Complainant

Respondent

Anonymised Parties

A Technology Lead

A medical devices company

Representatives

  Self.

Declan Thomas. Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00046552-002

06/10/2021

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

CA – 00046552 - 001

06/10/2021

The Complainant was employed by the Respondent as a Technology Lead – Digital and Ecommerce. Employment commenced on 23rd March 2021 and ended on 15th September 2021.

This complaint was received by the Workplace Relations Commission on 6th October 2021.

The Complainant believes he has tried out all options (both formal & informal) within the organization, to get a proper resolution for the bullying and harassment he claims he had received during the last few months of his employment.

This includes:

·       Bullying by Immediate Line manager and Enterprise Digital Architect in form of:

·       Constantly receiving unconstructive & baseless criticism without any real examples.

·       Spreading misinformation about the Complainant’s work that “I don’t follow architectural team’s guidelines”

·       Receiving direct threats about his job security from his line manager.

·       Receiving detrimental language during 1-on-1 meetings from the Digital Architect.

·       Ignoring misbehaviour from other team members towards him.

·       Asking his nationality on multiple occasions.

·       Excessive amount of work

o   Performing work which should be done by other or different teams

o   Constantly being asked to do tasks which are not in accordance with his Role and Job description, which he was initially hired for

o   Assigning work without providing enough people and asking him to finish the work entirely on his own

·       Subtly changing his role from Tech Lead to junior developer

·       Frequent unnecessary 1-on-1 meetings and threatening during those meetings

The Complainant contends that these had severe negative effects on his psyche and led to anguish and trauma and ultimately forced him to resign from his position in the organization.

The Complainant contends that he tried to resolve all issues with his manager by giving him proof on multiple occasions, but he disregarded them. The Complainant tried to approach HR but never received any meaningful resolution from HR.

Case Overview:

After joining the Company, the Complainant noticed his line manager was engaging him in every project as if he was the only person in the organization.

The Complainant provided the following examples:

·       Engagement in sampling projects, developed by some other team

·       If someone in India (working in a different project) resigned the Complainant would have to take the knowledge transfer even though there were people available in India who should take the knowledge transfer and fill the gap.

·       If Business Analyst is not able to write the requirement properly the Complainant had to help them and literally do their work but can’t point out what they are not doing correctly

·       If a 3rd party software service provider, who are solely hired to write quality code not able to do their work properly the Complainant would have to fix and write code on their behalf

·       On top of this Architects whose job is to design the architecture of any new project, will also delegate their work to the Complainant. E.g., A project called Fidelis was initiated and Architectural team was responsible for delivering the architecture but Enterprise Digital Architect would delegate that task to the Complainant even though he was not hired as architect.

Alongwiththis the Complainant had tomanage his ownworkthat he was responsiblefor. The Complainant contends that he was swamped with work and had to work extra hours almost every day. He believes that his average daily clocked hours were well above company policy i.e., 8hrs/day. On an average he worked2-4hoursextraeveryday.

Even after doing others work along with his own, he was constantly being told by his manager that his collaboration was not good enough and his probation would be a challenge.

But his manager could never give him any specific example to substantiate his claim.

The Complainant contends that he was becoming heavily burnt out from the extra work, but he had to keep doing since he was very new to the organization and also because of threat mongering from my line manager.

At some point he was getting a feeling that why he had to fill in and fix everyone’s work when person/team responsible for certain work should take the responsibility and be accountable for same.

During this whole-time the quality of his work that he delivered was, in his opinion, excellent despite the fact that most of the time he was the only person working even though during the hiring phase he was told that he would have a team of senior developers but in reality, he was the only one in the team who was doing and could do the work.

The Complainant contends that he was lied to in relation to the Job Description as the Job description he was given during interview, did not mention that he would have do the job of a developer.

Whenever he raised these issues, his manager would bring up team collaboration, in reality he was made to do others’ work in the name of collaboration.

Event Details:

In the Complainant’s own words, the following are some of the events of significance that took place and ultimately led to his decision to resign:

30th June 2021.

I was unnecessarily blamed for not following practice of using DEV2 environment but in reality, I was specifically instructed by the companys architect & my immediate manager to use QA2 environment due to unavailability of other services on DEV2 environment.

During an email communication involving multiple people both from inside and outside of the organization, I was attacked for not following practice but the person attacking me did not bother to read the email in its entirety to know why QA2 environment was used instead of DEV2.

So, I replied by saying “I would request all of you to read the email in its entirety to understand why FSL3V3 code was not deployed to DEV2.”

After this, I was called into a meeting by Enterprise Digital Architect, and he asked why I said, “I would request all of you to read the email in its entirety to understand why FSL3V3 code was not deployed to DEV2.”

I justified my position by saying that it was A M (reporting into Enterprise Digital Architect) asked me to do that and since AM is the architect, I had to follow his instruction. But the Enterprise Digital Architect was not willing to listen to me but instead told me it is your mistake not to use DEV2 and also threatened me by saying “You’re making career limiting moves”. On one occasion during a 1-on-1 meeting the Enterprise Digital Architect called me a “Cannibal” for saying that AM has not architected the application in right way.

12th July 2021.

Following the above incident, my immediate manager would set up regular meetings with me in order to improve me but in essence he was giving some vague and general comment about team effort & communication.

I provided him with a list of work that I had performed until then which involved helping my own team members and doing work for other teams, which are not even as per my job description.

I also asked him if he could provide me any instance where my communication has been less than professional or not according to the companys Policy. But he could not provide me any such instances.

My line manager then threatened me via a text message that my probation will be a challenge.

And since then, he would set up meetings every week sometimes twice a week and would threaten me about my job and put baseless accusations without any real proof or example.

3rd August 2021.

During my time at the organization, I noticed numerous bad practices in terms of software development that architects were following and as a result software they developed even before I joined the organization was full of defects, unmaintainable and those bad work were ultimately pushed down to me to fix and resolve.

I was doing that but at some point, I asked my manager to ask the architect to follow the right process and right way of developing software. I shared details on multiple occasions of what is wrong with current approach and what needs to be corrected.

Even other developers in the team were complaining about the architects.

All my emails were ignored instead my manager would set me a lofty goal of delivering best quality of work without any issue, which I thought unreasonable given the unwillingness of the Architect to change certain wrong practices they were following.

What he really meant is “Architect will do whatever he wants but it is you who will resolve all issues and take the responsibility and be accountable for everything”.

So, I approached my Next in Line Manager and let her know what I am going through.

Upon hearing this, my immediate manager sent me a text via company provided chat system “I don’t appreciate you sending an email to (name redacted)”and in the next 1-on-1 meeting he was scaring me by saying “Are you trying to get around me?”

When (name redacted) recruited me she told me “Feel free to approach me, if you have anything to discuss” and also the company policy does not bar me from approaching the next in line manager if things are not getting resolved by my immediate manager.

So, I was merely following Company’s process but since then my line manager started getting even more hostile towards me and scaring and sometimes abusing me during 1-on-1 meetings and chat.

My line manager started assigning lots of work which was meant to be done by someone else and not providing sufficient people to complete tasks and unofficially changing my role from Tech Lead to Developer. I was buried under mountains of work which was impossible for me to finish all by myself, and I had to put in lot of extra hours beyond normal working time.

As per the contract I was scheduled to complete my probation on 23rd September 2021, as part of the process my manager shared a probation review document which were full of misinformation and without any specific example of his claims.

I again asked him to provide example of what he is saying but he could not give me any example.

19TH August 2021.

One of my team members misbehaved with me during a meeting but when I reported that to my manager and sent him the proof, he shut me down by saying “That is least of my concern”.

This kind of misbehavior from other team members happened number of times, instead of asking the perpetrator to behave and act professionally, my line manager would vouch for them and support them.

Final Thought

Every week my manger would terrorize me during 1-on-1 meeting and threaten me about my job security. This kind of bullying increased further when my recruiting manager left the organization, I was at the complete mercy of my line manager and the Digital Enterprise Architect.

Even after doing my work (which I was primarily responsible for) with excellent quality these two people would spread misinformation and make me scapegoat for the things they had done, such as issues in the codebase which were already existing even before I joined.

Because of the incorrect practices Architects followed over a long time without fully understanding the latest technology & how software development actually works, Architects took delivery of unmanageable, unmaintainable, and sub-standard code from a 3rd party service provider.

This led to lots of issues like:

·       The company not able to launch the product on time

·       Extra cost to company as project got dragged out over 3 years

·       Business & Marketing people were having tough time to make changes as per their need

·       Innumerable number of defects on the website

As a scapegoat for architectural team’s incompetency Enterprise Digital Architect was shifting the blame towards me even though I did not even work on this project.

I strongly feel that this was an unethical practice by a senior person at powerful position, even though I did my job with excellent quality (As name redacted) testing team could not find a single defect for the work, I was mainly responsible for), which has caused me:

·       A great deal of harassment over multiple months

·       Caused me psychological issue as I am now afraid of 1-on-1 meetings due to bullying I faced during 1-on-1 meeting with my manager and enterprise architect

·       My mental health deteriorated

·       Extreme Sleeping disorder

·       Loss of income.

The Company

 The Respondent company create breakthrough products – in diagnostics, medical device, nutrition and branded generic pharmaceuticals.

 Background to the Complaint

The Claimant was employed by the Respondent at its facility in Co Dublin as a Technology Lead – Digital and ECommerce. His employment commenced on 23rd March 2021.

As would be standard in most employment contracts the complainants contract provided for a 6-month probationary period which provided as follows;

“You will be employed on probation for 6 months. If you are deemed unsuitable for employment during this period, the Company, at its discretion, may terminate your employment by giving one week’s notice or by paying one week’s salary in lieu of notice in accordance with the Minimum Notice and Terms of Employment Acts. 1973 – 2001. The probationary period may be extended at the organisation’s discretion, but will not, in any case, exceed 12 months. Termination of this agreement within the probationary period shall be at the discretion of the organisation and in the event of such a termination you will receive notice and not the notice period provided for in the clause entitled “Notice” below. Likewise, where you intend to resign from your employment during your probationary period you will be required to give the organisation 2 weeks’ notice in writing”.

As part of the probationary review process a number of issues arose at the Complainants 4 Month probationary review which took place on 12th July 2021.

A further probationary review took place on 6th September 2021 and again a number of issues were highlighted whereby the complainant was identified as underperforming against expectations

The Complainant was provided with a copy of the feedback from his probationary review from his Senior Manager both at the meeting and by e-mail the following day dated 7th September 2021.

On the same day the Complainant, having issue with the content of the feedback, responded by e-mail which is also dated 7th September 2021. In this correspondence the Complainant suggested that he had “been getting a lot of bad behaviour from multiple people” and also suggested that the company needed to “address the concerns that he had raised over the past few months”.

On 9th September 2021 (2 days later) his Senior Manager responded by email seeking a further one to one meeting with the Complainant to discuss the issues further. In this e-mail the Senior Manager pointed out to the Complainant that the company had specific policies surrounding this and also included a link to these policies in the e-mail itself. He particularly pointed the Complainant to the Grievance Policy and the Dignity at Work Policy.

A further meeting took place between the Complainant and his Senior Manager on 14th September 2021 and an e-mail to reflect this was sent to the Complainant. This e-mail stated as follows; “We met to discuss your mention of grievances in the below e-mail.”. “To summarise our discussion, while you do have grievances against others in the organisation, you have chosen not to share any details with me so that we could work together to discuss finding a solution. Of course, this is fine and is your choice”.

Following this the Senior Manager invited the Complainant by e-mail dated 14th September 2021 to a probationary outcome meeting to be held on Thursday 16th September 2021.

The Complainant was informed that the purpose of the meeting was to provide an outcome of the probation process that had been conducted to date. The Claimant responded to this e-mail questioning what the meeting was about so that he could come prepared.

The Complainant thereafter on the same date (14th September 2021) sent a further email tendering his written resignation.

The Complainants resignation was accepted by the company by e-mail dated 15th September 2021 and advised that as he had two weeks’ notice his employment would end on 28th September 2021. In this e-mail the company also provided that they would be in contact with the Complainant regarding equipment pickup.

Arrangements were agreed regarding this equipment pickup and the Complainant confirmed this by e-mail dated 15th September 2021.

There was no further communication between the Complainant or the Respondent thereafter.

Company Position

The Complainant was not dismissed from his employment by the Respondent. The Complainant voluntarily left his position putting an end to his contract of employment and tendered his notice to his employer as he was entitled to do under his terms and conditions of employment.

Constructive dismissal is defined in Section 1 of the Unfair Dismissals Act, 1977 as; “the termination by the employee of his contract of employment with his employer whether prior notice of termination was or was not given to the employer in circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without given prior notice of the termination to the employer”.

The Irish Courts have set a particularly high standard of proof for an employee to quit his/her employment without notice of termination to his/her employer. The two tests assigned to these are as follows; 

The contractual/entitlement test. In applying this test, the Tribunal has determined that an employee is entitled to terminate the contract of employment only where the employer is guilty of conduct which is either a significant breach going to the root of the contract, or which shows that the employer no longer intends to be bound by one or more of the core terms of the contract. 

The reasonableness test. When applying the reasonableness test, the Tribunal has held that an employee can argue that the employer’s conduct was such that it was reasonable for the employee to resign from his or her employment. In terms of the entitlement test, the breach of contract being alleged by the Complainant must be either a significant breach either going to the root of the contract or one which shows the employer no longer intended to be bound by one or more of the essential terms of the contract of employment. In this particular case, no such entitlement occurred as the Respondent at no point breached any of the terms and conditions of employment of the Complainant, which would have entitled him to quit his position.

The Complainant in this instance further fails to satisfy the reasonableness test as it was not reasonable for him to terminate his contract of employment, particularly, in circumstances where the Respondent or any of its employees, were not given the opportunity to address any issues that the Complainant may have had in respect to his employment.

The Complainant was the subject of probationary reviews and was under a period of 6 months’ probation as set out in his contract of employment where issues with his performance were identified and of which he was advised and aware of just prior to him making the decision to voluntarily leave his job.

The Respondent contends that the complainant in his own right decided to resign from his position and bring a case for constructive dismissal without exhausting any internal process or indeed if he had any issues without utilising the respondents Grievance Policy or Procedures which he was fully entitled to do and was advised of this prior to his resignation.

As provided above, the tests which must be applied in determining a case of constructive dismissal is that of “contractual entitlement” and “reasonableness”. The Claimant is not entitled to rely on the “contractual entitlement test” due to the fact that no significant breach going to the root of the contract, or which shows that the employer no longer intends to be bound by one or more of the core terms of the contract had taken place. The claimant was at all times during his employment afforded his rights under his contract of employment and also afforded his rights under natural justice and fair procedures.

The Claimant had not exhausted or invoked the Respondents Grievance Procedure in an effort to resolve any grievance he felt he might have. The Employment Appeals Tribunal in Barry v Quinn Insurance Limited UD 1775/2010 determined that: ‘Except in very limited situations an employee must exhaust all avenues for dealing with his/her grievances before resigning.’

The Complainant states in his Complaint Form; “I am writing this to you after trying out all my options (both formal and informal) within the organization to get a proper resolution for the mistreatment I had received during the last few months”

The Respondent contends that this statement is simply not the case. The Respondent has a clearly defined Grievance Procedure and Dignity at Work Policy. The Complainant at no stage during his employment utilised either of these policies which he was fully entitled to do. Following his 6-month probationary review and more particularly following the feedback he received on 6th September 2021, the Complainant the following day in response to same contended that he had “been getting a lot of unnecessary bad behaviour from multiple people”. The Respondent advised the Complainant in writing that he could utilise both these policies if he wished to do so.

Following a meeting on the 14th September 2021 the Complainant chose not to share any details of the alleged grievances he had and was advised by his manager that he would make himself available if he chose to do so.

As such, the Respondent holds the Claimant neither was entitled to unilaterally or voluntarily leave his position nor was it reasonable for him to leave his position and claim a case of constructive dismissal in circumstances where he had not exhausted all or any avenues available to him in dealing with any grievances that he may have had prior to resigning.

 It is a well-established precedent in Irish law that this failure will mean that any subsequent complaint/claim for constructive dismissal cannot be sustained or upheld. In constructive dismissal cases it is incumbent on the Claimant to utilise all internal remedies and procedures made available to him/her which in this case had not happened.

The Employment Appeals Tribunal Julianne Kirwan v Primark UD 270/2003 refers to Dr. Mary Redmond’s book ‘Dismissal Law in Ireland’ and determined that: “There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so to an employee should invoke the employer’s grievance procedure in an effort to resolve his grievance”.

The duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed:

Conway v Ulster Bank Ltd.

In Conway the EAT considered that the claimant did not act reasonably in resigning without first having “substantially utilised the grievance procedure” to attempt to remedy her complaints”.

The Employment Appeals Tribunal in Yinka Rahman v Terminal Four Solutions Limited UD 898/2011 provides further support for the reasons why this case should fail, and states as follows; “While the respondent expressed that she had difficulties with certain employees in the appellant company her communication of those issues to either HR or her superiors was not entirely clear or consistent……… No formal grievance was ever raised by YR nor did she attempt to invoke any of the procedures in place. The clearest expression of YR’s dissatisfaction lay in her letter dated 23rd November 2009 however that was also the same date of her letter of resignation. In all the circumstances the Tribunal feels that the Respondent did not give the Appellant an adequate opportunity to deal with the matters raised in the letters ……… and for the above reasons the claim for constructive dismissal fails.”

In relation to this case also it should be noted that the Unfair Dismissal Case lodged by the Complainant is referred under the Industrial Relations Act 1969. The Respondent also contends that the Complainant has no standing to bring a case to the Workplace Relations Commission under he said legislation in circumstances where he had not followed any dispute resolution procedures available to him at a local level. As referenced in the decision of A Part-Time Teaching Assistant v A University, (ADJ00006488), “It is well established that disputes under this Act should be raised and exhausted at local level through the respondent’s grievance procedure. I find in this case that this did not occur. As outlined to both parties at the Hearing, the Workplace Relations Commission should not be the first port of call when a person has a grievance under the Industrial Relations Act. I note in the Labour Court case INT1014 it stated” The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed.”

In the case A Driver v Warehouse & Delivery [ADJ-0001406] the Adjudication Officer concluded as follows: “He never invoked and exhausted the grievance procedure and this claim is rejected”. “I find that there is a requirement that a person taking a claim under this Act must raise a formal grievance and have it fully exhausted before submitting a claim to the Workplace Relations Commission”. “The WRC must not be the first port of call in a dispute resolution”.

Conclusion.

In conclusion we respectfully request that the Adjudication Officer find that the Claimant was not entitled to leave his job nor was it reasonable for him to do so in circumstances where there were other alternatives open to him and that accordingly, the claim for constructive dismissal under the Industrial Relations Act should fail.

CA – 00046552 – 001.

The Complainant does not appear to have utilised these procedures in any shape or form.

Representative for the Respondent has correctly pointed out the Complainant’s failure to substantially utilise the grievance procedure in an attempt to remedy his complaints.

There is ample case law that supports the position put forward by the Respondent on this subject and it is for this reason that I must conclude that the complainant as presented under the Industrial Relations Acts is not well founded and therefore fails.

CA – 00046552 – 002.

The Complainant contends that he was constructively dismissed.

I note the following from the Respondent’s submission to the hearing:

As part of the probationary review process a number of issues arose at the Complainants 4 Month probationary review which took place on 12th July 2021.

A further probationary review took place on 6th September 2021 and again a number of issues were highlighted whereby the complainant was identified as underperforming against expectations

The Complainant was provided with a copy of the feedback from his probationary review from his Senior Manager both at the meeting and by e-mail the following day dated 7th September 2021.

On the same day the Complainant, having issue with the content of the feedback, responded by e-mail which is also dated 7th September 2021. In this correspondence the Complainant suggested that he had “been getting a lot of bad behaviour from multiple people” and also suggested that the company needed to “address the concerns that he had raised over the past few months”.

On 9th September 2021 (2 days later) his Senior Manager responded by email seeking a further one to one meeting with the Complainant to discuss the issues further. In this e-mail the Senior Manager pointed out to the Complainant that the company had specific policies surrounding this and also included a link to these policies in the e-mail itself. He particularly pointed the Complainant to the Grievance Policy and the Dignity at Work Policy.

The Complainant does not appear to have utilised these procedures in any shape or form.

Representative for the Respondent has correctly pointed out the Complainant’s failure to substantially utilise the grievance procedure in an attempt to remedy his complaints.

There is ample case law that supports the position put forward by the Respondent on this subject and it is for this reason that I must conclude that the complainant as presented under the Industrial Relations Acts is not well founded and therefore fails.

There is ample case law that supports the position put forward by the Respondent on this subject and it is for this reason that I must conclude that the complaints as presented under the Industrial Relations Acts are not well founded and therefore fail.

Industrial Relations Acts