Complainant

Respondent

Anonymised Parties

A Cleaner

A Shopping Centre

Representatives

Peter Mounsey Murphy Lynam Solicitors

 Pat Collier, Collier Broderick

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-00042033-001

18/01/2021

The Complainant commenced her employment as a Cleaning Operative with the Respondent on 7 October 2009 and was paid €390 per week. She stated that she was left with no choice but to terminate her employment on 20 September 2020 as a result of the Respondent’s conduct in relation to her.

The Complainant started her employment in a shopping centre in 2009 as a Cleaning Operative. While she had and continues to have a poor command of the English language, she nevertheless persevered in her employment and this aspect of her skillset did not hold her back. The Complainant’s Employment proceeded largely without incident from 2009 to 2016.

In 2016, Employee X joined what was a small close-knit cleaning team of mainly Polish Employees. The Complainant was the only female in the group. The Complainant suffered several incidents of sexual harassment at the hands of X, including an assault. These were initially reported to the Complainant’s Supervisor, who deliberately discouraged the Complainant from formalizing a complaint against X and instead claimed to have approached X directly. In October 2017, the Complainant was the target of a crude and hurtful depiction and having had an unsatisfactory resolution to her previous interactions with the supervisor initiated a more formal complaint against X, which included the 2016 allegation that she had been sexually harassed. An investigation was conducted following this complaint, which concluded that there was a lack of evidence to support the alleged incidents of sexual harassment and bullying. In particular, the Respondent stated that comments were made to another member of staff yet there was no recorded attempt to interview this member of staff. It was asserted by her representative that the outcome of the investigation was completely unsatisfactory to the Complainant and further undermined her dignity at work. The Respondent offered the Complainant an alternative place of work in a different store following the conclusion of the investigation of her complaint of bullying and harassment. The Complainant did not have access to a vehicle to commute to the other store and this was conveyed to the Respondent. The Complainant had requested that X be offered the position as it was known to the Complainant that X owned his own private vehicle and would have been able to commute to the other store but the Respondent refused to do so.

This Complainant raised several further grievances by email dated 11 November 2017 with the Respondent regarding the general behaviour of X. One such incident (smoking in prohibited areas) would have been substantiated by reference to available CCTV, but the Respondent failed, neglected or refused to refer to such evidence. An outcome meeting was held on 15 November 2017, some four days after the grievance was raised, and was silent on the existence or otherwise of the CCTV footage of X’s behaviour. A commitment was given in the aforementioned outcome meeting that there would be a new Supervisor put in place to address all issues and supervise all staff performance and behaviour. The Complainant was hopeful that the newly appointed Supervisor would protect her from what was now a clear pattern of harassment and bullying by X.

On 22 November 2017, the newly appointed Supervisor, Mr. W handed the Complainant a letter which he directed her to sign. The Complaint had same translated by a friend and was immediately fearful for her employment as the letter was only given to her and was in her view clearly designed to serve as warning regarding her performance. It was asserted by the Complainant’s representative that it was clear from the language, syntax and phraseology that the Supervisor’s letter was at least in part drafted by a party without a natural command of written English. The Complainant was suspicious of the letter and raised a further complaint via email dated 24 November 2017.

It was alleged that the Respondent conducted no formal investigation in respect of this complaint, that no outcome meeting was held and for all intents and purposes the complaint was neglected. A meeting was held with the Complainant, the Clerk of Works and the Supervisor on 30 November 2017 wherein it was claimed that the document was “…so that all staff would understand what the duties are” which the Complainant’s representative asserted was an attempt to normalize the Supervisor’s letter instead of dealing with the issues it created. It was also alleged that it had the further effect of silencing the Complainant and she could only conclude that the letter was either an official document or that the supervisor could act with impunity within the Respondent’s organisation.

The Complainant’s representative asserted that Respondent continually failed to take her seriously and alleged that there was a culture of dismissal and ignoring of the Complainant’s concerns. Specifically, on 14 December 2017, an internal email was sent from the Supervisor to the Clerk of Works discussing circumstances around the Complainant having to leave work due to illness earlier that day which also stated that “…she is gone home because she feel(sic) very sick, which is of course far from truth…”. The Complainant’s representative stated that this email showed that the Respondent failed, neglected or refused to acknowledge the emerging culture of unfair targeting of the Complainant by her Supervisor.

In December 2017, the Complainant was forced to take sick leave due to ongoing stress and anxiety in the workplace including the actions of management, the culture and atmosphere within the workplace as well as being rostered to work with X, who had previously sexually harassed her. On an unknown date between January 2018 and prior to a meeting on 5 February 2018, the Complainant met with the Respondent regarding her absence. In this meeting, it was made clear to the Respondent that she did not want to work with X and asked to be put on different shifts.

During a meeting on 5 February 2018, the Respondent assured the Complainant that she would be accommodated for the first two months of her returning to work by working different shifts to X and after two months, that if she did have to work with X, there would always be another member of staff present. In May 2018, the Complainant returned to work on the understanding that the commitments made in previous meetings would be honoured and that she would not be rostered to work alongside X in the first two months. It was asserted that this did not happen however and there was only a percentage of time in which the two employees were not rostered to be on the premises at the same time. The Complainant’s representative asserted that this fell dramatically short of the assurances that the Respondent made in the long-term absence meetings dated 5 February 2018 & 3 April 2018 that she would not be rostered to work alongside X in the first two months. As feared by the Complainant, interactions with X were inevitable because they were working together and on 29 May 2018, the Complainant raised a further grievance following an incident where X deliberately, and with an intention to harass and bully, took a photograph of her while she was at work. The Complainant attended an investigation meeting on 5 June 2018 but the outcome of this meeting was not satisfactory and she was left in a position where the Respondent had failed, neglected and refused to hear and adequately investigate her complaint. It was asserted that if the Respondent had adequately investigated the grievance, evidence would have been found to support same.

It was also stated that on 4 June 2018 there was a further incident which was intended by persons unknown to humiliate and harass the Complainant when a condom and a medical device with crude remarks written on it were placed in the canteen. This was reported to the Respondent on 28 August 2018 yet an investigation into the behaviour was not adequately conducted and no policies or protections were put in place to protect the Complainant from further incidents.

On 25 September 2018, the Complainant received two written documents from her supervisor which she described as warnings. It was asserted by the Complainant’s representative that the context of these documents should be considered in light of the previous letter given by the supervisor to the Complainant on 22 November 2017 and that the effect of the two documents together was to make the Complainant believe that her employment was now at risk of being terminated. The trauma of being subjected to further bullying and harassment by the Respondent forced to Complainant to again take leave due to illness on 26 September 2018. A grievance was raised in relation to these warnings on 28 September 2018. The Respondent did not investigate this grievance however and no outcome was conveyed to the Complainant. In light of the foregoing, the Complainant asserted that she had no alternative but to resign from her employment in September 2020.

The Complainant started her employment with the Respondent on 7 October 2009 as a Cleaning Operative at a shopping centre. The Complainant’s employment transferred to the Respondent following the purchase of the shopping centre in 2018. The Complainant reported to a supervisor Mr. B for the period 2009 to January 2018 and to Mr. W for the period from January 2018 onwards. Her first language is Polish and as her English language skills were poor the Respondent arranged and paid for the Complainant to attend English language classes but she declined to do so.

The Respondent stated that the Complainant’s raised several concerns and grievances in the period from March 2017 through to June 2018 and asserted that these were dealt with promptly via direct responses to her queries, conducting investigations and advising of the outcomes of same.

It was stated that the Complainant’s initial complaint in October 2017 related to a drawing allegedly made by X that depicted the Complainant as sitting when others were working and an allegation that X pushed himself on the Complainant in September 2016. The investigation of the alleged incident that occurred on 6 October 2017 was conducted by Ms H. The allegations were not upheld due to lack of evidence. At the outcome meeting, the Complainant was offered the opportunity to work in a different store if she wished but declined to do so. The finding of the investigation was not appealed. The Respondent stated that Mr X was also advised of the outcome of the investigation and it was made very clear to him that such behaviour was inappropriate, would not be tolerated and that his behaviours would be monitored.

The Complainant was absent due to illness from 18/12/2017 through to 26/04/2018. It was stated that three of the Complainant’s ten sick notes referred to stress at work and the remaining seven referred to anxiety. The Respondent conducted two long term absence meetings on 5 February 2018 and 3 April 2018 during this 4-month period. The Complainant was advised at the meeting held on 5 February 2018 that (a) she would be accommodated for the first 2 months of her returning to work by being on different shifts to X; and (b) after the first 2 months if she was rostered to work on the same shifts as X then there would be a third member of staff present. The Respondent stated that the Complainant worked 38 days in the first two months after her returning to work which meant that she was absent from work 32% of time when X was present during that period. The Respondent stated that the roster also showed that the same start and finish times for the Complainant and X were minimized and that there was almost no overlap in their break times during the first two months after the Complainant’s return to work.

The investigation into the allegation that Mr X pointed his mobile phone at the Complainant took place on 19 June 2018. The outcome of the investigation was planned for 20 June 2018 but the Complainant refused to attend. The outcome meeting subsequently took place on 18 July 2018 and the Complainant was advised that actions had been taken in relation to Mr X. The finding of the investigation was not appealed.

The Complainant wrote to the Respondent’s HR department on 28 August 2018 and wanted it recorded that on 4 June 2018 a used condom and a catheter with a description in Polish saying “for mouth, for anus” were left by other employees in the canteen and that her Supervisor had been informed on the day and said that he would deal with the matter.

The Respondent also stated that the Complainant’s Supervisor raised an issue with his manager about the Complainant’s performance in an email dated 23 November 2017. The Complainant complained to HR in September 2018 about being excessively monitored when her supervisor gave her a letter about not doing tasks and using her mobile phone at work. It was disputed by the Respondent that the Complainant was issued with a written warning as alleged by her. It was accepted however that the Complainant was spoken to about using her mobile phone while at work and not doing some tasks.

The Complainant was absent due to illness from 26 September 2018 until she resigned her position on 3 September 2020. The Respondent arranged an assessment with the company doctor on 10 January 2019 and attempted to arrange six long term absence meetings on 11 February 2019, 29 April 2019, 25 July 2019, 4 November 2019, and 30 January 2020, none of which the Complainant chose to attend. In addition, the Respondent repeatedly advised the Complainant about its EAP. The Complainant submitted her letter of resignation on 3 September 2020 and resigned her position effective 20 September 2020. The Respondent stated that the reason cited for resigning her position was a “medical condition” and was not because of repeated inappropriate behaviour as claimed in the complaint to the WRC.

The Law

This is a claim of constructive dismissal pursuant to the Unfair Dismissals Act. The Act at s.1(b) defines constructive dismissal in the following manner

“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,”

Findings

As the Complainant is alleging constructive dismissal, the fact of dismissal is in dispute. The onus of proof therefore rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her in terminating his employment.

The statutory definition and the relevant case history envisages two circumstances in which a resignation may be a constructive dismissal. In the first instance, it is where the employer’s conduct amounts to a repudiatory breach of the contract of employment such that the employee is ‘entitled’ to resign, often referred to as the ‘contract test’. In the seminal case of Western Excavating (ECC) v Sharp [1978] IRLR 332, this was said to require that the employer was guilty of conduct “which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract”.

In this case, the Complainant’s made no suggestion that the contract test was breached and highlighted instead that the Respondent conducted itself so unreasonably in relation to her that she could not put up with it any longer. Described as the reasonableness test, it was stated in Western Excavating (ECC) v Sharp [1978] IRLR 332 that an assessment should be made of “the conduct of the employer and whether it conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving”. As set out in Conway v Ulster Bank Limited UDA 474/1981, the Complainant is required also to act reasonably by providing the employer with an opportunity to address whatever grievance they may have.

In assessing the reasonableness of the parties in relation to this matter, I note that the Complainant provided the Respondent with the opportunity to address her complaints by raising the grievances she had with Mr X on a number of occasions. While it was asserted by the Respondent’s HR Director that these grievances were adequately and fully investigated, I was not provided with any direct evidence to support this suggestion. Specifically, no evidence was presented at the hearing by any party who investigated the Complainant’s grievance. It was also notable that the HR Director did not know if the Investigator who conducted the initial investigation had been trained in the conduct of investigations. It was also accepted by the HR Director in cross examination that the investigation of the most serious allegation in late 2017, namely sexual harassment by X, was not handled properly because a key witness presented by the Complainant was not interviewed as part of the investigation. The HR Director also stated that the alternative role proposed to the Complainant at the conclusion of the initial investigation in October 2017 was not offered to Mr X because it was felt that it would be a “punishment or a judgement” on him. She accepted however that the decision to offer the alternative role only to the Complainant also represented a “punishment or a judgement” for having made the allegation and acknowledged that Mr X should have been given the opportunity to transfer to another work location in the same way that the Complainant had been, following the conclusion of the flawed investigation.

Much was made by the Respondent of the Complainant’s failure to appeal the outcome of the initial investigation. While I recognise that she did not do so, the Complainant’s representative highlighted that there was no right of appeal provided in any of the outcome reports, which was not disputed. Moreover, while I noted that the Complainant received a copy of the Respondent’s grievance procedure, wherein the option of appealing a grievance outcome was set out, it was well known that her command of the English language was particularly poor and I would have expected that a reasonable employer would have provided a copy of the grievance procedure to her in Polish or made her aware of the facility to appeal at the outcome meeting, which was attended by a Polish interpreter.

Despite the Respondent having informed the Complainant in February 2018 that she would not have to work the same shifts as Mr X for a period of two months when she resumed work following a period of sick leave, she did in fact have to work with him on various occasions after she returned to work in May 2018 and was subjected to further alleged inappropriate treatment, which resulted in her making a further complaint on 29 May 2018. While I recognise that this complaint was not upheld following an investigation, I am at a loss to understand why the Complainant was scheduled to work with Mr X at the time given the promise, confirmed in writing, which the Respondent made in February 2018 and the HR Director was unable to explain in evidence why this promise was broken.  

I also noted the Complainant’s assertion that the alleged warnings given to her by her supervisor were unfair and represented, in her view, an attempt to terminate her employment. In the absence of any direct evidence from the Complainant’s supervisor at the hearing to explain the reasons behind these alleged warnings or to dispute the Complainant’s version of events, I accept the credible evidence of the Complainant that these letters were unreasonable and that she went on sick leave from her employment on 26 September 2018 because of the stress caused to her by the actions of the Respondent.  

I also noted that a grievance was raised in relation to the stress caused to the Complainant by these alleged warnings on 28 September 2018 but that this was not investigated by the Respondent, even though she raised the issue again with the Respondent’s Occupational Health Advisor in January 2019. Although I noted the assertion in the Respondent’s written submission that the Complainant was on sick leave at the time and the HR Director stated in evidence that the allegations were investigated, the Complainant was not spoken to as part of this investigation. I considered it shocking that the Respondent failed to contact the Complainant to assess if she was fit to engage into an investigation in respect of these serious allegations despite having apparently contacted her on numerous occasions while she was on sick leave to seek to arrange long-term absence meetings. While I recognise the importance of meetings to discuss such absence, I would have expected that the Respondent’s priority would have been to comprehensively investigate the allegations made by the Complainant regarding her Supervisor on 28 September 2018, which she also raised with the Occupational Health Doctor in January 2019.   

Considering all of the foregoing, I find both that the Complainant has met the reasonableness test and that the actions of the Respondent in their dealings with her from the time she made her initial complaint in October 2017, as set out in detail above, were unreasonable. Accordingly, I find that she was constructively dismissed.

THE LAW

Section 7 of the Unfair Dismissals Act which, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, 

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee, 

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt  measures, to mitigate the loss aforesaid, 

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, 

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, 

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

Section 7(3) of the Act further states that:

“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, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation”;

FINDINGS

Having decided that the Complainant was unfairly dismissed, I must now examine the appropriate form of redress in accordance with section 7 (1) of the Act set out above. In making this decision, I am satisfied that the trust between the parties has irretrievably broken down and recognise the Complainant’s preference for compensation as a remedy.  I therefore find that this is the appropriate form of redress in this case.

In calculating the level of compensation to award, I have regard to the decision of the Adjudication Officer in ADJ 32667, where she stated inter alia that: 

“in considering compensation, regard must be had to all of the subsection of Section 7-and the tests are not confined to the efforts of the former employee-or the Complainant in this case. In circumstances where the Respondent is found not to have met the tests set out in subsections (c) and (d) …. and the Complainant made no contribution to the decision to dismiss her under (a) (b) or (f) It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort of mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.” 

In the instant case, I have found, as outlined in my analysis above, that the Complainant acted reasonably in deciding to terminate her employment and that she therefore made no contribution to the unfair dismissal under section 7(2) (b) or (f). In addition, I have outlined above that the Respondent acted unreasonably and has not met the test outlined in 7(2) (a). I must recognise also however that the Complainant did not make any efforts whatsoever to mitigate her financial loss in accordance with the requirements in section 7(2)(c) above. She stated that she was unable to do so however because she was certified as medically unfit for work as a result of ill health caused by the perpetrator’s treatment of her. The Complainant’s GP gave evidence and stated that she had been treating the Complainant on an ongoing basis since April 2020, several months prior to her constructive dismissal, to the date of hearing. She outlined how the Complainant’s position had stabilised in the last year and shared the opinion that she would now be capable of working “in a quiet environment” although a “special assessment” would be needed in advance of her recommencing employment.  Despite persistent probing, she was not specific on when the Complainant’s position had stabilised and when she would have been available for work although she did clearly state that she only became fit for work in the last year. While the Complainant’s counsellor also gave evidence of how her mental health had been affected by what happened in the workplace, she did not meet with her after her constructive dismissal in September 2020 and I have therefore disregarded her evidence in my calculation of financial loss as I can only concern myself with the financial loss after the date of dismissal.

I must also recognise that the Complainant lost her rights under the Redundancy Payments Acts, 1967 to 1973, as set out in section 7 (3) above, as a result of the termination of his employment. This is consistent with the decision of the Adjudication Officer in ADJ-00033768 who stated inter alia that:

“It is important to note that actual loss, prospective loss and a redundancy entitlement are separate and distinct. Actual and prospective loss is calculated according to loss arising after the (unfair) dismissal. The third category relates to an entirely separate head of loss, that of a lump sum entitlement from accrued service.

For clarity, this applies to all unfair dismissals where compensation is to be awarded, and…It arises from the definition of ‘financial loss’ in section 7 and is not related to the grounds for the dismissal”

Given that the Complainant was on sick leave from 26 September 2018 to 20 September 2020, I have disregarded all but 26 weeks of this period she was not in work in accordance with the provisions of the Redundancy Payments Acts.

Considering all the foregoing, I make an award of €12,500 in respect of the unfair dismissal.