Complainant

Respondent

Parties

Leonie  Sheils

Symetri Limited

Representatives

Brendan Hyland Brendan Hyland & Co. Solicitors

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-00055826-001

30/03/2023

The complainant commenced working for the respondent on 4 November 2019, as a Subscriptions Sales Executive.  Her employment ended on 30 November 2022. She worked 38.5 hours a week and was paid a gross monthly salary of €2,583.33.  A complaint was received by the WRC on 30 March 2023.

The fact of dismissal was in dispute in this case.

Summary of the Complainant’s Case

The complainant provided a detailed written submission accompanied by supporting documentation.

The complainant submits that having lodged a complaint against her boss, Mr Cormac Lyons, for bullying, an external HR consultant was engaged by the respondent to carry out an investigation.  The complainant believes the subsequent investigation was not carried out properly, for a number of reasons. When the report was issued by the external investigator, he found that there was no evidence of bullying by Mr Lyons towards the complainant. The complainant made enquiries about an appeal but was told that she could appeal to Mr Lyons or another senior manager, both of whom had been involved in the original investigative process. The complainant felt the right of appeal was not legitimate because of these two people had already been involved in the process, indeed, her complaint had been made against one of them.  The complainant felt upset and let down. She felt she no longer had any option but to resign from her position in the company.

The complainant gave evidence on affirmation at the hearing.

By way of background the complainant stated that she started working with the respondent in June 2019, on a six-month contract.  She was then offered a Sales position and worked there until 2022. The complainant submitted that she was excellent at her job, was never the subject to any criticisms to do with her performance or subject to disciplinary procedures.

The complainant gave evidence about the issues that brought her to initiate a complaint of bullying.  She had been ill and had required significant medical interventions but throughout this difficult time she continued to work diligently. She was put under pressure from her manager to work even when she was ill.

Following an alleged incident which took place on 8 July 2021, the complaint lodged a complaint of bullying against, Mr Lyons, CEO of the respondent company.

The complainant stated that she fully engaged in the subsequent investigation which was carried out by an external consultant Mr Ray Ryan.  The complainant stated that she had concerns about the way the investigation proceeded. The complainant did not agree with the outcome of the investigation.

Following the issuing of the investigation report, the complainant wished to appeal the outcome of it.  However, she believes the respondent failed to provide her with a proper process by which she could make her appeal. There was no process in place. When she sought guidance on the matter, she was told she could appeal the findings of the investigation to two people, both of whom had been involved in the investigation, one of whom was the person against whom she had made the original allegation of bullying. This was very unsatisfactory in her eyes.  The complainant stated that she contacted HR on the matter three times, looking for another name to whom she could make her appeal, but she was never furnished with the name appropriate person. Because she did not wish to breach the laid down procedures, the complainant felt she could not make an appeal without having an appropriate person to whom she could make an appeal; despite her best efforts she was never told to whom she could appeal, she did not know to whom she should send her appeal.

As these events unfolded the complainant came to feel that she was being pushed out by her employer. She could not get her appeal off the ground and the responses to her queries were slow in coming back to her.

In reply to a question put to her during cross examination, the complainant stated that the reason she had not sent her appeal to management was because an appeal had to be heard by someone not previously involved in the investigative process and the two people to whom she had been told to make her appeal to, had been involved in the process previously.

The complainant stated that she left her employment as she saw no pathway for her back to work; she had lost faith in her employer.

The complainant stated that she had commenced temporary employment in January 2023, but on less attractive terms and conditions than she enjoyed when she had worked for the respondent. She gained a permanent position in February 2023, where the terms and conditions are “slightly better” than those she had with the respondent.

In closing, the complainant’s representative put forward that this matter would not be subject of a WRC hearing if the questions asked by the complainant had been answered by the respondent.  The appeal process was flawed as everyone was aware the complainant wanted to appeal the matter, but no one would tell her to whom she should appeal.

The respondent provided a detailed written submission along with supporting documentation.

The respondent refutes the allegation.

In opening, the respondent put forward that appeal processes were in place, in the complainant’s contract of employment and in the Employee Handbook.  In any case an appeal would have been set up by the company by the company’s HR Director had he had an opportunity, but the company was not given any lee way to do this by the complainant.  Indeed, the complainant could have, if she had so wished, made a complaint to the WRC, she just chose to resign.

Mr Cormac Lyons, CEO of the respondent company, gave evidence on affirmation at the hearing.

As way of background Mr Lyons stated that as CEO he oversees all aspects of the business.

Regarding the appeal Mr Lyons stated that the Employee Handbook is clear; appeals must be submitted to management.  However, this does not mean he or another named manager would necessarily hear the appeal, in all likelihood it would be outsourced. He continued, “if we had gotten an appeal, we would have outsourced it.”

In reply to a question put to him in cross examination, that the complainant had written to the investigator three times seeking guidance as to whom she should direct her appeal, Mr Lyons stated that such an appeal would have to go to management, and it would then have probably been outsourced. He was also asked to reply to the assertion that the complainant had put the company on notice that she wanted to appeal three times, Mr Lyons stated that everyone must adhere to the procedures. He was aware she wanted to appeal; but no appeal was received, so the appeal process could not start.

Mr Lyons stated that he had not suggested to the complainant that she could contact other managers in the company with her appeal because no formal request was made [by the complainant].

A Mr Johan Lundqvist, Director of HR, gave evidence on affirmation at the hearing. Mr Lundqvist confirmed that the complainant had written to him asking about how she should appeal and he had spoken to her about the situation. He stated that she had made it known to him that she wished to appeal the investigation outcome.  He told her that she should contact Mr Lyons.

In closing, the respondent’s representative summarised the respondent’s position.  The complainant’s allegation of bullying was properly investigated by Mr Ryan, an experienced external consultant.  In his expert opinion he found the complaint was not upheld and issued his report to that effect.  Mr Ryan made it clear to the complainant that she should make her appeal to management. As it transpired the complainant did not appeal as she should have, thus the respondent had no opportunity to appoint an appeals officer to hear her appeal.

In a case of constructive dismissal, it falls on the employee to show that the respondent’s actions or omissions justified their resignation. Section 1(b) of the Unfair Dismissals Act states:

“dismissal”, in relation to an employee, means— …

“(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 or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

 The classic formulation of the legal test in respect of constructive dismissal was set out in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27. This laid out two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ in the following terms: If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The ‘reasonableness test’ assesses the conduct of the employer and whether it “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

 In Berber v Dunnes Stores [2009] 20 E.L.R. 61, the Supreme Court stated that mutual trust and confidence is an implied term in every contract of employment. The Court held

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.”

 Moreover, the Supreme Court in Berber set out the following approach to assess whether a contractual term of mutual trust and confidence was repudiated or broken by an employer’s conduct:

“1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at. 4. The conduct of the employer 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.”

 As opened by the respondent, the EAT in Conway v Ulster Bank (UD474/1981) held (by majority) that the employee in that case “did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the appellant did not use it.”

 In this instant case I find the complainant was justified in resigning.

In simple terms, the complainant asserts that she resigned her position from the respondent as she had lost faith in it because of how they had dealt with her in her attempts to raise an appeal into the outcome of an investigation. 

The respondent accepts that it was aware that the complainant wished to appeal the outcome of the investigation, but she did not follow the laid down procedures.

I find the respondent fails the contract test as set out above by not providing the complainant with a name to whom she could address her appeal. The over-riding principle in a contract of employment, in relation to appeals, is that the employee has the right to appeal.  The mechanism of how they should go about making that appeal is of secondary importance.  In this case the respondent maintained that the mechanical requirements were the primary consideration.  In addition, fair procedure dictates that an appeal should not be made to a person who had been previously involved in the investigation.  Although the respondent’s procedure mandates that an appeal be to specified persons, cognisance should have been taken of the facts of the case and the involvement of these same specific persons in the process previously. The complainant should have been given a name to whom she could appeal; someone who had not had previously been involved in the investigation. Saying that “if” the complainant had made her complaint it would have “probably” been handed to an extern to hear, is not good enough.  It behoves management to clear the path for an employee to make an appeal, not to place obstacles on that path, as would seem to have happened in this case.  In this instant case I find the strict application of the company policy resulted in a breach of contract.

I find the respondent fails the reasonableness test because of its insistence that the complainant send her appeal to either of two people, one of whom was the subject of her initial complaint of bullying. That this insistence could lead to her losing in her employer could have and perhaps should have been anticipated and addressed in a meaningful by the respondent.

I find this was an unfair dismissal. I find compensation is warranted in this case.  In circumstances where the complainant’s employment ended with the respondent 30 November 2022, she gained temporary employment on 4 January 2023, and permanent employment on better terms in February 2023, I find compensation of six weeks’ pay is just and equitable.

I find this was an unfair dismissal and the respondent is directed to pay the complainant €3,876.

Appeal, contract, reasonableness.