Complainant

Respondent

Anonymised Parties

Technical Support Worker

Outsourcing Company

Representatives

  Self-Represented

 No Appearance

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-00047600

10/12/2021

The Worker attended the hearing and spoke on her own behalf.

No objection was received within the prescribed legal time-frame, from the Employer.

A hearing was convened on 18/10/2022.

The Employer submitted a written submission and supporting documentation, in advance of the hearing, and indicated that it would not be attending the hearing.

This case is linked to ADJ-00036971. The Worker filed this complaint prior to dismissal and ADJ-00036971 after dismissal. Both hearings occurred subsequent to dismissal and the facts articulated at both hearings overlapped significantly.

Background

At the hearing, the Worker submitted that she initially worked in one department of the Employer, and then was moved to another department along with two other employees after about a month or two. She said that she received no training of any kind, that there were different types of tickets, systems and customers in the new department. She said that she was put on calls, and that she complained to her manager (BM) that she did not receive appropriate training. She outlined that she had sought training but that she “never, ever received any formal training.” She said that all three employees who were moved requested training. She said that she was told “you will learn from other people” but that other people did not have time as they were doing their own tickets. She said that she worked in customer support and that her role involved taking calls, emails, resolving tickets/cases.

The Worker explained that she was diagnosed with autism on 3/12/2020, and that she was working in the job approximately three (3) months, at that point. She outlined that she advised the company as to her diagnosis – her manager (BM) first, who advised HR. She said that she needed to take her breaks at exact times, rather than when told she could take them. She said that she found the work very demanding, that she had chest pains, “a nervous situation.” She said that she requested to be “taken off calls.”

She said that she had made a data access request but had received no response. She had hoped that she would receive copies of emails as a result of the request which would support her complaint. She outlined that all of the information in relation to her diagnosis was relayed through her manager. She said that “mostly the accommodations needed were provided” and that she was “working remotely.”

The Worker said that she had a “brilliant relationship with [her manager] (BM)” but that (BM) left the company at approximately the end of April 2021, and was not replaced for a few months. The Worker detailed that in that time, there were “no team meetings, no training, no explanation.” The Worker explained that once (BM) left, the accommodations that had been made were withdrawn, that she was “put on calls” and “put on tickets again.” She explained that an employee’s productivity was assessed based on how many tickets they closed and that some of her tickets where she had resolved the problem for the customer were ‘stolen’, i.e. another employee closed out the ticket, even though the Worker had done the work, and that produced the false indication, on the report, that the Worker was doing no work.

The Worker explained that of the three people who moved to the new department, one was a pregnant woman who was signed off work by her doctor, the other was a man who found another job, which left just the Worker.

She said that she told the Employer “I might need to leave due to stress.”, and that the response from the Employer was to give her a pay rise to €29,700, with no change to the Worker’s duties.

The Worker explained that she had an employability advisor, through the Department of Social Protection (DSP). She said that a meeting was organised between her employability advisor and (AP), who worked for the Employer. She said that, at that meeting, (AP) said “how vital I am.”, and that “I was the only one person actually working – if he loses me, he loses the whole department.” She said that he promised her a lot of improvements including a new manager. However, she said that “any promise they made was ceased straight away” when (NS), who was based in the USA, became her new manager. So, she complained to (AP). However, she said that “nothing changed.”

She outlined that, in the meantime, three new people were hired. She said: “They had training. I didn’t still.” She said that she “was put on calls again” which was not meant to happen, due to reasonable accommodations due to her diagnosis of autism. She said that her mental health was deteriorating very rapidly at that point, and that she was out on sick leave for about two weeks.

She said that her former manager (BM) had “set up a good system” and that, then, it was dismantled, piece by piece.

She said that (NS) “was rude to me.” So, she made a complaint directly with human resources in the USA about him, since speaking with (AP) had not helped.

She alleged that part of her documentation then disappeared. She explained that the company had “split”, that the new company had her contract of employment from the former company. She said that the new HR honoured her service, but they did not honour her autism. It was her perception that “nothing was advised.”

The Adjudication Officer, enquired at the hearing, as to when the Worker had advised the company of her autism. She said: “As soon as I could, because they tried to give me more calls.” She said this happened “shortly after the transition”, within the first couple of days. She said that the answers she received were: “We will think it over.” “We don’t have time.” “It’s a new company.”

She said that: “I started feeling even worse” under the new employment. She said that “[her] tickets were stolen again.” She said that she then had a period of extended sick leave. She outlined that, from her perspective, an argument with another employee triggered her sick leave. She said that she was on sick leave for two months – September and October, that her medical certification from her GP stated that she had work-related stress.

She outlined that at the end of August, she had made a complaint about her manager (NS) to the Employer and that the outcome of the complaint was that it was not upheld. She said that she had to request a reply several times (chat/email). She said that “the answer was: it is not valid.” She said that there was no explanation. She said that she started feeling worse and worse. She also said that the procedures also changed, and that she did not have training on that either. She said that she filed this complaint with the WRC on December 10th, 2021. 

She said that (NS) left the company at the end of December 2021 “out of the blue.” She said that (AP) was demoted and was replaced by another manager (SR) when the Worker was on sick leave. She alleged that she complained to HR in USA and that HR in Ireland was replying but her perception was the response was coming from the USA, even though the response was being signed in Ireland.

The Worker said that: “One day, I was so upset I mentioned something [to the effect] that I wanted to commit suicide.” She said that the Employer’s response was to send her “on a few days off, paid.” She said that this was the decision of an interim manager based in Ireland, and it occurred at approximately the end of December 2021/beginning of January 2022.

The Adjudication Officer, at the hearing, enquired as to what occurred on the Worker’s return to work. The Worker thought that there was no return-to-work meeting as far as she could remember, but she was unsure. She also could not recall any meeting with HR or a requirement to be certified fit to return to work by a doctor. She thought that there may have been a meeting with (SR) but was unsure.

The Worker outlined that some time in approximately late January 2022/beginning of February 2022, the Employer tried to put her on calls for the whole day. She said it was a very, very busy time, and that she was expected to answer calls. She said that “everything changed”, that “our systems slightly changed” and that she was “without training, without anything, not able to do anything.” She further explained that her software, “[her] phone programmebroke” and that, as a result, she could not do that work for a few days until it was repaired; and additionally, she did not know how to do the job, in light of the changes. She said that she requested training again, in the meantime, while the problem with the phone system was being repaired, but that what she received were old videos not specific to her job. She said that both she and her employability advisor requested she receive training in Webex.

The Adjudication Officer, at the hearing, enquired as to whether there were performance evaluations during this time. The Worker said: “We were told to work and left alone.” She said that she had “problems with [her]mental health, at that point.” The Adjudication Officer, at the hearing enquired as to any supports offered to employees and the Worker said that the company told everyone about the Employee Assistance Programme (EAP).

The Worker said that one day in January 2022/February 2022, she logged in and “all tickets from my queue [were] gone.” She said that she asked about tickets disappearing but did not receive answers. She said that she became frightened and got confused because her tickets were gone, and that she found it disrespectful. She re-iterated that she was to be put on calls all day, that she explained she could not do that due to her diagnosis of autism and she requested the accommodations (BM) had set up.

She spoke about a new manager (MA) coming in temporarily to take (NS)’s place, when he left.

She spoke of the Employer, her employability advisor and herself negotiating that she would return to work and receive training. She spoke of “broken promises” and that whenever she requested the things, such as training, which she had been promised, the answer she received was that people were “busy” and “didn’t have time to train us.”

She said that she had a few sentences on chat with (SR) and that on foot of that, she was dismissed.

The Worker said, in respect of victimisation, that (NS) “had become quite rough in his responses and very dismissive after I made the complaint to HR” in his chat messages to her - she said that she perceived a change in attitude, once she made the complaint.

The Adjudication Officer, at the hearing, asked the Worker about the contents of the Employer’s submission. The Worker acknowledged that she had said the things alleged by her Employer, but she blamed the Employer. She said: “They ignored me for so many months – what did they expect?” She said: “They drove me to the state I was in – they are amazed at the reply.” She said that they promised her employability advisor that she would get training, which was not provided, and that “put me in a bad state of mind.” She said: “I don’t deny what I did but there is a reason for that.” But, she alleged that she could not prove it as her subject access request yielded no documentation. The Worker alleged, of the Employer: “They say one thing in documents and another thing in chat.” She said that: “It’s hard to respect somebody who makes you feel this way – I think that respect runs both ways.” She said that she told (SR) that it was hard to respect him as he breaks promises immediately.

The Worker received a final written warning in February 2022. The Adjudication Officer, at the hearing, enquired as to whether the Worker understood, when she received that, that she could lose her job. The Worker confirmed that she did. She added that she “really didn’t care what happened to me”, at that stage, again pointing to the state of her mental health.

The Adjudication Officer, at the hearing, asked as to whether the Worker had received any accommodations between January 2022 and March 2022, and the Worker said that she had not.

The Worker explained that it is difficult to get a diagnosis for autism for adults, as there are very few psychiatrists and psychologists working in this space. No medical certificate to that effect appears to have been produced to the Employer. The Worker stated that she told multiple people (managers) about her diagnosis and consequent requirement for accommodations.

The Worker said that no appeal was offered in her letter of termination, that she requested an appeal, that the Employer then offered her an appeal a week later but that she did not appeal. She emphasised the condition of her mental health and wellbeing at that point.

The Adjudication Officer enquired as to whether the Worker was in employment now, and she confirmed that she was not. She said that she was in receipt of social welfare and was job hunting.

The Employer elected not to attend at the hearing but, in advance of the hearing, submitted a written submission, and an accompanying booklet of documents, twenty-five (25) pages in length.

As per their written submission, the Employer submits, as follows:

The Worker was originally employed from September 17th, 2020, by another company as a Tier 1 Customer Support Technician under a contract of employment dated July 24th, 2020 – the contract of employment was attached in the appendices submitted. In 2021, that company ended its business operations in Ireland and the business transferred to the Employer, which became the Worker’s Employer from August 1st, 2021. Her employment with the Employer terminated on March 10th, 2022.

The Worker has made a complaint to the WRC under section 13 of the Industrial Relations Act 1969 (as amended) and alleges that bullying complaints she made to the Employer remain unresolved. The Employer denies this and submits that it considered and investigated, where appropriate, the complaints raised by the Worker and communicated details of the actions taken as part of its investigation to the Worker.

Background

The Employer submits that on August 30th, 2021, the Worker made complaints about: (1) lack of training; (2) other employees being trained over the Complainant; and (3) the Complainant's customer tickets being closed by other employees. She also submits that, at that time, that she made what she described as a "bullying complaint" against her manager (NS). This complaint was investigated fully as deemed appropriate by the HR team.

The Employer submits that on December 3rd, 2021 , the Worker sent an email to the Human Resources Business Partner (HRBP) for Ireland (RO) entitled "second bullying complaint" and raised similar grievances as before, namely: (1) The Complainant's customer tickets being closed by other employees; (2) that the Complainant was discriminated against due to lack of training; and (3) the Complainant did not feel safe around (NS) due to his body language, despite the fact that she had never worked with (NS) in person. This complaint was considered by (RO), in her role as HRBP for Ireland, and by (SR), in his role as Senior Director of Customer Support.

The Employer submits that during the course of the Employer’s investigation to ascertain the relevant information relating to the allegations and determine the appropriate course of action, (RO) and (SR) requested further details from the Worker, interviewed the alleged perpetrators and relevant witnesses and reviewed relevant documentation. The Employer submits that the Worker was provided a comprehensive overview of the actions taken by the Employer to investigate her complaints by letter dated February 2nd, 2022 – a copy of the letter was submitted by the Employer. The Employer submits that the letter of February 2nd, 2022, details the investigation and remedial efforts carried out by the Employer following receipt of the Complainant’s complaint. The Employer denies that it did not address the Worker’s complaints, adequately or at all.

Circumstances surrounding the dismissal of the Worker

The Employer submits that on September 14th, 2021, there was an incident between the Worker and her colleague (RD): A customer specifically asked to deal with (RD) and following this the Worker messaged (RD) on Webex stating: "Get the f*** out of my tickets son of a b****!!!" The Worker then messaged her manager (NS) and said "This f***ing b****** closed my ticket. What do you intend to do?!!!". The Worker then went on a paid leave of absence from October 5th, 2021, to November 4th, 2021

The Employer submits that the Worker received a number of verbal and written warnings in relation to her inappropriate and disrespectful conduct shown towards colleagues. On November 8th, 2021, a disciplinary meeting was held with the Complainant by (SR) and (RO) to address the Worker’s unacceptable language and tone towards her colleagues. Following this meeting, the Complainant received a formal written warning – a copy of the formal written warning was submitted by the Employer.

The Employer submits that on December 28th, 2021, the Complainant's colleague, (MA) sent her the following message requesting her assistance 'Hi [Worker’s Name], can you please go available as others are going on lunch now". The Worker rejected (MA)’s request and sent the following message "Leave me alone. Go away. You have no right to tell me what to do. You usurped what I was told to do good few months ago, so leave me alone. Go, complain to somebody. I want to die. You all give me only false promises and grief. I don't want to feel it anymore. I should quit, but it leave you without proper penalty”, which the Employer characterises as being disrespectful. The Worker went on a paid leave of absence from December 30th, 2021, to January 7th, 2022.

The Employer submits that in February 2022, the Worker received a final written warning regarding her disrespectful conduct shown towards colleagues.

The Employer submits that on March 25th, 2022, the Worker messaged the HRBP for Ireland (RO) stating her intention to submit a claim to the WRC in relation to issues with her payslip, and that as (RO) did not immediately acknowledge this message, the Worker sent the following messages to (RO):

"l see that even a reply is too much for you. This is why the complaint is sent. This is the ordinary theft now, about what I will be writing on social media soon. I hope that you all will suffer, dying slowly in great pain or see the loved ones dying this way.

I have already sent complaint to the WRC requesting inspection. This is the very last chance to resolve this issue without engaging them. What do you think? That you are above the law? You're the first one if it goes wrong... [RO]... So young, so in prison.”

The Employer submits that it made numerous attempts to assist the Worker with her conduct including communicating with her job coach to collaborate on possible solutions, and that despite on-going efforts, the Worker’s conduct continued to cause severe disruption to the business. The Worker’s employment was terminated on the grounds of misconduct. Notice of termination of employment was issued to the Worker on March 10th, 2022 - a copy of the letter was submitted by the Employer.

Conclusion

In conclusion, the Employer denies that the Employer ignored procedures as alleged, or at all. The Employer considered, investigated and dealt with the Worker and her various allegations as it deemed appropriate, given the circumstances. For the reasons set out above, it is respectfully submitted that the Worker’s claim should fail and that no recommendation should be made in relation to this matter.

Having read the documents (appendices) submitted, I find that the Employer set out reasonable explanations for the Worker in writing, in respect of things she had highlighted, when they occurred – e.g. some of her tickets were “gone” because they had been escalated to Tier 2 or Tier 3, or occasionally, they had been closed by an employee on the next shift as part of normal business operations.

I find that the Employer engaged with the Worker on several occasions, investigated her complaints and utilised their internal processes fully.

I find that the Employer supported the Worker by engaging with her employability advisor from DSP as well as with her.

I also find that the Employer utilised their processes in relation to taking disciplinary action against the Worker. In particular, I note that the Employer stated to the Worker in writing that one of the key reasons (NS) cited when he resigned his employment, was her behaviour.

I find that it is common case that the comments made, and language used, as alleged by the Employer, were written by the Worker.

I find that the Worker understood that she was on a final written warning and the implications of that, i.e. that her job was in jeopardy, subject to her conduct.

I find that the Employer explained to the Worker, in writing, that management decisions the Worker does not like do not constitute bullying.

I also find that the Worker was working remotely and I note that the Employer had set out to her in writing that it had accommodated her break-taking, as had occurred previously, and that no changes had been instituted in that regard.

For the reasons set out above, I do not recommend in favour of the Worker.

Industrial Relations;