Worker

Employer

Anonymised Parties

A Former Worker

A Waste Management Business

Act

Dispute Reference No.

Date of Receipt

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

CA-00059257

17/08/2021

The Worker stated that she commenced employment with the Respondent on 13/9/2016 and that she terminated her employment on 11/8/2021 on the basis of constructive dismissal. The Worker has brought a separate case for adjudication in relation to her constructive dismissal claim. In that regard, the Worker confirmed at the commencement of the industrial relations case that the same set of facts applied. The Worker’s last day in the workplace was 6/11/2020. The Employer is a family business dealing with waste management.

The Worker 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 Worker 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 Worker 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 Worker stated that her mental health was seriously affected as a result of how she was treated. The Worker 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 Worker “monitoring” matters. The Worker also referred to a threatening phone call she received from Mr XX’s partner on 29 January 2021 which she said was most upsetting for her. This person was not an employee of the Worker’s Employer and the Worker reported the matter to the Gardaí.

Due to the lack of response from the Team Leader, the Worker stated that she went to the Employer’s management herself to seek help. A meeting was held with the Employer’s HR Officer on 28 September 2020 in the course of which the Worker stated that she described how she was being treated and the effect on her mental health. The Worker 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 Worker 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 Employer’s procedure and make an official complaint.

The Worker 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 Worker 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 Worker 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 Worker lodged an official complaint against two employees – namely Mr XX and Mr YY in accordance with the Employer’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 Worker stated that nothing was done about her complaint between 28 September and 6 November 2020.

The Worker 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 Worker 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 Worker 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 Worker 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 Employer 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 Worker 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.

It is the position of the Worker that she had “no option” but to resign and was constructively dismissed. Her resignation letter of the 28th July 2021 stated that she was resigning with effect from 11 August 2021. The Worker 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 Employer stated that the Worker was hired as a general operative in August 2016. The Employer stated that it was notified by the Worker’s husband (also an employee) on 21 September 2020 of her complaints in respect of two  colleagues - i.e. Mr XX and Mr YY. The Employer outlined the steps it took to address the Workers’s complaints including provision of a translator. In summary, the Employer outlined the following:

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

-          That the Employer’s grievance procedure was initiated by the Worker 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 Worker’s allegations and made counter allegations, further meetings with the Worker and interviews with 10 other employees/witnesses;

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

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

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

o   did uphold the Worker’s complaint in relation to the use of bad language which the Employer found to be a violation of the Worker’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 Worker 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 Worker and Mr XX and Mr YY and retraining for all company employees and for Line Leaders and Supervisors in handling breaches of the Employer’s Code of Conduct which was completed during February and March 2021.

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

The Employer maintains that it conducted a thorough and comprehensive investigation arising from the Worker’s complaints of bullying and other matters and afforded the Worker an appeal. The Employer 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 Employer that it acted reasonably throughout, that the Worker was not constructively dismissed and that she resigned voluntarily effective from 11 August 2021.

From my consideration of all the information provided in the course of the adjudication hearing and the documentation, I am satisfied that the Worker 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 Worker’s bona fides nor the impact of the workplace environment on her. It was very unfortunate that matters escalated to the point where the Worker considered she had no option but to resign her employment.

Notwithstanding, I have reached the following conclusions:

-          I am satisfied the Employer conducted a timely and thorough investigation into the Worker’s complaints and reached conclusions on the balance of probabilities in a fair and transparent manner. This is what the Employer was obliged to do and in accordance with fair procedures, it afforded the Worker 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 Worker 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 Worker 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 Worker’s resignation, 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 have taken place in that regard.

In all the circumstances, I consider that the Worker has not demonstrated that the Employer did not respond to her allegations or that it acted so unreasonably that she was justified in resigning on the basis of alleged constructive dismissal.

Constructive Dismissal, Workplace Investigation, Complaints of Bullying