ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019016
Parties:
| Complainant | Respondent |
Parties | Áine Houlihan | Baxter Essc Ltd |
| Complainant | Respondent |
Anonymised Parties |
|
|
Representatives | Eamonn Gibney HR Dept | Cathal McGreal BL Wendy Doyle Wendy Doyle Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00024433-002 | 21/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00024433-003 | 21/12/2018 |
Date of Adjudication Hearing: 19/01/2022 and13/04/2022 and 09/08/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant’s complaint is that she was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that her Employer’s conduct or behaviour was such that she had no reasonable alternative other than to tender her resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that she was forced to terminate her Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate her employment, or it was reasonable for the Employee to terminate her employment (as defined in Section 1 of the Unfair Dismissals Act 1997).
It is well established that there are two tests for constructive Dismissal in the Statutory definition provided. Either one of these tests can be invoked by the Employee.
The first is the Contract Test where an employee will argue an entitlement to terminate the Contract of Employment because of a fundamental breach of the Employment Contract on the part of the Employer. The breach must be a significant breach going to the root of the Contract.
Secondly, the employee may allege that she satisfies the 1977 Act’s “reasonableness” test. That is that the conduct of the Employer was such that it was reasonable for her to resign. That is to say that the employer has conducted its affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving. The test is objective. The test requires that the conduct of both employer and employee be considered. The conduct of the parties as a whole and the cumulative effect must be looked at. The conduct of the employer that is being complained of, must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed from her place of employment (by reason of Constructive Dismissal) wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (21st of December 2018) issued within six months of her Constructive dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter
In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. I would therefore have regard for the seminal Employment Appeals Tribunal case of UD 474/1981 Margot Conway -v- Ulster Bank Limited wherein the Tribunal stated:
“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”
Lastly, where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement, or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
Background:
This hearing was conducted in person (over the course of three dates) in the Workplace Relations Commission situate in Lansdowne Road. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is a serious and direct conflict in evidence between the parties to a complaint, that an oath or an affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of a false statement or evidence is an offence. This matter comes before the WRC on foot of a workplace relations complaint form prepared by the Complainant on the 21st of December 2018. The Complainant makes the case that she was constructively dismissed. |
Summary of Complainant’s Case:
The Complainant was fully represented. At the outset, the Complainant was happy to swear an Oath to tell the truth. I was provided with a comprehensive submission described as a statement on behalf of the Complainant received in or around 3rd of February 2022. This was preceded by two other documents prepared by the Complainant and received on the 5th of February 2019 (described as the WPR complaint details) and the 14th of February 2021 (described as a statement of claim). These two documents tended to set out a timeline and were helpful. Other documents including emails and medical reports were also provided. The oral evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that she was Unfairly dismissed. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent had representation at this hearing. The Respondent provided me with a comprehensive submission received in and around the 18th of March 2021. Attached to this was a booklet of some 25 Appendices. This was opened in full on the second day of evidence. I have additionally heard from the witness Sarah Farrell the Head of Financial Processes within the Respondent company. All evidence was heard following an Affirmation/Oath. The Respondent was cross examined by the Complainant representative. The Respondent rejects that there has been a Constructive Dismissal and does not accept any contravention of Employment Rights as protected by statute. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced across three hearing days. The Complainant commenced her employment in July of 2015. The Complainant was engaged as an Account Receivable Assistant Manager. A Contract of Employment was opened to me wherein I was directed to the clause wherein the company expects that extra hours would be required as the needs of the business might dictate. The cross-party evidence is that the Complainant started very well with the company and appeared to be keeping abreast of what was expected of her. In fact, the Complainant appeared to thrive as a team player and garnered awards and recognition for her performance throughout her first year and a half. The Complainant says that behind the scenes she was always struggling with the workload and things came to a head in and around December 2016 when she met with LC from the HR team. LC was helpful and suggested contacting the Employment Assistance Programme and seeing the company Doctor. The Complainant was assessed by the company Doctor who noted that the Complainant was complaining of an excessive workload that meant she had to work way more than her Contracted hours including extra hours which might reasonably be expected of her from time to time. The Complainant has stated that the workplace seemed to be in constant state of flux, with project after project getting taken on. She stated there was never any chance to stabilize and she believed the hours she was putting were well in excess of what was reasonable. The Complainant appeared to accept that everyone was working hard and mentioned that she saw that her own line Manager Q was as much under pressure as anyone. After the initial approach concerning her own difficulties (in December 2016) the Complainant collaborated with her line Manager Q as well as with LC and the language used in the relevant emails recognise the Complainant’s need to be allowed to switch off. The Complainant was allowed to work form home one day a week and other small measures include a direction that the Complainant must leave at her appropriate time and should leave her laptop in work were also adopted. I would accept the Respondent’s proposition that the language in the relevant emails is collaborative and protective (in this regard I am looking at emails from January 2017). LC put a considerable effort into working with the Complainant who was doing better by February of 2018 but unfortunately was not doing as well by March of 2018. The Complainant went out on sick leave. She stayed out for circa six months. The Complainant was communicated with from time to time by way of support and I note that a phased return to work arrangement was created to suit the complainant’s needs. This was overseen by SF the head of Financial Processes who invited the Complainant to base herself in SF’s offices after she had returned to the workplace at the end of September 2018. The return to work was preceded by a three-way meeting between the Complainant and LC from Human Resources and SF who was, I understand, the Complainant’s line Manager’s Line Manager. The Complainant was due to return on a phased basis and not expected to return to full time until early November 2018. Again, the emails between the Complainant and HR and SF are clear, warm and encouraging. Other emails at management level and which discuss the Complainant’s return to work are also positive. This may be seen in the email between LC and SF on the date of the Complainant’s return to the workplace. To my mind, a real interest was taken in how to best allow the Complainant transition back into the workplace. Another email from Line Manager Q to SF (dated October 12th 2017) also demonstrates that he too was mindful of the Complainant’s disposition and the need to gradually take on extra responsibilities. By the end of October, the Complainant is complimented by SF for showing such determination and desire to get back to day-to-day operations. No problems or complaints have arisen and both SF and Line Manager Q are on hand to reassure if any concerns are raised. The Complainant – in a replying email- expresses thanks and confidence about her return and her future within the Respondent company. The Complainant gave cogent evidence that despite any and all of these supports she was still struggling with the day to day volume of work expected of her. It is noted that when referring the Complainant for a cognitive assessment in and around November of 2017 there is a disappointment at the rate of return to the workplace as the Complainant continued at that point to be on a three- or four-day week. The clear concern (for LC in HR) is that the Complainant’s “.. workload isnowhere near that of her peers, and we are concerned that there appears to be no sign of [her] being even near to an output commensurate with the role of assistant Manager.” The Complainant is given a diagnosis of work-related stress in a medical report dated the 29th of November 2017. The report notes that the Complainant has insight into her condition and “..she recognises she is no longer functioning at her previous level of productivity.” The report confirms that the Complainant is receiving appropriate medical attentions and care and that there is an expectation that she will make a full recovery though a clear timeline is not possible. It is worth noting that the complainant does not identify (to the examining Doctor) any particular difficulties in terms of the team around her and indeed singles out SF’s facilitation as most helpful. The Complainant was being assessed by the company Dr at regular intervals with a view to ensuring that her re-integration was being done at a pace approved by the medical assessment. The report also agrees that the Employer’s proposal: “I concur with your plan to meet with Ms Houlihan to identify any work-related issues that remain and need to be addressed. Specifically relating to her Line Manager and work expectations.” This last finding is important as it tends to possibly suggest that the Complainant identified that there was a problem with the Complainant’s direct line Manager Q and what he expected of her. The details were not explored in the course of the medical assessment. However, in the course of the hearing before me the Complainant very forcefully stated that there were ongoing and significant issues with Q in the course of her employment. This was oral evidence presented time and again by the Complainant for my benefit. The Respondent has pointed out that no Grievance was ever raised against Q and that this reference to Q in the medical report of November 29th 2017 was bound up with the acknowledged ongoing difficulty with the Complainant not managing the same level of work as other members of the team being managed by Q. I have also been directed to an email exchange between the Complainant and Q in early January 2018 concerning annual leave entitlements and the discourse is not confrontational. In fact, there is no corroborative evidence to support this aspect of the Complainant’s case – that Q was unreasonable and harsh in his treatment of her. I accept that Q was a line Manger dealing with a subordinate who had become less and less productive and more and more vulnerable over the course of a year. He, like everyone else in the Respondent enterprise was trying to deal with the situation as best he could whilst still having to meet his own targets and manage the balance of his team. In this regard I note the email sent by Q to TOG (also in HR) wherein he outlines the steps he has taken to mitigate the stress factors in the Complainant’s job – dated the 5th of January 2018. It is worthwhile noting that before the end of 2017 the Complainant had reached out to the Project Management Officer CS looking to be formally mentored by her. This seems to me to suggest that the Complainant was doing well and saw a future for herself within the organisation. In fact, in her evidence, the Complainant confirms that she had become very interested in the area of GDPR and compliance and hoped to develop this intertest in line with whatever opportunities might arise within the Respondent company. The Complainant had her first meeting with CS on the 20th of March 2018 which meeting went well and the Complainant’s follow up email on April 5th speaks to a general air of positivity around the mentoring programme. On the 15th of January 2018 the Complainant went out on a certified sick leave with a bout of flu. The Complainant does query her sick leave entitlements at this time. The Complainant was by this time on sick pay benefit on the rate of a half pay for each day of absence through illness. This, it was explained to her by LC, was because she had already used up all her full pay allowance per the scheme. The Complainant mistakenly understood that the scheme should not apply to her where she says her absence was by reason of workplace related injury. The Complainant also mistakenly believes that her employer is liable to pay for medication and G.P attendances as all her problems stem from the workplace. In and around this time the Complainant does look for the Respondent policy on work related injuries. The note taken of a return-to-work meeting between Q and herself on the 25th of January 2018 seems uncontentious and I note from that that the Complainant who continued under medical assessment was to be allowed to work from home for one day a week at this time. Regarding the interaction between Q and the Complainant another email was opened to me dated the 21st of February 2018. Again, the Respondent has urged me to see this interaction as perfectly reasonable communication between the Complainant and line Manager. The Complainant has made a series of points concerning work which Q addresses in turn. Most seriously, the Complainant makes allegations of rudeness against another colleague H. H was, as I understand it, a consultant brought in to cover some of the tasks ordinarily carried out by the Complainant on a short term basis. Q clearly states that rudeness will not be tolerated by him and at three points in the email he asks that the Complainant elaborate and make her point. The Complainant never did this. I have to concur with the proposition that Q – who was not available to give evidence in person - comes across as a reasonable and patient line manager in any of the paperwork presented to me in the course of the hearing. Also, in this email exchange the Complainant points out that H is taking credit for her work and again Q says that his policy is to give recognition where deserved. Q specifically asks her to elaborate as he wants SF (their line Manager) to know who gets credit. As I understand it, the Complainant never elaborated on these issues and never raised formal Grievances against H who appeared to be a person she was having a difficult relationship with. On the other hand the Line Manager Q took the steps that might reasonably have been expected of him in asking her to flesh out her issues so he can deal with them as appropriate. On the flip side to this there does appear to have been a flashpoint in the course of a work meeting on the 22nd of February. In the course of that meeting Q described the Complainant as an Assistant Manager which she described as upsetting. This, it seems, is part of a perceived criticism of the Complainant’s still reduced capacity for workload. Whilst it is clear that the company has made every effort to accommodate the Complainant’s post illness return to the workplace, I accept that the workplace was still operating under the same pressure that it always had. The Complainant was entitled to protect herself from being dragged back in to doing long hours and becoming overwhelmed and I accept that this was something the company was acutely aware of and wanted for her. However, the company was also obliged to meet targets and ensure the work was getting done. It continued to be the same high energy atmosphere wherein the Complainant had to navigate her own role. The Respondent has consistently made the case that no issue was ever made as regards the Complainant’s competency. The Complainant was inclined to feel slighted by her Employer where no slight was intended. This was demonstrated by the practicality of needing to have full staff meetings on a Friday which was the day that the Complainant was out of the office. This was never intended to keep the Complainant out of the loop though she perceived it as such. On the 6th of March 2018 the Complainant has a conversation with Mr O’G the head of HR. She is suggesting that she might be allowed to move permanently to a four-day week. This had already been suggested for a twelve-week period at the last independent medical assessment made on the 8th of February 2018. She tells TOG that Whilst she believes she is making good progress she is on increased medication. Mr. O’G agrees they can look at how a four-day week might work in terms of pay and company expectations. The Complainant also raises her interest in Data Protection as an area for her to get into. This is in line with what she raised with her proposed Mentor who she was due to meet later in the month of March. It has been put to me by the Respondent that the notes of the conversation between the Complainant and O’G do not suggest that the Complainant is unhappy or considering resigning. There is no complaint being made and in fact the Complainant is seeking and negotiating to manoeuvre herself into a work plan which better suits her. I note that by the 13th of March 2018 Mr. O’G had separately addressed the request for a four-day week with Q and SF which again is evidence of the Respondent listening to the Complainant in line with what she wanted. On the 26th of April 2018, the Complainant tenders her resignation. The Complainant says that she had a very negative meeting with Q the day before wherein he said that she had no future. I cannot verify this meeting ever happened where no reference was made to this interaction before a submission made four years later. I understand that the resignation was tendered at the end of a period of annual leave. Of her own volition she serves notice to the 2nd of July 2018 which is more than her Statutory obligation, and which the Respondent suggests is counter intuitive to the proposition that the complainant was deeply unhappy in the workplace and could not reasonably be expected to continue. I understand that in a subsequent telephone conversation with Q, the Complainant confirmed that she wanted to explore other alternatives in the job market. This is confirmed by Q in an email to the Complainant wherein he states: “…I would like to wish you all the best in the new endeavours you want to take for your career. I accept your resignation and I would like to see finding those new opportunities you want to explore for you future.” Of further significance is the tone of the letter she sent to LC the HR officer who had actively supported the Complainant all along. Her email reads: “Dear Linda, Thank you for your kindness, patience and support during the last three years, answering questions and providing guidance in a professional and calm manner whilst showing sympathy and understanding. Your commitment to our Culture Levers is powering our ability to save and sustain lives Regards..” On balance, I have to find that the Complainant reached this decision of her own volition and in response to her own needs and aspirations. The Complainant could not identify anything that was occurring in the workplace which had made it impossible for her to continue her employment. If anything, this is a workplace which had gone above and beyond what reasonably have been expected of them to accommodate the Complainant as she struggled with the pace of the workplace. In her oral evidence, the Complainant attempted to paint an entirely different picture to the situation that has been demonstrably evidenced in the ongoing emails and correspondence. If she was deeply unhappy, she withheld that fact from her colleagues and her resignation came as a surprise to them. I would suggest that, given the level of support being given within the workplace, it might be suggested that there were people in the workplace blindsided by her decision to terminate the employment. I note that in her exit interview the Complainant asserts that H’s behaviour contributed to her decision to leave though she never raised any Grievance against this individual despite having been specifically asked to elaborate by Q on a perception that he had been rude to her. In fact, it has been suggested to me that the exit interview has been used by the Complainant to have a swipe at several people in the workplace about whom she has never before raised an issue. These included H and Q and another colleague A. This (exit) meeting took place in June of 2018 and it is noted no formal Grievance was raised in the Notice period though this option was surely open to the Complainant. I accept that the complainant has pointed to a number of open-ended issues such as whether she would be allowed explore GDPR courses and whether (long-term) she would be allowed go onto a four-day week. I note that these were issues only recently raised by her and certainly had not been fully teased out in the workplace setting. Resigning at this point was premature at best The Complainant also asserts that the Company’s failure to produce the workplace related injury policy and the talks around using up annual leave and sick benefit also served to demonstrate how unreasonable the Respondent was being. I do not accept this is the case. In this regard, I note that the Complainant had aligned herself with a new in-house Mentor with whom she had met but once or twice. The failure to see this programme through made no sense especially when she had clearly been motivated and excited by their first meeting. Indeed, I understand that the conversation had included looking at alternative positions within the Respondent company wherein opportunities always arise. The Complainant has failed to overcome the high burden of proof herein. In the first instance, there is no evidence to suggest that the Respondent no longer intended to be bound by any essential term of the Contract. Equally, I cannot accept the proposition that the Respondent’s conduct was such that the complainant could no longer reasonably be expected to put up with it. In fact, I am satisfied that the Complainant was given extensive consideration by Management when she returned to the workplace after a prolonged period of illness and that this was even alluded to by the Complainant in her parting note to LC. I accept certain matters may still need to have been ironed out but the Complainant herself had proactively been looking for other opportunities within the workplace. Had she been as unhappy as she subsequently says that she was, it was open to her to raise Grievances – this she chose not to do. As Counsel for the Respondent pointed out, the need to have raised and/or exhaust internal complaint procedures is not to somehow ensure success in a subsequent Constructive Dismissal type claim. The real benefit in raising a workplace Grievance has to be the closeness in time to the events that have given rise to the Grievance. This allows a Terms of Reference be drawn up and an on the ground Investigation to be conducted. This has to be preferable to relying on memory so long after the fact. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00024433-002 – This complaint was withdrawn as of the 13th of April 2022. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00024433-003 – The Complaint herein fails as the Complainant was not Constructively Dismissed pursuant to the Unfair dismissals Acts.
|
Dated: 15-05-2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
|