Complainant

Respondent

Anonymised Parties

A Worker

A Manufacturing Plant

Representatives

Siobhan McLaughlin Citizens Information Centre

Terry McNamara  IBEC

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-00034004-001

27/01/2020

The claimant was employed as an administrator with the respondent from the 18th.May 2010 – she maintained that she was constructively   dismissed by the respondent on the 2nd.August 2019.

She contended that she had been the subject of ongoing bullying behavior by 2 other colleagues The complainant asserted that she made a complaint about the bullying behavior and was victimized as a result of having made the complaint .Her complaints were not upheld .She contended that a disciplinary process was initiated for having made the complaint and that she was victimized and left with no option to resign as all trust and confidence in her employer had been breached.The respondent denied that the complainant had been constructively dismissed .The respondent asserted that it had at all times acted reasonably and contended there was no basis for a complaint of constructive dismissal.

The complainant ‘s first submission to the WRC is set out below :

Submission on behalf of Linda Cunningham

ADJ – 00026684

CA- 00034004

1.      It is our submission that the Complainant was unfairly dismissed by way of constructive unfair dismissal in accordance with Section 8 of the Unfair Dismissals Act, 1977.

2.      Furthermore, it would be our contention that the Respondent has failed to rebut the presumption that the Complainant was unfairly dismissed by way of constructive unfair dismissal in its Submission. Indeed, we would submit that the Respondent’s Submission contains significant errors both in terms of the facts of the case and the interpretation of case law precedents on the burden of proof required for constructive unfair dismissal complaints. 

Background

Statement of Complainant :

a)I say that I resigned on the basis of constructive unfair dismissal on the 2nd.August 2019.

b)I commenced work as a Sales Administrator with the respondent on the 18th.May 2010.I was employed for 24 hours per week. My duties included printing dispatch dockets , invoicing , credit control , stock reports , wages amongst other tasks.

c)My Administration Manager at the time was Ms.K .I always had a good relationship with my Manager and there were no issues  whatsoever about the standard of my work.

d)From around 2016 a new Administration Manager was appointed, Ms.S. Initially I had a good working relationship with her but this changed when a new computer system was implemented in January 2017.From that date , I was subjected to ongoing bullying behaviour by my Administration Manager and Financial Manager , Ms.M.

e)Matters were compounded when I was called to a meeting with my Administration Manager and Financial Director Mr.McE on the 7th.Sept. 2017.At the meeting I was informed that my role had  been changed to that of Purchase Ledger and that the employee currently in that position would be transferred to my role as Sales Administrator .I was not given any reason for  this variation to my contractual role  nor was I provided with an opportunity to respond. I did say that I was concerned as I was employed for 24 hours per week and the position of Purchase Ledger was a full time role of 40 hours per week. Neither Ms.S nor Mr.McE would listen to my concerns and simply stated that with the new system in place the role could be undertaken in my contractual hours.

f)From the date of the meeting until I commenced long term sick leave on the 23rd.March 2018 , I regularly expressed my concerns about the role to my Administration Manager but to no avail. My work conditions became progressively more stres and this is a matter that I will elaborate on during the Adjudication Hearing. I was provided with no support whatsoever and indeed I felt ostracised and I was treated with disdain by my Administration Manager and Financial Manager. The Financial Manager in particular subjected me to ongoing bullying behaviour in terms of undermining and humiliation. She would regularly shout at me when I asked for help over the phone

g).I lodged a complaint to my Administration Manager in respect to the Financial Manager’s behaviour towards me on the 5th.December 2017.No proper internal grievance procedures were followed and my complaint was not investigated. Indeed it  would be my submission that as a result of my complaint , I was thereafter victimised by my Administration Manager who issued disciplinary proceedings against me. This was the first time during my entire period of my employment of 7 years that an  issue was raised in terms of my ‘underperformance’. As a result , I suffered  stress related symptoms and was certified as unfit for work by my doctor , prescribed medication and referred for Psychological Support Services.

h)I resigned on the basis of Unfair (Constructive ) Dismissal on the 2nd.August 2019.My employer responded by inviting me to engage in the Company’s grievance process. Mr.McE Finance Director was appointed to conduct an investigation into my allegations of bullying. A number of investigative meetings took place and the findings were issued on the 20th.Jan. 2020.My complaints of bullying were not upheld. The investigator did however , conclude that the Employer’s :”…Disciplinary process was flawed as it was not conducted in accordance with the company’s disciplinary policy “.He recommended that “ ..the disciplinary process be recommenced from the outset should the Company consider it appropriate and necessary to do so. It  would be my submission that the investigative process was biased.

i)It is my contention that the disciplinary process that was instigated by my Administration  Manager had no basis and indeed was precipitated by the fact that I had issued a complaint that I was subjected to bullying by my Financial Manager. I was therefore victimised and it would be my submission that I had no option but to resign as all trust and confidence in my employer was fundamentally breached. It would therefore be my respectful submission that a finding of constructive dismissal should be made against my employer due to their actions towards me.

3.      We refer to Statement of the Complainant  for the  background to this matter. The Complainant was employed as a Sales Administrator at the Respondent Company from 18th May 2010. She was employed as a Sales Administrator for 24 hours per week and her duties included printing dispatch dockets, invoicing, credit control, stock reports and wages amongst other tasks. The Complaint’s Manager at the time was Ms.K. She had a good relationship with her and there were no issues  ever raised about her work. We would submit that it is noteworthy that the Complaint was never formally appraised in relation to her work as no such procedure was implemented in the workplace.

4.      We refer to Paragraph 4 of the Complainant’s Statement that from 2016 a new Administration Manager was appointed Ms.S. The Complainant states that initially she had a good working relationship with her Administrative Manager but that this altered when a new computer system was installed in January 2017. From that date on the Complaint states that she was subjected to ongoing bullying from both her Administrative Manager and the Financial Manager, Ms.M.

5.      We refer to Paragraph 3.1 of the Health and Safety Authority Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work for the definition of bullying . Bullying is defined as ‘repeated behaviour, direct or indirect, whether verbal or physical or otherwise, conducted by one or more persons against another or other, at the place of work and in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work’. Further, it is stated that:

‘Bullying puts at risk, the safety, health and welfare of people at work’

The Code describes patterns of bullying behaviour to include: undermining behaviour, humiliation, verbal abuse/insults, excessive  monitoring of work and blame for things beyond the person’s control. This list is not exhaustive.

6.      We refer to email from the Complainant to Mr.McE dated 13th September 2019  for details of bullying incidents that the Complainant was subjected to. Difficulties started for the Complainant when a new computer system was introduced in the workplace. Her Administrative Manager did not provide any support and the Complainant was blamed for errors.  The Complaint’s Contract of Employment was varied in July 2017. She was called into a meeting with the Administrative Manager and informed at a meeting that her role was changed to that of the Purchase Ledger. The Complainant raised her concerns at the time that the Purchase Ledge position was full time and her contractual hours were 24 per week. The Complainant regularly raised concerns about the role to her Administrative Manager to no avail.

7.      The Complainant will give evidence at the hearing on the incidents of bullying including verbal abuse/insults, exclusion, ostracization, humiliation and blame. The Complainant received no proper structured training on the new ledger system and received no support. Indeed, the Complainant felt that both the Administrative Manager and Financial Manager treated her with disdain.

Complaint of Bullying

8.      We refer  to the  meeting the Complainant had with her Administrative Manager on 5th December 2017. At this meeting the Complainant was visibly extremely distressed. She informed her Administrative Manager that she felt that she was being bullied by the Financial Manager and that, as a result, she was suffering stress and anxiety related symptoms.

9.      We refer to email correspondence from the Administrative Manager Ms.S to the complainant  dated 29th November 2019. Under Paragraph 11 the Administrative Manager confirms that the Complainant made a complaint of bullying at the meeting on 5th December.

10.   The Complaint attended her doctor that day and was certified as unfit for work for a period of two weeks. She submitted a medical certificate from her doctor confirming that she was suffering from stress and anxiety. We refer to Page 20 of the Respondent’s Submission, Return to Work Interview Form, completed by the Complainant on 21st December 2017 that the reason for the absence was stress and anxiety. It is noteworthy that the Complainant had no history of stress or anxiety related symptoms.

11.   On the day of the Complainant’s return to work 21st December 2017 the Administrative Manager phoned her and asked her to attend the office for a return to work interview. At the meeting, the Administrative Manager addressed  the bullying complaint she had made at the previous meeting on 5th December 2017. She asked the Complainant if she wanted to follow the informal or formal procedure and informed her that she would give her an hour to make her mind up. She said to the Complainant that if she went the formal route it would very ‘serious’ and ‘that there would be people ‘well over their heads that would have to deal with this’. She gave the Complainant a copy of the Staff Handbook to read.

12.   The Complainant felt extremely under pressure  with the Administrative Manager’s comments. When she returned to the office she informed the Administrative Manager that she would go down the informal route initially with the hope that it would be resolved.

13.   The Complainant was handed a letter by the Administrative Manager dated 22nd December 2017 prior to leaving work that day . The Complainant will give evidence that she was in shock at the contents of the letter. There was no reference to the Complainant’s request to follow the informal route in relation to bullying complaint.

We refer to fourth paragraph of same :

‘Currently, I am treating this matter as closed, unless otherwise advised’.

In addition, I also refer to final paragraph that stipulates:

‘On matters of underperformance, the company will write to you separately identifying the areas where improvements are required and outline a formal improvement plan’.

14.   We refer to page 14 of Health and Safety Authority Code of Practice For Employers and Employees on the Prevention and Resolution of Bullying at Work. The Code of Practice at Page 2 states that it is a practical guidance for employers on identifying and preventing bullying at work arising from their duties under section 8(2)(b) of the Safety, Health and Welfare at Work Act 2005 regards ‘managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health and welfare at work of his or her employees at risk’. Further, a failure to observe the Code of Practice is admissible  in evidence in any proceedings under section 61 of the 2005 Act.

15.   It would be our submission that the Respondent Company failed to protect the safety, health and welfare of the Complainant by not addressing  or investigating the complaint of bullying. Further, the behaviour of the Respondent was so unreasonable that it was reasonable for the Complainant to resign from her employment on 2nd August 2019 as a result of the failure of the Respondent Company to address  the complaint of bullying on 21st December 2017 and to thereafter subject the Complainant to acts of victimisation through disciplining her and by excessive  monitoring by the Administrative Manager.

16.   At Page 65 of the Respondent’s Submission, Company’s Bullying Procedure, it is stated:

‘An employee who believes he or she is being harassed /bullied should explain clearly to the alleged perpetrator (s) that the behaviour in question is unacceptable. In circumstances where the complainant finds it difficult to approach the alleged perpetrator(s) directly, he or she should seek help or advice, on a strictly confidential basis, from a contact person. A contact person could, for example, be one of the following:

·        A work colleague

·        A supervisor or line manager

·        Any manager in the workplace

·        Human resource/personnel officer/employer/trade union representative

At Page 66 it is stated:

‘The nominated contact persons are:

Any member of the Management Team of the individual’s choice’.

17.   We now refer to Page 15 of the Health and Safety Authority Code of Practice For Employers and Employees on the Prevention and Resolution of Bullying at Work (Exhibit 4). Under the Key Steps in the Informal Process Are as Follows at Paragraph 3 it is stated:

‘The employer should designate a separate person who has had appropriate training and experience and who is familiar with the procedures involved to deal with the complaint on behalf of the organisation. This person should not be the ‘contact person’ and may be a supervisor/manager or someone in authority within the organisation. For each complaint that arises, a designated person should be assigned  to deal with that specific case’.

Further it is stated that:

‘The complaint may be verbal or written. If verbal, a written note of what is complained of should be taken by the designated person and a copy given to the complainant’.

At Page 16 it is stated:

‘The designated person should keep a record of all stages; the complaint, the first meeting, action agreed and signed records of the final meeting. The purpose of the records, which do not include details of discussions  is to provide evidence of the complaint having been met with an organisational response and an attempt at resolution. Records should be kept in accordance with the Data Protection Act…’

18.   It would be our submission that the Respondent Company failed to protect the safety, health and welfare of the Complainant by failing to address  the bullying complaint. Furthermore, the Respondent Company were notified that the Complainant had suffered stress related symptoms and anxiety as a result of the bullying incidents. The Respondent Company’s subsequent actions in subjecting the Complainant to excessive  monitoring and disciplining her had the consequential impact that she had no other option but to resign on 2nd August 2019 because of her deteriorated mental health at that stage rendering her unfit to work.

19.   It would be our contention that the Respondent’s Submission is significantly flawed on a factual basis. We refer to Page 6 Paragraph 4.1. The Respondent states that it neither acted unreasonably nor did it breach the Claimant’s terms and conditions of employment such that the Claimant could legitimately resign and seek relief for constructive dismissal. It refers to letter of resignation dated 2nd August 2019 that this was the first time that the Respondent became aware of two issues  raised by the Claimant namely:

1.      The Claimant was attributing her medical condition to issues  concerning her employment with the Respondent

2.      The Claimant raised several allegations that the Respondent was unaware of prior to receiving her letter dated 2nd August 2019

We refer to  email Correspondence from Ms.S Administrative Manager dated 29th November 2019 to Mr McE, the Respondent’s Finance Director who was appointed Investigator in relation to the Complainant’s Complaint of Bullying. At Paragraph 11 the Administrative Manager states:

‘It was not until LC’s return to work interview 21.12.17 that LC disclosed her absence from work was work related’.

We also refer to Page 20 of the Respondent’s Submission Return to Work Interview Form whereby the reason for absence was noted as ‘stress and anxiety’. It is therefore our submission that irrespective of the fact that the Complainant states that she clearly informed the Administrative Manager at Meeting on 5th December 2017 that she was suffering from stress and anxiety related symptoms as a result of bullying at work rather than notifying her on 21st December 2017, it is factually incorrect for the Respondent to now suggest that it was unaware of the fact that the Complainant was attributing her medical condition to issues  concerning her employment until 2nd August 2019. Furthermore, the Respondent Company is vicariously liable for the actions of its employees and therefore it cannot now claim that it was notified of the Complainant’s work related stress and anxiety symptoms until letter of resignation dated 2nd August 2019 when the Administrative Manager was clearly informed at the time that the bullying complaint was raised and, indeed, she confirms this at Exhibit 5. We also refer to  email correspondence from the Complainant to Mr.McE under Paragraph 11. The Complainant sent the Administrative Manager an email on 6th December 2017 informing her that her doctor had certified her as unfit for work due to stress and anxiety. It would be our submission that the Administrative Manager was notified at meeting on 5th December 2017 that the Complainant was suffering stress and anxiety related symptoms due to bullying at work and that the doctor’s certificate submitted by email the following day confirmed this. The Respondent Company was therefore notified and was therefore well aware that the Complainant was suffering from mental health problems related to work related stress but failed to take measures to protect her safety, health and welfare at work. Indeed, the actions of the Administrative Manager thereafter constitute victimisation as the Complainant was disciplined for alleged ‘underperformance’. 

20.   It would be our submission that the Respondent Company did not protect the Complainant from exacerbation of the stress related symptoms and anxiety that she suffered due to bullying at work. The Respondent Company failed to address the bullying complaint and, furthermore, the Complainant was thereafter penalised and victimised through the actions of the Administrative Manager for raising the complaint of bullying on 5th December 2017.

21.   We refer to Page 84 of the Respondent’s Submission Report of Bullying Investigation by Mr.McE whereupon he stipulates at paragraph 4 that:

‘ The only written evidence from this meeting is Ms.S’s letter of 22nd December 2017. In the letter Ms. states that LC had withdrawn the complaint. There is no further evidence to support the complainant  contending that, in fact, what she had meant was she now wished to proceed with the complaint on an informal basis’

At Paragraph 5 of Page 84 it is stipulated:

‘…notwithstanding the unfortunate inclusion of a reference to the point on LC’s alleged underperforming, in my view, Ms.S’s understanding of the complainant’s  intentions in respect of the bullying allegation was genuine and reinforced by the complainant’s non-response to her letter of 22nd December 2019’.

22.    Notwithstanding the fact that the Investigator failed to address  the fact that the Respondent Company did not adhere to the Health and Safety Authority Code of Practice For Employers and Employees on the Prevention and Resolution of Bullying at Work in addressing  the Complainant’s complaint of bullying on 5th December 2017 and 21st December 2017, it would be our submission that the very reference to the Complainant failing to respond to letter of 22nd December 2017 demonstrates his own bias and perhaps lack of formal training on bullying at work. The statement cited above demonstrates a lack of insight or recognition to the fact that the letter of 21st December 2017 also referred to the issue  of the Complainant’s ‘underperformance’. This reference to ‘underperformance’ comes within the ambit of disciplinary procedures as recognised by the Investigator Mr.McE himself at Page 84 whereupon he states:

‘In the circumstances where I have concluded that the disciplinary process was flawed as it was not conducted in accordance with the Company’s disciplinary policy, I recommend that the disciplinary process be recommenced from the outset should the Company consider it appropriate and necessary  to do’.

23.   It would be our submission that the very fact that disciplinary procedures were referred to in letter dated 22nd December 2017 is evidence on the balance of probabilities that the Complainant was indeed victimised for raising the complaint of bullying against the Financial Manager. Furthermore, we refer to email correspondence from the Administrative Manager to Mr. Mc dated 29th November 2019 under Paragraph 11 where it is stated that:

‘Once that had been established I proceeded to ascertain from the complainant  if she was making a complaint or an actual complaint ie formal complaint’

‘...I asked the complainant  to review it and confirm if she wanted to make an official complaint ie formal complaint’.

‘She returned a short time later confirming that she wasn’t taking the matter further and that she ‘didn’t want to go down that route’.

‘I explained that I would be writing to the complainant  to confirm what she had stated ie that she would not be making a complaint ie formal complaint’

It is noteworthy that the Administrative Manager makes no reference either in her statement to the Investigator Mr.McE nor in her letter of 22nd December 2017 to the informal bullying procedure. Further, it would be our contention that the Administrative Manager failed to address the Complainant’s bullying complaint because of her own bias and conflict of interest. The Administrative Manager failed to follow the Health and Safety Authority Code of Practice For Employers and Employees on the Prevention and Resolution of Bullying at Work Informal Bullying Procedures. In addition, we would submit that the Administrative Manger victimised the Complainant by referring to underperformance in letter dated 22nd December 2017 addressing  complaint of bullying. As cited above at Paragraph 3, the Complainant had never been subjected to any formal appraisal of her work throughout her entire period of employment.

24.   We refer to  details of a chronology of events that occurred subsequent to the Complainant receiving the letter from the Administrative Manager dated 22nd December 2017 as follows:

·        On 12th January 2018 the Complainant received a letter from the Administrative Manager stating that she was underperforming in her role and that if errors continued she would be subjected to the Company’s’ formal disciplinary procedures

·        On 15th January 2018 the Administrative Manager convened a meeting with the Complainant from 930 am to 1130am and again from 4pm to 510 pm. She took the minutes herself and we refer to Page 30 to 32 of the Respondent’s Submission for a copy of same. The Complainant was requested to sign a copy of the minutes which she did not agree to on the basis that they did not accurately reflect the content of the meetings.

·        On 16th January 2018 the Administrative Manager convened a meeting with the Complainant in her office from 1215pm to 105pm

·        On 17th January 2018 the Administrative Manager called the Complainant into her office from 9 am to 910am

·        On 18th January 2018 the Administrative Manager convened a meeting with the Complainant in her office from 9 15 am to 945 am

·        On 26th January 2018 the Administrative Manager convened a meeting with the Complainant in her office from 930 am to 1040 am

·        On 7th February 2018 the Administrative Manager convened a meeting with the Complainant in her office from 910 m to 945 am

·        On 8th February 2018 the Administrative Manager convened a meeting with the Complainant in her office from 910 am to 1205 am

25.   The Complainant will give evidence about the content of these meetings. She felt that she was being subjected to harassment and bullying by the Administrative Manager.  The Complainant also found it extremely stressful attending the meetings as she was already attempting to manage fulfilling a full time role in 24 hours per week.

26.   We refer to Paragraph 4.4 of the Respondent’s Submission at Page 7 whereby it is stated:

‘It is clear that there were ongoing performance issues  highlighted as far back as early 2016. The Respondent attempted to resolve these issues through training and mentoring eventually having to embark on a Performance Improvement Plan with the Claimant’.

27.   We refer to the Respondent’s Submission at Page 2 Paragraph 3.3 whereby it is stated that the Complainant had difficulty adapting to the new Enterprise Resource Planning (ERP) system that was implemented on 1st January 2017. It would be the Complainant’s submission that she did not receive the appropriate support and training in terms of the new system. At Paragraph 3.4 the Respondent states that after a departmental meeting on 29th July 2017 it was ‘agreed to swap tasks’ between the two administrative personnel and that full training was to be given and tasks assigned  and agreed between the administration employees. We refer to the Complainant’s statement  that the meeting was convened and the Complainant was informed that her role had been changed with that of Ms.O T. The Complainant clearly stated that she was only working 24 hours per week and that she had concerns as she was in effect expected to fulfil a fulltime position. Her concerns were never taken on board. Further, no minutes of these meeting changing her contractual duties were ever taken nor was she consulted about the nature of the meeting beforehand. We refer  to the Complainant’s statement that she did not receive any proper support in this new role.

28.   It would be our submission that the Respondent has referred to the Respondent embarking on a ‘Performance Improvement Plan’ at Paragraph 4.4 Page 7 of Submission in an attempt to underplay what can only be described as disciplinary actions that the complainant was subjected from 22nd December 2017. Indeed, the letter of 22nd December 2017 clearly refers to ‘underperformance’. It is important to also place the disciplinary action in context in terms of the fact that the Complainant had never received a formal Appraisal in all of her period of employment from 2010 with the Respondent Company. Furthermore, at Paragraph 3.3 Page 2 of the Respondent’s Submission it is stated that the Complainant had difficulty with the new system from the outset in January 2017. At no stage did the Respondent Company ever suggest that the Complainant would be subject to a ‘Performance Improvement Plan’ until letter dated 22nd December 2017.

29.   We also refer Mr.McE’s  Investigative Report at page 86 of the Respondent’s Submission where he refers to the ‘disciplinary process’ instigated against the Complainant in third paragraph. The Respondent’s references to ‘performance improvement plan’ and to ‘performance meetings’ in Submission at Page 3 to 4 is therefore simply an attempt to derogate responsibility for conducting disciplinary procedures in accordance with the Workplace Relations Commission Code of Practice on Disciplinary and Grievance Procedures. It would be our submission that the Respondent subjected the Complainant to a disciplinary process without adhering to any principles of fair hearing and natural justice.

30.    We refer to  reference to letter the Complainant received dated 8th March 2018 stating that a meeting would be convened to review the areas of underperformance. We refer to Page 34 of Respondent’s Submission for copy letter. The meeting was scheduled for 29th March 2018 and would be attended by the Administrative Manager and Mr.McE.

31.   The Complainant   states that she: ‘couldn’t take the bullying and harassment anymore’ and that her doctor signed her off with severe stress and anxiety. Her doctor prescribed medication for her stress and anxiety.

32.   I refer to  a copy of the Complainant’s email of resignation on the basis of constructive unfair dismissal.

33.   Terms of Reference

We refer to Page 63 of the Respondent’s Submission Terms of Reference and Investigation Time Limits at Paragraph 16:

‘All parties will have the opportunity to comment on the findings before any action is decided by management’.

34.   The Respondent at Page 8 of Submission has suggested that the Complainant in issuing a complaint to the Workplace Relations Commission  for constructive unfair dismissal failed to exhaust the Company’s internal grievance procedure and therefore her claim should fail.

35.   It would be our contention that the Respondent’s argument is flawed on a number of grounds:

i.                 At Paragraph 4.5 the Respondent states that the Claimant did not respond to the finding of the investigation or seek to appeal the findings.

ii.                 

It would be our submission that the Respondent’s suggestion that the Complainant should have appealed the decision is tenuous as no appeal mechanism existed. We refer  to Page 19 HSA Code of Practice on the Prevention and Resolution of Bullying that within the formal system, an appeals process for both parties should be in place.

Such an appeals process should stipulate that if either party is dissatisfied with the outcome of the formal complaints procedure, they may lodge an appeal within 7 days of receipt of notification of the outcome of the process. The appeal should be heard by another party, of at least the same level of seniority as-but preferably more senior than- the original investigator, and focus only on the aspect of the case by the appellant as being the subject of the appeal. The grounds of the appeal any outcome and methodology employed should be appended to the investigation file.

Further, the Complainant had already fully commented by way of written email correspondence to the Investigator throughout the Investigative Process. Indeed, she had requested the opportunity to cross examine the witnesses but this was not taken on board by the Investigator.

We also refer to Page 64 to 68 of the Respondent’s Submission, Bullying and Harassment Procedure page 67 there is no reference to a right of appeal. Indeed, under heading ‘Outcome’ it clearly specifies that upon receiving Investigation Findings management may formally interview the perpetrator if the complaint is well founded to determine an appropriate course of action. Further, if the complaint is found to be malicious, appropriate disciplinary action may be taken against the Complainant.

iii.               It would be our submission that the case law referred to by the Respondent at Page 8 to 9 of the Respondent’s Submission can be distinguished from this case. At Page 8 Paragraph 4.5 the Respondent referred to the cases of Conway v Ulster Bank, Duanev Masonry Fixed Services Limited, Jabczuga v Ryanair Limited and Sylwester Prochnicki v Harvey Nichols.

iv.               Case Law

Conway v Ulster Bank Limited UDA474/1981 as referred to in Duane v Masonry Fixed Services Limited

In this case the court held:

“In normal circumstances a complainant who seeks to invoke the reasonableness  test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must alert the employer to their situation in order to allow the employer an opportunity to rectify the problem before resigning.They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign": Conway v Ulster Bank Limited UDA474/1981”

In this case the Complainant alerted the Administrative Manager on the 5th December 2017 of her bullying complaint against the Financial Manager. Her Employer had a statutory duty under the Safety, Health and Welfare at Work Act 2005 to protect, so far as is reasonably practicable, the safety, health and welfare at work of its employees. Such an obligation requires an employer to have in place protective and preventative measures to prevent both physical and mental injury. Her Employer failed to investigate her complaint and was therefore in breach of the Health and Safety Authority Code of Practice For Employers and Employees on the Prevention and Resolution of Bullying at Work. Following the complaint, the Complainant was victimised by way of the instigation of relentless disciplinary actions. As a result, the Complainant had no option but to resign on 2nd August 2019 due to her deteriorating mental health condition. On 29th August 2019, the Claimant informed the Respondent that she wanted to instigate the Company’s Grievance Procedures into her allegations of Bullying. The Respondent’s Terms of  Reference for the Investigation as at Paragraph 16, Page 63 stipulates that all parties will have the opportunity to comment on the findings before any action is decided by management. The finalised Investigation  Report was submitted on 20th January 2020 and the Complainant informed that she could make comments on or before 27th January 2020 (Paragraph 3.16 of the Respondent’s Submission).

The Complainant had already made her comments to the Investigator at various stages throughout the Investigative Process. The Investigator did not uphold the Complainant’s complaints. The Complainant had clearly pursued her grievance through the Respondent Company’s Bullying Procedures. The Respondent’s Bullying Procedures did not adhere to the Health and Safety Authority Code of Practice For Employers and Employees on the Prevention and Resolution of Bullying at Work as the Complainant was not afforded a right of appeal but merely to make further ‘comments’ to the Management. It follows therefore that the Complainant did indeed pursue the Respondent’s grievance procedure for bullying. Her Employer was guilty of conduct which is a significant breach going to the root of the contract in failing to protect her safety, health and welfare at work and subjecting her to acts of victimisation leading to a deterioration in her mental health. The Investigative Process was flawed as the Investigator failed to address  the fundamental breaches of the minimum standards as set out in the Health and Safety Code of Practice For Employers and Employees on the Prevention and Resolution of Bullying at Work. The Complainant therefore was justified in treating herself as discharged from her duties and issuing her  claim to the Workplace Relations Commission as the Respondent Company’s Procedures were significantly flawed as there was no process for an independently constituted appeal against the Investigation Findings.

In Jabczuga v Ryanair Limited the Employment Appeals Tribunal stated in its determination:

“It seems clear that the claimant was becoming increasingly frustrated in her employment and, in particular, with her lack of promotion. It would appear that the captain incident was the catalyst that led to her resignation.”

Ms Jabczuga wrote to the Ryanair European Bases Manager, Emer O’Callaghan about the differing treatment she and her colleagues received. The letter was dated December 4th, 2011 but it was not given to Ryanair until July 18th, 2012. The Tribunal stated:

“This was well outside the time delimited in the grievance procedure for the raising of grievances,”

Ms Jabczuga’s main grievance was being overlooked for promotion and promotion for cabin crew is based on average spend, attendance and general performance. The tribunal stated that on foot on evidence provided by Ryanair, it was satisfied that Ms Jabczuga was not unfairly overlooked for promotion. The tribunal stated that in this case, Ms Jabczuga failed to fully engage with and exhaust the grievance procedure available to her.

“In resigning in circumstances that a claimant asserts amount to constructive dismissal, such claimant must act reasonably. This includes affording her employer an adequate and reasonable opportunity to address and remedy any grievance. By resigning before the grievance procedure had run its course the claimant did not afford this opportunity to the respondent and the Tribunal is satisfied that she did not reasonably in so doing.”

As above, the case of Jabczuga can be distinguished from the Complainant’s case. The Respondent failed to protect the Complainant’s safety, health and welfare at work and as a result, she suffered a deterioration in her mental health problems. The Respondent’s Bullying Procedure did not adhere to the HSA Code of Practice as the Respondent failed to conduct an investigation into the Complainant’s complaint of 5th December 2017 nor was there any right of an independent appeal against the Investigator’s Findings.

               Sylwester Prochnicki v Harvey Nichols (Dublin) Limited [2012]

In Sylwester Prochnicki the Tribunal was heavily influenced by the employer’s adherence to the grievance procedures. In general, an employee should invoke the employer’s grievance procedures prior to initiating a claim for constructive unfair dismissal, in order to be in a position to assert  that the decision to resign was reasonable in the circumstances.

The claimant, in this case, was found not to have acted reasonably as he had not fully engaged with the grievance procedure. In deciding not to appeal the decision, the claimant effectively negated any previous conduct that may have entitled him to consider himself to be constructively dismissed. 

Further, the Tribunal held that in constructive dismissal cases, the conduct of both parties will be examined in addition with all the circumstances surrounding the resignation, in order to establish whether or not the decision of the employee to resign was a reasonable one. The reasonableness of both the employer and employee’s actions is, therefore, a significant factor in cases of constructive dismissal.

In the Complainant’s case, as cited above, there was no appeal right against the Investigator’s decision and therefore the facts of the case can be distinguished from Sylwester Prochnicki.  

Further, in the case of Catherine Hurley v An Post [2018] IEHC 166 the High Court confirmed that an employer has a common law duty to "take all reasonably precautions of the safety of its employees and not to expose them to a reasonably foreseeable risk of injury". It also confirmed employers have a statutory duty under the Safety, Health and Welfare at Work Act 2005 to protect, so far as is reasonably practicable, the safety, health and welfare at work of its employees. Such an obligation requires an employer to have in place protective and preventative measures to prevent both physical and mental injury.  The Court found that Ms Hurley's deteriorating physical and mental health, including the recognisable psychiatric illness (PTSD) that should have been reasonably foreseeable by her employer, was caused by the workplace bullying she experienced.

We would also refer to Rehab Group v Ms Annette Roberts (2020) UDD2026 in support of our claim. In this case,the Appellant was employed by the Respondent as a training co-ordinator/instructor in 2001. The Appellant claimed that she was bullied by Ms X, a colleague and that the Appellant raised a complaint with her manager on 4th January 2018. This incident resulted in the Appellant taking sick leave due to work related stress. The Appellant’s complaint was not dealt with despite a number of interactions with her manager. The toxic and dysfunctional atmosphere left the Appellant with no option but to resign on 20th April 2018. The Appellant lodged a claim of constructive dismissal, which the Adjudication Officer found was not well founded as the Appellant had not exhausted the internal process. The Appellant appealed this decision of the Adjudication Officer to the Labour Court.The Court noted that in the course of the hearing, many allegations were made against Ms X and that those allegations were never investigated by the Respondent. In order to determine whether the Appellant was constructively dismissed, the Court considered the “Contract Test” and the “Reasonableness. Test”.  In considering the Reasonableness Test, the Court referred to Travers v MBNA Limited (UD720/2006) and noted that the Appellant had to display that she had exhausted all internal procedure for dealing with complaints before resigning from their employment. While the Court noted that the Appellant had not exhausted all internal process, consideration was given to other features of the case. The Court noted that the Respondent did not contact Ms X as soon the Appellant’s manager received a complaint or arrange for a conversation under the informal process provided for in its Procedure. The Court found that the actions taken by the Respondent were neither reasonable nor in accordance with their own procedures and reflected the lack of care shown toward the Appellant.

It would be our submission that irrespective of our contention that the Complainant did indeed exhaust all internal remedies, that the Respondent’s actions were neither reasonable nor in accordance with their own procedures and reflected a lack of care towards her. The Investigation undertaken  following the Complainant’s resignation on 2nd August 2019 was significantly flawed as none of the substantive issues surrounding the manner in which the Respondent dealt with the bullying complaint were addressed and the Complainant’s only remedy thereafter was to therefore issue a complaint to the WRC to determine this matter.

It would be our submission that the Respondent failed to put in place protective and preventative measures in its Bullying Policy to ensure that the Complainant’s complaint of bullying made on 5th December 2017 was investigated. The subsequent actions of the Administrative Manager in instigating disciplinary actions against the Complainant breached the Respondent Company’s internal grievance and disciplinary procedures and the Workplace Relations Code of Practice on Disciplinary and Grievance Procedures. It is our contention that on the balance of probabilities, the disciplinary action taken against the Complainant was precipitated by her complaint of bullying and that therefore she was subjected to victimisation. The Administrative Manager was informed on 5th December 2017 by the Complainant that she was suffering from stress and anxiety related symptoms as a result of the bullying that she was subjected to. The Respondent, therefore, not only failed to protect the Complainant upon her return to work on 21st December 2017 but directly attributed to her mental health problems through their actions culminating in her sick leave from 23rd March 2018 and her resignation on 2nd August 2019 on the grounds of constructive (unfair) dismissal.

At Page 8 Paragraph 4.5 of the Respondent’s Submission it is suggested that the Complainant could have:

“…returned to work under protest and appealed the outcome of the investigation through the WRC to examine the alleged mistreatment at the hand of the Respondent but chose not to do so…’

It would be our contention that this very suggestion by the Respondent demonstrates a lack of insight to the impact of bullying on the emotional welfare of an employee. In  her resignation letter of 2nd August 2019  the Complainant stated:

“…..I confirm that unfortunately I have no option but to resign from my post due to the bullying behaviour I was subject to from 2017 until the date I commenced long term sick leave on 23rd March 2018…….Furthermore, I made you aware of the fact that I was the victim of ongoing bullying but you did not instigate any measures to ensure that my work situation would change….After consultation with my medical practitioner I have been advised not to return to this employment due to mental health problems caused by the employment…’

The Respondent’s suggestion, therefore, that the Complainant could have ‘returned to work under protest’ was clearly not tenable. After all, the Investigator failed to even address the significant shortfalls in the Respondent’s bullying procedures.

At Paragraph 4.6, Page 9 of the Respondent’s Submission, it is stipulated that the Complainant failed to challenge the findings of the Investigator’s Report on two occasions nor did she appeal the outcome through the IR Acts to the WRC. It would be our contention that, as cited above, no appeal right to the Investigator’s Findings existed and the correct course of action in this case was for the Complainant to lodge a claim to the Workplace Relations Commission for constructive unfair dismissal.

In the Hurley case the High Court endorsed the definition of "bullying" as set out in the Code of Practice as "Workplace Bullying is 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 reasonably be regarded as undermining the individual’s right to dignity at work." The Administrative Manger through her relentless  disciplinary actions against the Complainant and her excessive  monitoring undermined her right to dignity at work to such a degree that it had a profound impact on her mental health.

The Respondent’s conduct amounted to a repudiatory breach of the contract of employment and in such circumstances the Complainant was entitled to resign her position (“the contract test”). The Respondent is guilty of conduct which is a significant breach going to the root of the contract of employment (Western Excavating (ECC) Ltd v Sharp.

Summary of pertinent evidence of Claimant Ms.Linda Cunningham

In her direct evidence the claimant chronicled the history of her career with the company since joining in May 2010 – she was employed for 24 hours a week and was assigned  as a Sales Administrator .She enjoyed a good relationship with her previous manager Ms.K .During the period from 2010 – 2017 no issues were raised with her – she had never been appraised or subject to a performance review .She reported that things changed in 2017 following the appointment of Ms.S – she initially enjoyed a good relationship with her but this changed with the introduction of a new computer system in January 2017.

She set out the errors she encountered with the system  which she asserted she raised with Ms.S and the Financial  Manager Ms.M. She reported that the system was open to error and described having to manually upload despatch dockets and production sheet. When she raised her concerns with Ms.S and Ms.M  she was told that the system did not generate reports yet. The witness described how she looked for advice from one of her managers on how to do credit notes  ; the reply was “ I am not telling you how to do this – you have your notes”.

The complainant said she got not training on how to do spread sheets .The complainant said she rang Mr.McEG and he advised her on how to do a credit note. She was subsequently brought to Ms.S’s office and told not to have further contact with Mr.McEG. She  asserted that in one of her phone calls to Ms.M – her manager asked her “ Do I have to spoonfeed you”. She advised that at a meeting with Ms.S and Mr.McEE  and Ms.O’T she was informed that she was being redeployed to a role on Purchase Ledger , Payroll and Reception. The complainant said this was a full time position. Ms.O’T was doing that role on a 40hr a week arrangement. The complainant said there was no explanation for the move and was told it was going to happen across  the Board. When she expressed  concern about the 40 hr.week – she was told she would have time to do the work and her concerns were not taken on board. There was no minutes taken of the meeting. The complainant said she received training for one hour a day over a 2 week period from Ms.O’T.She stated that after that she was no longer permitted to ask Ms.O’T what to do in the new role. The witness said she went to Ms.S indicating that she was willing to work more hours but she replied that the company was not in a position to give her more hours. The witness said that she went to  Ms.S voicing concerns about the system every day and told her that remittances and invoices were piling up .The complainant set out her ensuing interactions with Ms.M  and asserted that Ms.M was roaring down the phone to her.

The complainant said she felt totally lost .She was called to a meeting with Ms.S on the 5th.Dec where she was presented with job specification .She said Ms.S was blaming her for errors on the system that she did not do. The witness reported that she told Ms.S that she felt she was being bullied – she left the meeting extremely upset and went to  her GP who signed her off with stress and anxiety for 2 weeks. At her return to work interview on the 21st.Dec. she told Ms.S that her absence had been due to work related stress and bullying by Ms.M . Ms.S gave her a copy of the company’s bullying and Harassment procedures and told her to read it and come back with her decision. She  said she was advised that the formal route was very serious , that it would involve senior management and  was asked did she want to go down that route. The witness said she went back to Ms.S and said she wanted to do the informal procedure and Ms.S replied that was okay.

The  claimant referenced the ensuing email dated the 22nd.Dec. 2017 to the claimant in which Ms.S noted “ after being provided with company’s Bullying and Harassment Procedure ,that you decided to withdraw the comments /allegation and not to” proceed any further in making a formal complaint “.Ms.S stated in the final paragraph that “ on matters of underperformance , the company will write to you separately identifying the areas where improvements are required and to outline  performance improvement plan”.

The complainant referenced the ensuing meetings and interactions with Ms.S from the 12th.Jan 2018 – 8th.Feb. 2018.The complainant asserted that Ms.S kept blaming her for errors .She contended the errors were systems errors and not of her making. She said she kept asking for assistance and telling her that work was piling up. The claimant left the meeting of the  15th.January in tears .The complainant said that she was not informed of her entitlement to representation at the meeting. Ms.S asked her to sign  Ms.S’s record of the meeting but she refused to do so as the record was inaccurate .The complainant was asked if  she raised any concerns when presented with a job specification on the  16th.January – she replied that she said it was impossible to fulfil her duties within the 24hour per week allocation. The claimant said she was not advised of her right to representation when asked to attend a meeting on the 29thMarch.The claimant’s representative referenced medical reports  asserting that the respondent was well aware that the complainant was unable to attend work because of stress and anxiety. The representative also referenced exhibit 3 of her own submission which recorded an exchange between the complainant and Mr.McE  dated the 13th.Sept. 2019 where the complainant referenced stress , anxiety and medication and exhibit 6 which contained a record of the meeting between the complainant and Mr.McE on the 21.10.2019 where the complainant referenced medication  and counselling. When asked about her reaction to the investigators report  that did not uphold her complaint , the complainant  said  it was horrible . She said she had always been strong and confident .She said she had 2 young children and was not fit to get out of bed.

Under cross  examination , the complainant confirmed receipt of her contract of employment and the company handbook .I t was put to the claimant that she delayed in making the complaint about Ms.S and Ms.M -and did not raise the matter until the 5th.Dec. 2017 .The claimant responded that she went to Ms.S – it was not a written complaint but she told Ms.S she was being bullied. The respondent’s representative referenced the parallel systems arrangement which took place when the new system was introduced – this was done he said to facilitate the change over.He put to the claimant that a 2 day training package was organised for Aug . 2016 .It was put to the witness that she had full training and ongoing support from Ms.M . It was put to the witness that Ms.JS found that the complainant was having difficulty adapting to the new system. The witness disagreed and said if she had got proper training from Ms.M she would not have had a problem. She agreed she felt the system was open  to error.W hen it was put to the witness that an advanced course in Excel was organised the complainant said she was not an expert in Excel .The complainant accepted there was some training provided on the new system. It was put to her that she made no allegation against anyone from Jan-Dec 2017 – she replied I put my complaint in in  Dec. 2017.The witness said she had raised issues  with Mr.T regarding reports not being generated by the system .She confirmed that she made no complaints to him about bullying behaviour. She would have been in and out to the office with him but did not raise a bullying complaint. The complainant said that at the meeting in Dec. 2017 , she referred to ongoing bullying by Ms.M and mentioned a phone call. The witness said Ms.S gave her an hour to think about the procedure – that the formal procedure was very serious  , would involve senior management and did she really want to go down that road. She said  she  wanted the informal procedure.

It was put to the complainant that all Ms.S did was quote from paragraph 2 of the company bullying/harassment procedure. The complainant replied she felt it was a  threat .It was put to her that the manager simply quoted from the policy as opposed to the representation of the matter by the complainant in par 11 of her submissions. The complainant replied that she felt totally threatened – it was very serious going down that road. The complainant said I told her 100% I wanted the informal procedure. The complainant was asked if she approached Ms.M about her behaviour and she replied No she went to her manager. It was put to her that  the procedure provided that she could have contacted  Ms.M herself and the complainant replied she thought she had acted correctly in going to her line manager.

The respondent’s representative referred to Ms.S’s letter of the 22nd.December and asserted that the language contained therein was very clear – Ms.S was treating the matter as closed. The complainant replied she felt very threatened as the same letter referenced underperformance . The complainant was asked if she reverted to Ms.S  after receiving the letter and she replied “ No  because I felt so threatened”; she was returning after sick leave for stress and anxiety and she felt a knife through her. She was asked why she did not respond and  she replied “ because I felt so threatened”. The complainant said that when she put in her complaint, the bullying got 100 times worse .She accepted she should have raised it with Mr.T  but felt it would get a lot worse. The complainant repeated 100% I wanted the informal procedure. The complainant denied that any performance issues had been raised with her prior to the Dec. 2017 meeting .She said she could not be blamed for errors on the new system. The complainant was referred to the meeting of the 15th.Jan 2018 and was advised that Ms.S would say that the complainant did not dispute the minutes of that meeting. The complainant responded that she did not sign them as she did not agree with their contents. The claimant said she had gone to Ms.S and stated that there was no way she could get the work done within the 24 hour part time allocation .It was put to her that in accepting the minutes she had signed off on them – she replied she should not have signed her name. It was put to her that this plan was devised to help her manage her workload and provide role clarity. The complainant said she also had to cover reception and Ms.S knew she was not getting the work done.

The complainant accepted she did not revert in writing to Ms.S to dispute her record of the meeting  of Jan 15th.- the complainant said she did go back to Ms.S but did not do so in writing .She accepted she should have recorded her position back in writing .She asserted she was incorrectly accused of adding VAT to wages – she reiterated that she was accused of errors which she did not do. The complainant said these issues were being raised after she had lodged a bullying complaint. She said when she went to Ms.S the bullying got worse. She denied that Ms.S’s plan was to assist her to improve her performance. It was put to the claimant that she did not raise a complaint in writing between 21st.Sept. 2017 and the 31st.March 2018.The complainant replied that she did make a complaint on the 5th.Dec. 2017.She said I should have made a formal complaint but I didn’t. The complainant said there had never been a previous complaint – she sat in tears in the office and cried most days. When asked why she did not make a complaint between the 21st,Dec2017  and the 31st.March 2018 , the complainant  said she felt threatened with references to disciplinary procedures. It was put to her that Ms.S was dealing with objective evidence of underperformance which the complainant was representing as bullying. The complainant replied that the  errors were not of my making and that she never put VAT on wages. It was put to the complainant that she signed off on the work schedule on the 18th.Jan – she said she did sign off but told Ms.S that she would not get the work done in 24hours.The complainant accepted that between the 22nd.Dec. 2017 and the 31st.March 2018 she never mentioned  bullying.  She did not raise issues re.Ms S because of the way it was dealt with and asserted that she had no option but to leave a job she loved.

The complainant accepted that she was in contact wth Ms.S during this time frame – she was asked why she did not tell Ms.S that she could not return because of the workplace environment – the complainant replied that Ms.S knew it was work related since her initial period of sick leave for 2 weeks in December. The complainant said she was in no fit state to pursue the matter – her mental health had suffered and she had to go on medication. When it  was put to the claimant that her manager took no disciplinary action against her the complainant respondent that Ms.S stated disciplinary procedures would be taken. The complainant said Ms.S’s letters of the 12th and 15th.Jan referred to disciplinary action. It was put to the complainant that the disciplinary process would be invoked if the performance improvement plan failed. The complainant replied that the letters referred to disciplinary action. She reiterated that errors were only noted after she put in a bullying complaint. It was put to her that it was incorrect to say that she had been disciplined – that she was being told where it would lead to if the improvement in her performance did not take place. It was put to  her that if she had been disciplined there would have been a meeting , sanctions and an outcome. It was put to the complainant that the catalogue of meetings held in early 2018 with Ms.S were normal meetings regarding ongoing work and they did not constitute bullying. The claimant replied that she was being called to the office everyday after putting in a complaint. It was put to the complainant that she did not raise the issue of support until 2019  and that Ms.S and Mr.McE would give evidence of providing the complainant with substantial support. The complainant replied that after her role changed on the 7th.Sept. 2017 she was not allowed to enquire off her colleague how to do anything. When asked if she expressed reservations about the letter of the 8thMarch inviting her to a meeting at the end of March with Ms.S and Mr.McE and if she indicated that she viewed this as bullying , the complainant replied that she felt she did n’t have a voice – she did not bring it to anyone’s attention and she went on long term sick leave – the first cert referenced a chest infection.

When asked why she did not write to Mr.McE or Mr T  the complainant replied that she felt she had nowhere to turn  and the bullying got worse. The complainant was advised that she could have made a complaint way back to the CEO  and she relied she should have. She accepted there were 3 people she could have mentioned it to and  she replied I didn’t and I should have. She said she was not fit to reply to the company letter of Sept. 2019 requesting her to reconsider her resignation. When asked how the company could have been aware of the allegations when they were not raised with them , the complainant replied that she raised them with Ms.S on the 5th.Dec. 2017.She confirmed she did not raise the allegations about Ms.S bullying her .

The complainant said she did not respond to Mr.McEs request for comments and submissions on his report  as she thought the report was final. It was put to her that she was given an opportunity to comment – she replied she did not know why she did not respond. She thought the findings were final and did not realise she had to appeal. She confirmed that while she complained the investigation process was flawed and had an opportunity to raise issues of concern , she did not do so. It  was put to the complainant that the Board were unaware that she was unhappy with the outcome of the investigation. The complainant clarified that she was in receipt of illness benefit from the 3rd.April 2018 to the 16th.August 2019.She was on job seekers allowance from 17th.Augst 2019 – 15 July 2020.At the end of July 2020 she started caring for her father and received the carers allowance.

On re-examination the complainant was referred to the meeting of 29th.July 2017 – having worked in Sales Administration since 2010 she was told of her change of role without consultation. The witness said she was very upset at the meeting of the 5th.Dec. 2017 with Ms.S – she referred to the phone call with Ms.M and referred to  ongoing bullying .The witness confirmed there was no minutes of the meeting .She said she was very upset at the return to work meeting on the 21st.Dec.The witness said Ms.S gave her the procedures and asked did she really want to go down that road. She was asked what was her reply and she stated “I wanted to do informal procedures”. The witness said that when she received the letter of the 22nd.Dec. from Ms.S she went to the car and cried. She said this was the first time she got a letter about underperformance. She said she did not reply to the letter as she felt threatened with underperformance and her job. She said that at the 15th.Jan meeting she was being blamed for errors she did not do. The witness confirmed she was not advised she could have a representative present at the meeting.  She said it was a horrible time and she was receiving letters about disciplinary procedures. The witness said that in hindsight she should have gone to senior management .She felt she had nowhere else to turn .She said Ms.S saw her in tears in her office. She felt she was being disciplined. The witness said all of these meetings started after she made a complaint of bullying .The witness said other colleagues would have seen her leaving Ms.S’s office. She went on long term sick leave as she could not take it anymore. The witness said her GP put her on medication and she could not leave the bed.As regards the suggestion that she could have approached Ms.M directly , the witness said she was not an approachable person. When asked what were her expectations of the informal process the witness said she thought there would be an informal meeting that could resolve it and she expected it would stop. The witness said she was waiting for Sarah to come back to her with the informal process.

The following closing submissions were furnished by the complainant’s representative :

This is our closing submission on behalf of the Complainant Linda Cunningham. It is our contention that the Complainant has established her case for Constructive (Unfair Dismissal) in accordance with Section 8 of the Unfair Dismissals Act 1977. The Complainant tendered her resignation on 2nd August 2019 on the basis of a repudiatory breach of her Contract of Employment as the Respondent undermined core elements and all trust between employer and employee.

We do not intend to reiterate the contents of our 16 Page Submission lodged with the Workplace Relations Commission and would respectfully ask that the Adjudicator take contents of same in determination of this case. We will focus on this closing submission on the issues that were borne out as a result of the two day hearing that took place on Monday 27th and Tuesday 28th February 2023 and the oral evidence of the Complainant and the Respondent witnesses.

In giving evidence the Complainant made frank and open disclosures about the manner in which she was treated by her employers. She stated that no issues arose with her employment since she commenced as a Sales Administrator on 18th May 2010 until the new computer system was put in place in January 2017. The Complainant was called into a meeting on 29th July 2017 and informed that her role would be changed to that of Purchase Ledger. The Adjudicator is aware that the Respondent disputes a role change but rather a “task change” and referred to the Complainant’s terms and conditions of employment. The written terms and conditions of the Complainant’s employment did not however reflect the reality of  her day to day role from 2010 to 2017  and did not include purchase ledger duties and reception (other than cover) but rather Sales Administration. Indeed, the final investigation report by Mr.McE at Page 7 specifically refers to “change of role”. The fact of the matter is that although Administrative Manager Ms.S in evidence repeatedly referred to “task change” not “role change” this was indeed a change of the Complainant’s role to that of the full-time Purchase Ledger which represents a unilateral variation of her contract without any consultation. The Administrative Manager, the Finance Director Mr.McE and Director Mr.T  all stated during cross examination that there were no written minutes taken of this meeting. The Adjudicator heard evidence from the Complainant that she expressed her concern at this meeting that she was expected to take on a full time role in 24 allocated hours. The Adjudicator also heard from Ms.S   during cross examination state that the Complainant did approach her to ask for additional hours to complete her tasks but that this was not only denied by the Board but that she did not support this request.

It is striking that Ms.S , Mr.McE  and Mr.T were unable to provide any evidence to substantiate their claim that a former 40 hour role could be performed in 24 hours. In addition, none of these witnesses provided credible evidence to justify why the Complainant’s role was changed after 7 years of service.

In terms of the new system in place all three witnesses admitted that the new system had “teething problems” yet it is quite apparent that the Complainant was blamed for any errors that were quite frankly beyond her control. Ms.S admitted during cross examination that the Complainant had approached here to express misgivings with the new system, particularly surrounding the running of reports. The new system unlike the old system did not automatically run reports to reconcile figures and as a result the Complainant created a manual reports but made clear that it was open to human errors.

Ms.M  was not present on behalf of the Respondent to give evidence to refute the allegations of bullying made by the Complainant.

The Complainant gave evidence of the bullying and undermining incidents leading to her disclosure of bullying at the meeting with Ms.S  on 5th December 2017. Ms.S  accepted in cross examination that the Complainant was extremely distressed that day. When questioned why she had written to the Complainant to state that she would write to her about her complaint but failed to do so, she was vague in her response.

In cross examination Ms.S  accepted that she had no formal training in bullying procedures under the Safety Health and Welfare at Work Act 2005 and the Code of Practice for employers and employees on the prevention and resolution of bullying at work issued by the Health and Safety Authority in 2007.

During cross examination when asked why she did not make a formal referral of the bullying complaint to a designated person in accordance with the aforementioned Code of Practice she stated that she wanted to treat the complaint confidentially yet later admitted that she had spoke to Mr.T about it. The manner that the initial meeting of 5th December was addressed by the Respondent company is not only highly questionable but also no formal minutes or a record of that meeting was taken by Ms.S . It is also remarkable that no referral was made at this point to a designated person with the appropriate training and experience to deal with the complaint of bullying. Indeed, Mr.McE  also admitted in cross examination that he was  not trained  in bullying procedures. What was also noteworthy about the cross examination evidence of Mr.T  is that he appeared to treat the bullying complainant in a rather flippant manner when he said that he informed Ms.S that she should let the Complainant “go home and cool off”. This attitude towards bullying complaints flies in the face of the HSA Code of Practice which emphasizes the importance of the initial handling of a bullying complaint which should be addressed in accordance with a comprehensive policy to ensure that the welfare of employees is protected.

In cross examination Ms.S  admitted that she did not take any formal minutes or records of the meeting with the Complainant on 21st December. She accepted that during the back to work interview the Complainant disclosed that her sick leave was due to work related stress symptoms and indeed this was recorded on the Back to Work pro forms. Ms.S  when questioned why she did not take precautionary action to protect an employee’s emotional welfare by making a referral to Occupational Health following this disclosure was unable to answer. She stated that she did not put a time limit on the Complainant returning to confirm what bullying process she would follow and this is disputed. The Complainant in evidence stated that she was given an hour to make up her mind. Ms.S stated that the Complainant returned after 5 minutes but has no formal record to substantiate her claim. The Complainant clearly stated in evidence that she informed Ms.S  that she wished to pursue the informal bullying procedures. This was denied by Ms.S  but she had no formal minutes or record of this extremely important meeting to validate her claim.

The fact that the Complainant was provided with a letter the very next day 22nd December 2017 that referred to decision to “withdraw the comments/allegation and not to proceed any further in making a formal complaint…” without any reference to the informal complaint is further evidence to support the Complainant’s assertion that she did not withdraw the complaint. We would contend that an objective reasonable bystander would conclude that the reference to “underperformance” in this letter was a punitive measure and, in the absence of any evidence to the contrary, one can only conclude that it was motivated by the Complainant’s complaint of bullying. Ms.S  in cross-examination stated that she had “no agenda” yet was unable to produce any written evidence that there was an issue with the Complainant’s underperformance before this date. The fact that what can only be described as reference to disciplinary action on the grounds of capacity was referred to in this letter was more than “unfortunate” as described by Ms.S and Mr.McE. The HSA Code of Practice for the Prevention and Resolution of Bullying at Work makes clear reference to the pivotal role in handling bullying complaints effectively in order to alter the culture of bullying in the workplace. Bullying at work is defined at 3.1 as including not only blame for things beyond the person’s control, excessive monitoring at work but also intimidation. It would be respectful our submission that the letter of 22nd December 2017 should be treated as more serious than an “unfortunate” incident, as the Respondent has attempted to assert, because of the manner in which it could reasonably be interpreted by an employee as punitive in nature for making the bullying complaint.

That the Respondent representative, Ms.S and Mr.McE  attempted to suggest that the Complainant was in the wrong for not going back to Sarah Sweeney to pursue her complaint of bullying demonstrates a total disregard to the fact that the Complainant has already disclosed she was suffering from mental health issues as a result of the workplace. A reasonable objective bystander would interpret the letter as intimidating and punitive in nature with the reference to “underperformance”. The Respondent failed to take any action to protect the emotional welfare of the Complainant by subjecting her to excessive monitoring and meetings from 12th January 2018 to 8th February 2018. These meetings were disciplinary in nature yet the Employer failed to follow any internal disciplinary procedures and did not comply with the WRC Code of Practice on Disciplinary and Grievance Procedures.

Ms.S attempted to assert that the meetings were “performance reviews” rather than disciplinary meetings yet was unable to provide any evidence of Company procedures, processes, policies or pro forma templates on conducting performance reviews of employee’s work. She also admitted in cross examination that no previous formal performance review or appraisal had taken place on the Complainant’s work over the past 8 years since she commenced employment in 2010. In addition no other employee in the office was subjected to a “performance review”. The very reference to “underperformance” is suggestive of capacity to perform and the actions of the employer in subjecting the Complainant to excessive monitoring and meetings can only be interpreted as punitive and disciplinary in nature. The Adjudicator questioned Sarah Sweeny about the rationale for stating in a letter to the Complainant on 8th March 2018 that Mr.McE would be in attendance at the meeting on 29th March 2018. This in itself should be viewed as disciplinary in nature.

It is noteworthy that Ms. S  stated that she did not witness the Complainant distressed during these meetings which contradicts not only the latter’s evidence that she was crying in many of these meetings but also that of the witness Ms.O’T who confirms that she left the office several times crying. We would assert that the evidence from Ms.S  that she did not witness the Complainant distressed is simply not credible and conflicts with her statement that she had an “open door policy”.

In terms of Mr.McE’s evidence, we would submit that he demonstrated a lack of integrity and credibility when under cross-examination by his attempts to backtrack in his Final Report by suggesting that he did not mean to say “disciplinary process” but rather “performance review”. The fact that he referred to the flawed disciplinary process in both Page 10 and 11 of his Final Report and then attempted to do a U-turn demonstrates that the investigative process was not independent or partial. That he would damage his own reputation as a witness by doing this in order to side with the Respondent’s defence of this case speaks volumes. The Respondent representative’s feeble attempts to justify his actions in back pedalling by referring to the heading of “performance review” is simply not believable.

The Respondent’s representative on several occasions attempted to assert that the Complainant did not exhaust all internal procedures by making further comments on Mr.McE’s Final Report should be viewed as simply an attempt to redirect blame for the fact that the Respondent’s investigation process did not adhere to the HSA Code of Practice for employers and employees on the prevention and resolution of bullying at work. We refer to the Terms of Reference at Paragraph 16 which states that all parties will have the opportunity to “comment” on the findings before any action is decided by management. We refer to the HSA Code which makes specific reference to an appeals process that should be in place. There was no appeal process in place. The Complainant had already submitted comments on several occasions to Mr.McE as part of the investigative process. There was no further obligation on the Complainant to exhaust internal procedures, as there was no appeal procedure. Furthermore, to suggest that because the Complainant asked for the presence of the author of this submission, Siobhan McCormack from the Citizens Information Centre, at the meeting somehow placed the onus on ourselves to rectify the Respondent Company’s lack of proper processes being in place as part of the bullying investigation is grasping on straws in an obvious attempt to detract away from the employer’s wrongdoings.

We refer to the Labour Court case of G4S Secure Solutions (IRE) LTD v Mr Manuel Charana [2020] where it was stated that:

“..The Respondent has submitted that the Complainant failed to exhaust internal procedures in addressing any concerns he had while in employment and contends that this failure is fatal to the within complaint. The Court does not accept this submission. The Court had been provided by the Respondent with its policy in respect of bullying and harassment. There is no dispute that a complaint alleging such behaviour was made by the complainant. It is clear to the court that having regards to facts as set out, that it is the Respondent and not the Complainant which is guilty of a failure to exhaust available internal procedures..”

In the Complainant’s case the Respondent breached the HSA Code of Conduct on the prevention of bullying at work, its own internal bullying procedures, the Code of Practice on Disciplinary and Grievance Procedures, its own disciplinary policies and the Safety Health and Welfare at Work Act 2005, in failing to protect the Complainant’s emotional welfare when she put them on notice of her mental health problems as a result of work related stress symptoms. It is precisely because the Respondent did not adhere to any procedures or policies that led to the exacerbation of her mental health issues with the consequential effect of her going on long term sick leave on 23rd March 2018.

In terms of loss of earnings for 104 weeks:

Total €33,072

Loss  of social welfare payments:

Working Families Payment (based on minimum 19 hours work)

Total €9672

Total amount

€42,744

Minus Illnss Benefit

€4992

Jobseekers Benefit

€16240

Total

€21,232

Total Loss

€21,512

 The following response to the respondent’s closing statement was furnished to the WRC on the 31st.March 2023.

ADJ-00026684CA:CA-00034004

We do not intend to reiterate the contents of our original submission and closing submission. In this response we will confine ourselves to areas off disputed evidence and application of the case law. We will refer to the Respondent’s closing submission paragraph by paragraph.

First Paragraph

It is clear from the evidence of the Complainant and the cross examination evidence of the Respondent’s witnesses that the bullying and harassment procedures of the Company were defective and that no training was received in contravention of the Health and Safety Code of Practice on Bullying that was applicable at the relevant time. We dispute that the Complainant “failed” to “resolve” her “perceived issues of concern” surrounding the serious allegation of bullying made against Ms.M  Finance Manager. It was not for the Complainant to “resolve” her bullying complaint as her employer was under a statutory duty under the Safety, Health and Welfare at Work Act 2005 to investigate the allegations. To state that the communications with the Complainant “took place in a professional manner” demonstrates a lack of insight to the fundamental importance of having policies and procedures in place to ensure that bullying complaints are addressed in a satisfactory manner, particularly in view of the recognised detrimental impact that incidents can have on the emotional and physical welfare of employees. The fact that there were no recorded minutes of the meetings on 5th December or 21st December nor did the Administrative Manager take steps to discharge the burden of proof that the Complainant stated that she wished to follow the informal bullying procedures.  For example, if the Complainant had indeed stated that she did not wish to pursue either the formal or informal route there was a reasonable expectation that she would have at least been asked to sign a statement to this effect. The Respondent has failed on the balance of probabilities to show that the Complainant withdrew both her informal and formal complaint and,  in addition, there is only reference to the formal complaint in letter dated 22nd December 2017.

First Page Second Paragraph 

The meeting on 5th December 2017 to discuss time plan and job specification was entirely distinct to instigating the disciplinary process against the Complainant for underperformance. The Complainant did not receive any written job specification about her new role as Purchase Ledger until 5th December 2017.

It is noteworthy that the Respondent asserts that witnesses Mr.T  and Ms.S  corrected the Adjudication Officer in her reference to “teething problems” during the hearing as this is erroneous. Mr.T  and Mr.McE  both made reference to “teething problems” with the new system in evidence and Ms.S.

We reiterate that the Respondent has failed to discharge the burden of proof that the Complainant did not  withdraw the bullying complaint and has produced no evidence to support this assertion.

The suggestion that the Complainant was subject to a “pathway of progressive  performance” rather than a disciplinary process for underperformance that was punitive in nature should not be given any weight in view of the fact that the Respondent was unable to produce any written evidence of such policies and procedures. It is of note that the Complainant since the commencement of her employment to the date of her bullying complaint was not subjected to any formal performance review procedures and she was the only one in the office singled out for such underperformance disciplinary meetings. In the absence of any credible evidence to the contrary, one can only conclude that the disciplinary meetings on alleged underperformance were conducted and directly attributable to the Complainant’s complaint of bullying.

We reiterate our statement about the references to disciplinary processes in Mr.McE’s  Investigation Report.   

Third Paragraph

The underperformance meetings conducted by  Ms.S  were disciplinary and punitive in nature. It is noteworthy that the Respondent refers to the bullying code of the 2007 HAS COP P5 Sec 3.1. Notwithstanding that we do not agree with the suggestion that the meetings were reasonable or corrective in nature as they were clearly disciplinary and punitive in nature, the issue in dispute is that no proper internal disciplinary procedures were followed nor was the WRC Code of Practice on Disciplinary and Grievance Procedures, complied with. Indeed, Mr.McE specifically stated this in his Final Report.

2nd Page First Paragraph

The Respondent refers to the case of Ruffley v The Board of Management of Saint Anne’s School unreported [2017] IESC 33/1 in support of his assertion that the underperformance meetings were not “bullying” in nature. We are somewhat confused by this reference as the Complainant’s case is that Ms.M  was the subject of her bullying complaint and that Ms.S instigated disciplinary procedures against her as a result. The Respondent’s reference to Justice Charleton’s judgement that “…Sometimes a disciplinary intervention may be necessary.” appears to support our case that the underperformance meetings were indeed disciplinary in nature. It is of note that Ms.M  was not present at the hearings to defend the Complainant’s case of bullying against her nor was any explanation for her absence offered by the Respondent.

Second Paragraph

With regards to the Respondent’s reference to Redmond on Dismissal Law inIreland, Section 15.32 that it is necessary for the employer to first establish a reasonable performance standard prior to the issue becoming a disciplinary one, it is the Complainant’s case that there was not performance standard established by her Manager. The Complainant was subjected to underperformance meetings that were disciplinary in nature and the Respondent was unable to show any evidence of policies or procedures on company performance review plans. In addition, the Respondent had no written evidence of the Complainant underperforming in her role prior to her complaint of bullying.

Fourth Paragraph

We reiterate the contents of our previous submissions that the Complainant had already submitted feedback to Mr.McE  Investigator and it was the Respondent who breached the HSA Code of Practice on Bullying Procedures by failing to have a formal appeal procedure in place as part of the investigation process.

We do not intend to comment on the Respondent’s misapplication of our reference to case law that we have cited in our previous submissions save to state that the Complainant did not withdraw the bullying complaint and her resignation on 2nd August 2019 was directly attributable to the Respondent’s treatment of her which exacerbated her mental health condition as verified by her doctor in letter 16th June 2021. The Complainant was on sick leave from 23rd March 2018 as a result of stress related mental health issues due to her treatment at work.  The cases of Beatty v Bayside Supermarket UD 142/1987   and Conway v Ulster Bank Ltd UD 475/1981 can be distinguished as the Complainant in the case before the Adjudicator is not at fault in failing to exhaust internal procedures but rather the Respondent failed to adhere to bullying and disciplinary procedures and, as a result, the claim for constructive dismissal is proven.

It is our submission that the case of G4S Secure Solution (IRE) LTD v Mr ManuelCharana is indeed applicable to this case as the Respondent did not follow any proper bullying or disciplinary procedures.

The reference to the Complainant returning from sick leave on 21st December and Page 20 of the return to work form in relation to remedial action is another attempt by the Respondent to attribute blame. It is quite remarkable that the Respondent’s representative made no reference to the fact that the Complainant disclosed on this same form that she was suffering from work related stress symptoms and the Administrative Manager failed to take any action to protect her welfare under the Safety Health and Welfare at Work Act, 2005. Not only did she fail to protect her emotional welfare but she instigated underperformance meetings of a disciplinary and punitive nature that directly contributed to the Complainant’s exacerbation of stress related mental health issues resulting in her long term sick leave, prescribed medication for anxiety and stress and referral to a Psychologist for Counselling.

With regards to mitigation of loMs.S, we have already submitted evidence that the Complainant made significant efforts to obtain employment. 

1.0       Introduction

1.1         The within claim by the Claimant against her former employer,  the Respondent is brought under the Unfair Dismissals Act 1977 to 2015.  In the claim form lodged with the WRC the Claim is for constructive dismissal. 

1.2         The fact of dismissal is in dispute. It is the Respondent’s position that it did not dismiss the Claimant but that she resigned voluntarily of her own volition and that the Respondent neither breached the Claimant’s terms and conditions of employment nor did it act unreasonably such as to allow the Claimant to seek relief under the Acts for constructive dismissal. The Respondent therefore respectfully requests that the Adjudication Officer reject this claim.

2.0       Background to the Respondent

2.1          The Company is a subsidiary of its International  Parent, which is a leading producer of pelagic fish products for human consumption and to the ingredient market for protein concentrate, fishmeal and fish oil. It is a Europe wide enterprise operating in Norway, United Kingdom, Denmark and Ukraine.

               The current Board of Directors includes  Mr . T and Mr  Mc.E

               The Company, during its peak seasons, employees over 33 employees and prides itself on the relatively low level of staff turnover and indeed has many employees with long term service of over 20 years or more.

3.0       Background to the Claimant

3.1         The Claimant commenced employment as a General Office Administrator with the Respondent from 18 May 2010 on a 24 hours per week contract (3 days). A contract of employment was provided and signed on 1st June 2010.  

3.2         In January 2017the Respondent implemented a new Enterprise Resource Planning (ERP) system moving from CODA to Microsoft Dynamics AX with the switch over taking pace on 01 January 2017. In the run-up to the switch over from CODA to Microsoft Dynamics AX, a period of parallel running of both systems was implemented from 01 July 2016 to 31 December 2016. Full training was completed with ongoing mentoring by Ms.S  and Ms.M  and training by independent consultant , Enterprise Resource Planning Business Solutions consultant at Incremental Group.

3.3         Throughout the implementation phase of the changeoverperiod the Claimant appeared to have difficulty adopting to the new system with a lot of errors in reconciling stock levels among other issues. The claimant commenced compiling a manual spreadsheet report to try and resolve the issue however by month end of April 2017 there were major differences in stock levels as accounted for on this manual report to the actual monthly report of finished stock from the AX system.  This resulted in the necessity for the Respondent to conduct a full internal audit in the week of 15 – 19 May with the assistance of (JS), an independent consultant, again highlighting significant irregularities.  The claimant put these discrepancies down to weighbridge errors however the conclusion was that information had not been correctly recorded and reconciled.  Ms.M  , Finance Manager, informed Ms.S Office Manager, of the results and Ms.S  worked with the Claimant from 22 May to 22 June to try and identify the issues of concern and find a resolution.

3.4         On 29 July 2017 after a departmental meeting it was agreed to swap tasks between the two administration personnel (Ms.O’T & The claimant). Full training was to be given and tasks assigned and agreed between the administration employees, so that the workload was proportionate and fairly distributed. This meant the Claimant changed role/task primarily from Sales/Stock Administrator to Purchase Ledger/Payroll Administrator. Roles/tasks the claimant was familiar with.

3.5         After this meeting, further meetings were held to agree the tasks that would now be re assigned. The new systems of work were explained, a training plan was developed and full training was provided. Weekly departmental meetings were also held to discuss any issues arising.

3.6         The difficulties in adopting the new elements of the ERP system continued over the ensuing period which required regular one to one meetings with Ms.S  in an attempt to address the issues of concern and remedy the errors.  During this period of time the Claimant also attended training conducted by Ms.M ,Ms. CO’T and Ms.JS, an independent consultant, was also in attendance for support.

3.7         On 05 December2017during a routine departmental meeting the Claimant mentioned to Ms.S  that she felt she was being bullied.  On 06 December 2017 the Claimant was on sick leave submitting a medical cert indicating she was suffering from stress and would be fit to return to work on 21 December 2017.  On the Claimant’s return to work Ms.S conducted a back to work interview where the Claimant indicated that in her belief the cause of her absence was work related and that she felt she was being bullied.  Copy of return to work interview document attached. Ms.S gave the Claimant a copy of the Respondents Bullying and Harrassment procedure in order to allow the Claimant to decide how she wished to proceed.  MS.S outlined to the Claimant that management took such issues  very seriously and if the Claimant wished to make a complaint of Bullying and Harassment it would be investigated by senior management.

               The Claimant returned to Ms.S in a very short period of time stating she did not wish to pursue a complaint.  The Claimant alleges that she indicated that she wished to make an ‘informal complaint’.  However, Ms.S’s recollection of the meeting was that the Claimant withdrew the allegations Ms.S confirmed in writing to the Claimant on 22 December 2017 stating “It is noted that after being provided with the Company Bullying and Harassment  Procedure that you decided to withdraw the comments/allegations and not proceed any further in making a formal complaint… currently I am treating this matter as closed unless otherwise stated”. Copy of letter attached . Ms.S nor any other member of management received further communication on the Claimant’s allegations until her resignation email on 02 August 2019, some 19 months later.

3.8         In the meantime, the performance issues , as cited above, continued and Ms.S decided to address  the matter formally by inviting the Claimant to a meeting scheduled for 15 January 2018.  Again, the Claimant’s account of this meeting and Ms S’s are poles apart.  The purpose of the meeting was to commence a performance improvement plan to enable the claimant to address  the issues  of underperformance that had arisen. In the minutes of this meeting it be clearly seen that there was a detailed discussion  on specific areas of underperformance including:-

§  Incorrect addition of VAT to wages

§  Credit Reconciliations

§  Stock Transfer Anomalies

§  Poor communication of issues  as they arise

§  Non fulfilment of some duties completely including Purchase Ledger 

During the meeting the claimant put forward that she did not have enough time to complete all tasks however Ms.S asked that if she felt this way to submit a report detailing the issues .  No submission was received.

After the meeting the Claimant was issued  with a copy of a recommended work schedule and a copy of the job specification which the Claimant signed on 18 January 2018. See copy attached . The minutes of the meeting of 15 January were forwarded by email to the Claimant on 30 January 2018.  Minutes attached.

3.9         On 08 March 2018 the Claimant was invited to a further performance meeting scheduled for 29 March 2018.  Unfortunately, other issues of concern had arisen since January 2018 which were documented in the letter of invitation. 

The Claimant commenced a period of certified sick leave from 23 March 2018 initially for a chest infection and followed by stress and anxiety.  During her absence from 23 March 2018 to early August 2019 Ms.S kept in regular email contact with the Claimant.  There was no indication from either the emails or the medical certs that the reason for the absence was work related. Sample copies of certs and email communications  attached.

3.10       On 02 August 2019 the Claimant furnished a letter of resignation to Ms.S alleging bullying behaviour as the reason for her resignation.

3.11       On 06 August Mr. Mc responded to the Claimant  indicating that this was the first time that she had informed the company that her sick leave was due to work related stress  and anxiety and that the issues  raised in her resignation had not been raised prior to 02 August 2019.  Mr.McE  urged the Claimant to reconsider her resignation and to use the respondent’s policies and procedures to address  her issues of concern.

3.12       On 29 August 2019 the Claimant responded to Mr.McE indicating that she wanted the Respondent to instigate the Grievance procedure into her allegations of bullying.  On 13 September 2019 the Claimant submitted a copy of her allegations in writing.

3.13       Mr.McE wrote to the Claimant with a copy of the Terms of Reference for the investigation and invited her to a meeting to schedule for 25 September 2019. Copy of Terms of Reference and Bullying and Harassment Procedure attached .  The Claimant was unable to attend the meeting with Mr.McE and it was rescheduled for 03 October 2019.  The Claimant was again unable to attend this meeting and the meeting was eventually held on 21 October 2019.  Although the Company procedures allow for a colleague to attend such meetings the Claimant asked for external representation and Mr.McE acceded to this request.  The Claimant was represented by Siobhan McCormack of Citizens Information.

3.14       During the ensuing period Mr.McE  conducted a detailed investigation of the Claimants complaints as set out interviewing staff and witnesses  relating to allegations.  Some delays were caused to the process by the Claimant seeking more time to review minutes of meetings and these extensions were acceded to by Mr.McE.

3.15       A copy of a draft report was circulated to all parties on 23 December 2019 for comments on or before 10 January 2020 before the report would be issued  to the Respondents Board of Directors for consideration.   No response or submission  was received from the Claimant and on 15 January 2020 Mr.McE wrote to the Claimant indicating that he would now proceed to issue the final report to the Board as outlined in the Terms of Reference dated 25 October 2019.

3.16       On 20 January 2020 Mr.McE wrote to the Claimant informing her that the finalised report had now been submitted to the Chairman of the Board  and that pursuant to clause 16 of the Terms of Reference to the investigation the Claimant could make any submission to the Board on or before 27 January 2020 in advance of any decision by the Board as to the appropriate action to be taken.  No response was received from the Claimant.   In conclusion, Mr.McEdid not uphold the allegations of bullying made by the Claimant against Ms.S and Ms.M.

3.17       On 27 January 2020 the Claimant submitted a complaint of Constructive dismissal to the WRC.

3.18       On 19 March 2020 the Claimants representative submitted a brief statement on the Claimant’s behalf in support of her claim of Constructive Dismissal .

4.0       Respondent’s Arguments

4.1         The Claimant in this case claims to have been constructively dismissed  by virtue of the actions of her employer on 02 August 2019.  It is the Respondent’s position that it neither acted unreasonably nor did it breach the Claimant’s terms and conditions of employment such that the Claimant could legitimately resign and seek relief for constructive dismissal. It is the Respondents position that in submitting her letter of resignation on 02 August 2019 that this was the first time that the Respondent became aware of two issues  raised by the Claimant :-

1.The Claimant was attributing her medical condition to issues  concerning her employment with the Respondent

2.The Claimant raised several allegations that the Respondent was unaware of prior to receiving her letter dated 02 August 2019.

Mr.McE immediately responded asking the Claimant to reconsider her resignation and to allow the Respondent fully to investigate her allegations.  The Claimant responded on 29 August 2019 indicating that she wanted the Respondent to commence an investigation into her allegations against colleagues.  The Respondent immediately commenced a detailed investigation into the Claimants grievances.

The Respondent submits that the Claimant has not discharged the burden of proof that she was constructively dismissed  and therefore her claim under the Unfair Dismissals  Acts 1977 to 2015 must be dismissed   Section 1 (b) of the Unfair Dismissals  Act 1977 provides that dismissal  includes:-

“the termination by the employee of his contract of employment with his 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.”

4.2         The Employment Appeals Tribunal and the Labour Court have set a very high standard of proof for an employee to relinquish their employment without notice of termination to their employer.  The two tests assigned  to these are the test of entitlement and the test of reasonableness. 

In terms of the entitlement test, the breach of contract being alleged by the Claimant must be either a significant breach going to the root of the contract or one which shows that the employer no longer intended to be bound by one or more of the essential  terms of the contract of employment.  In the case in question, no such entitlement occurred as the Respondent made no significant changes to the terms and conditions of employment of the Claimant entitling the Claimant to quit her position without notice.  The Respondent maintained all aspects of the Claimant’s terms of employment including the availability of a grievance procedure and a bullying and harassment procedure. The Respondent commenced an investigation immediately they became aware of the Claimants grievances.

4.3         The Respondent has demonstrated that it has acted appropriately at all times in addressing  any concerns the Claimant raised regarding her employment. The Respondent submit that the Claimant did not engage with the grievance process  initially to have her complaint dealt with in December 2017.  The Claimant argues that is her position that she sought to engage in the informal process of dealing with her complaint.  However, when Ms.S wrote to the Claimant on 22 December 2017 indicating that she considered the matter closed unless  she heard otherwise it was reasonable for the Respondent to presume the matter had been settled when no response was received from the Claimant.

4.4         It is clear there were ongoing performance issues  highlighted as far back as early 2016.  The Respondent attempted to resolve these through training and mentoring and eventually having to embark on a Performance Improvement plan with the Claimant. 

On receipt of the Claimant’s written complaint appended to her resignation on 02 August 2019, the Respondent initiated an investigation.

4.5         It would appear from the communication timeline around the investigation process  that the Claimant had made a premeditated decision to leave the respondents employment before the process commenced. The Claimant did not respond to the findings of the investigation or seek to appeal the findings to the Board of Directors as allowed for in the Terms of Reference. Ultimately, the Claimant could have returned to work under protest and appealed the outcome of the Investigation through the WRC to examine the alleged mistreatment at the hands of the Respondent but chose not to do so.  In so doing, it is the Respondents submission  that the Claimant failed to exhaust internal procedures, by neither commenting on the draft report to Mr.McE  nor indeed raising any issues  of concern to the Board of Directors.   Failure to exhaust internal procedures is well established to be fatal to a claim for constructive dismissal  The Respondent refers to the case of Conway v Ulster Bank in this regard.  In the case of Duane v Masonry Fixed Services Limited, heard in 2016 the EAT determined that;.

‘ It is incumbent on an employee in a constructive dismissal  scenario to act fairly towards his employer, just as he is entitled to expect to be treated fairly by his employer. Part of this is that he will sufficiently notify his employer of any grievance and allow the employer a reasonable opportunity to resolve it. The claimant did not do so. He resigned before allowing the claimant a reasonable opportunity to resolve his grievances.’

In resigning her position on 02 August 2019 and submitting this was the date on which she considered herself constructively dismissed  it is evident that the Claimant had made a premeditated decision to leave her employment without allowing the Respondent a reasonable opportunity to resolve her grievances.

In the case of Jabczuga v Ryanair Limited   the EAT states:

‘The claimant in this case failed to fully engage with and exhaust the grievance procedure available to her. In resigning in circumstances that a claimant asserts  amount to constructive dismissal  such claimant must act reasonably. This includes affording her employer an adequate and reasonable opportunity to address  and remedy any grievance. By resigning before the grievance procedure had run its course the claimant did not afford this opportunity to the respondent and the Tribunal is satisfied that she did not reasonably in so doing. Accordingly, this claim pursuant to the Unfair Dismissals  Acts, 1977 to 2007 fails’.

Also in Sylwester Prochnicki v Harvey Nichols, UD 1685/2010 the Tribunal found that:-

“The respondent acted in accordance with the grievance procedure and finds that the claimant’s assertions that nothing had changed was unfounded in circumstances where the claimant was absent from work within 2 weeks of the first meeting on 3rd March 2010 until he handed in his resignation.  If there was any conduct such as entitled the claimant to consider himself constructively dismissed  this was negated by the claimant’s failure to appeal the decision taken by the respondent following the investigation of the claimant’s complaint.  Accordingly, the Tribunal finds that the claimant was not entitled to consider himself constructively dismissed  and the claim under the Unfair Dismissals  Acts 1977 to 2007 fails”

4.6         The Claimant did not utilise the opportunity to challenge the findings of Mr.McE’s investigation on two occasions nor did she appeal the outcome through the IR Acts to the WRC and the Respondent Submits that the claimant was not entitled to consider herself constructively dismissed  and the claim under the Unfair Dismissals  Acts 1977 to 2007 fails”

5.0         Conclusion

5.1         In light of the foregoing, the Respondent respectfully requests that the Adjudication Officer rejects this claim in its entirety. The Respondent reserves the right to adduce further evidence during the investigation.

Witnesses

Ms.S – Claimant’s Line Manager

Summary of Pertinent Evidence of Ms.S

               The witness charted her career history with the respondent - she  was just starting off when the new system was being introduced .She said it took a few months to come to grips with it and there was a lot to learn. When the complainant raised the issue  about reports , the witness said she passed  it on to senior management. She spent a number of months compiling data. She was contacted by Ms.M in May 2017 regarding errors in stocks and the weighbridge not working – they were trying to identify the problems and resolve the discrepancy with weights. The witness  said she had no issue  with the level of training – she was learning as well. It was done remotely from Aberdeen and they would contact the team if there were any problems. The witness  referenced the meeting of the 28th.June2017 where the change of tasks between the complainant and Ms.O’T was set out – Ms.O’T would take on the Sales area and the complainant would take on the Purchase Ledger. The witness said they were a small team and everyone had to be familiar with each others tasks so that cover would not be a problem during holidays. They met and went through the tasks – the witness  said the complainant thought she was being asked to do a full time job within a 24hour week .The witness  said she asked the complainant to outline where she was struggling . The witness  said she went to Senior Management and was told that additional hours would not be forthcoming. The witness  said she never told  the complainant not to talk to anybody – she said the complainant was not forthcoming about where she was struggling – she said the complainant was very reluctant to let her know where she was having difficulties. As issues  started  to arise the witness  told the complainant to come to her about the problems rather that to her colleague Ms.O’T. The witness  said she was concerned about the complainant’s completion of tasks – she said she was trying to help her all along. The witness did not recall anything about a holiday request.

             The witness  said that at the meeting on the 5th.December she had draft specifications and a proposed work schedule to present to the claimant – she  said it was only a proposal and that we could sit down and discuss  it – the witness  said the complainant was struggling with time management. The witness recalled the complainant raising  the matter of the phone call of the 29th.Nov.  between her and Ms.M . When asked if the complainant referred to other bullying issues  the witness  replied that is not the case.

              The witness  said she gave the complainant the company bullying and harassment  policy at  the return to work meeting on the 21st.Dec. 2017. She told her if she wished to pursue the matter to come back to her .The witness  said the complainant returned in 5 minutes .The witness did not recall saying anything attributed to her by the complainant in par 11 of her submission. She said that she said the allegation was serious – that there was no problem , we can pursue it – it was up to her what she wanted to do and that senior management would investigate .The witness  denied that the claimant requested the informal procedure. The witness  asked why would she have sent the letter if she had been instructed otherwise by the complainant. She reiterated she would have gone to senior management. The witness  denied that underperformance had not been previously raised with the complainant or that there was a threat of disciplinary procedures. The witness  said the complainant did not respond to her letter of the 22nd.Dec. 2017 so she considered the matter (of the bullying allegation)  closed.

              The witness  referred to the  invite to the complainant  to the meeting on the 15th.Jan 2018 to discuss  the letter issued  to her on the 12th.Jan. 2018.The overall aim was to help her get back on track and deal with her workload. The witness said she was highlighting areas for improvement. The witness said the complainant acknowledged the error regarding the incorrect VAT value. The witness  referenced stock tasks remaining outstanding .The witness said she devised the work schedule  to give guidelines to follow. Ms.S said the complainant signed off on the work schedule on the 18th.Jan and she heard nothing back until she returned on the 6th.Feb.

              The witness denied that the complainant was being asked to do a full time job  on a part  time basis. The witness said there was never a disciplinary process. When asked why she referred to a disciplinary process  , the witness said she had an obligation to highlight that something would have to improve – Ms.S said my motivation was to help the complainant to get on track. The witness said she   the complainant  called to her office on the 7th.Feb. 2018 , she wanted to discuss minutes and include areas that had not been discussed .The witness said she told her she was happy to meet  with her to discuss at another time.

              The witness said she was at a loss  to understand page 8 of the claimant’s submission  where she referenced Harassment and bullying by the witness. The witness did not recall the complainant leaving the meetings set out in page 8 in tears .The witness said the letter of the 8th.March 2018 was an invite to discuss the complainant’s underperformance and the preferred outcome was  to help  the claimant to  perform her tasks. The witness said she was in contact with the complainant on a monthly basis thereafter and was trying to ascertain when the complainant would return.

Under cross  examination Ms.S confirmed the new system  was introduced in Jan 2017 , that                                             reporting was an issue  and there were concerns the system was open to errors. It was put to the witness that the complainant was advised at the meeting in the summer of 2017 , that her role was being swapped with her colleague. The witness replied that   no she was informed that tasks were being changed .The witness confirmed that the complainant’s tasks had changed – her grade remained the same. It was put to the witness that it follows that her role had changed. The witness said there was overlap of tasks between each member who would be required to cover for each other. It was put to the witness that the complainant’s tasks were different to Ms.O’T from 2010-2017 – the witness replied that when the complainant was off work her colleague would manage the sales tasks and there were tasks shared between both of them. It was put to her that the complainant disagreed and maintained that  she was asked to  take  over the Purchase Ledger and reception in the Autumn of 2017.The witness confirmed the complainant was in a different room and that she took over the purchase ledger. The witness did not have minutes of the meeting where the change was presented. When asked if she agreed that she should have minuted the meeting , the witness responded that she did not host the meeting. The witness said there was no variation to contractual terms and consequently the complainant was not consulted beforehand. The witness said the complainant was aware of the errors that were occurring – she was putting data onto spread sheets in error .When asked if she was attributing the errors to the complainant  , the witness replied that the complainant was the main person imputing data. The witness was not sure if the complainant stated   at the meeting that she would not have enough time to complete the revised tasks. The witness was asked why the complainants concerns were not taken on Board and replied that they were in a transitional period , tasks were changing and new software was imminent. When asked why the complainant’s hours were not changed to 40 hours , the witness said she had to look at tasks and examine completion of despatches and who would do afternoon sales.  It was put to the witness that she had told the complainant that senior management would not approve additional hours. The witness referenced a colleague of the complainant’s  in Scotland who was doing the same tasks in the same length of time. The witness said she had a duty of care to Ms.O’T. The witness asserted that the complainant was never specific  or gave examples of where time was too short. The witness responded no comment  when asked if she accepted that for 7 years there had never been any issue with the complainants work. The witness was asked if there was anything on the employee’s file and responded “not that I am aware of – No”.

The witness said the meeting of the 5th.Dec was called to go through a draft job specification and work schedule. The witness said that no minutes were taken because it was a  departmental meeting. The witness  did not accept she should have taken minutes. The witness advised she had no training on bullying. The witness said she followed company procedures. It was put to her that she was named in the policy as a contact person. The witness did not disagree that it was   important to have appropriate training for managers. It was put to the witness that at the 5th.Dec meeting the complainant referred to the phone call and ongoing bullying. She responded “ I remember the phone”.

The witness accepted that  the matter of mental health issues was raised at the meeting with the complainant on the 21st.December 2017 and that the complainant had referred to absence due to injury at work. The witness was unclear as to what policies were in place to deal with work related mental health issues. The witness said she spoke to Mr.T about the  disclosure and advised him that the complainant was off sick. She was advised to furnish the complainant with the Bullying and Harassment procedure which she did. When asked if she sought advice after the 21st.Dec,  the witness replied I have already outlined what I did. The witness said the complainant had made a comment not an allegation at the meeting on the 5th.December.She said she asked the complainant at the return to work meeting was she   making a complaint – she said she handed the complainant the bullying and harassment procedure and asked her to let her know what she wanted to do but the complainant retracted her allegation. It was put to the witness that the complainant said she wanted to follow the informal process , the witness replied she returned after 5 minutes and said she did not want to proceed. The witness then wrote to her. The witness confirmed there were no written minutes s of the meeting of the 21st.Dec.She was asked if she agreed that she would have taken minutes if she was trained the witness responded she could not assume that. The witness said she wrote and clarified that unless she heard anything further , she deemed the matter to be closed. She said Mr.T approved the letter. The witness was questioned on her reference to language in  her letter to the complainant and said she made the reference as the word bullying was very serious – if then retracted .The witness was asked if she accepted that the reference could have been interpreted as a warning , the witness replied that she meant that the company took it very seriously. The witness did not accept that the  first time underperformance was raised was  at the Dec. 21st.meeting – she said she would have spoken to the complainant about underperformance some months previously and it was discussed at the 5th.Dec. meeting .The witness accepted it was a very serious allegation – the complainant’s representative asserted there was no record of underperformance .It was put to the witness that she had no evidence to refute that this was the first time underperformance was raised. The witness said we were at the beginning of a process – trying to help the complaint .It was put to the witness that the only reason was punitive because the complainant had made the complaint .The witness said she had no agenda. She said she had no templates or performance review policies to produce. The witness denied that the complainant was subject to disciplinary action because of the bullying allegation – she said no disciplinary process was followed. The witness acknowledged that she had no training in grievance and disciplinary processes. The witness did not accept that the complainant was subject to constant monitoring from the 12th.Jan-7th.February 2018.The witness said she had already spoken about them in her evidence – she said it was nothing other than various topics including job specifications. The witness said if the complainant was upset she would not have continued with the review process. The witness accepted  the complainant was upset when disclosing the bullying allegations. The witness said it was never brought to her attention that the complainant was upset - she would have curtailed the meeting. It was put to the witness that she did nothing when the complainant disclosed her mental health issues – how could it be expected that anything would be done about the complainant crying. It was put to the witness that she failed as a manager to care for the emotional welfare of her employee .The witness did not reply when it was put to her that she failed to take any action.

On re-examination ,  the witness was referred to the complainant’s contract of employment -and asked if the complainant’s role as set out in the contract – had changed .The witness replied the role did not change but the tasks did. She confirmed there was no change to terms and conditions of employment. The  witness stated that the complainant never raised a grievance about her concerns about the tasks that were assigned to her. The witness was referred to Section 5.3 of the Code of Practise and said she fulfilled her role as a contact person. She confirmed that the meeting of the 5th.Dec. was arranged before there was any mention of bullying. The witness said the meeting was about a draft job description and work schedule and was part of trying to assist  the complainant .The witness said she did not raise any issues with her between the meeting of the 21st.Dec. and the commencement of sick leave. The witness said that stock balances were raised with the complainant in mid 2017.It was asserted that by December the witness was looking at putting a formal process in place. The witness said that from December onwards she started to write to the complainant – trying to communicate with her in order to try and help her. The witness said the complainant did not communicate with her. The witness was asked if the complainant said the specifications were incorrect or unattainable , the witness replied that the complainant was never able to be specific and that never happened. The witness said the complainant never came back to her after the 8th.March 2018 .The witness said she had meetings with Ms.O’T but not to the same degree. The witness said Ms.O’T never communicated to her that the complainant was upset.

Summary of Pertinent Evidence of Mr.McE  Finance Director

The witness set out the background to the introduction of the new IT system – he said he was satisfied that the training  - which was provided externally – was adequate .The witness said he had no recollection of the complainant saying that the training was inadequate. PMcG was tasked to implement the new system .The witness referenced his response to the complainant’s letter of resignation – he said he asked to complainant to reconsider her resignation and allow the company to investigate her complaints. He sent the letter on the 6th.August and she replied on the 29th.August.He said he was surprised it took her so long to respond – he said she had made serious allegations and the company took them seriously. The witness was asked if he found the actions complained of amounted to bullying and harassment  he said there was insufficient corroborative evidence to arrive at such a finding. He was asked if there was any evidence to support the complainant’s contention that she wished to pursue the informal route .The witness said the reference to disciplinary procedures in the letter to  the complainant of the 21st.December should have  issued by way of separate correspondence and that it was a performance review as opposed to a disciplinary process. The witness said it should have referred to performance review as opposed to disciplinary process.

 The witness said he would have accepted comments  the complainant to his findings but no response was received .The company representative said the claimant  is saying that she did not respond because no right of appeal was allowed. The witness replied his letter clearly states that that the draft report was open to review and that the complainant had a number of opportunities to avail of a right of reply. The witness said he followed company procedures. The witness referenced a lot of efficiencies being brought in to the company that applied throughout the company. In response to whether the report addressed the complaint , the witness said he relied upon direct evidence with no grace or favour.

Under cross examination ,the witness said he had training on bullying and harassment ; he said he did not receive a copy of the Health & Safety  Code of Practise .It was put to the witness that it would be fair to say that he had no formal training and was unaware of the Code  - to see if there was any difference between the company policy and legislation. The witness replied that the complainant had an opportunity to respond if she had any Issue with him. The witness was asked if it was fair to say  that he would not know if there were any discrepancies between company policy and legislation. An opportunity to comment was given to the parties and the witness said he took on board the comments made by the complainant in her email of March 2019 .The witness said he did not accept that the terms of reference were deficient without an appeal. It was put to him that a comment was not an appeal .

The witness confirmed that his report should have referred to a performance review rather than a disciplinary procedure .In referencing the problems with the new system the witness accepted there were difficulties with running reports , incorrect reports  and incorrect imputs  and that the complainant had complained to Ms.S that the system was open  to error.The meeting of the 28th.July was referenced – the witness said they were trying to identify teething problems – the witness was asked upon what basis he had determined that the revised tasks could be done in a shorter period of time.The witness said the company was trying to ascertain what cross  training would be required .He said there was a rationale for change after 7 years – SOPs were being changed and streamlined because there were efficiencies to be made .

The witness was asked why he did not refer in his report to the complainant having disclosed at the meeting on the 21st.Dec. 2017 that her illness was due to work related stress .The witness responded this was not a deliberate omission .The witness agreed this was an important disclosure When asked if he thought Ms.S should have taken some action on the matter of health issues arising at work , the witness responded that he could not respond for Ms.S. He said Ms.S’s  understanding was genuine she was trying to do her best and this was evident in her evidence. The witness said he saw no evidence of the complainant expressing a wish to proceed with an informal bullying complaint. The witness said that the reference to underperformance included in Ms.S’s letter to the complainant of the 22nd.December  was unfortunate. He was  asked if he accepted that this was the first time underperformance performance was raised with the complainant – in the letter – the witness replied yes .The witness was asked if he accepted that it was reasonable to conclude underperformance was mentioned was because the complainant made the complaint of bullying – he replied no  - that the complainant’s job was still open. The witness was asked if he accepted that Ms.S should have referred the complainant’s disclosure of the 5th.Dec. to a designated person within the company – the witness replied there is no designated person .The witness was asked if he accepted that the bullying policy was defective – he replied that he thought she did what she thought was best.The complainant’s representative reiterated that the procedures were defective.

On re-examination the witness was asked if it was ever put to him that he was not an appropriate person to conduct an investigation or that the policy was defective, he replied it was never raised .

Summary of Pertinent Evidence  Mr. T

 In his direct evidence , the witness summarised his career history with the company and referenced a long run up to the introduction of the new IT system – he referred to many issues with stocks , stock errors and financial reporting .Matters were not getting resolved when the meeting of the 28th.June took place – both the complainant and Ms.O’T would cover for each other  and would interchange. In terms of how performance management was dealt with the witness said it was up to every manager to communicate clearly with their staff and it was important they communicate with them – personal improvement plans were about putting things right. The witness confirmed that Ms.S came to him after her meeting on the 5th.Dec. 2017 – she told him about Linda’s complaint and he advised her to talk to her and explain the procedures. The witness confirmed that the complainant was in and out of the office regularly and there was a fair bit of interaction. The witness said the complainant never told him she was being treated badly. He confirmed he did consider referring the complainant for an occupational  health assessment but felt it was not necessary at that point.

Under cross  examination it was put to the witness that he was the senior manager on the site and he was questioned why no formal training was organised on grievance and bullying procedures. The witness was asked if he accepted that the 2 witnesses for the company stated they did not receive training and he replied that he accepted that. He said the procedures would be written in conjunction with IBEC. It was put to the witness that the policy had not been updated since 2013 and he was asked if he was aware that it did not comply with the 2017 Code of Practise .The complainant’s representative asserted that the policy failed to comply with the 2007 Code with regard to who was appropriate to be appointed as a Contact Person.

The witness said that his understanding after the meeting of the 21st.Dec. 2017 was that the complaint was withdrawn. As regards the meeting of the 5th.Dec. , the witness said to Ms.S you should take a note – the main thing was  to furnish her with the procedure .The witness said he did not think it was necessary to make a note at that time. The witness was asked if he agreed a written note should be taken. The witness was asked if he agreed a referral to Occupational  Health should have been made – he replied  it might have exacerbated the situation. It was put to the witness that after the 22nd.December there  was ongoing  monitoring of the complainant’s performance  and that given her health symptoms the witness should have checked the complainant’s fitness and capacity to attend those meetings. The witness replied that it was his understanding that the relationship was fairly good – the matter of stress  and anxiety did not come up until later. The witness said the complainant had made a comment , she was afforded an opportunity to confirm and she withdrew the remark. The witness was asked if he agreed the underperformance issue should not have been referenced in the letter of the 22nd.December.The witness replied that in hindsight the 2 issues  should not have been conflated.

The following closing submissions  were furnished on behalf of the respondent :

The Complainant alleges she was subjected to bullying behaviour by both Ms.S. , Administrative Manager and Ms.M, Finance Manager from January 2017. The Respondent has a bullying and harassment policy drawn up in consultation and agreement with the trade union SIPTU which the Complainant received along with her contract employment in June 2010 but failed to use it to resolve her perceived issues of concern. The Respondent submit that all communications with the Complainant took place in a professional manner and there is no objective evidence presented to support the Complainant’s allegations.

 The Complainant alleges that there was no mention of performance management/ underperformance before her verbal allegation of bullying against Ms.M, which was later withdrawn. This is incorrect as the very meeting of 5th. December 2017, as cited in evidence by Ms.S, was to discuss a time plan and job specification the origins of which arose from dealing with issues  of performance from early in 2017. Indeed  Ms.S  gave detailed evidence of issues of concern raised with the Complainant from May 2017 highlighting several issues raised. This was unfortunately described as potential “teething problems” by the Adjudication Officer during the hearing which was corrected by both Mr.T and  Ms.S. giving evidence on unexplainable mistakes in stock reconciliation by the Complainant. The Complainant alleges that she raised a bullying allegation concerning Ms.M informally in a meeting with Ms.S on the 5th and 21st of December 2017. The respondent case, which is supported by concrete evidence, is that the Complainant on mentioning bullying was given a copy of the bullying and harassment policy and asked to revert with her decision as to how she wanted to proceed. It is the respondent's case that the Complainant subsequently withdrew her allegation and continued to work on before embarking on a period of sick leave at the end of March 2018. During this period, from December 2017, the Respondent set about a pathway of progressive performance management and put an appropriate Performance Improvement Plan (PIP) in mind (A common action to deal with under performance as supported in evidence by Mr.T). The pattern of behaviour displayed by her managers was definitely not that which a ‘reasonable person’ would describe as ‘clearly wrong, undermining and humiliating’.

The 2021 Code of Practice on Bullying states that ‘objective criticism and corrections that are intended to provide constructive feedback to an employee are not usually considered bullying, but rather are intended to assist the employee with their work’. On the same theme, the Code confirms that bullying does not include: • Offering constructive feedback, guidance, or advice about work-related behaviour, which is not of itself welcome. • Reasonable corrective action relating to the management and direction of employees (for example, managing a worker’s performance, taking reasonable disciplinary actions or assigning work). • Workplace conflict, where people disagree or disregard other points of view.

 This was equally referred to in the 2007 HSA COP P5 Sec 3.1 “Bullying at work does not include reasonable and essential discipline arising from the good management of the performance of an employee at work or actions taken which can be justified as regards the safety, health, and welfare of the employees. For example, an employee whose performance is continuously signalled at a level below required targets may feel threatened and insecure in their work, but this in itself does not indicate bullying”.

 In summary, the Code explains that ‘ordinary performance management’ is not bullying. It is also clear that the Circuit Court, the High Court and the Supreme Court are in accord with this stance.

Ruffley v The Board of Management of Saint Anne’s School unreported [2017] IESC 33/1 In judgement at the Court of Appeal, Justice Charleton clarified that the ‘bullying test’ is objective, not subjective, and as a result an ‘employer is entitled to expect ordinary robustness from its employees’. Notably, he elaborated to distinguish normal management interactions from bullying, stating that: ‘correction and instruction are necessary in the functioning of any workplace, and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary’.

 The complainant has indicated that the mention of invoking the disciplinary policy if the performance improvement plan did not work was inappropriate and threatening. However, in Redmond on Dismissal Law in Ireland, Sec 15.32, the author sets out: -

“A common error of employers is to start the first stage of disciplinary procedures when competence becomes an issue. However, there are important stages to go through before that. First it is necessary for the employer: (i) to establish a reasonable performance standard prior to the issue becoming a disciplinary one; and (ii) to communicate this to the employee Only then will it be possible to monitor whether an employee’s performance is below standard.”

 The respondent was acting along this best practice pathway of performance management. The Complainant only raised her complaint in writing for the first time on 13 September 2019 having been urged to do so by Mr.McE after resigning. It was examined fairly, objectively, and rigorously but not upheld. The Complainant did not accept the outcome of the report but failed to challenge it when given an opportunity to do so before the report went to the Board of Directors unilaterally resigning her position without exhausting internal procedures.

Case Law Complainant Case: Jabczuga v Ryanair Limited UD66/2013

 “If a complaint is made and it is clearly employment-related, it ought to be treated as a grievance. At the very least, inquiry ought to be made as to whether the complaining employee wishes the complaint to be treated as a formal grievance.”

“The Respondent’s Bullying Procedure did not adhere to the HSA Code of Practice as the Respondent failed to conduct an investigation into the Complainant’s complaint of 5th December 2017 nor was there any right of an independent appeal against the Investigator’s Findings.”

 The Respondent could not conduct an investigation where no complaint was made on 05 December 2017. The preceding line from the above case reads “An employer is, of course, entitled to lay down a procedure whereby a grievance is brought to its attention. It will usually be of benefit to all parties to have a structure for the reporting and investigation of grievances. However, this structure should not be entirely inflexible”. The Respondent did have such a structured approach within its policy and also the complainant was given several opportunities to have her comments and opinions appended to the final report for consideration by the Board of Directors however decided not to do so and immediately submit a complaint to the WRC for unfair dismissal not having exhausted all of the internal avenues open to her.

 Catherine Hurley v An Post [2018] IEHC 166 This is a High Court Personal injuries case in which the Complainant was dismissed by employer after several years of significant bullying and ostracization. The medical certificate granted by Dr. Fleming was for work related stress and the Company had no proper policies in place. This is not relevant to this case as the Respondent in the case at hand did have such policies and procedures however the complainant failed to utilise them.

 Rehab Group v Ms Annette Roberts (2020) UDD2026 In this case the Labour Court determined that “the Respondent has a first-class procedure for dealing with complaints of bullying. The concern of the Court is that it was not operated”.

 “In the instant case, a strict interpretation of the Respondent’s Procedure gives rise to the conclusion that a formal complaint was made by email on 5 January 2018 and prompt attention to that complaint might reasonably be expected”.

“A promise was made to the Complainant at that meeting that the Respondent would revert to her by 9 April 2018. Even allowing for the circumstances of annual leave and the need to arrange for an investigation team, the fact that the Complainant found out three days after that promised date, in the course of a conversation about a different matter, that the matter had not been progressed compounded what, by then, was an inevitable sense on her part that her employer was not willing to show any priority to having her concerns addressed”.

 In this case a complaint was made and followed up by the complainant with a promise by the employer to investigate the matter, but they did not act on this undertaking thus making it reasonable for Ms Roberts to leave her employment and claim constructive dismissal.

 In the case at hand the complainant’s representative keeps repeating the erroneous statement “It would be our submission that the Respondent failed to put in place protective and preventative measures in its Bullying Policy to ensure that the Complainant’s complaint of bullying made on 5th December 2017 was investigated” in an attempt to reconstruct the factual reality that the complainant was given a copy of the Respondent’s policy and shortly after decided not to proceed with her allegation against Ms.M  which was confirmed in writing the following day by Ms S to the complainant with no response indicating this was an incorrect statement. The Complainant’s grievance in September 2019 not only related to events of 05 December 2017 but also events up to the end of March 2018. It is the Respondents submission that the allegation of bullying against Ms.M  on 05 and 21 December were subsequently withdrawn and there were no other issues raised until Mr.McE responded to the complaint’s resignation. Interestingly, the Complainant cites the date of dismissal as being 02 August 2019 and she did not indicate she wished to avail of the Company Grievance procedure until 29 August 29 after Mr.McE encouraged her to do so. This supports the Respondents argument that the Complainant resigned without exhausting internal procedures. In Beatty v. Bayside Supermarkets UD 142/1987 the EAT held:-

 “The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer or employee as the case may be. This is the view expressed  and followed by the EAT in Conway v. Ulster Bank Ltd UD 475/1981. “In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness  to the claimant’s resignation that he was not constructively dismissed.”

 G4S Secure Solutions (IRE) LTD v Mr Manuel Charana The Claimant has taken a quote from the Labour Court findings which does not reflect the true nature of this case where two written complaints were made, and the respondent accepted that they failed to follow their own procedures. “The Court finds that at least two complaints of bullying and harassment were made by the Complainant on the 30 June and the 10 August 2017. The Court finds, on the admission of the Respondent itself, that the Respondent did not follow its own procedure at all in dealing with any complaint of bullying and harassment made by the Complainant”. In the case at hand there was no written complaint of bullying made but one reference to bullying which was withdrawn by the complainant on review of the policy. The Respondent submit that they did indeed ‘follow its own procedure at all times’

 In their closing summary the complainant alleges that “in failing to protect the Complainant’s emotional welfare when she put them on notice of her mental health problems as a result of work related stress symptoms. It is precisely because the Respondent did not adhere to any procedures or policies that led to the exacerbation of her mental health issues with the consequential effect of her going on long term sick leave on 23rd March 2018.”

Again, the Respondent would submit this is an unsupported assertion  not based on the objective facts of the situation. The return to work form signed off by the Complainant on 21 December 2017 is contained in Page 20 of the Respondent original submission. In this form the Complainant has been given an opportunity to fill out a section entitled “is there any remedial action necessary to prevent recurrence? (Give details).” this was left blank by the complainant who signed the form on 21 December 2017. In the ensuing period Between December 2017 and March 2018 there was no further medical absence nor was there any mention of any mental health issue as referred to in the Complainant’s closing submission. The Respondent submit that they treated the complainant fairly at all times and were merely embarking on a normal performance management process.

 Mitigation of Loss.S Without prejudice to the aforesaid, should the Adjudicator find a breach of legislation the Respondent would submit as follows: -

The Unfair Dismissals Acts place a strict onus on a complainant to take all reasonable steps to mitigate their loss. In considering a claim under the Unfair Dismissals Acts, the Adjudication Officer must have regard to Section 7(2)(c) of the Act. Section 7(2) provides:

 “Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under the subsection referred shall be had to— (b) The extent (if any) to which the said financial loss was attributable to an action, 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. and (f) The extent (if any) to which the conduct of the employee (whether by act of omission ) contributed to the Dismissal.”

 In accordance with this provision, amongst others, the Adjudication Officer must consider the amount of compensation which is just and equitable in all of the circumstances, as well as taking into account the measures adopted by the Claimant or, indeed as the case might be, the Claimants failure to adopt measures to mitigate their loss.

 In the case of UDD1974, Philip Smyth and Mark Leddy, the Labour Court set out. “The Court expects to see evidence that employees who are dismissed spend a significant portion of each normal working day while they are out of work, engaged actively in the pursuit of alternative employment. In the instant case no such evidence was produced, and the Court has no alternative but to conclude that insufficient effort was made to mitigate the losses  incurred as a result of the unfair dismissal. In accordance with the requirements of Section 7 (2) of the Act this must be reflected in the compensation to be awarded”.

 The complainant provided the Adjudication Officer with no such evidence of efforts to mitigate her loss  as obliged under Section 7(2)(c) of the Unfair Dismissals Acts. There is an active responsibility on the complainant to prove that they have actively tried to mitigate the losses  they accrued due to the dismissal..

I have reviewed the voluminous submissions made by the parties , the evidence given on behalf of the parties and the concluding statements and responses to same in addition to the authorities relied upon by both parties . While much of the submissions and evidence focuses upon  what happened following the claimant’s resignation , I am obliged to examine whether or not the complainant met the high threshold for substantiating  a complaint of constructive dismissal at the time of her resignation on the 2nd.August 2019.

   Section 1 (b) of the Unfair Dismissals  Act 1977 provides that dismissal  includes:-

“the termination by the employee of his contract of employment with his 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”. As advanced by the respondent ,  Employment Appeals Tribunal and the Labour Court have set a very high standard of proof for an employee to relinquish their employment without notice of termination to their employer.  The two tests assigned  to these are the test of entitlement and the test of reasonableness. 

In terms of the entitlement test, the breach of contract being alleged by the Claimant must be either a significant breach going to the root of the contract or one which shows that the employer no longer intended to be bound by one or more of the essential  terms of the contract of employment. The second test – and the employee can invoke one or both tests – is whether   or not it was reasonable for the employee to terminate the contract of employment without giving prior notice to the employer. The employee bears the burden of proof as to dismissal  and must persuade the Tribunal that resignation was not voluntary.

Throughout the hearings the respondent asserted that there were” ongoing performance issues  highlighted as far back as early 2016”.No documentary  evidence was advanced to support this contention .The claimant denied the assertion of the respondent and insisted that the first time underperformance was raised was at the meeting on the 5th.December 2017 where she first raised her allegation of bullying. The claimant’s line manager  Ms.S  was unable to point to any documentary  evidence of performance deficits up to the 5th.Dec. 2017 when she was being cross examined and could point to no records on the claimant’s personnel file that corroborated the underperformance allegations.

The respondent was unable to advance minutes of any meetings prior to Dec. 2017 where underperformance was raised and it was confirmed in evidence that no other worker other than the complainant was subject to a personal improvement plan .The respondent was unable to advance any evidence to support the contention that the switch in tasks as opposed to switch in roles which was imposed on the complainant without consultation  in July 2017  was justified-  in circumstances where the complainant was being asked to undertake the brief of a 40hour week job within the confines of a 24 hour week and in circumstances where it is acknowledged  by both parties that she was struggling with the new ITsystem.. There was no dispute that this change was presented at the July 2017 meeting – a meeting at which no minutes were taken. It is not disputed that the claimant had difficulties with the introduction of the new IT system  or that she highlighted the systems challenges to her line manager  .It is not disputed that the complainant in fact sought additional hours to cope with her reassignment to a 40hour week position and to assist with the persistent backlogs arising from what she perceived to be , deficits in the new system. I find no convincing evidence was advanced to justify the instruction by Ms.S to the claimant to refrain from any direct contact with  the former postholder Ms.O’T  of the position -  for assistance or clarification. Having considered the evidence of the respondent’s representatives, and the claimant , I find that the imposition of this reassignment  without any consultation and turning a blind eye to  the declared operational challenges the complainant had with the system  constituted a significant breach of the claimant’s contract. I do not accept that the respondent’s contention that in the redeployment of the claimant all aspects of her terms of employment were maintained in circumstances where she was reassigned to a 40hr.per week position and in circumstances where it is not disputed that she complained    about backlogs arising as a result of a new IT system and she sought additional hours to keep up with her workload.

I note that  Ms.M did not give evidence and no explanation for her absence from the proceedings was advanced. I acknowledge that in her cross examination the claimant acknowledged that she did not raise her bullying allegations with either Mr.McE or Mr.T and accepted that in hindsight she should have done so. I have  taken account of the respondent’s initial protestations that they were unaware of the claimant’s allegations of bullying or indeed that they were unaware that her certified sick leave was attributed to stress and anxiety- the evidence presented at the hearings, the medical certificates that were furnished and the back to work questionnaire undermine the credibility of this assertion. 

I have examined in detail the witness evidence and the time line of events leading up to the claimant’s departure on extended sick leave in March 2018.

It is accepted that the complainant raised concerns with her line manager about bullying at a meeting on the 5th.December 2017.In her evidence , Ms.S accepted that the claimant was upset at the meeting.The claimant went off sick the following day . As per the employer’s submission – par 3.7  the  claimant indicated that the cause  of her absence was work related and that she felt she was being bullied .This is corroborated by the claimant’s GP in his letter of the 16th.June 2021 who recorded that on the 6th.December the complainant “ was provided with a medical certificate for work from the 6th.December to 20th.December 2017 due to anxiety secondary to work related stress”. I find that the respondent’s assertions that the claimant had failed to identify “remedial action necessary to prevent recurrence “ in her return to work form in response to her representatives allegation that they had failed to protect her emotional well being , to be unconvincing in circumstances where the context of this interview was being ignored. It was accepted that the complainant had referenced bullying at the 5th.December 2017 meeting ,  as acknowledged by Ms.S in her evidence the complainant  was upset , a certificate referencing anxiety secondary to work related stress had been submitted and in the  return to work interview form the complainant asserted stress and anxiety and absence due to injury at work.I find this defence on the part of the respondent to be unconvincing and indicative of a questionable commitment to their obligations under  common law and under the safety Health & Welfare at Work Act 2005  with respect to their duty of care to their employees. It  would appear that this question on the return to work  form may have been overlooked by Ms.S – I do not accept  the respondent’s contention that the  onus for completion of this question rested entirely with the complainant and consider that given the backdrop to the meeting , there was a greater onus on the interviewer – Ms. S  to complete this question .

I found the claimant’s evidence of her distress and anxiety during the period from December to March to be credible and persuasive and accept the assertions on behalf of the claimant that the complainant was subject to over zealous  supervision during this period.I find that no  compelling evidence  was advanced by Ms.S to justify this excessive scrutiny and that it failed to take account of the complainant’s fragile mental state during this time.I find the language used by Ms.S in her correspondence with the complainant during this period was lacking in empathy and indicative of a poor understanding by  her  of the employer’s obligations to safeguard the physical and mental health of its employees.

While I acknowledge that the complainant’s  initial certificate when she commenced sick leave in March 2018 referenced a chest infection  , all of the other certificates presented for the extended period to August 2019 referenced stress  and anxiety .I find the respondent’s assertions that there was no indication from the emails exchanged between the parties at this time that the reason for absence was work related to be neither  convincing nor credible in circumstances where her GP had flagged that the complainant was suffering from anxiety secondary to work related stress as far back as the 6th.December 2017.

The respondent raised numerous criticisms of the complainant’s failure to respond to Ms.S’s letter of the 22nd.Dec. 2017  concerning the allegation of bullying where Ms.S states that she is treating the matter as closed unless otherwise advised. I have considered all of the evidence presented on this matter .I find the failure to refer to both an informal and formal complaint in the context of the withdrawal  raises doubts  about  Ms.S’s account of the exchanges  between Ms.S and the complainant at the meeting. Of additional concern is the reassurance given to the complainant in the 22nd.Dec.  letter about confidentiality given the admission by Mr.T that Ms.S discussed the matter with him and that he-  Mr.T- approved the contents of the letter of the 22nd.December. While I note the acknowledgement from the respondent’s witnesses  that the  references to underperformance contained therein was unfortunate  , I find that the complainant’s explanation for failing to challenge the letter was based on a perceived threat to her job was not unreasonable given the explicit  reference in the final paragraph  to underperformance. In making her complaint the  complainant did act correctly and in accordance with the respondent’s  Bullying /Harassment Procedure.

While it was a matter of dispute between the parties as to whether the relevant Code of Practise for the purposes of the instant case was the 2007 Health & Safety Authority Code of Practise on the prevention and resolution of Bullying at Work or the 2021 Code as issued jointly by the Health & Safety Authority and the WRC I have reflected on the arguments of the complainant’s representative with respect to the extent of compliance or otherwise with the Codes.I find on the basis of  the evidence presented by the parties that the level of compliance was inadequate with respect to the level of training provided to the management team  and the wider workforce ,the failure to distinguish between    the role of designated person with that of contact person  , the silence/absence of prevention measures  , the absence of  an appeals mechanism and the absence of a proactive review mechanism to update the respondent’s policy.

While the respondent has argued that the focus of the engagement between the complainant and her Line Manager was   the development of a performance improvement plan , no evidence of any templates or models for same were furnished .Although  I  acknowledge and accept the respondent’s representatives contention that the company had not embarked upon a disciplinary process in December 2017  , I find that this was not made explicit to the complainant who had at this point alerted the respondent to having mental health challenges  - the claimant’s evidence that she perceived references to underperformance as a job threat were not unreasonable in the circumstances. It is noteworthy that in Ms.S’s correspondence to the complainant of the 15th.Jan. 2018  , Ms.S states that if there was no improvement  she would have no alternative “ but to instigate the company’s disciplinary process”. Additionally , Ms.S  identifies further areas of  underperformance in her letter to the complainant dated the 8th.March 2018  wherein the complainant was  asked to attend a meeting with Ms.S and the Finance Director on the 29th.March 2018.These documents give credence to the complainant’s expressed fears about the future security of her job.

 It was apparent from Ms.S’s own evidence that she was unclear about any policies in place in the employment to deal with mental health issues.I do not accept Mr.T’s  contention   that by  reaching out to the complainant during her 17 month period on extended sick leave   the situation would have been  exacerbated .

The reasonableness test asks whether  the employer conducts his or her affairs in relation to the employee , so unreasonably that the employee cannot fairly be expected to put up with it any longer. EED0410 Mr.O v An Employer is instructive in this regard. It is settled law that every contract of employment contains an implied term that the parties will maintain mutual trust and confidence in their working relations with each other.I find on the basis of the evidence presented that the respondent conducted itself in relation to the complainant in a manner which was destructive of a relationship of mutual trust and confidence. The respondent’s representative argued that the complainant’s failure to exhaust internal procedures by denying the respondent an opportunity to remedy the issue  was fatal to  her case of constructive dismissal. However there are authorities for a proposition that this is not a fixed or universally applicable rule – Allen v Independent Newspapers [2002]E.L.R.84; May v Moog Ltd [2002]E.L.R. 261 and Monaghan v Sherry Brothers [2003]E.l.R.293.I  find the respondent’s failure to reach out to the complainant during her period of extended sick leave for stress and anxiety was unreasonable .Having regard to the entirety of the foregoing conclusions ,  I find that  the reasonableness test  for constructive dismissal has been met . I am satisfied that the complainant’s employment with the respondent came to an end in circumstances amounting to a dismissal within the meaning of Section 2(1) of the Act.

I accept the respondent’s representatives  contention that the complainant ‘s  evidence of sufficient efforts to mitigate her loss were  not persuasive and I  am taking this into account in the award of compensation.

I require the respondent to pay the claimant €11,000 compensation .

Duty of Care / Constructive Dismissal