmare -v- A Worker CD/18/214,:

“Where an employee is considered unsuitable for a permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.”

The Court was satisfied that the Claimant in that case was not provided with details of any performance issues, no warning was given that his employment was in jeopardy, he was not provided with reasons for his dismissal and he was not afforded an opportunity to reply. 

It was respectfully submitted that there were substantial grounds to dismiss the Employee in the within complaint as he fell below the Employer’s required performance standards. He was notified of his performance issues throughout his employment period.

The Employee’s allegation that he received “very little training” from the beginning of his probation period is simply untrue. If this was the case, the Employee would not have been able to carry out any of the tasks assigned to him by the Employer because he had never worked in a payment processing role before. It was further submitted that the Employer operates strict payment procedures unique to its company. The Employer again strongly refutes the Employee’s assertion wherein he alleges he was not provided with assistance or guidance or ongoing support to help him to succeed in his role. The Employee’s assertion in relation to Line Manager being “both difficult and unapproachable” is a wholly inaccurate portrayal of the support, praise and encouragement offered to the Employee by the Line Manager  and the Employer at all times during his employment. 

As a team leader, the Line Manager is in a position where she must motivate and encourage her team members. Having nine years management experience, with an additional six and a half years of team leader experience, the Line Manager understands the necessity to treat all of the Employer’s employees, regardless of seniority, with respect and dignity.

The Employer is a stranger to the Employee’s assertion that its employees would not offer him assistance as they did not have time.

On and prior to commencement of his employment, the Employee was given an outline by the Employer of what was expected of a new employee in his role. Due to the evolving and unprecedented difficulties presented by the Covid-19 pandemic and its impact upon the Employer’s business, like that of most other businesses in Ireland, a period of transition from office working to remote working ensued. At that time, tasks were reallocated and distributed to employees only where those employees had received appropriate training and were capable of carrying out those reallocated duties. During this time, it was necessary to monitor employees’ remote work and output. This was done for all members of the Employee’s team.

The Employer submitted that the Employee’s employment was terminated during his probation period in accordance with his contract of employment and its probation policy due to his inability to perform all tasks assigned to him to a satisfactory standard. He had been given a further two months’ probation to improve his work which he was unable to complete. He received praise and constructive feedback where appropriate as evidence above.

It was further respectfully submitted that at all times, the Employer acted reasonably in the management and dismissal of the Employee.  

It was submitted that the Employee was not subjected to repeated inappropriate behaviour undermining his personal dignity amounting to workplace bullying. Instead, it appears the Employee has taken umbrage with the Employer’s constructive criticism and management of his work. 

Furthermore, it was submitted that the Employee was not subjected to harassment during his employment with the Employer. He has not raised a prima facie case of harassment upon any of the nine protected grounds of discrimination provided for by the Employment Equality Acts, 1998 – 2015 (as amended).

It was submitted that the Employee failed to make a complaint or communicate any grievance held by him to the Employer pursuant to its Grievance and Disciplinary procedures during his employment.

The Employee received numerous warnings at his one-to-one meetings about his performance and also had his probationary period extended by two months for this reason. He had ample opportunity to remedy these issues but was not able to do so. As such, it was submitted that the Employer was entitled to terminate the Employee’s employment for his poor performance and acted reasonably in doing so.  

The Employer raised a preliminary issue regarding the correct name of the Employer in that the words DAC were missing from the Employer name on the Complaint Form. I don’t consider this to be a material omission from the Complaint Form as the name of the Employer was otherwise correct. In the second instance the Industrial Relations Act (as noted by the Employer) has no time limits so the opportunity exists for the Employee to resubmit his dispute again for adjudication.

The nucleus of this complaint may well have commenced when the Line Manager for the Employer interviewed the Employee and did not hire him, but he was subsequently hired when he reapplied for the position in her absence.

The Employee never raised any grievance about bullying or harassment while employed with the Employer and this would normally disqualify an Employee from getting an IR Recommendation from the WRC because he failed to follow the internal grievance procedures first. However, in this case I am giving the employee a degree of latitude as he was on probation and understandably may have felt raising a grievance against his Line Manager might not have helped his case to attain a permanent job. However, the opposite is also true in that if the events that the Employee complained of were so bad why did he not raise a grievance?

The Employees case was that he did not get appropriate induction, no assistance or guidance, got very little training, that his Line Manager was difficult and unapproachable and no ongoing support to succeed. He was told by his Line Manager they didn’t have time to help him or when approached was told “can I finish my breakfast first” before dealing with issues.  He stated he found his Line Manager very negative, manipulated his targets and applied blame for things outside his control. He said training was cancelled or when it did occur that his Line Manager was only showing him where training gaps existed. The Employee never mentioned he had any anxiety, depression or medical conditions during his employment but did send in some information subsequent his termination to say he had these conditions.

From the Employers position they submitted comprehensive and detailed performance reviews, training skill/task matrix documents, one to one counselling and training documentation and, in this Adjudicators experience, a very comprehensive and structured method of training, assisting and assessing performance of new employees. Detailed notes of performance and conversations were submitted to support the Employers position they had conducted a fair evaluation and support process. There was no evidence of bias on behalf of the Line Manager against the Employee.

While there was some issue about the Employer notifying the HealthCare provider to cancel the employee’s healthcare from a date three days before he was informed of his termination, nothing substantial hinges on this issue. Decisions to extend probation can be taken over a period of time and is a matter for decision by the employer, not for consultation and agreement. While obviously the Employees employment was terminated this was not his fundamental case. His case was an allegation of bullying and harassment. This is a high bar to justify and a person must have strong evidence to support their case. This was not the situation in this complaint. The Employee really failed to offer any significant evidence at the Hearing and relied manly on his complaint form and the Employee failed to rebut the significant detail supplied by the Employer to defend their case.

Based on all the evidence submitted and the oral evidence I see not premia facia case of bullying and harassment has been made out by the Employee and have concluded his probation was extended for genuine and reasonable grounds based on a practical and sensible analysis of his performance and task capability and his employment was terminated for same.

An Employers right to terminate employment during probation is well established in law and by the employment contract in this case.  In effect, the Employer was implementing their right to terminate the employment under the probation clause following considerable reviews and interactions with the Employee and providing him many opportunities to improve which he failed to grasp or take.

The Employee failed to support his allegation of bullying and harassment.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. I Recommend in favour of the Employer.

Probation