ADJ 00034191

Complainant

Respondent

Parties

Tara Cassidy

Bank of Ireland

Representatives

Not Represented

Claire Bruton BL

Act

Complaint Reference No.

Date of Receipt

Complaint under section 7 of the Terms of Employment (Information) Act ,1994

CA-00045182-002

14/7/2021

Complaint under section 8 of the Unfair Dismissals Acts 1977-2015

CA-00045182-001

14/7/2021

The complainant commenced employment with the respondent in December 2018 as a Customer Advisor. In December 2019 an opportunity arose for a new role within the bank. The proposed new role was a ‘Hybrid role’ which was distinguished from a ‘Customer Advisor’ and a ‘Mortgage Specialist’. Having expressed an interest in the role, the complainant commenced the responsibilities in accordance with the role profile contained in an email of 16th December 2019 entitled ‘New Role’. The complainant’s understanding was that the new role would lead to a pay review with the opportunity of advancing to a band 2 salary.

The respondent contends the new role was not authorised by the Human Resources Department and consequently there could be no progression towards a band 2 salary. The respondent claims that the complainant was not formally appointed and has not been performing the new Hybrid role in full.

Although some attempts were made by both parties to resolve matters, the complainant resigned her post in March 2021 and then referred a complaint of constructive dismissal to the Workplace Relations Commission.

The complainant gave evidence that she was encouraged to apply for the Hybrid role by her line manager. After applying and obtaining the new role, an email was sent to her on 16th December 2019 which set out an overview of the role. The email stated that her line manager would announce the staff moves the next day. The complainant stated that she commenced the role from this date. She added that she gave up her office and trained her replacement over the following weeks. She outlined that she had brought considerable new business to the bank in the new Hybrid role particularly in the form of new mortgage referrals.

Senior management informed her that the role was not authorised after she had been performing the role for up to 10 months. Consequently, her service in the new role had not advanced her towards a band 2 salary. On the potential salary review, the complainant was relying on an email of 15th November 2019 which referred to moving to band 2 salary once certain metrics were met.

The complainant outlined that the non-recognition of the Hybrid role along with the lack of progression towards a pay review caused her considerable stress and eroded her trust with senior management. She outlined that another staff member had transferred into the branch at band 2 salary in or around January 2021 which further undermined her position.

The complainant stated that she raised the issues continuously with line management and then formally with senior management in December 2020. She raised the issues with Human Resources in February/March 2021 who advised of the option of submitting a formal grievance. She resigned on 26th March 2021 and then raised a formal grievance. She was advised by Human Resources that it was not possible to raise a formal grievance as an ex-employee.

The complainant was cross-examined on whether she was formally offered the Hybrid role and whether she was undertaking the full range of duties as outlined in the role profile of 16th December 2019. The complainant was questioned on her performance reviews and whether her workload matched the full role profile.

She was asked about her failure to submit a formal grievance when an employee. She was questioned on her earnings after obtaining alternative employment.

The complainant was asked whether she received a formal contract on 12th March 2020 for ‘Mortgage Specialist’. The complainant denied receiving this contract and stated her first sight of it was when she received the respondent’s written submission to the Workplace Relations Commission.

The respondent’s position is that the complainant resigned from her post and denies that she was constructively dismissed. Mr O’Connor, Business Advisor, and line manager of the complainant gave direct evidence.

Mr O’Connor’s Evidence

He outlined that the Hybrid post was a ‘proposed post’ and that he was unaware of whether it was formally offered. He stated that it was going to take some weeks to back-fill the complainant’s post and realistically she could never have commenced the new role until March 2020. He stated that when COVID then hit, it changed matters due to restrictions on customer meetings.

He said that he had no direct involvement in the appointments process. He was aware from the end of February 2021 that the complainant was frustrated with developments and that she wanted to move from the bank. He clarified that the staff member on band 2 salary had transferred from another branch.

Under cross examination, he was questioned on the lack of communication to the complainant particularly when the new role was not authorised and why she was not requested to revert to her previous Customer Advisor role. He gave evidence that he was unaware of any specifics on the appointment and assumed matters were progressing between the complainant and senior management.

He was questioned on the criteria for the establishment of the Hybrid role which was due to other staff working a 4-day week. He was asked why matters did not proceed formally with creating the post as originally envisaged.

He confirmed that the complainant trained in a new Customer Advisor from December 2019 to March 2020.

Constructive Dismissal Complaint

The definition of a constructive dismissal under the Act is:

 “dismissal”, in relation to an employee, means—

(a) -

(b) 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,…

Constructive Dismissal Tests

The established tests on constructive dismissal is the ‘contract test’ and/or the ‘reasonableness test’. A formal contract for the new Hybrid was not issued. Both parties gave conflicting evidence as to the extent of the role profile that was being carried out. The complainant contended she carried out the full Hybrid role as much as she could with the respondent contending that it was an enhanced ‘Customer Advisor’ role she was carrying out. Unfortunately, there was no clear communication on this at the time and the complainant continued to carry out the role. The significance of this was that she presumed that the duties she had been carrying out would lead to a band 2 salary after 6 months.

The contract test is relevant as the complainant was carrying out a role for a prolonged period presuming it was authorised. Although the respondent has asserted otherwise, there was no correspondence from them putting her on notice that the post was not authorised. When informed of the non-authorisation, this left the claimant in limbo with no official contract to justify the role she had carried out. The contract test revolves around whether this situation was so serious that it frustrated the relationship between the parties beyond repair.

The reasonableness test allows for an objective assessment of the employer’s behaviour and to a lesser extent, the employee’s behaviour.

In Western Excavating Ltd v Sharp [1978] IRLR 332, Lord Denning described the test as asking whether the employer ‘conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, and if so, the employee is justified in leaving.’

Prior to August 2020 there was a deficit of communication which led to both parties being at cross purposes. Although the respondent gave evidence that COVID changed matters they failed to communicate this to the complainant in March 2020. However, both parties were aware from August 2020 onwards that there was an issue so the correspondence from this date warrants attention.

Communications from August 2020

·       The lack of correspondence from either party on the contract situation from August 2020 to 11th December 2020 does not assist matters.

·       On 11th & 17th December 2020, the complainant raised her issues by email with senior management.

·       The emails of 21st December 2020 with her line manager demonstrate the ongoing confusion with the contract.

·       On 12th -15th January 2021, the emails between the complainant and senior management show that the issue was getting some attention.

·       An email of 16th February 2021 shows the complainant has decided to apply for a recently advertised Bank at Work (BAW) Post.

·       Emails of 26th February 2021, and 2nd & 3rd March 2021 relate to the upcoming interviews with the complainant listed as a candidate.

·       Email of 3rd March 2021 shows the complainant was removed from the list of candidates due to notice of her resignation.

·       On 30th March 2021 arising from an ‘Exit Interview’, a member of the Human Resources team advised the complainant of the option of raising a formal grievance.

·       On 7th April 2021 the complainant confirmed she was still resigning.

The above series of communications confirm that the complainant raised the non-recognition of her role formally with management. Although there is some evidence of the issue getting some attention, the focus of management seems to be on the complainant applying for the new BAW post. An assessment of management’s behaviour and actions over this period also warrants attention.

·       Management issued a contract in March 2020 although with the wrong title (Mortgage Specialist) and wrong location of post.

·       Management directed the complainant to Human Resources in December 2020 and February 2021.

·       Management correspondence of 15th January 2021 still refers to the role of ‘Mortgage Specialist’.

·       At the end of February 2021, despite the confusion on contracts there seemed to be the prospect of the complainant applying for the BAW post.

·       In February 2021, the complainant considered applying for the BAW post and then withdrew after handing in her notice.

·       Before resigning at the end of March 2021, the complainant got advice from Human Resources on the option of taking a formal grievance.

The above communication and actions from both parties clearly show that there has been no meeting of minds on the core issue of ‘recognition of the Hybrid role.’

Constructive Dismissal Finding

In summary, the issue in this case revolves around the non-recognition of the complainant in the Hybrid role which she applied for and undertook in good faith over a prolonged period. The complainant was treated unfairly, and her role was clearly mismanaged by the respondent. As she formally raised her issues with senior management, she cannot be faulted or disadvantaged for not raising a formal grievance. Indeed, there was evidence that her issue was getting some attention and the complainant may have been hopeful of a positive outcome. Management raised the use of the formal grievance procedure at a very late stage. This was obviously confusing for the complainant as she had already raised her issue formally. It may also have signalled a reluctance of management to deal with her issue.

Even though management sought to establish the Hybrid role in November 2019, at some stage afterwards there was a change of mind. There was no attempt by management to explain the change of approach over this period. In fact, management proceeded to issue a contract with the title of ‘Mortgage Specialist’ in March 2020 and continued the reference to ‘Mortgage Specialist’ right up to 15th February 2021. There was no reason for continuing to use this title when it had been disputed all along by the complainant. This approach could only have frustrated the complainant as the Hybrid role she had been performing was never mentioned or referred to again. The role was referred to in correspondence from management as role 19138. Over an extended time, management failed to explain the reasons for the row back. By not recognising the Hybrid role, management had repudiated the contract and undermined the mutual trust with the complainant. Management provided no evidence at the hearing that explained the row back to the complainant over this period. There were no reasons shared with the complainant or a commitment to recognise her service in the role.

Under the contract and reasonableness tests, I find that there was sufficient and objective evidence that the complainant had little option but to resign.

The role she was carrying out went unrecognised and there was no explanation of the row back on same. Management gave no undertaking or commitment to address the issue and alleviate her concerns. She considered applying for the new BAW post and not surprisingly withdrew as in her eyes she could have ended up back in a similar dilemma as before. Given what had transpired previously she had no trust in management and obviously felt she had no option but to resign.

The complainant was entitled to rely on communications that she was in a new Hybrid role and acted to her detriment by performing the new role even though it was never recognised. Added to this, management acted unreasonably once she made a complaint. Her post was never referenced correctly, and management never addressed her issue. Management either failed to recognise the gravity of the situation or chose not to address it to the detriment of the complainant. They never engaged in any meaningful manner, and this must also have contributed to her resignation.  

For the reasons outlined, I find the case under the Unfair Dismissals Acts to be well founded. I find that the complainant was unfairly dismissed under the Unfair Dismissals Acts 1977-2015.

Redress

At the hearing both parties made submissions on redress. The respondent contends that any financial loss is minimal given the complainant was able to find comparable alternative employment within weeks of resigning. The complainant outlined that the benefits in her new employment are less than with the respondent. There is a prospective loss of 6% pension contribution and loss of accrued redundancy service. There is also prospective financial loss in that the complainant would have expected to proceed to the bank’s band 2 salary at some stage in the immediate future.

The Act defines financial loss as:

“Financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, or the rights of the employee under the Redundancy Payments Acts to 2007, or in relation to superannuation.

Having considered all these matters and combined same, I am making an award of €3,810, the equivalent of six weeks’ pay.

CA-00045182-001

I find that the complainant was unfairly dismissed under the Unfair Dismissals Acts 1977-2015 and award the equivalent of six weeks’ pay totalling €3,810 to be paid by the respondent.

Terms and Conditions, Constructive Dismissal