Complainant

Respondent

Parties

Marzena  Skalska

Mulleady's Ltd.

Representatives

Malgorzata Kisielewska

Barry Walsh Fieldfisher

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-00045695-002

17/08/2021

The Complainant stated that she commenced employment with the Respondent on 13/9/2016 and that she terminated her employment effective from 11/8/2021. The Complainant’s last day in the workplace was 6/11/2020. The Respondent is a family business dealing with waste management.

Having heard from the parties at the preliminary stage, I determined it was a case of alleged constructive dismissal and consequently that the burden rested on the Complainant to establish that she was unfairly dismissed.

The Complainant stated that her problems at work started in 2018 when her then friend Mr XX was employed. She stated that after a short time their friendship ended and that Mr XX started to act “very weird” towards her. From 2019, the Complainant stated that Mr XX was “very aggressive” towards her and the situation was getting worse every week. She stated that she was “abused mentally” nearly every single day by Mr XX or another co-worker.

The Complainant stated that she commenced reporting the situation several times to her Team Leader but to no avail. She stated there were no safety procedures in operation in the workplace. The Complainant stated that her mental health was seriously affected as a result of how she was treated. The Complainant outlined several incidents she was subjected to including comments by Mr XX about being hit by a battery, name-calling, inappropriate, offensive and bad language, shouting and laughing at her, an incident where there was a rat on the picking line covered up by paper and an incident on 5 October 2020 where Mr XX referred to the Complainant “monitoring” matters. The Complainant also referred to a threatening phone call she received from Mr XX’s partner on 29 January 2021 which she said were most upsetting for her. This person was not an employee of the Respondent, and the Complainant reported the matter to the Gardaí.

Due to the lack of response from the Team Leader, the Complainant stated that she went to the Respondent’s management herself to seek help. A meeting was held with the Respondent’s HR Officer on 28 September 2020 in the course of which the Complainant stated that she described how she was being treated and the effect on her mental health. The Complainant stated that the HR Officer wrote a report of this meeting which she refused to sign as she did not agree it was accurate. The Complainant stated that the HR Officer also asked her if she wished to make an official complaint and put it to her that she had two options – either be friends again with Mr XX or go through the Respondent’s procedure and make an official complaint.

The Complainant stated that her Team Leader and Mr XX became aware of what she had said to the HR Officer which greatly upset her. In this regard, the Complainant stated that the Team Leader came to her in the hall and stated that she would have to take everything down in writing from now on. The Complainant also stated that the Team Leader’s attitude towards her changed after her meeting with the HR Officer and that she became more friendly with Mr XX.

On 28 September 2020 the Complainant lodged an official complaint against two employees – namely Mr XX and Mr YY in accordance with the Respondent’s procedures. In the meantime, she stated that her health was being affected by all that was occurring and after 6 November 2020 she remained on certified sick leave until she resigned in July 2021. The Complainant stated that nothing was done about her complaint between 28 September and 6 November 2020.

The Complainant outlined her dealings with the Respondent in relation to her sick leave and the provision of medical certificates and her difficulty with an occupational health doctor to whom she had been referred. The Complainant continued to engage with the investigation process in accordance with medical advice. She had a consultation with another occupational health provider on 21 April 2021 and expressed satisfaction with this appointment. This occupational health provider reported that the Complainant was unfit to engage in workplace issues for a month and recommended that the “work-related issues…..are more appropriate managed through the usual workplace channels”. The report also deemed her unfit for work.

The Complainant stated that she was dissatisfied with the outcome of the investigation and expressed the view that her experiences were not given due regard and that confidentiality was not maintained in the course of the investigation process. Further she stated that following the investigation, the Respondent failed to put a plan in place to facilitate her return to work or resolve the conflict or ensure that Mr XX was working in a separate area from her. In this regard, she stated that that the only alternative change of position offered to her was to assist with bin collection in Mullingar which she deemed wholly unsuitable. The Complainant stated that in all the circumstances she could not return given what she encountered in the workplace as she “would have no life” and that the “superiors” were siding with Mr XX and Mr YY.

The Complainant was cross examined on her evidence. In relation to the investigation process, the Complainant agreed under cross examination that she met with the HR Officer on 28 September and 12 October 2020, that she was afforded representation and a translator, that several witnesses were interviewed and that she was furnished with drafts of the investigation reports into her complainants against Mr XX and Mr YY, for comment prior to them being finalised. The Complainant agreed under cross examination that she was afforded an opportunity to cross examine those interviewed and that she had declined to do so. The Complainant also agreed under cross examination that she was afforded a right of appeal in respect of both reports and she stated under cross-examination that she “can’t remember” why she only appealed the report related to Mr YY and didn’t appeal the report in relation to Mr XX. In response to a question on mediation, the Complainant stated that she was aware the mediation would be conducted by an external person but she stated her health wouldn’t allow her to go through mediation with Mr XX. When questioned further on this she stated that she “knew his [Mr XX] behaviour towards her wouldn’t change”.

In relation to a return to work, it was put to the Complainant that she had been written to on 12 and 19 July 2021 in relation to this matter, which the Complainant accepted. In response to a question that she wished to have Mr XX dismissed or moved out of the work area, the Complainant answered “Yes”. It was put to the Complainant that she did not get the outcome she wished from the investigation, and she responded that she wished to go back to work but could not work with Mr XX.  In response to other questions the Complainant accepted that she did not seek a transfer for herself nor did she submit any specific request from Mr XX to move to another location.

It is the position of the Complainant that she had “no option” but to resign. Her resignation letter of the 28th July 2021 stated that she was resigning with effect from 11 August 2021. The Complainant reiterated that she had no support in the workplace and that there was no plan in relation to her return to work or indication of when the problems would be resolved.

The Respondent stated that the Complainant was hired as a general operative in August 2016. The Respondent stated that it was notified by the Complainant’s husband (also an employee) on 21 September 2020 of the Complainant’s complaints in respect of two of her colleagues - ie Mr XX and Mr YY. The Respondent outlined the steps it took to address the Complainant’s complaints including provision of a translator. In summary, the Respondent outlined the following:

-          The meeting between the Complainant and the HR Officer on 28 September 2020;

-          That the Respondent’s grievance procedure was initiated by the Complainant on 30 September 2020 against two employees Mr XX and Mr YY;

-          The various stages of the grievance procedure including interviews with Mr XX and Mr YY who both rejected the Complainant’s allegations and made counter allegations, further meetings with the Complainant and interviews with 10 other employees/witnesses;

-          The outcome of the grievance procedure which the Respondent stated:

o    did not substantiate the vast majority of the Complainant’s allegations;

o   did not uphold the Complainant’s complaints of bullying;

o   did uphold the Complainant’s complaint in relation to the use of bad language which the Respondent found to be a violation of the Complainant’s right to dignity at work and resulted in a direction to Mr XX and Mr YY to cease using such language;

o   revealed “an on-going mutual dispute between the Complainant and [Mr XX]”; and

o   made a number of recommendations to improve the working environment and restore relations. The recommendations included a proposal to establish mediation between the Complainant and Mr XX and Mr YY and retraining for all company employees and for Line Leaders and Supervisors in handling breaches of the Respondent’s Code of Conduct which was completed during February and March 2021.

The Respondent stated that the investigation outcome was communicated to the Complainant on 22 February 2021 and that she appealed the outcome in respect of only one employee – ie Mr YY, on 28 February 2021. Following a meeting on 15 March 2021 the appeal was not upheld. The Respondent stated that the Complainant attended mediation with Mr YY which was chaired by an external HR Consultant with an interpreter present but that she declined the offer of mediation with Mr XX.

The Respondent stated that the Complainant commenced a period of long-term sick leave on 6 November 2020. The Respondent stated that it engaged with the Complainant during July 2021 but that she indicated she did not wish to return to her role if it involved working with Mr XX. The Respondent stated that it offered the Complainant an alternative position in Mullingar on the same terms and conditions but that she turned this down.

Evidence of the HR Officer:

The HR Officer stated that she worked for the Respondent for approximately six years and that it was a small family business. She stated that she had very little interaction with the Complainant prior to her complaint in 2020. The HR Officer outlined her role in the investigation process and stated that from time to time she obtained advice and support from an external HR company. The HR Officer stated that she maintained confidentiality throughout and did not disclose any of the Complainant’s complaints to the Team Leader. She stated that she spent considerable time compiling the investigation reports into the complaints against Mr XX and Mr YY and took on board any comments made to the draft reports by the Complainant prior to the reports been finalised. The HR officer stated that two of 12 complaints were upheld in respect of Mr XX – ie in respect of a comment at a team meeting about being hit by a battery and in respect of the use of bad and/or offensive language and that the latter was also upheld in respect of Mr YY. The HR Officer stated that the investigation in relation to Mr XX was closed when no appeal was submitted.

The HR Officer referred to her letter to the Complainant of 19 July 2021. She stated that she considered that in circumstances where the Complainant’s overall complaint of bullying against Mr XX was not upheld that requiring him to move to a different department could be regarded as penalising him. The HR Officer stated that mediation was offered as a means of resolving any outstanding issues and seeking to repair the working relationship.

The HR Officer was cross examined on her evidence. Under cross examination the HR Officer stated that the Team Leader had informed her that she had been dealing with issues on the work floor. In answer to a question, the HR Officer stated that Mr XX had admitted use of bad language in the course of the investigation process.

Evidence of Office Manager:

The Office Manager stated that she was working in the Respondent company for approximately 20 years. She gave evidence in relation to her role in seeking to implement mediation. In that regard she stated that she met with the Complainant in February 2021 and with Mr YY and organised for an external person to conduct the mediation. She stated that the mediation went well and that matters between the Complainant and Mr YY were resolved as a result. The Office Manager stated that the same mediation process was available to the Complainant with respect to Mr XX but that she declined to avail of it.

The Complainant did not cross-examine the Office Manager on her evidence.

Evidence of Managing Director:

The Managing Director stated that he had been managing the family business since he left college. He gave evidence in relation to his role in the appeals process. In that regard he stated that he received the Complainant’s letter of appeal of 28 February 2021 in respect of the investigation report related to Mr YY and that no appeal was lodged in respect of the report related to Mr XX. He stated that he convened an appeal hearing on 15 March 2021 and issued the outcome on 26 March 2021. He explained that the Complainant had submitted five grounds of appeal which he did not uphold.

The Complainant did not cross examine the evidence of the Managing Director.

The Respondent maintains that it conducted a thorough and comprehensive investigation arising from the Complainant’s complaints of bullying and other matters and afforded the Complainant an appeal. The Respondent stated that it upgraded its CCTV cameras between June and October 2020 to provide enhanced coverage across working areas.  It is the position of the Respondent that it acted reasonably throughout, that the Complainant was not constructively dismissed and that she resigned voluntarily effective from 11 August 2021.

The legal provisions in relation to unfair dismissals are set out in the Unfair Dismissals Act [1977-2017] and for the purpose of this decision I consider the following provisions relevant:

Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as follows:

““dismissal”, in relation to an employee, means –

a) the termination by his employer of the employee’s contract of employment with the employer…..

b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was I would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

The Complainant is claiming that she was constructively dismissed and had to leave her job due to the conduct of the Respondent and/or employees of the Respondent. Accordingly, I must consider whether or not on the balance of probabilities, there was a dismissal in accordance with the provisions of section (b) above. There are two tests to establish if a constructive dismissal occurred – the ‘contract test’ – i.e. that there was a breach of the contract of employment, such that an employee is entitled to terminate his/her employment and the ‘reasonableness test’ – i.e. that the behaviour of the employer was so unreasonable that the employee was entitled to terminate his/her employment. The reasonableness test asks whether the employer conducted its affairs in relation to the employee so unreasonably that a complainant could not fairly be expected to put up with it any longer. These tests were enunciated in Western Excavating (ECC) v Sharp [1978] ICR 221 and have been relied on by the Labour Court. For example in NCBI v Ms Mary Cawley [UDD2138] the Court explored whether there was “any fundamental breach going to the root of her contract” such that it was reasonable for the Complainant to terminate her contract and/or whether the employer conducted its affairs “in relation to the employee so unreasonably that the employee cannot be expected to put up with it any longer, [and] if so…is justified in leaving”.  By the same token, a complainant is under the burden of establishing that he/she has conducted him/herself reasonably in terms of affording the employer the opportunity to address the issue(s) which ultimately led to the termination of the employment. In that regard, in referring to the need to utilise established internal grievance procedures, the Employment Appeals Tribunal held as follows in Beatty v Bayside Supermarkets [UD142/1987]:

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases…”

In addition, I am mindful of the general principle in dismissal cases that it is not the function of an Adjudication Officer to re-investigate disciplinary complaints or to substitute their view for that of a Respondent employer. Rather the focus is whether the decisions arrived at are rational, reasonable and based on the information available.The Labour Court summarised this rationale in the case of Clancourt Management Ltd T/A Clancourt Management V Mr Jason Cahill [UDD2234], which concerned dismissal for misconduct:

“In cases under the Unfair Dismissals Act ….. the test for the Court in cases where misconduct is stated to be the basis for dismissal is to ask does the decision to dismiss fall into this band of reasonableness? ......It is not the function of the Court to re-investigate disciplinary complaints. In looking at the outcomes of the investigations, the Court needs to consider if the decisions arrived at are rational, based on the information available to the investigators ………It is not the Court’s role to substitute its view for that of the Respondent ……”

In relation to this matter, I had carefully considered the extensive submissions, the sworn evidence of the parties, the  correspondence and the case law cited. For the most part the facts of the case are not in dispute – particularly in terms of dates, documentation and meetings. From my consideration of all the information, I am satisfied that the Complainant found herself in a difficult position – in terms of the deteriorating relationships in the workplace, particularly with Mr XX and Mr YY.   Accordingly, I am not disputing the Complainant’s bona fides nor the impact of the workplace environment on her. It was very unfortunate that matters escalated to the point where the Complainant considered she had no option but to resign her employment with the Respondent.

Notwithstanding the foregoing, I have reached the following conclusions:

-          From the evidence and documentation, I am satisfied the Respondent conducted a timely and thorough investigation into the Complainant’s complaints and reached conclusions on the balance of probabilities in a fair and transparent manner. This is what the Respondent was obliged to do and in accordance with fair procedures, it afforded the Complainant representation/right to be accompanied, a right to respond to all interviews and to the draft reports, a right of appeal and a right to cross-examine witnesses;

-          I am not satisfied that the Complainant exhausted all avenues at workplace level prior to her resignation. In this regard I specifically refer to the failure on her part to appeal the report relating to Mr XX. Further, I consider that the Complainant should have allowed time for the recommendations of the investigation process to be implemented particularly in relation to re-training on the Code of Conduct which includes a requirement for employees to “be courteous, helpful and polite to all those with whom they have contact” and implementation of the direction to Mr XX and Mr YY to cease using bad language;

-          From the sequence of correspondence surrounding the Complainant’s resignation – summary of which is set out below -  I consider that her resignation was precipitous from the perspective of her coming to the view that there was no plan to facilitate her return to work or  that no further explorations could take place in that regard. I do not propose to comment on the resignation letter from a medical perspective since that is not within my competence. The resignation letter stated – inter alia - as follows:

“I am unable to continue working for the company because of work-related stress.  After consultation with my doctor which advised me to leave current workplace I decide this decision would be best for my mental health. I was really hoping that company would do something to make my return possible but after last email from you I understood that there is no option I could work for the company without seeing the person that was bullied me for such a long time (I think job offer as the lorry helper is not really acceptable because this role is to hard for a woman)”.

Prior to the resignation letter, the HR Officer’s letter of 19 July 2021 to the Complainant stated as follows:

“As the complaint is completely closed and there was no evidence of bullying, [the Respondent] have no reason to take any action against [Mr XX], or either remove [Mr XX] from his work station, or place you in another area of the business because of the complaint. With that being said, I want all employees to be happy in work and I am happy to review how we can both support your return and reintegrate you back into the workforce. I am unable to create a new position for you or remove another employee from theirs to allow you to move into it. However, I have attached the positions we currently have available….. for your consideration….”

In response to the Complainant’s resignation letter of 28 July 2021, the HR Officer responded on the same day and stated that the Respondent was sorry and disappointed to receive the resignation letter and also stated:

“I would ask that you consider your resignation and not act hastily in leaving your job. Please take the next 48 hours to consider if resigning is what you really want to do. I will hold off on accepting your resignation…..”

In light of the foregoing and in all the circumstances, I consider that the Complainant has not demonstrated that the Respondent breached her contract of employment or acted so unreasonably that she was justified in resigning. Accordingly, I consider that the Complainant has not discharged the burden of proving that she was constructively dismissed pursuant to the Unfair Dismissals Act [1977-2017]. 

CA-00045695-002

For the reasons outlined this complaint is not well founded. 

Constructive Dismissal, Workplace Investigation, Complaints of Bullying