Complainant

Respondent

Parties

Lisa  Lennon

Orbcomm Ireland Limited

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

Rosemary Mallon BL instructed by Whitney Moore LLP

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-00056154-001

18/04/2023

The Complainant swore an affirmation at the outset of the hearing. She provided a statement along with documentary evidence in advance of the hearing.

Ms Gwen Byrne, Human Resources Co-Ordinator, gave evidence on affirmation on behalf of the Respondent. Submissions were filed and exchanged in advance of the hearing.

It was the Complainant’s complaint of constructive dismissal from her role as Field Service Technician Coordinator with the Respondent. It was agreed she earned a gross annual salary of €41,932 working 39 hours per week.

It was the Complainant’s evidence that her working environment changed when there was a change in management. Procedures were not followed, and she was spoken to aggressively, which led her to resign in June 2022.

After a conversation with the Respondent, she reconsidered, but following 2-3 weeks of work, a similar pattern emerged. There were customer and finance-related issues which led her to go on sick leave. When she returned to work, she met with her managers and HR. She was again assured that the working environment would get better.

In January 2023, the Complainant was promoted to cover both the UK and Ireland. She states she was happy to do it but did not receive any additional wages for the extra responsibility. It was her evidence that the aggressive response from her manager began a few weeks later.

In February 2023, the Complainant returned from annual leave and resigned two days later as not one invoice or query had been addressed in her absence. It was her complaint that she raised her grievances with her manager. HR was not initially involved. It was the Complainant’s evidence that it was not appropriate despite raising grievances with her manager; he was the one organizing to meet with her.

When she was on sick leave, she was not contacted by her employer despite being on stress leave. It was only when she reassigned on the first occasion, during her exit interview, did Mr. Byrne of HR become aware of the Complainant’s grievances.

During cross-examination, the Complainant accepted she raised a grievance in 2022. She accepted she was aware of the Grievance Procedure and the Bullying and Harassment Policy. She did not recall receiving an apology from the Vice President of Sales.

It was put to the Complainant that when she did not receive a promotion in July 2022, that this was the reason for grievance. It was also put to her that her performance review score was poor. The Complainant did not accept this. Asked why she did not appeal the score; it was the Complainant’s evidence that it was submitted while she was on annual leave but was not aware it was an option to seek an extension of time to appeal. The Complainant accepted the performance review score fed into her decision to resign along with the negative feedback from Finance for not ensuring her work was done when she came back from annual leave.

Referring to the meeting with her managers and HR, it was put to her that there was no mention of bullying or aggressive tones. The Complainant reiterated her assertion that it was not appropriate to have the manager she was complaining of presented. She added there was no follow-up from Ms. Byrne following that meeting. It was put to her that she was aware of the Grievance Procedure but did not seek an appeal of the performance review. In response, the Complainant felt she had raised a grievance, and nothing happened.

The Complainant accepted her financial loss between her resignation and commencing new employment was 8 weeks. It was put to her that she worked out her 30 days’ notice period and sought reinstatement or re-engagement, yet she had initiated a complaint for constructive dismissal. It was the Complainant’s evidence that she loved her job and was forced to leave. She worked out her notice period as her manager was on sick leave.

In summing up, the Complainant submitted she honestly believed her manager was aware of her grievances, she was stressed, and felt her grievance was not taken seriously.

It was the evidence of Ms. Byrne that the Complainant raised a grievance in 2020 which was reviewed. Ms. Byrne followed up with the managers and reiterated what was spoken of at the meetings. There was no indication from the Complainant that she was unhappy.

Ms. Byrne confirmed she was aware of the medical certificate and requested that the manager set up a meeting with the Complainant. It was the Complainant who requested the second manager attend that meeting. It was Ms. Byrne’s evidence there was no reference to bullying or harassment in that meeting. A follow-up email was sent by Ms. Byrne with the Sick Leave Policy and Company EAP. This was not presented in evidence.

In response to Ms. Byrne’s evidence that the Complainant could have appealed her performance review, she was asked in cross-examination about the notification advising appeals were no longer available. Ms. Byrne explained that she would have checked it for her. It was put to her there was no opportunity to discuss that option. Ms. Byrne was asked why there was no reference to the fact the Complainant was on stress leave during the meeting with her and her managers. It was her evidence that she felt by the end of the call matters had been resolved. Ms. Byrne said, 'it was up to the employee to flesh out the problems with us.'

Asked about the appropriateness of the attendance of her manager, it was Ms. Byrne’s evidence that she was unaware that she was on sick leave because of her manager. It was put to Ms. Byrne that the Complainant stated at the meeting her manager was the reason she was off on sick leave. Ms. Byrne did not recall. It was confirmed there were no minutes of that meeting.

Asked if the other manager advised Ms. Byrne of the previous issues the Complainant was having with her manager, Ms. Byrne said no, the call was about the Complainant and her return to work. It was Ms. Byrne’s understanding the problems were around communication with the team. The Respondent relied on Conway v Ulster Bank UDA474/1981.

In summing up, it was submitted on behalf of the Respondent that the Complainant was aware of the grievance procedures but chose not to use them, which is unreasonable.

The Complainant has initiated this complaint for constructive dismissal under the Unfair Dismissals Act 1977 -2015

Dismissal is defined in Section 1 of the Act as:

“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, or”

Burden of Proof

A constructive dismissal complaint places the burden of proof on the Complainant to establish that because of the Respondent’s conduct the Complainant had no option but to terminate her employment. She also must demonstrate that she was justified in her decision, and it was reasonable for them to resign.

In UD 1146/2011 the Employment Appeals Tribunal (EAT) held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

Internal Procedures

It is also well established that the Complainant must exhaust the Company’s internal grievance procedures in an effort to resolve the grievance prior to resigning and initiating a claim for unfair dismissal. The EAT in McCormack v Dunnes Stores UD 1421/2008 held:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

Reasonableness

The question which I must decide in the present case is whether, because of the conduct of the Respondent, it was reasonable for the Complainant to terminate her contract of employment.

The Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61, held that “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.”

The Labour Court in Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] held that: “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

In Brady v Newman, UD/330/1979 the Employment Appeals Tribunal stated:

“… an employer is entitled to expect his employee to behave in a manner which would preserve his employer’s reasonable trust and confidence in him so also must the employer behave.”

The case ofAllen v Independent Newspapers [2002] E.L.R. 84looked at the particular facts of the case and found:-

“the respondent company acted unreasonably in its dealings with the claimant, and she became frustrated, leaving her with no option but to resign”

In assessing whether the Complainant discharged the burden of proof, it is necessary to look at whether the internal procedures were followed. While the Respondent’s Grievance Procedure is particularly scant, nonetheless, one exists, and it requires an employee to speak to HR, and a record of the grievance is made with one copy going to the employee and the other placed on the file. It continues: “Human Resources will reply verbally as soon as possible after considering the grievance (and in any case within 5 working days).” It was the Complainant’s evidence that she did raise a grievance in 2020, and it received an apology. HR was involved in those meetings. However, no record of the grievance was produced at the hearing in line with the Grievance Procedure.

The Complainant’s letter of resignation of June 2022 refers to communication issues and lack of support from her manager. She was offering to work the contractual 30-day notice period. She did give evidence that she met with HR, and it was during her exit interview that she highlighted the issues with her manager.

The Complainant’s letter of July 2023 to her manager was presented by the Respondent regarding not being considered for a promotion. While this could be considered as a grievance, this was not the focus of the Complainant’s evidence at the hearing or in the narrative of her Complaint Form.

The Complainant herself produced a number of documents including screenshots of Teams messages to colleagues on her leaving day. Also included was a screenshot of an undated and unsigned email which is of no evidential value. In any of the documents produced by the parties, there is no evidence of a grievance being raised or any note on her file, as per the Grievance Procedure.

What is noted in both the resignation letters, which in June 2022 refers to lack of support and communication issues with her manager and February 2023 again refers to the lack of support and her manager’s feedback on her standard of work. There is no reference in any of these documents to bullying, aggression on the part of her manager or procedures not being followed.

It was also the Complainant’s case that HR were aware of these complaints and was on sick leave due to stress but was not addressed. It is not enough for HR to simply wash over this by making a statement that it was for the Complainant to come to HR and follow up. It is unreasonable that management and HR, both of whom were on the call upon the Complainant’s return to work, not to seek to make enquiries as to the reasons she was absent from work where the medical reason was made known to them. It is highly unusual that no notes or record of this meeting between two senior managers, HR and an employee exist. Similarly, the Complainant ought to have been advised in writing of the Grievance policies should she wish to raise anything to HR. There was no record of evidence of this being done.

On a side note, the handbook presented in evidence does not contain a Bullying and Harassment Policy as was put to the Complainant in cross-examination. Instead, it contains a “Global Violence and Harassment Policy” with a vague reference to bullying in one paragraph, but it is essentially a harassment policy.

In conclusion, the Respondent fell short of what is expected in providing clear Grievance and Bullying and Harassment Policies. Saying that there is a Grievance Policy in place which the Complainant accepted she was aware of in 2020. It is noted that neither manager referred to appeared at the hearing to give evidence on behalf of the Respondent.

In her letters of resignation, performance review or any other documentary evidence before, there is nothing to suggest that she raised a complaint about bullying. Lack of support and poor communication do not meet the high standard necessary to discharge the burden of proof for the Complainant to succeed in her complaint of constructive dismissal.

I find the Complainant was not unfairly dismissed from her employment.

Constructive Dismissal – Grievance – Policies