ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00038802
Parties:
| Complainant | Respondent |
Parties | Deirdre Hayes | Boots Retail (Ireland) Limited |
Representatives | John Curran BL instructed by Charles C. Daly & Co. Solicitors | IBEC |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00049809-001 | 22/04/2022 |
Date of Adjudication Hearing: 06/10/2022 & 12/06/2023
Workplace Relations Commission Adjudication Officer: Lefre de Burgh
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. All evidence was given on oath or affirmation and the parties were given an opportunity to cross-examine each other’s evidence.
Background:
This case involves a complaint of constructive dismissal. The Complainant, Ms. Deirdre Hayes, worked in Boots, Midleton in Co. Cork for over 15 years. She was a HealthCare Advisor (HCA). The Complainant worked an average of 22.5 hours per week. The Complainant submits that after many happy years working in her job, a change in management rendered her place of work a toxic work environment, and ultimately, she was left with no option but to resign, as a result of a pattern of mistreatment she suffered at work. The Complainant submits that she raised two grievances – she entered an individual grievance, and she was also one of five signatories to a collective grievance. It is her case that the collective grievance remained unaddressed, and that the individual grievance was not processed adequately or at all; and that by letter dated 11th March 2022, the area manager proposed a further delay in the investigation of her individual grievance, and the letter addressed the Complainant as “Dear Name”, something the Complainant found deeply wounding. The Complainant submitted a letter of resignation, which the Respondent noted and which it considered to be effective from 14th March 2022. The Respondent denies the Complainant’s claims, in their entirety. It denies she was dismissed constructively or at all. The Respondent submits that it acted reasonably, as an employer. It submits that an employer is entitled to investigate allegations – and that it acted reasonably in investigating complaints made against the Complainant. It submits that an employer is entitled to give an employee feedback, that unwelcome feedback is not “toxic” or bullying; and that there was nothing untoward in the mid-year review the Complainant received. It submits that the Complainant failed to exhaust internal grievance procedures and that that is fatal to her case. It submits that at the time of the Complainant’s resignation, the area manager was on annual leave and therefore was not aware of the resignation (which was sent by registered post) until after his return. It submits that the letter addressed to “Dear Name” was an administrative error and an apology was offered to the Complainant in respect of it. The Respondent submits, without prejudice to the foregoing, that were the Adjudication Officer to find that the Complainant had been unfairly dismissed, the compensation she could receive is limited to four (4) weeks, as she has been unavailable for work due to illness. Counsel for the Complainant disputes this and cites the case of Liz Allen V. Independent Newspapers [2002] E.L.R. 84. He submits that the Adjudication Officer has a wide discretion to award compensation in these circumstances, and is not limited to awarding a mere four weeks’ compensation, in circumstances where – if reinstatement and reengagement have been identified as being unsuitable remedies – and compensation is considered to be the appropriate remedy; and the Complainant’s illness, and consequent unavailability for work, stems from the conduct of her former employer, it would therefore be unjust were the compensation she could receive in those circumstances limited to four (4) weeks. |
Summary of Complainant’s Case:
Summary, as per the Complainant’s written submissions: The Complainant submits that in September 2020, on the recommendation of their union representative, the staff (the Complainant included) made known their unhappiness about a number of serious concerns including overwork and bullying to management. Specifically, the complaint concerned Ms Anna McCarthy (Store Manager) and Ms Monika Topp (Assistant Manager). The staff complained about miscommunication, a difficult working environment, high demand, misuse of power and pressure. It is submitted that these issues had been bubbling away for a lengthy period without resolution. A meeting took place on 27 November, 2020, attended by the Complainant, the rest of the staff and Mr. McCasker (Area manager). Ms. McCarthy was also present. The Complainant put forward her complaints as a union member along with other staff. They did so in the hope of a fresh start. The Complainant and the staff agreed to try to restore harmonious relations with local management and all agreed to put their best foot forward in the hope these issues would be resolved. The Complainant did her best and the staff was hopeful that matters had improved over subsequent weeks. The Complainant submits that, unfortunately, this did not last long and over the following months the work atmosphere further deteriorated. Eventually, this led to another collective complaint in writing on 20 June 2021. In that complaint, the work environment was described as increasingly difficult. The staff described (including the Complainant) that they were increasingly anxious coming into work and they felt they were being overmanaged. The complaint described how they were "extremely concerned" as it had been brought to their attention that they were being watched on CCTV on numerous occasions over the previous month. The staff believed they were constantly being monitored and oppressed. Most concerning the complaint referred to five senior members of staff being made the subject of investigations who were never investigated previously. The staff described themselves as "disengaged, isolated and let down" by their Management Team. False Allegation (1) The Complainant submits that she was subjected to an unfair and demeaning investigation on 20 May 2021. The Complainant believes she was deliberately targeted along with other staff who were being weeded out of their employment. The letter of Notice of an Investigation Meeting was addressed to the Complainant and dated 2 May 2021 and stated the matters under investigation included 1) Security 2) Conduct [Behaviours]. The list was described as not being exhaustive in capital letters. Specifically, the Complainant was accused of entering the CCTV office (with others) and viewing CCTV without management authorisation. The Complainant was warned this could lead to a disciplinary process and that she could be dismissed This frightened the Complainant. The letter was given to her by Ms. Monika Topp and, it is submitted that, the complaint originated from Ms. Anna McCarthy. The Complainant was brought to an investigation meeting on 20 May 2021 conducted by Rose Kinsella Boots, Mahon, Cork. The Complainant felt humiliated and gave her response as best she could. By letter dated 8 June 2021, the Respondent purported to give a report of the investigation and recommended that no further action should be taken. The Complainant received no further information and the allegations were left as a cloud over her The allegation regarding Conduct and it is submitted that “behaviours” was left hanging which allowed further false allegations to be made. It is submitted that the investigation did not conform to company policy or best practice. False Allegation (2) On Monday, 31 May 2021 Ms. Monika Topp requested the Complainant do her work review at 1.10pm in the office at the Midleton Store. During the review, Ms Topp proceeded to allege the Complainant used foul language towards her manager Ms. Anna McCarthy and herself. This alleged bad language was said to have happened in November 2020 and on the 6th of March 2021. The Complainant was not informed about the allegation at the time it supposedly happened and it was only brought forward six (6) months after the alleged November incident and three (3) months after the March alleged incident. The Complainant was very upset and denied acting inappropriately, at any stage. It is submitted that all of this coincided with the staff unrest about the manner they were been treated by management. On Wednesday, 2 June 2021 the Complainant sent a personal grievance complaint to Mr. Mark McCasker, her area manager. This letter was sent by registered post. In her e-mail dated 2 June 2021, Ms. Hayes requested a grievance hearing as soon as possible and described herself as feeling "extremely vulnerable." The Complainant’s personal grievance meeting took place on 29 June 2021 and she was interviewed by Mr. Mark McCasker, Area Manager. Not having heard anything for two (2) weeks, the Complainant wrote again to Mr. McCasker on 9 July 2021 (Copy of correspondence submitted) to remind him to forward the notes of meetings with Ms Topp and Ms McCarthy. The investigation had not progressed much further despite the vulnerability of the Complainant who was becoming increasingly stressed and unwell. On 14 July 2021, Mr. McCasker wrote to the Complainant convening a further meeting with her on 20 July 2021 and enclosed the minutes of his meeting with Ms. McCcarthy and Ms Topp. On 19 July 2021, the Complainant e-mailed Mr. McCasker explaining she was feeling unwell and stated how he would appreciate she was finding work extremely difficult and challenging and referred to her fifteen (15) years loyal service and indicated that she would not be able to attend the meeting. By e-mail, on 19 July 2021 Mr. McCasker emailed the Complainant and explained that it was his intention to meet with the Complainant and he suggested, as an alternative, the Complainant could provide a response in writing for him to consider before he concluded the complaint investigation. The medical effects of the toxic work environment is described in a medical report from Dr. Mark Buckley (Copy of medical report submitted) which sets out that the Complainant had feelings of being overwhelmed, low self-worth, exhaustion and physical feelings of stress including chest pain and was suffering with stress and anxiety related to her employment. The Complainant was certified as suffering from stress and went on sick leave on 21 July 2021. The Complainant was taken off the payroll after a month and remained on unpaid sick leave thereafter and was without pay for seven (7) months. The Complainant made a slow recovery and wrote to Mr. McCasker. She reminded Mr. McCasker that she was on sick leave and that she had entered a grievance on 2 June 2021, and that he had written to her in July 2020 confirming he would accept a response in writing before he concluded his investigation. She explained that she now felt able to give that response and attached same and requested that the investigation be concluded as a matter of urgency. In her response, the Complainant strongly refuted the allegations against her and concluded the letter by stating: “In retrospect, I believe this grievance is part of a clear pattern of victimisation. In September 2020, on the recommendation of our union representative, the staff (myself included) made known our unhappiness about a number of serious concerns including over - work, bullying etc. to management which was not welcomed. We tried again in November 2020 and had meetings with Mr. McCasker. We hoped this would resolve our problems and after an initial improvement matters again deteriorated. I was vocal in communicating our concerns. I was then subjected to an unfair and demeaning investigation on the 28th May 2021 in which the complaint against me was not upheld. I asked for the identity of the complainant but was ignored. Meanwhile I was subjected to another complaint at a work review which is the subject of this grievance. Matters became so difficult that I along with other colleagues again submitted a collective grievance on the 28th June 2021. This grievance was not dealt with and instead the staff who complained were weeded out or worn down and all of them have left the company while I remain on unpaid sick leave. I believe the complaints against me were also part of this campaign and my grievance has to be seen in that context especially the baseless disciplinary meeting on the 28th May 2021 and the unjustified review on the 31st May 2021 and the collective concerns of which I was a part.”
The Collective Grievance While all this was happening, the Complainant was also participating in the collective complaint. The Group staff grievance including the Complainant alleging bullying was submitted on 28 June 2021 and the Complainants included Ms Edel Horgan, Ms Dayna McGuire , Ms. Sherry Norris, Ms. Tirna Coleman. The Grievance was as follows: "Dear Ms. Nolan, We wish to lodge a collective grievance concerning Ms. Anna McCarthy (Store manager) and Ms. Monika Topp (Assistant Manager) in relation to the following types of behaviour which has created a very difficult working environment; Miscommunication/Lack of Communication Difficult working environment High demand/over management High levels of control/power and everyday pressure in our Midleton store 1732. As a collective group, we brought these issues to Area Management's attention last year. A meeting took place on the 27th of November 2020 between a number of staff members, our store manager (Anna McCarthy) and Area Manager (Mark McCasker). We raised these issues locally in the hope of a solution and a fresh start for all members of the team. At the end of the meeting, we all agreed to put our best foot forward in the hope that these issues would be resolved. We as a team felt confident that the work environment would improve and it did for a few weeks and we had hope for the future. However, the situation has reversed over the past few months. The working environment has become increasingly difficult. Staff are anxious coming into work, we feel we are being over managed. We feel extremely concerned in work as it has been brought to our attention that we have been watched on CCTV on numerous times over the past few months. We feel like we are constantly being monitored. There has been a high number of investigations in store involving five senior members of staff who have never been involved in the disciplinary process before and have a very good work record. We feel our management team are very defensive if we try to speak up. As a collective group we feel disengaged, isolated and let down by our management team. We have no idea why this is happening and some of us dread coming to work. We are fearful for our futures. We have tried to solve this through the informal route but unfortunately that has not resolved the issues. We feel we have no other option but to lodge a formal grievance and we are requesting a grievance hearing as soon as possible. Your sincerely Edel Horgan Dayna McGuire Sherry Norris Tirna Coleman Deirdre Hayes It is submitted that the Complainant attempted to have this grievance also dealt with. It is submitted that by e-mail dated 12 July 2021, the Complainant made it clear that as she had already stated in previous correspondence she did not wish to go down the informal route as this was tried previously with no success. The Respondent failed to investigate this grievance. It is submitted that the staff felt abandoned by management and felt pressurised to leave especially as their grievances remained unaddressed. The staff that left included the named persons on the grievance. - Dayna McGuire (Dispenser) 10 years’ service; left Boots on 20 August 2021 - Sherry Norris (Healthcare Advisor) 15 years’ service; left Boots on 31 August 2021 - Tirna Coleman (Dispenser) 5 years’ service; left Boots in September 2021 - Edel Horgan (Dispenser) 15 years’ service; left Boots in September 2021 [Adjudication Officer’s Note: I have initialised the names of the additional people who it is submitted left the Respondent company but who were not proffered as witnesses in relation to this case.] - PR (Pharmacist) 2 years’ service; left Boots on 2 June 2021 - SP (Customer Assistant) 3 months service left Boots in June 2021 - HK (Dispenser) 15yrs service left Boots on the 10th of November 2021 - YO (Cleaner) 5yrs’ service left Boots in November 2021 - AB (New Manager in January/February 2021 has been working in the company for a long time; left in May 2021 - MM (Healthcare Advisor) 2yrs service left Boots August 2022 In summary, it is submitted that the Complainant was victimised by management after she complained about her treatment at work.It is submitted that the sequence of events was as follows:
It is submitted that the actions of the Respondent towards the Complainant were so unreasonable she was constructively dismissed. At the hearing: Oral Submissions on behalf of the Complainant – Mr. John Curran BL Mr. Curran BL – Oral Submission - Opening remarks - Summary The Complainant worked in Boots, in Midleton, Co. Cork. She had fifteen (15) years’ service. For a long time, it was a happy work experience. In her 2015 performance review, she received the designation “legendary.” Subsequent performance reviews, “went south after that”. The work atmosphere in the store deteriorated from 2020 onwards. There were complaints about how the store was managed, issues of bullying/harassment were raised. Staff including the Complainant went to management – Anna McCarthy and Monica Topp - they were fairly new in store. The staff went to them, but the problems were not resolved. In November 2020, there was a meeting with Mr. McCasker, the area manager, [informal grievance procedure]. It was hoped that would resolve matters, that it would settle, but it did not. On 28 June 2021, a collective grievance was raised. That collective grievance expressed what had been happening in the store for the previous 6-12 months – that it was a difficult working environment, the staff were being monitored, watched on CCTV etc. It is the Complainant’s submission that the complaint was never properly address by the management. It is submitted that there were two complaints raised by the Complainant: 1. Collective complaint. 2. Personal complaint. Furthermore, it is submitted that false allegations against the Complainant occurred in the context of these staff members articulating their feelings, that it constituted retaliation by management. It is submitted that the notice of investigation dated 24 May 2021 of a disciplinary investigation is ‘extraordinary.’ The disciplinary letter contained a warning in relation to dismissal (Copy of disciplinary letter submitted). An investigation meeting of that occurred. The Complainant submits that the basis of the complaint was wholly false – there was no requirement of the staff to need permission to go into the CCTV room – staff regularly went in there, as part of their duties; and, at the time, the room was being used for people to have their lunch due to social distancing requirements re: Covid. Suddenly, out of nowhere, a letter warning the Complainant that she could be dismissed arrived. It is submitted that that is a “farce”; and that what actually happened is that a colleague called the Complainant to the room because she saw a symbol which indicated that they were being eavesdropped on/listened to. It is submitted that there was a breach of GDPR, a breach of privacy rights, excessive monitoring/spying by management [in terms of their treatment of the staff.]. This was explained at the time. The Complainant requested the name of her accuser. That was refused. It is submitted that the investigation was not properly conducted within the disciplinary procedure, as set out – there was no right of reply. The complaint was addressed by a letter by the investigator – the investigator said the matter would now be dropped, as it were, but, also said she would like to remind people that they are not to view CCTV without permission as if they had done something wrong. The issue of CCTV was a matter of great concern to the staff – they had concerns of being monitored, of listening devices being used against them (rightly or wrongly). This issue was never taken up by management subsequently. It was not addressed by the investigator. Shortly afterwards, the Complainant was subject to a performance review meeting after which she was asked to sign a document which referred to her ‘behaviours’ in the premises – she was accused of using foul language to her manager in March. This meeting occurred in May. There was also a reference to her using foul language the previous November – the review meeting covered the previous three months. Neither allegation had been put to the Complainant at the time. Both allegations are flatly denied by the Complainant. These allegations have to be seen in the context of the Complainant already having been brought forth for a disciplinary procedure, and these allegations were not brought to her attention then. They also had not been brought to her attention at the time (November and March). She was asked to sign. She submits that she resisted that, then was forced to sign it under protest. After that, she then entered a personal grievance on the matter. It is also significant that the rest of the staff are also making complaints about their treatment at work – people start to go out on sick leave. Ultimately, all the staff left the employment. The Complainant went out on sick leave herself – she was diagnosed with stress and anxiety – she became quite ill. She was on paid sick leave for a very short time, then off the payroll for several months. Prior to her going on sick leave, in July, a collective grievance was entered late in June. Mr. McCasker replied on July 12th that he would meet her on July 13th (meeting proposed). However, the collective grievance meeting stated clearly that a formal investigation was wanted. It is the Complainant’s case that collective grievance and the personal grievance were not dealt with by Mr. McCasker. It was an alarming complaint – it is the Complainant’s view that the matter was allowed to “run into the sands”, that Mr. McCasker did not want to deal with that matter up front. The Complainant submits that she needed to go back to work financially. Before that, she sought to have her own personal grievance finalised. The manner in which the grievance/disciplinary was addressed sharply diverged for the Complainant and for managers. That contrast tends to show less regard for the Complainant. The Complainant was not given the opportunity to respond – she was not even told who her accuser was. It is submitted that there is a stark contrast in how the two complaints were dealt with. The Complainant sought to have the situation brought to a close. She was on unpaid sick leave and she requested it be dealt with as a matter of urgency. She set out, in the last paragraph of that letter: “In retrospect, I believe this grievance is part of a clear pattern of victimisation. In September 2020, on the recommendation of our union representative the staff (myself included) made known our unhappiness about a number of serious concerns including over-work, bullying etc. to management which was not welcomed. We tried again in November 2020 and had meetings with Mr. McCasker. We hoped this would resolve our problems and after an initial improvement, matters again deteriorated. I was vocal in communicating our concerns. I was then subjected to an unfair and demeaning investigation on 28th May 2021, in which the complaint against me was not upheld. I asked for the identity of the Complainant but was ignored. Meanwhile, I was subjected to another complaint at a work review which is the subject of this grievance. Matters became so difficult that I along with colleagues again submitted a collective grievance on 28th June 2021. This grievance was not dealt with and instead the staff who complained were weeded out or worn down and all of them have left the company while I remain on unpaid sick leave. I believe the complaints against me were also part of this campaign and my grievance has to be seen in that context especially the baseless disciplinary meeting on the 28th May 2021 and the unjustified review on the 31st May 2021 and the collective concerns of which I was a part.” It is submitted that her letter to Mr. McCasker was a “plea for help.” The Complainant received an email on behalf of the Respondent from Mr. McCasker on March 11th 2022. It was not addressed to her – instead the letter was addressed to “Dear Name.” The Complainant knew Mr. McCasker well as he often visited the store. In the letter, he proposed to pause the investigation of her grievance as two people were on leave (one was on protective leave). However, it is submitted that one of those two people was at work and available and he could have met with her. The suggestion that the investigation be “paused” was the “last straw” for the Complainant. By this point, the collective grievance had also not been addressed; she had been the subject of two false allegations (CCTV; ‘foul language’). It is against that background, that she lost her trust and confidence in her employer and decided to resign. The Complainant submits that those reasons were reasonable reasons. It is submitted that there was a toxic work atmosphere. It is the Complainant’s case that Mr. McCasker did not deal with those problems with urgency, that there was a large turnover of staff, that no exit interviews were held with staff for them to articulate those concerns – that collective grievance which was so well described in their collective grievance was never addressed by the company. . Ms. Deirdre Hayes - Complainant – first witness for the Complainant The Complainant outlined that she worked for the Respondent company from 4 December 2007 until her resignation, that initially she was employed as a customer assistant. Over the years, she had worked in a number of different areas within the store, including the no. 7, fragrance counter, cash, operations etc. She said that she loved her job, that there was a great team in the Midleton store, that there were a lot of new products launching, there were events, that she did a lot of charity work with the Irish Cancer Society over the years. She said that the store won ‘Small Store of the Year’ in 2010 and she was very proud to be part of that. She said she loved her job, loved her customers, that she had a great relationship with customers over the years. She outlined that when the store was under previous management, in 2015, she received a performance review of “legendary”, which was the top performance rating. The Complainant said that her job was always customer-orientated for her, that targets were set and “I met my targets and my figures – I surpassed those figures.” She said “I loved my job. I loved going into it every day.” The Complainant outlined that things changed from about 2017/2018 onwards – there was new management and workload took over. She said there were high demands and a shortage of staff, and then Covid-19 happened. She explained that Ms. Anna McCarthy was their manager, in the store and Ms. Monika Topp was the Assistant Manager. The Complainant said that prior to 2020 there was “a lack of communication which went to no communication and then to silence.” She said that “became unbearable”, that she was going to her shop that she loved where she was part of a team and there was “no communication.” That was “very hard.” She added that shortage of staff was also a problem. She addressed the meeting, with staff and management, which took place in 2020. She explained that the meeting took place on 27 November 2020. She said that Ms. McCarthy and Mr. McCaster (area manager) were at the meeting. She said: “We aired our concerns and issues that we had in the store. I felt very confident that things would move on but that did not happen – they deteriorated more. For me, it was the lack of communication between the management and teams. I felt mistreated. I felt that I wasn’t being listened to, that everything was swept under the carpet.” That led to another complaint being raised in June 2021 – the formal collective grievance. It is a letter addressed to Ms. Nolan and signed by five employees including the Complainant, outlining their complaints about their treatment by management. The Complainant outlined the reason the formal collective grievance was sent. She said that she had “hope for the future when she walked out of that meeting and felt very confident that things would improve in the store.” However, she outlined that between November (when the collective meeting with management took place) and January (when the formal collective grievance letter was sent) “things got worse and worse.” The Complainant said that in that time the “situation reversed.” The Complainant said that she was “anxious coming into work.” She said that she “felt very anxious, very nervous.” She said: “My work environment was making me physically ill. I was 47 years of age, married, with two kids, and I was not sleeping, not eating, crying, crying going into work, crying going home.” She said: “I gave 100% to my job and it was falling apart.” She said that she (along with other employees) was being “overmanaged.” She said that she felt that “my management had power over me, and they showed that.” She said that she felt that she was being “watched”, that there was “a head on my shoulder all the time - if I went upstairs, someone was upstairs. If I went to the stock room, someone was in the stock room.” She outlined that in that time, five (5) members of staff were investigated, including her. She explained that in all her time in her job, she had never been previously involved in a disciplinary matter – nothing, no warning, verbal or written, previously. She explained that she felt “disengaged, isolated and let down by our management team.” She said that employees felt “fearful for our futures”, that they had tried the informal route, that “didn’t work”, so, they wanted to go the formal route – they requested a grievance hearing as soon as possible. That request was signed by five people, including the Complainant (formal collective grievance letter). The Complainant was asked whether that formal grievance was ever investigated? She said: “No.” She was asked if she made it clear to them [the Respondent] that she wanted it investigated? She said: “Yes”, that she wrote to Mr. McCasker stating that in writing on 12 July (Copy of correspondence submitted). She was seeking a formal hearing of the collective grievance – the informal collective grievance had not worked previously. The Complainant was asked about the investigations of staff. She was one of the members of staff investigated – she explained that it was the first disciplinary letter she ever got. She outlined what happened: On 27 May 2021, the Complainant said that Monika Topp asked her to come to the office, that she needed to give her two letters, and that she wanted to give the Complainant her performance review. Ms. Topp told her that she needed a witness because she was going to give her a letter of investigation. The Complainant said that C., a pharmacist was her witness. The Complainant “refused that meeting (re: performance review) after I received that letter of investigation. When I got that letter, I was in total shock.” She said on the letter of investigation, two boxes were ticked: · Security · Conduct/Behaviours The Complainant explained about the CCTV Room and the practice in the store. She said that there were cameras around the shop and CCTV room (a recording device). She explained that if somebody suspicious comes into the shop, two (2) people enter the room – it is dual controlled and a scan of a picture of where the person would have been is taken (taking products), then a phone call is made to the gardai. She said that it [staff being in the CCTV room] was something that happened on a regular basis if there was somebody suspicious in the shop, if there was no management. She said that Saturdays would have been a very busy day in their store and that staff would ring the gardai, and the gardai would come down to the store and take a statement. She was asked whether management authorisation was required. She said: “No. Never.” She was “Never told [that] by management. Ever.” [that authorisation was required.] She stated that she had “never signed any brief.” She explained, that during the relevant time period, the CCTV room was being used for breaks due to Covid-19 restrictions, that the store had a canteen and only one member of staff was to enter that, at any given stage. She said that management knew the staff went into the CCTV room, “on a normal basis”, that “we would have told management if there was somebody suspicious in the shop, and we would have gone down to the CCTV room.” She was asked about her reaction to the letter she received. She said: “When I saw ‘dismissed’ [on the letter], I felt fear.” [Notes from the investigation meeting were submitted.] The Complainant explained what had happened on the day in question, in relation to the CCTV. She said that she was working that day on the shop floor, on the No. 7 counter, when a member of staff approached her and asked her to come up to the CCTV room to clarify something on the computer screen in the CCTV room. She said that the screen was blank but that the symbol of a speaker indicated that it was “live.” She said that “it alerted me that our conversations were being listened to, once that symbol was on.” She said that the symbol was on the right hand side of the screen and it indicated ‘live’/‘on.’ She was asked whether she thought she was being listened in on? She said: “For me personally, I felt that I was losing trust in the company – I couldn’t trust them.” She was asked about e-learning. She clarified that “That day, I did not go on any computer to do any e-learning, upstairs or downstairs.” She was asked about the “panic button.” She said that: “The panic button should go off when a situation occurs in the store, in the dispensary area. So, unless the panic button went off, that symbol should not be on - it allows listening in to what’s going on in the store.” She said: “My perception was that somebody was listening in.” She was asked about the allegation, and it was clarified again that the Complainant had not been told the name of the person who made the allegation. It was put to her that this investigation would have been from management or HR, that she was not told the name of the person who made this allegation, and this allegation could have led to her dismissal – that is the only evidence. The outcome of the investigation was issued on 8 June 2021 – there was no signature (sent attached to an email) but it came from Ms. Rose Kinsella. The Complainant was asked about the issue of the symbol/speaker icon on the CCTV screen and whether Ms. Kinsella or anyone else in management seemed alarmed that staff were raising an issue about being secretly monitored? The Complainant said that the staff received a (general) email the previous day which stated that audio would only be switched on in the CCTV system when the panic button was activated. She said that “everything was dropped after that letter.” [Adjudication Officer’s Note: The outcome of investigation letter, dated 8 June 2021, states: “Having considered the response provided by you, I note the explanation provided. I strongly recommend that should you or any colleague have any queries regarding CCTV or indeed any matter in store, that you discuss this with a member of management. Notwithstanding this, on this occasion, it is my recommendation that no further action should be taken and the investigation on this matter concluded.”] Performance Review The Complainant was then asked about the performance review of 31 May 2021. She said that Monika Topp had the performance e-plan, that she gave the Complainant performance feedback and then made the allegation in relation to foul language. The Complainant requested that Anna McCarthy come up to the office. She explained that when a member of staff did not turn up to work, it filtered through the computer, and the allegation was that on 6 March 2021, when they were notified that a staff member was not showing up for work that day, that the Complainant used foul language. The Complainant categorically denies that this ever occurred She said: “I dispute that – that allegation did not happen.” She said that prior to that, Monika Topp had told her that she brought her emotions to work. She said: “I didn’t understand what she meant by that. I am a very private person.” She then said that “Monika Topp went on to say that I had used foul language towards her in November 2020.” The Complainant said: “I did not want to sign my review but I was afraid of the negativity that would happen towards me.” She explained that the performance reviews happened every three months, that “this review would have covered February, March and April.” Her Counsel queried the fact that as the review did not cover November 2020, why would it have been said now? The Complainant said that: “It wasn’t said in November 2020, by Monika Topp. It wasn’t said by Anna McCarthy. It wasn’t said in the previous review.” It was also not raised in the notice of investigation the Complainant received on 27 May 2021 which only cited behaviours - foul language was not raised - only “security.” She was asked, in terms of the timeline of events, whether she had made complaints about management, at this stage? She said: “Yes”, that she had “gone to our management – she had gone to Anna McCarthy, gone to Monika Topp” and “gone to Mr. McCasker.” She was asked whether the two managers were clear that she was complaining about them? She said: “Yes. They were aware.” She was asked how she felt. She said: “I felt very hurt, very upset. I could not believe that both my management team were saying this to me.” She said that she felt “unnerved”, she felt “panic.” She felt “fearful of what was going to happen.” She said that after she signed her review – and she emphasised that she did not want to sign it, she went on her lunchbreak. She said that she spoke to Monika Topp and asked when she got a chance could the Complainant discuss this with her and with Anna McCarthy. She said they did discuss it with her and she said that they were both adamant that she had used foul language. She said that Monika Topp’s version of events had changed a number of times in relation to the allegation. The Complainant lodged a personal grievance about this, which includes the sentence: ‘I feel extremely vulnerable.’ (Copy of personal grievance submitted.) Then, on 29 June 2021, the Complainant met Mark McCasker. She said that the allegations against her were false allegations and she highlighted the time-frame, November 2020 and 6 March 2021. She was only made aware of them on 31 May 2021. Mark McCasker met with Anna McCarthy. The Complainant emailed Mark McCasker on 19 July 2021 (Copy of email submitted). She went on sick leave on 21 July 2021. She said: “I felt that I had no option. Going from a confident person – being bubbly – I was a shell of a person. I had lost all my confidence. I was suffering panic attacks. I wasn’t sleeping. I wasn’t eating. I was physically and mentally drained.” She was asked: “Before you resigned, you had written to him saying you wanted a formal hearing of the collective grievance, had he done anything on that front?” Answer: “No.” The Complainant said: “I was certified out sick on the recommendation of my doctor. I was put on medication. I was feeling very, very low. I had no self-esteem.” In terms of the level of communication between the Complainant and the Respondent company, while she was out on sick leave, she said that she always emailed Anna McCarthy saying that her husband would be bringing in the Complainant’s medical cert. on a particular date; and that she would receive a pro forma response. [That communication was from the two managers about whom the Complainant had raised a grievance.] She received paid sick leave for the first two months - July and August. The Complainant wrote to Mark McCasker on 8 March 2022, in which her opening paragraph set out: “I am presently on sick leave due to work related stress arising from events that occurred at work. Prior to my sick leave, I entered a grievance on the 2nd June 2021 and this was in the process of investigation when I was obliged to take sick leave. In an email dated 20th July 2021, Mark McCasker stated he would accept a response in writing from me for him to consider before he concludes his investigation. I now wish to give that response and I hope the conclusion of the complaint investigation will allow me to return to work. As I am on unpaid sick leave, I request this is done as a matter of urgency.” The rest of that letter was a response to the “Ms. Monika Topp notes on 05/07/2021.” The Complainant received an email from Mark McCasker on 11 March 2022, starting with ‘Dear Name.’ That email sets out that one of the two respondents, Anna McCarthy was out of work on statutory (protective) leave, and therefore it was ‘not possible to meet with them.’ The Complainant was asked what her response to that was. She expressed the view that Monika Topp was in work - so, he could have been met with her and she could have given her response. The fact that the letter suggested that the investigation be ‘paused’ was also highlighted. On 11 March 2021, the Complainant sent a resignation letter by registered post. She said that it was a very big decision, that she had spent fifteen (15) years working for Boots. She said: “We had a great team over the years – they became family – and for that to be taken away from me - it was not my decision but I had to [resign] for my own mental health, and physical wellbeing.” She praised the support her husband had given her, describing him as her “rock”, saying “financially, we struggled but we got there” and “I have great support from previous Boots employees who have supported me through this process.” She said that “financially it was very hard, but I had to make that decision” She said that she used to be a “confident lady - and I am a lady.” She said that she “felt that [her] dignity had been stripped completely in [her] place of work” and “unfortunately, I had to make that big, massive decision to resign from my place of work – I loved my job.” She was asked what impact Mr. McCasker’s letter had on her when coming to that decision? She highlighted the “Dear Name” at the top of the letter, said that she had spoken to him on many occasions, that she had been extremely polite and had always said his name. She said that “it was very hurtful to receive that.” It was put to her that there was no reference to the last paragraph of her letter, in his letter to her, and she asked whether that was a factor in her resignation. She said “Absolutely. I felt that my work had deteriorated so much over a period – it had gone from winning store of the year in 2010, and being very proud of that; and then the lack of communication, no communication and then silence. It is very hard to walk into a work environment and there is complete silence.” She was also asked what else was in her mind when she wrote that letter of resignation. She said: “I didn’t want to do it but I had to think of myself. So many emotions running through. I felt sad, upset, because there had been so much going on. I felt numb.” She was asked after she resigned, how did she feel at that stage? She said that she felt relieved that she made the decision. She re-iterated that it was a very hard decision to make. She was asked about her health. She said that her health is good now; that, then it had deteriorated and she was making monthly visits to her doctor. (A medical report from her GP, Dr. Mark Buckley, was submitted.) She attended her GP twelve (12) times in fourteen (14) months. She was on anti-anxiety medication and underwent counselling. She outlined that during that time she had “very low self-esteem”, that there was a “black cloud” over her, that she “couldn’t shake it off.” She outlined that she was depressed, that she was still attending both counselling and her GP, as of the date of the hearing, that she was not currently in work and was receiving sick pay (from social welfare), that she was still “trying to get back on her feet”, i.e. that she was still experiencing the effects of the events involving her former employer. On Cross-examination It was put to her that she was not looking for work at the moment and was in receipt of illness benefit (social welfare). It was put to her that she had received an original letter of offer, then updates to the handbooks issued over the year. She agreed. She was cross-examined in relation to the incident involving CCTV. She was asked whether she accepted that if she had seen images on the screen, that it would have been an unauthorised viewing, and asked in relation to data breaches and their significance. The Complainant stated that “on the day in question, I did not touch any buttons; I saw a symbol on the right hand side.” She was asked about the usual approach in relation to CCTV, and whether “if you witnessed a dodgy person in the store - you’d tell the manager/pharmacist – then go to the CCTV room?” She said: “Not every time - no.” The Complainant said, in relation to the alleged incident: “There was no investigation to be investigated.” She was asked about her evidence – that she was called in by her colleague, which she reiterated. In relation to her individual grievance (on 2 July 2021), the process followed was put to her, that she was represented by a union official; that Mr. McCasker met with the Complainant, then he met Monika Topp (on 5 July 2021) and then Anna McCarthy (on 6 July 2021); that the same process was followed with all three people; the minutes read back to each, and agreed. Mark McCasker’s letter of 7 July 2021 was put to her – wherein he alluded to the collective grievance that the Complainant along with her colleagues had raised in the interim. The email thread back and forth between Mark McCaster and the Complainant was raised. It was put to her that she was invited to meetings, that she did not attend – that she did not attend the meeting on 13 July 2021, and the letter then issued on 14 July 2021. It was put to her that her letter to him essentially communicated “back off, I need time” and that Mark McCasker had taken her wishes on board. The Complainant said: “I work a week on and a week off – that was my week off and they were sent to my personal email address.” It was put to her that she had two (2) opportunities to meet with him each of those two (2) weeks and that she was not available to meet him. Then, there was a Subject Access Request (SAR) – an email in response to a handwritten letter handed in. Excerpts from emails from Anna McCarthy to the Complainant were put to her: ‘Hope you’re okay. Let me know if you need anything or if you’d like to schedule a call with me.’ It was put to her that it was very clear that she did not want to talk. She was asked if she responded to the emails. She said: “No, I didn’t because her emails weren’t genuine – that’s my belief.” It was put to her that when Anna McCarthy went on maternity leave, there was a new manager covering her position (‘April’). The Complainant was asked if she had reached out to her at all. She said: “No.” The Complainant was asked if she deniedshouting at Monika Topp? She said “Yes.” She was asked whether she accepted that she was challenging Monika’s version of events? “Yes.” She said that Monika gave so many different versions of the story, that it was supposed to relate to a customer complaint, but Monika gave different versions – that she ran into the customer on the street; that she ran into her in Dealz; that the complaint was made by telephone. She said that she felt that the complaint was untrue; that it had been supposedly made by someone who was a friend of Monika’s.
She was asked whether she had requested of Monika that Anna come to the office. She said that she had, and confirmed that they did. It was put to her that it was Anna’s view that the Complainant told her to “f*** off.” The Complainant categorically denies this. She was asked whether Anna had confirmed what Monika had said. She said: “Yes. But I was put into a situation at my review that I was told that I had used foul language twice (November, May).” It was put to her that the purpose of review was to give feedback. She said: “I take feedback. I take direction.” She was asked if she would accept that a manager giving feedback is expected to give examples. She said that in terms of “feedback relating to targets – yes; foul language – no, that the allegation was false.” She reiterated that there were two allegations, and said that: “It’s the time-frame. I was never brought into an office. I was never given a letter. Those allegations that are being made towards me they are false.” She was asked: “You are the one who asked Anna to come to the office, but you felt forced?” She said: “I felt fearful to sign. I felt fearful of what would happen if I didn’t sign. I was under pressure. I wanted them to know that under no circumstances had I ever used foul language to my managers.” An incident was explored with the Complainant where she had exclaimed: “Jesus Christ” and a customer incorrectly thought she had said it to her and was upset. She explained the circumstances surrounding it – it had occurred in the context of Covid-19, and the regulations not being met in the store. There were two queues and too many people, the Complainant had the keys, and had to go lock the door to prevent people coming in. She said that it was “a slip of the tongue” and that it should not have occurred. It was put to her that it was blasphemous language. The Complainant said that she “panicked”, that she was experiencing “fear.” It was put to her that it was not much of a stretch in the vernacular to the allegations made against her in relation to foul language. It was put to her that bad language is a habit. She said: “I agree. But, I didn’t use it.” In relation to the “Dear Name” letter, it was put to her that: “You got a response to your letter. You may not have liked the response but you did get one.” The Complainant reiterated that “Dear Name” was hurtful and disrespectful. It was put to her that she “didn’t appeal”, that she “didn’t go above his [Mr. McCasker’s] head, to the next level of management.” It was put to her that she took nine (9) months to issue her response [and then seemed to be expecting it to be wrapped up quickly]. The witness said: “Yes, on the recommendation of my doctor - I was going to see my GP every month.” She said that she was experiencing “panic attacks, low self-esteem, no self-worth.” She was asked if it was a financial decision to resign. She said: “Yes.” It was put to her that she had made the decision to resign prior to sending her March 7th letter. The Complainant denied this, stating: “I made the decision when I received the DEAR NAME letter – when I received that letter, it was very hurtful.” She said: “I was so hurt. All these different emotions going through me.” It was put to her that Mark McCasker was inviting her to raise a grievance with him, that attached to the “Dear Name” letter was the Grievance Procedure; that he was willing to work with her? He said: “Yes.” She was asked if she accepted that he was willing to introduce her to the new manager? She said: “Yes.” She was asked if she took him up on that offer? She said: “No, I didn’t. No.” She said that when she received the “Dear Name” letter, “the book just closed for me. After 15 years working for the company.” She was asked if she accepted his explanation that it was a typo? She said: “No.” She was asked if she had accepted his apology? She said: “No.”
It was put to her that Mark McCasker wrote to her again a week later on 19 April, 2022, and offered again; and also informed her that the Employment Assistant Programme (EAP) was available to former employees for up to three (3) months after leaving the business. It was put to her that she did not write a response to that in any, way, shape or form. The Complainant was asked if she had her time over, would she do anything differently? She said: “No.” She said that she was the subject of “false allegations”, so “I had to stand up for myself.” She was asked whether in terms of the CCTV and the speaker ‘on’ symbol, if she honestly believed that management were recording her. She said: “Yes, I do.” She reiterated how constantly watched she felt all of the time, the pressures and demands. She said that in the notes of the investigation, conducted by Rose Kinsella, it asked whether she went to management, and she “wrote on them: ‘Yes – Monika Topp.’” She was asked, if she had her time back, whether she would attend the meeting on 13 July. She said: “No, I wouldn’t. I was sick.” She was asked whether she responded to Mark McCasker’s email/question. She said that she “was feeling very panicky and anxious with what was going on in the shop.” She outlined her work pattern of eight days on and six days off. She said she was out sick on 21 July – 8 days later.” DAY 2 of hearing Ms. Sherry Norris – second witness for the Complainant The witness outlined that she was a retail assistant for the Respondent company for thirteen (13) years. She said that for the bulk of those years, she got on “grand.” She was asked about the letter from the union to the Respondent company on 20 October 2020. She said that the atmosphere was “awful, toxic, very toxic.” The letter set out the problems and led to a meeting on 27 November 2020. She said that the group went in (as witnesses), but not all in one go, due to the Covid restrictions. She said that the atmosphere in store was not very nice, that they were “overmanaged” and were concerned that they were being watched on camera as well. She said there was “miscommunication, a difficult working environment.” She said that she was hoping that things would change for the better after the meeting, that it would “be better”, “be a nice place to work”, “that management would listen to us.” She said instead, it was “okay for a couple of weeks, then, it was even worse.” She was asked if she recalled the letter – the written collective grievance - being sent on 28 June 2021. She said: “Yes.” She confirmed that she had signed it. She confirmed that she agreed with the viewpoint set out in it, setting out that in the workplace, there was: - A difficult working environment - Miscommunication - High demand It was put to her that that letter requested a formal grievance hearing, as soon as possible. She was asked whether she had a grievance hearing, as soon as possible. She said: “No.” She confirmed that she was then brought to a disciplinary meeting. She outlined that she was in the CCTV room having her lunch – that she had been told to go into the CCTV room as she could not sit in the canteen due to someone else being in there (Covid restrictions). She said that she saw a flashing symbol of a speaker on the screen. She was asked what she thought when she saw it. She said: “I thought they were voice recording us.” She was asked what she did. She said that she went downstairs and brought the Complainant (Deirdre Hayes) upstairs, “to confirm that she was seeing what I was seeing.” She said that the same symbol was flashing and the Complainant confirmed she was seeing the same thing as Ms. Norris. Ms. Norris received a disciplinary letter about breaching security rules and not wearing a mask properly. Ms. Rose Kinsella (the manager of another store) conducted a meeting with her the next day, and a report was issued a week later She said that she was not informed as to who had made the allegation against her. She received a final written warning. She said that she received no notes of the meeting. She said that they (she and the Complainant) “denied that we were watching CCTV and it was dropped.” She was asked whether she heard anything further in relation to the collective grievance. She said: “No, I went out sick – so, I didn’t hear anything after that.” She said that she was out sick for six (6) weeks, and then came back to work, but she said: “I couldn’t put myself through it anymore”, “the environment was affecting me as a person. ” She said that it was “not nice”, that it was “toxic.” She said that customers used to comment that the atmosphere was awful whereas there had been no previous complaints of any kind. On Cross-examination It was put to her Rose Kinsella, manager of a different store, met with her for the investigation meeting and that the outcome was that she was reminded that she could not watch CCTV without permission. It was put to her that separately, she was disciplined for not wearing masks properly and that it was “not the first time it happened.” It was put to her that she was not in employment when the Complainant resigned. She agreed with this. It was put to her that she was asked to meet with Mark McCasker to discuss the collective grievance. On Re-direct She said that she “didn’t feel in the right health to go forward with the grievance.” She said that she felt that she “needed to leave.” It was put to her that the collective grievance letter asked for a hearing. She was asked whether she was offered a hearing. She said: “No hearing – just meet and talk about it.”
Ms. Dayna Maguire – third witness for the Complainant Ms. Dayna Maguire outlined that she had worked in Boots for ten (10) years and had held various roles – she had started working in Boots at the age of sixteen (16) in 2011. She said that she had worked in customer assistance, then did a health care course and became a health care assistant, then became a Boots beauty advisor, then did dispensary training. She said that she really loved her job. She said there was so much opportunity for growth, so many opportunities. She outlined that there had been a “drastic” change in the atmosphere in the store, that there was a lot of miscommunication - things not being clear, people picking up things wrong. She said that it was really hard to work in the store, compared to how it was previously. She outlined that she was one of the signatories to the collective letter sent on their behalf, that she was at the meeting, and that she agrees with the contents of the letter, that she was a union member. She said that they all tried to put their best foot forward after the meeting with Mark McCasker. She said that she had “major anxiety coming into work, leaving work.” She said that it was “a really hard two (2) years from when it all started.” She said, of the collective grievance letter, that “the reason we reached out to Ms. Nolan was we’ve tried to make amends, tried to go the nice way (to talk to our management team), but it was falling on deaf ears.” She said: “Nothing was changing”, there was the “same atmosphere – the environment was getting worse.” She said that they “went above management” as management were “not listening to us” - another letter was sent (by the union) at that time. Ms. Maguire said that was a formal grievance, requesting a grievance hearing, as soon as possible. She said that in order for the problem to be fixed, they felt they “needed to go down the formal route.” She explained that five (5) people were investigated and “I was one of those people.” She said that she received an email, that she was “out sick with mental health”, with “anxiety.” She said that her investigation pertained to a breach of security rules, regarding a refund in store. She said “itcaused me a lot of stress.” She said that members of staff knew of it before she did and came to her “as a heads up.” (in concern). She said that two people were involved in this refund – Ms. Maguire and another staff member. She said that the other person was told it was “not to happen again”, whereas by contrast she “didn’t get that grace.” She said that a manager from another store sent her an investigation letter on May 18th. She said: “It wasn’t news to me at that stage and it should have been.” She said: “I felt horrible.” She expressed that she could not understand why she did not get the same treatment as the other staff member involved. She said that she was hurt that the other person involved got that grace, and she did not. She said that she was “left in the lurch”, that she was “afraid to question management”, that she “didn’t want to get anyone in trouble.” She said that she did not get an outcome until she left the company – she received the official outcome in September. She said: “For months on end, I was under stress, not knowing what was happening.” She said that there were meetings with different people and it was “stressing my mental health.” She said that, given the way it was being handled, she thought she was losing her job. She said that she handed in her resignation on August 8th because “I couldn’t take it anymore.” She said: “I felt like my health was more important than my job.” She said: “I loved my job - so many jobs, so many opportunities. This job was mentally breaking me down as a person. It was affecting me outside of work too. I’m a very positive person – I was becoming a negative, anxious person.” She said that several – 4/5/6 long term staff resigned around that time. She said, in respect of the collective grievance, that on her last day, Mark McCaster asked if she wanted to talk about it? She was asked if she was offered a hearing? She said: “No.” On Cross-examination It was put to her that she resigned in August and that she was not in employment when the Complainant resigned. It was put to her that the discount breaches (which were the subject of the investigation) occurred in May and that she was out sick in July and August.
Ms. Edel Horgan – Fourth witness for the Complainant Ms. Edel Horgan outlined that she worked in Boots for about fifteen (15) years, from 2007 – 2021. She said that she started as a retail assistant, then was a healthcare advisor, then trained in the pharmacy. She said in relation to the CCTV room, that staff would often dispense medications in the CCTV room. She was asked if members of the public went in there. She said: “No, but all staff were in and out.” She said that it was “next to the office and the canteen”, that “most staff had the code”, that “there was never anyone told we couldn’t access it – we were actually told to dispense up there. Then, during Covid, we were told to use it for having our lunch.” She said that they used to dispense medications on a daily basis there, as the pharmacist may not get a chance to check it until later. She described the deteriorating work environment. She gave an example of there being timed tasks, that they were given five (5) minutes to empty a box on delivery to the store, which was all new. The union wrote to the company. She outlined how the atmosphere in the store was deteriorating, how staff morale was low and she contrasted it with the previous position where the store had won ‘Small Store of the Year’ for Ireland in 2010, and the staff travelling to an awards ceremony. She said: “If you worked for Boots, you were just the luckiest person in the world – I felt lucky – I loved my job, absolutely loved it.” She said: “People were drowning, basically, inside there.” She said: “I didn’t want to leave my job. I didn’t want to leave my colleagues.” Different letters were sent, through the union. She said the staff were “overmanaged”, that there was “no communication.” She said that it “got to the point where management wouldn’t even say hello to you in the morning – nothing.” She said the staff “tried to figure it out through different measures” - they went to their line manager, they went to their union. Finally, they sent a letter to Ms. Rachel Nolan because “everything was falling on deaf ears.” She said that the meeting in November with Mr. McCasker “seemed very positive”, that it was “okay for a couple of weeks.” She then said there was an issue in February, around audio, that they (the company) wanted the right to listen to staff. That led to the collective grievance. She was asked about the request for a formal hearing, and whether they received one. She outlined that they did not, adding “things actually got worse.” In November, the meeting took place with staff, with people going in, in threes. She said there was “no formal meeting, no minutes, nothing.” She was asked if they had tried the informal route? She said: “Absolutely.” She was asked: “Where did that get you?” She said: “Nowhere.” She was asked about the formal complaint and whether a hearing had been offered. She said that they were “not offered a formal hearing.” She explained that she was “out sick.” She explained that, in terms of the collective grievance, there was no offer of an investigation, there was an email [from Mark McCasker] offering to discuss it but no hearing offered, no process set. She also said: “Nor did we hear back from Rachel Nolan at any point.” She said that she resigned, “unfortunately.” She said: “I didn’t want to leave my job. I loved it. I worked with unbelievable people. Amazing customers. Fantastic customers. Ongoing relationships; different services going on; I loved working for Boots itself, at the time.” But she said that “I couldn’t work in an environment where my own health was suffering. I have kids, family.” She gave her observation of how the events had affected the Complainant. She said that the Complainant was “confident, that it was unbelievable what she did in her job”, that she had “so many different roles.” She said that “customers loved her” and that she had “trained as a HCA.” She said that Complainant was “crumbling to half the person she was – she was anxious coming in daily, family life was being affected. There were days on end where she was crying.” She said they had conversations over the phone.” She said: “She was just absolutely reduced to – it was just awful.” She said: “You work with someone for 15 years – I watched every one of them being crumbled because nobody listened. They just ticked the boxes because that was easier for them.” She said that five or six staff members left at around that time. On cross-examination It was put to the witness that the timeline of events was that she had resigned on September 8th , having been out on sick leave since May. It was put to her that she was not in the workplace during the relevant time-frame, that she was “in or out”. It was put to her that she submitted a grievance in July when she was already out on sick leave, that she received an email from Mark McCasker offering to discuss it, that there was a process within Boots for dealing with grievances. It was put to her that she was not in employment when the Complainant resigned, “not in the workplace.” Adjudication Officer’s Note: For Completeness, the Complainant had one more witness, also a former employee, who had attended on the first day but was not in a position to attend on Day 2. |
Summary of Respondent’s Case:
Ms. Sophie Crosbie, of IBEC, for the Respondent, summarised the Respondent’s case as follows, by way of oral submission: In 2020, the Complainant and her colleagues raised an informal issue and a meeting took place and a resolution was agreed. In May 2021, the Assistant Store Manager was dealing with a customer and sought a member of staff – the staff member came back and said that some other members of staff were watching CCTV. An investigation was held by a manager from a different store and the Respondent was perfectly entitled to do that, it was done in line with every policy and procedure. Separately, the Complainant was due to have her mid-year review. When she met with her Assistant Manager, Monika Topp, she received feedback in relation to both performance and behaviour. It was an interim review, not end of year. The feedback was that her performance was very good but some issues were raised in respect of behaviour, specifically the use of foul language and some examples were given. The Complainant became very defensive and irate and insisted that the store manager was called. The store manager stood over the instances given where foul language had being used, and the Complainant initially refused to sign her performance review. Later that afternoon (31 May 2021), the Complainant brought a witness, and challenged the managers’ feedback, and said that she had signed the review but did so under pressure. Two days later, the Complainant lodged a complaint. On 29 June 2021, the area manager, Mr. McCasker, conducted an investigation. Detailed notes were taken and then sent to the Complainant. Both managers stood over their allegations of foul language. The area manager sent two invites (13 July 2021 and 19 July 2021) to the Complainant but she declined both invitations – the purpose of those meetings was to close out the grievance. On 28 June 2021, a collective grievance had been lodged with HR in Dublin, and in line with standard organisational policy, it was referred back. Ms. Crosbie emphasised that the workplace was a unionised site, and that the workers had a union representative. She said no issues had been raised in relation to the atmosphere in the store. The Complainant then went on sick leave from 22 July 2021 and continued to send in sick certs. She said that the employer engaged monthly – that her line manager emailed her every month, checking in, offering to reach out to her etc. The Complainant made it clear to Mark McCasker that she did not want to engage with him about the grievance while out on sick leave. She said that her line manager reached out to her in October telling her of a double discount offer in store for employers and on 22 October 2021, seeing if she could be of support. She reached out again offering a support call and received a sick cert. At that stage, the store manager was getting ready to go out on maternity leave, and passed on contact details of the new manager. She received no response. On 8 March 2022, a detailed written response was submitted by the Complainant and she requested an immediate conclusion. Ms. Crosbie submitted that the area manager, Mark McCasker emailed the Complainant on 11 March 2022 explaining that one party who had previously been available was currently on statutory leave and “quite rightly” informed her that the investigation would have to be paused. The Complainant was invited to contact the new store manager. In relation to the administration error (‘Dear Name’) – she explained that that was a typo and the area manager had apologised profusely in writing. Less than a week later, the Complainant resigned. At the time of her resignation, the area manager was on annual leave and so did not receive notification of her resignation for one (1) month. The Complainant outlined in her resignation that she “couldn’t remain unpaid.” Once he received her letter of resignation – she had sent a follow up email in the interim - he responded back to her, apologising profusely. No action was taken by the Complainant in response to that. Then, he wrote to her again. Similarly, there was no response. It was submitted on behalf of the Respondent, that the Complainant did not participate in the grievance process for nine (9) months; that there is a process that has to be complied with; that one of the other parties was on statutory leave; that an opportunity to reply to a draft report would typically be afforded to all parties, and then there is provision for an internal appeal. She said that a collective grievance was filed but it was the individual’s choice not to participate. She said that the case law required the Adjudication Officer to consider the conduct of the employer, which she submitted was very reasonable. She said that an employer is entitled to investigate allegations – that does not make them false allegations. She said that an employer is entitled to give an employee feedback – unwelcome feedback is not toxic/bullying. Summary, as per the Respondent’s written submissions The Respondent is a retail pharmacy company operating a number of stores in the Republic of Ireland. The Complainant commenced employment with the Respondent on 4 December 2007 as a Store Assistant in the Boots Store in Midleton, Co Cork. The Complainant was made permanent on 4 June 2008. At the time of her resignation the Complainant was employed as a Healthcare Assistant working 22.5 hours per week with a gross monthly wage of €1,475.24. It is submitted that from the commencement of her employment until December 2020 there were no significant events to report. It is submitted that in November 2020 the Complainant along with three colleagues raised a complaint with the area manager, Mark McCasker regarding communications across the management team in the Midleton store. The matter was dealt with informally. To this end, a meeting took place on 27 November 2020 attended by the employees, the store manager and the area manager. All the issues and concerns raised were dealt with in a transparent and honest manner and concluded with all parties stating that they were confident that the issues were resolved, and the working environment in the Midleton store would improve going forward. It is submitted that in May 2021, a situation came to light regarding the unauthorised watching of CCTV footage in the Respondent’s store in Midleton. This incident involved the Complainant and another employee. An investigation took place on 28 May 2021 as it was alleged that on Thursday May 14 2021 the Complainant and another team member entered the CCTV office and viewed CCTV footage without management authorisation. The findings of this investigation were that no further action would be taken but the employees involved were told that they were not permitted to watch CCTV footage without the permission of management. On 31 May 31 2021, it is submitted that the Complainant’s mid-year review was carried out by the assistant store manager Monika Topp. Two main issues were reviewed - performance and behaviour. The Complainant was given a positive review for her performance, but issues were flagged regarding her behaviour. It was put to the Complainant that there was an issue with her language and that she had used foul language to her store manager, Anna McCarthy on 6 March 2021. An incident was also mentioned regarding using foul language to Monika Topp. It is submitted that the Complainant insisted at this review that she required the store manager to be called as it was she who made one of the allegations. Anna McCarthy, the store manager was duly called from the shop floor and into the review meeting where she stood over the allegations made regarding the behaviour of the Complainant. Monika Topp, the assistant store manager, also stood over the allegation of the Complainant’s behaviour and use of foul language. It is submitted that they also pointed out to the Complainant that she had frequently brought her emotions into work and had an issue on occasion taking instruction. It is submitted that the Complainant initially refused to sign off on the review. Later the same afternoon the Complainant requested a meeting with both the store manager and assistant store manager. She brought her colleague Sherry Norris with her. It is submitted that both the manager and the assistant manager told her that this was not a formal meeting and if she required a formal meeting and to bring a colleague the procedure was that she would need to seek notice. It is submitted that the Complainant informed the management team that the reason she brought her colleague was because she did not trust her management team as they had stripped her of her dignity by making the allegations of foul language during the mid-year review. It is submitted that she did then sign the review but stated that she did so under pressure. On 2 June 2021 the Complainant lodged a complaint against Anna McCarthy, the Midleton Store Manager and Monika Topp, the Midleton Assistant Store Manager, stating that she refuted the allegations put to her at her review on 31 May 2021. The first meeting regarding this complaint was held on 29 June 2021 and the Complainant was interviewed by Mark McCasker, the area manager. It is submitted that the Complainant confirmed that she was happy for him to hear her grievance and the full conversation was entered into notes. It is submitted that at all material times the principles of natural justice and fair procedures were adhered to by the Respondent. The Complainant questioned why if her performance review stated that she was delivering why the allegations regarding foul language were not raised when they allegedly happened. The area manager told her that he would seek clarity on this and why she did not receive feedback at the time. The Complainant also questioned the delay in the timing of the first interview as she lodged the complaint on 2 June 2021 and the first meeting was not held until 29 June 2021. The area manager confirmed that this was because he was on annual leave. It is submitted that, at this meeting, the Complainant voiced how upset, unhappy and angry she was with the allegations made. The area manager then spoke separately to both the store manager and the assistant store manager. At a meeting of 5 July 2021, Monika Topp stood over the allegations. Anna McCarthy, the store manager was interviewed on 6 July 2021, and she stood over the allegations she had made, that on the day in question, she told the Complainant that a colleague had called in sick and she received an expletive reply. The store manager highlighted that the mid-year review was not just performance based but also looked at behaviour. It is submitted that the Complainant wanted the foul language on the review redacted but the store manager and assistant store manager stood over the issues raised, and the contents of the mid-year review. On 19 July 2021, the Complainant submitted a DSAR request which was provided to her on 4 August 2021. The Complainant had some additional queries regarding contracts, policies and procedures and she received email replies on these issues. On 19 July 2021, the area manager emailed a Microsoft Teams invite to the Complainant to meet with him the following day at 3.30pm regarding her personal grievance. She responded to say she was finding work extremely challenging and difficult and would prefer not to receive updates or emails at that time. The Complainant stated she had an appointment with her GP on 21 July regarding how stressed and anxious she was feeling and would appreciate that the time off work she would have time to herself with no outside pressures. The area manager replied to her the next day stating that he was sorry to hear how she was feeling and pointed out the employee well-being service available to her through LifeWorks, offering both support and counselling. He went on to outline how a second meeting re her personal grievance had been scheduled and if she was not able to attend then she had an option to provide a response in writing. At all material times the Respondent Company full support to the Complainant and adhered to correct procedures. The Complainant went on sick leave on 22 July 2021. She emailed the store manager on 25 August 2021 to let her know her sick cert would be extended until 2 September 2021. The store manager replied on the same day asking the Complainant to let her know if she needed anything or would like a call. On 2 September 2021, the Complainant emailed the store manager to ask her to look into her payslip and noted she felt she had been left short. On 8 September 2021 the store manager replied stating that she had checked payroll and all seemed to be in order, that the sick leave reflected in the August payslip was for both July and August, as July's sick leave would have been keyed after cut-off given it started on 22 July 2021, and that the first three days’ absence were unpaid as per company sick leave policy. On 22 September 2021, the Complainant emailed the store manager stating that her sick leave would be extended until 21 October 2021. The store manager replied on the same day asking the Complainant how she was and to let her know if she needed anything. The store manager also asked the Complainant if she would like to schedule a call. On 4 October 2021, the Complainant emailed the store manager requesting a copy of notes from her investigation and they were sent the same day with an apology and that the store manager was not aware that they had not been sent. It was also communicated to the Complainant that her staff that double discount would be starting on the 12 October 2021 and what the rules would be around spend. On 28 October 2021, the store manager again contacted the Complainant to see if she could be of support and if she would like to schedule a meeting. On 22 November 2021, the store manager emailed the Complainant confirming that she received the sick cert extending her leave until 15 December 2021 stating that she hadn't heard from her since October and asking that the Complainant please let her know how she was doing and if any support was required. Again, the offer of a support call was made. On December 16 2021 the Complainant extended her sick leave until 13 January 2022. A further email from the store manager on 20 December 2021 acknowledged receipt of the cert and again offered support. At this point the assistant manager also informed the Complainant that she would be commencing maternity leave after Christmas and passed on the contact details for the new store manager, AB. On 8 March 2022, the Complainant submitted a written response to her complaint submitted on 2 June 2021 and requested that the matter be brought to a conclusion urgently. On 11 March 2022, the area manager emailed the Complainant following her letter received on the 8 March 2022 regarding the complaint raised previously on 2 June 2021. He noted that when he previously wrote to her on 20 July 2021 to provide the opportunity for her to give a written response to her complaint, all parties to the complaint were in the business and available to meet with. He noted that as one of the parties was currently on statutory leave it would not be possible to meet with them to put the Complainant responses to them and in order to conclude the process whilst being fair to all. This meant that the Complainant's investigation would have to be paused until all parties could be met with. The area manager noted it was great to hear that the Complainant was considering a return to work and he would be available to discuss any supports that could be offered including a phased return to work if required. He further advised that alternatively, she could contact the Store Manager, AB (who was covering Anna McCarthy's maternity leave). The area manager asked the Complainant to let him know a time and date that would suit to discuss further. In this email Mark, the area manager made an administrative error in stating "Dear Name” instead of "Dear Deirdre” This was an administrative error which the area manager has apologised profusely for, acknowledging that it should not have happened. On 14 March 2022 the Complainant submitted her resignation, The area manager was on annual leave so he did not have sight of the resignation letter until April 2022. In her resignation letter the Complainant stated that the area manager’s response to her on 11 March compounded the mistreatment she believed she had experienced which resulted in her going on sick leave. She went on to state that she could no longer remain unpaid so was resigning. On 11 April 2022 the area manager replied to the Complainant addressing her resignation and the issues raised in her letter. He also apologises for the administrative error of “Dear Name " and not "Dear Deirdre" "Re: Resignation Dear Deirdre, I was surprised to receive your email dated 7th April 2022 in which you outlined that you had wrote to me via registered post on 14th March 2022 to tender your resignation. I replied to you on 7th of April to advise that I had been on annual leave from 16th of March until the 4th of April and hod not been made aware of any registered post sent for my attention. Since your email of 7th April 2022, I have received your written letter of resignation, effective 14th March 2022. Having reviewed your letter I want to ask you if this is what you really want to do? I am mindful that you have been absent from work since 22nd July 2021 due to sickness. As such j would encourage you to engage with me to discuss if there are any measures that could be put in place to support you in a return to work, should you reconsider your resignation. In your letter of resignation, you outlined your reasons for your resignation including that my reply to you regarding your formal complaint on 11thMarch 2022 left you feeling that your grievance would remain unaddressed, that you felt you had been mistreated by the company which caused you to go on sick leave due to work related stress, and that as this leave is unpaid you cannot afford to be unpaid any longer. I was really disappointed to read this and hear how you felt - I want to extend my apologies to you for the administrative error I made in my email of 11th March 2022, whereby I did not Include your name in my response sent to you. I want you to know that I do value your length of service and experience in Boots I would encourage you to engage with me in line with the internal grievance procedures in place, a copy of which I have attached to this letter. I am mindful of the complaint raised by you on 2ndJune 2021, When you wrote to me on 8th March 2022, providing your written responses as part of the complaint investigation process, I advised you that as one of the respondents to the complaint was out of the business on statutory leave, the conclusion and outcome of the complaint investigation would be paused until all parties could be afforded the opportunity to engage with the next steps of the complaint investigation process. I also noted that it was great to hear that you were considering a potential return to work and advised you that remained available to meet with you to discuss any supports that could be offered including o phased return to work if required. I also advised I would be happy to facilitate an introduction to the current Store Manager, April Bridgeman, who could discuss further any supports required. I would like to re-iterate to you that I still remain available should you wish to discuss your resignation or any other concerns with me, in line with the company Grievance and Dignity at Work Policy. If you wish to reconsider your decision, please contact me within the next seven days by return email: [redacted] or by telephone: [redacted] If however you choose to continue with your resignation and not engage with the internal grievance procedure, then please confirm your intentions in writing. upon receipt of which we will process your termination of employment effective from the 14th March 2022 and forward any monies which may be outstanding to you. I hope that I hear from you. Finally, I want to remind you of our employee wellbeing service LifeWorks, which offers you support and counselling. This is a free, confidential and easy to access service that is available to you either on-line or on the telephone 24 hours a day, 7 days a week. Telephone [redacted] or at www.lifeworks.com (User ID: redacted; Password: redacted). Yours sincerely, ________________ Mark McCasker Area Manager"
Group complaint On 2 July 2021, Ms Rachel Nolan HR Operations Manager received a formal group complaint signed by the Complainant and four others. On 7 July 2021, Mark McCasker wrote to the Complainant and invited her to attend an informal meeting on 13 July 2021. When the Complainant asked to clarify the purpose of the meeting, Mr. McCasker informed It was an informal meeting to understand how she wanted the collective grievance address, The Complainant declined the informal option, referring back to November 2020. A further invite to meet was sent on 19 July 2021 but this was declined by the Complainant.
Respondent's PositionThe Respondent relies upon section 1(b) of the Unfair Dismissals Acts, 1977, and submits that in line with the established case law, there is a burden on the employee to demonstrate that: a) The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or b) The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign. It is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment, and the Respondent submits that neither criterion has been met. The Contract test: The Respondent submits that it at all times operated within the terms of the contract of employment between the parties, and that no contractual violation occurred. The Respondent relies upon Conway v Ulster Bank, UD474/1981in this regard, and submits that the Respondent did not violate any term of the contract or organisation policies, express or otherwise. The Respondent submits that its actions were in no manner "a repudiation of the contract of employment" and, did not demonstrate "that the Respondent no longer intended to be bound by the contract". No change occurred in the contract to make it "so radically different from what was before." The Respondent submits that it fulfilled its contractual obligations, implied and otherwise, at all times. In light of this, it is the Respondent's position that the termination of employment fails based on the contract test to be a constructive dismissal.Without prejudice to the foregoing and in the alternative, it is submitted that even if it is found that a repudiatory breach of contract occurred on behalf of the Respondent at any time prior to the utilisation of the Grievance Procedure by the Complainant and in particular surrounding events in November 2020, it is submitted that the Complainant had both the opportunity and the responsibility to act on any such repudiatory breach at the particular point in time when it occurred. The Complainant did not do so, and elected to remain in the Respondent's employment. In fact, the Respondent submits that matters were resolved at that point in time. In this regard, the Complainant should not be able to rely on any alleged repudiatory breach by the Respondent, as the Complainant did not act on the alleged repudiatory breach at point in the time it occurred.
Reasonableness test In respect to reasonableness, it is the Respondent's position that there exist two interwoven factors to be considered: (a) Did the employer act unreasonably so as to render the relationship intolerable, and (b) Did the employee act reasonably in resigning, particularly in respect of internal grievance procedures. The Respondent cites the approach in, inter alia, McCormack v Dunnes Stores, UD 1421/2008, in this regard. Reasonableness; Exhausting Procedures; The Respondent has a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed, in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000). (Copy of the Grievance Procedure submitted.) The Respondent submits that the Complainant's contract of employment also provides guidance in relation to the Grievance Procedure - “If you have a grievance relating to employment you should raise it informally with your manager in the first instance will stop appear not satisfied with that response, you should put your grievance in writing in accordance with the grievance policy.” The Complainant was afforded the opportunity to put her submission in writing. She was also informed that one party, the store manager was going on maternity leave. The Claimant only reverted three months after this fact when she was told that the party had gone on statutory leave and the process had to be suspended. These facts arose purely from the delay on the Complainant’s part and not from any act or omission on the part of the Respondent. The Respondent submits that every opportunity was afforded to the Complainant to resolve any grievance, which she failed to do. As such, the Complainant did not act reasonably in resigning her employment as she had not previously "substantially utilised the grievance procedure to attempt to remedy her complaints" (Conway v Ulster Bank). The obligation to exhaust internal grievance procedures can exist even in situations whereby there exists a purported breach of contract. In Travers v MBNA Ireland Limited, UD720/2006 (Appendix 10) the Complainant's role was changed by the employer in a manner which was "not in keeping with the contract of employment". The Complainant initiated the company's internal grievance procedures but did not exhaust them and resigned without lodging a final appeal. The Tribunal found that: "the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant's case" and stated: “in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.” The Tribunal thus found in that case that the Complainant was not constructively dismissed. The Respondent submits that just as it is unacceptable in the case of a non-constructive dismissal for an employer to dismiss without recourse to fair and comprehensive procedures, so to it is insufficient for an employee to claim herself to have been constructively dismissed without utilising and exhausting grievance procedures. It is the Respondent's position that the Complainant has the burden of proof to establish that her actions were reasonable. As in Travers V. MBNA, it is the Respondent's position that the Complainant's failure to utilise/exhaust internal grievance procedures is detrimental to her claim. For a period of eight months post the initial situation which purportedly gives rise to the within proceedings, the Complainant remained medically certified unfit for work. She failed to engage with the Respondent's offer to avail of the Company's support mechanisms, deal with any outstanding issues or submit her written submission. Finally, the Respondent cites Fitzsimons V. Mount Carmel Hospital UD855/2007. In that case, in the Complainant's letter of resignation, a complaint was raised against the Complainant's manager. The Respondent conducted a "full investigation" and extended an invitation to return to work. The Respondent further “was open to meeting requests and provisions which may reasonably attach to the said return to work” and an offer was made to "bring in a mediator to facilitate a harmonious return to the workplace if that was possible". The Complainant rejected the offer of return on the grounds that her relationship with her manager had deteriorated so much. The Tribunal stated: "It is regrettable that this final step [of acceptance of the return to work offer] was not taken and the Tribunal finds it was unreasonable for the Applicant not to have seen this process through. The Employment Appeals Tribunal's primary function is to ensure that internal workplace procedures are fairly applied to individual employees and there is an onus on employees to engage fully in these procedures there a clear effort is being "made to overcome past difficulties.” In this case, the Respondent submits that the Complainant did not see her own process through and had been given ample time to do so. The Respondent submits that the Complainant was unhappy with her mid-year review and the comments regarding her behaviour which she received which is the catalyst to her actions and not the behaviour of the Respondent. The Respondent submits that the Complainant does not reach the burden of proof to establish constructive dismissal. Her resignation was her own personal choice and not based on any act or omission of her Employer. By virtue of the above, we submit that the Complainant's resignation does not fulfil the test of reasonableness and thus cannot be determined to be a constructive dismissal. In conclusion, it is the Respondent's position that it in no way repudiated the contract of employment but rather operated the employment relationship at all times within the parameters of that contractual relationship. Furthermore, it is the Respondent's position that its interactions with the Complainant were at all times reasonable, and that, conversely, the Complainant's action in failing to utilise and exhaust the internal grievance procedures amounted to unreasonableness on her part. In light of that, it is the Respondent's position that the Complainant was not dismissed, constructively or otherwise, from her employment.
At the hearing (DAY 2): Ms. Anna McCarthy - first witness for the Respondent Ms. McCarthy outlined that she worked in the Midleton store – she previously worked in the UK. She had about fifteen (15) years’ experience and had been a store manager in Boots since November 2017. She said that she worked with the Complainant, Deirdre Hayes, that she was a “good employee – a good worker.” Ms. McCarthy said that when she started, the Complainant and Ms. Dayna Maguire were doing No.7, that “standards of customer care were excellent.” “She always did a good job.” Then, Covid hit in March 2020. She said that “as a pharmacy, we were one of the few businesses that was open” because they were considered “an essential retailer.” She said “wedid it to the best of our ability”, that they “adapted.” She outlined that they “had to clean the store four (4) times a day” and had to “stagger breaks.” She said that “at the very start, we closed off certain areas to customers.” She said the “focus in the store was healthcare and pharmacy.” She said it was “an anxious time for everyone.” She said that “outside of the workplace, everyone was thinking of our own families.” She said that they “had to isolate” and spoke of the “impact of staff absences”, which “had to be managed” as sometimes, there were fewer staff members than required. She said: “Both as a pharmacist and as a manager, there was a lot of extra stress.” She said that customers were anxious too. She was asked if there was an increased risk of conflict with all the extra tension and anxiety. She said: “Things were difficult but we would find a way through.” She also pointed to issues with the staff budget and that she was spending her staff budget covering the gaps in the roster [due to Covid absences, people isolating etc.] She said that in November 2020, the country was in Level 5 lockdown at that point, that the six weeks of Level 5 ended at the start of December. She said there was a meeting on foot of a letter from Mandate (union). She said that no-one from Mandate was present at the meeting, staff were taken in in threes, the store was still trading. She said issues were raised, e.g. another colleague was out sick because she could not wear a mask; in an individual case – they were trying to hold a risk assessment. They were not happy with how Monika Topp (Assistant Manager) dealt with a complaint from a customer. She said the Complainant said Ms. McCarthy did not say hello to her in the morning, but that Helen, another colleague, disputed that and said she said hello to her. She said dispensers said they were under pressure – that there was a lot of work. She said: “We did say that we couldn’t employ another dispenser.” She said that potential solutions were explored. She said no personal issues were raised by the Complainant in that meeting. She said that as a group, they felt that they wanted to know more about what was going on, she said that she told them a bit more so they felt included, which she felt was met positively. She said that she thought it was going fine up until May 2021. She said that the Complainant had told her in March 2021, that one time, when there were a lot of customers in the store, the Complainant got a bit flustered and said: ‘Oh Jesus Christ.’ She said that a customer overheard her, that she was not directing it to the customer but the customer thought she was, and was upset. She said that the Complainant told her of the incident a couple of days later, that she was sorry that it happened. Ms. McCarthy said that she thought it was understandable that it would occur, but that “we shouldn’t use that kind of language” but “you’ve come to me and told me, that’s reasonable.” In relation to the performance review in May, she said that it was a mid-year review and Monika Topp was doing the review. She said that “Monika came down and said Deirdre was demanding I come up - Deirdre wouldn’t proceed.” She outlined the feedback was that “Deirdre was using inappropriate language to management and on the shop floor.” She said that on May 6th, in the managers’ office, the store manager told her that someone was out sick that day and she had said: “Oh f*** off”. She said it was inappropriate for her to use such language to management. She said that on another occasion, when a customer had made a complaint, that the Complainant was not happy about it, and described it as “a load of bullsh*t.” She said that in the main meeting, those were the two examples brought up in the review. Ms. McCarthy said that the Complainant did not feel that the complaint was a valid customer complaint, that the Complainant viewed it as an attack on her character, which was not true. She said the Complainant then requested a meeting, that she brought Ms. Sherry Norris who was taking notes. She said that the Complainant was insistent she be there saying: “I don’t trust management anymore.” She said that she denied the allegations of inappropriate language, said that her character was being attacked, and that she did not want to sign the performance review sheet. Ms. McCarthy was asked what the purpose of the feedback was. She said it was so “we could all work better together.” She said: “We told her she was performing – performing in the Boots standards – meeting all her expectations – exceeding for some” but that for the behavioural aspect, she “tended to react in an angry way.” She said that they “didn’t want to have to listen to inappropriate language”, “or feel uncomfortable.” She said that it was her “job as a manager to give feedback all the time.” She was asked about the CCTV investigation. She said that it related to an incident in the middle of May, that two (2) colleagues were looking at CCTV, two (2) colleagues on their break – she said that one having lunch and one was doing e-learning but had not come back in a while. Another colleague came back to Monika Topp and said that the two colleagues were looking at CCTV. She said that “sounded strange – so I phoned Jamie Maher, HR.” She said that Ms. Rose Kinsella was chosen to do the investigation and that the outcome of the investigation on June 18th was that it was found they had no case to answer, they were just looking at it for a couple of minutes where they saw a symbol. She said there had recently been an email to everyone in relation to CCTV/audio. She said that they did a stock take on June 28th and the Complainant did a good job of preparing for that, along with the rest of the team. She said then the collective grievance was filed, perhaps in August. She was asked if she was aware of the collective grievance before the Complainant went on sick leave? She said: “No.” She was asked whether she was aware of the Complainant’s individual grievance (July 6th) before she went out on sick leave? She said: “Yes.” The Complainant did not respond to Ms. McCarthy’s version of events prior to going out on sick leave. Ms. McCarthy said that she was satisfied that the version of events she gave Mark McCasker was correct. The email trail between Ms. McCarthy and the Complainant was put to her and it was described as “respectful”, as providing information, as expressing “concern.” She was asked whether she believed there were any unresolvable issues between them. She said: “No. I thought she would come back.” She said that when she was going out on maternity leave, she let the Complainant know; and that when the Complainant requested her notes, Ms. McCarthy got her the notes and passed them on to her. She was asked when she saw the Complainant’s lengthy response to Mark McCasker for the first time. She said: “last week.” [June 2023] She said that after maternity leave, she returned to work in February 2023. In the response, the Complainant is disputing the feedback. Ms. McCarthy said: “I disagree with that. I think the feedback was honest, given in order to improve the working relationship.” She was asked if this was the first time she had a grievance raised against her. She said: “Yes, I think so.” On Cross-examination The witness was asked about the collective grievance and the issues leading up to it. She said that she felt that she managed to resolve them. She said that there were one or two meetings, that at the meeting in November, two groups of three came into her, in succession. She said that she accepted that the issues were valid. She was asked about notes from the November 2020 meeting and she said that she “didn’t keep any notes”, that she just had her “recollection of what happened.” She said that “Boots is very process driven”, that “we like to comply with the policies”, and “in important meetings, notes would be kept.” It was put to her that there were no official notes of the informal meeting. She said: “I didn’t keep notes.” It was put to her that several members of staff had raised issues with her in that informal meeting and then a written collective grievance signed by five employees was submitted. It was put to her that matters must have deteriorated very considerably to generate a letter like that. She said that she knew “there was a bit of an atmosphere in May – people were under investigation.” She said there were two staff members under investigation in relation to alleged fraudulent refunds (2) and another person giving witness to that. It was put to her that the collective letter was a “cry for help”, that it reflected a disastrous situation. She said that she “didn’t believe it reflected the reality.” She was asked whether Mark McCasker ever asked her to give a written response to that? She said: “No.” She was asked if there was any investigation of the collective grievance? She said: “I wouldn’t know but as far as I know, no.” She was asked if she, as store manager, gave any evidence in relation to it? She said: “No.” She was asked about the CCTV investigation. She said she made a phone call to HR (Jamie Maher), that there was no written report. She was asked who sent the outcome letter? She said that it was Rose Kinsella. The fact that it was on Boots headed notepaper from Midleton, even though Rose Kinsella was a manager in another store was put to her, as was the fact it was unsigned (it was sent attached to an email). She was asked whether she met Ms. Kinsella as part of the investigation. She said: “No.” She was asked if she was aware of the letter? She said: “Yes.” She was asked about the sequence of events – it was put to her that the investigation letter was sent, then Rose Kinsella met the two people the next day and did not meet anybody else. The report issue on June 8th 2021. It was put to her that she was aware that the was a serious investigation going on, that Ms Kinsella came down to meet her staff members. She asked if that was highly unusual. She said that “it wouldn’t be unusual.” She was asked if it had happened in the previous six months, and she said that a disciplinary had happened. It was put to her that the performance review happened in the middle of the disciplinary investigation (after the meeting but before the outcome). In relation to the performance review, it was put to her that Monika called her to the meeting. It was put to her that the Complainant had previously told her about the ‘Jesus Christ’ incident and that she had felt the Complainant did the right thing by voluntarily come to her, and that that was the end of the matter. She agreed. She clarified that in March 2021, there were two incidents and “the one I was bringing up was when she said F. off.” She said that when it happened, she “felt like we had to get on with the day.” Separately, she referred to the incident in November where there was a customer complaint which it is alleged the Complainant characterised as “bullsh*t” She said: “She shouldn’t be saying that.” It was put to her that there was no attempt to make an issue out of those, at that time. She said (in terms of the mid-year performance review) that it was “natural that you would bring up what had happened over the last year.” It was put to her that one might expect a note made at the time, and the Complainant given an opportunity to deal with it at the time. It was put to her that the other issue raised was the customer complaint and that it all came out in May 2021 – it had not been raised at the time, that there was no infraction, no warning. She was asked why the performance review was being conducted on May 31st. The witness explained that they had a deadline of getting all the performance reviews in by June 1st. She said they were supposed to do it between April to May. The time-line was highlighted to her, i.e. that this was occurring in circumstances where a complaint had been raised against her by the Complainant. The witness was asked whether she accepted that there was no fraudulent behaviour, which she did. She confirmed that there was no suggestion of fraud. She said that the Complainant had been a very good worker, that she did great work over her time in Boots. On Re-direct It was confirmed that the November 2020 meeting was one meeting, it just occurred in groups of three employees at a time due to the Covid restrictions. It was confirmed that the performance review had been initially scheduled for May 27th, 2021.
The Adjudication Officer sought clarification from the witness in relation to the sequence of events precipitating the investigation, and whether the Adjudication Officer’s understanding was correct, that an employee had gone to the CCTV room and come back and characterised what she saw in a particular way to Monika Topp, who then repeated that characterisation to this witness (Anna McCarthy) who then repeated that characterisation to HR (by phone). The witness confirmed that that was correct. In response to a question from the Adjudication Officer, the identity of the person making the initial allegation was revealed for the first time to be SP. Jamie Maher – Second witness for the Respondent Ms. Maher is aClient Relations partner for Boots (shared services HR). She is not based on site. She outlined that all stores have a store manager and an assistant manager. In some stores, the manager might also be a pharmacist. She explained that company security rules were briefed in 2021. The company used CCTV primarily for security reasons, but also for disciplinary purposes. It reserved the right to use audio. This was raised at national level. It pertained to panic alarms. She said that the stores have capacity to record audio. In relation to the instant case, the witness outlined that in May 2021, she received a phone call from Anna McCarthy, the store manager. Anna McCarthy had had the previous day off. When she came into work, the assistant manager had told her about the alleged incident – that one employee was on lunch and one was doing e-learning and a colleague went up to the security room to get them to come down. The allegation was that she witnessed the two (2) colleagues inside in the security room watching CCTV. She outlined the allegation in relation to the investigation relating to fraud (not involving the Complainant). She outlined that there was a concern in relation to a gift set which contained a number of full-sized products, that the package had been broken up and a refund receipt sought. She contacted Edel Hanagan (Loss function, National Shared Services.) She felt it was necessary for it to be investigated. She said that “No investigation is nice.” She was asked in relation to the issue with CCTV. She alleged that “colleagues were seen blatantly watching CCTV.” [Adjudication Officer’s Note: There is no evidence to support this.] She was asked about the company’s grievance procedures and expressed the view that the Complainant had not exhausted the grievance procedure, and that it was set out in her contract of employment. She said that she did not feel that the Complainant had engaged fully with the Dignity at Work Policy. She outlined that the initial individual grievance was received, and that a dignity at work investigation was the next stage, that Mark McCasker had started that process and there were next steps to occur. She was asked whether this was the first instance of a long-term absence. She said that it was not. She outlined the procedure in relation to investigation, saying that it is process led and line manager led and explaining that the investigating manager signs it. [There were queries as to the letter issuing unsigned, from Rose Kinsella (attached to an email) but on the headed paper of the Midleton store, when that was not where Ms. Kinsella was based, given that Ms. McCarthy had clarified that she was not involved in the investigation since as a matter of procedure, it was conducted by the manager of another store. The witness suggested that there may have been a photocopying error.] The witness outlined examples of how the company utilises CCTV, e.g. in the instance of a customer complaint in relation to a store opening late, the CCTV was checked.
On cross-examination It was put to the witness, that her evidence was there was a complaint from a manager, however there was no note of the details of the phone call – there had been a GDPR request made – and it yielded nothing in respect of this phone call and referral of the matter to investigation. The Witness said that she: “made a mental note of it.” She said that it needed to go to investigation. It was put to her that there was no written communication of any kind. The witness confirmed; “No, it was verbal.” It was put to her that the Complainant had looked to see what the exact wording of the allegation was, to shed light on how the matter was something to be referred to investigation. There was a template letter, and one line which was inserted into the template – the allegation wording – was drafted by the witness. It was put to her that that letter informs the Complainant that she is at risk of disciplinary sanction, up to and including dismissal, and that letter is unsigned. The witness said that she was “categorically” the person who decided that an investigation was warranted. She outlined that there were two parties, Ms. Deirdre Hayes and Ms. Shelley Norris who were interviewed - their evidence was not challenged. She confirmed that the person who made the complaint was not interviewed. Ms. Norris received a warning (in relation to another matter). Ms. Hayes was advised as to how to handle CCTV in the future, and no further action was taken against her. It was put to her that the allegations were baseless, that both witnesses’ accounts were accepted, and asked whether that had triggered any alarm bells. She did not accept that. She said that the use of CCTV was the subject of collective agreement, that twenty-four (24) hours’ notice of the invitation [to the meeting] was given and that “all natural justice was followed.” She was asked about the collective grievance – it was put to her that there were no minutes in relation to the meeting held, that the staff were extremely uncomfortable about what is going on - in particular the symbol on the screen was raised, as was the issue of audio in February 2021. The witness said that she had never been aware of any issue from the Midleton store. It was put to her that it had been raised on June 28th. It was put to her that the staff felt overmanaged and over monitored, had concerns that they were being listened into. She said that it was not Boots’ practice. It was put to her that Boots, in its response to Mandate (union) reserved the right to use CCTV audio. The collective grievance sets out the concerns. She confirmed that if she had made a written note of anything, it would be in the HR file. She outlined that Boots follows a two-stage process. Stage 1 – investigation; Stage 2 – disciplinary; It was put to her that the employees’ version of events was accepted, in relation to the CCTV; that the finding against Ms. Norris related to mask wearing, and was a separate matter, nothing to do with CCTV (or the Complainant). The witness was not party to the investigation. The Adjudication Officer asked for clarification from the witness as to who could trigger an investigation. The witness explained that an Assistant Manager could trigger an investigation, or a Manager could trigger an investigation or HR could trigger an investigation. The Adjudication Officer asked whether the witness would ever choose not to trigger an investigation, and she said that that does occur too.
Mr. McCasker – Third witness for the Respondent He outlined that he had worked for the company for 19.5 years and is now an Area Manager. In relation to the meeting in November 2020, he outlined that the issues raised at that meeting included workload, Covid-19 and store communication with managers – that was the biggest issue that came out of it. There was no discussion of appropriate behaviours. The purpose of meeting with the Complainant was to hear her side. He said he then confirmed her notes and emailed them on to her. He said that she did not admit to using bad language in the store. He said that the managers’ explanation for the delay in raising the issue was that they were giving it as general feedback in performance review. He said that that the complaint was lodged on 29 June, 2021. He said that he asked how she wanted to proceed in relation to the group complaint, and that there was also a separate meeting in relation to the personal grievance. He said that none of the people who were party to the group complaint met with him. It was put to him that the Complainant also declined to meet him. He outlined that the communication with the Complainant after that – she was out on sick leave – was through her line manager; that the Complainant had asked not to have any updates from Mark McCasker by email while out on sick leave. He also offered her the option of a written response (copy of correspondence submitted.) He explained that he the received a detailed response from the Complainant (in March 2021). He could not put those points to Anna McCarthy as she was on statutory leave. He said that he emailed the Complainant to explain that, and that unfortunately he made the administrative error, (‘Dear Name’), which he described himself as being “mortified” at having made. He said that it was “not how I hold myself up or how I want to address anybody.” He explained that he did not spot it at the time, and only spotted the error in April after he came back from holidays. He said that he received an email from the Complainant in April, saying that she was disappointed that there had been no response to her resignation. The witness explained that he had gone back to Australia for his mother’s 70th birthday, that he went for 2.5 weeks - it was the first time he able to go back since Covid. He said that he contacted the Complainant who said that her letter of resignation had been sent by registered post to the Half Moon St. store. He explained that it transpired that the letter had been set aside for him (by one member of management) but not given to him (by another member of management who was unaware it had been set aside for him) meaning that he had not been told about the letter that first week he was back. It was when he received the email referring to the letter of resignation that he went looking for it. He said that he then “got the response out fairly quickly” to the Complainant, after that. He outlined that he was not in a position to close out the Dignity at Work investigation, as Anna McCarthy and Monika Topp had no opportunity to respond, due to being on statutory leave. He said that he was satisfied that he did everything he could to close out the process reasonably. He explained that generally the process would involve an initial report from him, then giving all parties an opportunity to comment, then issuing the final report, then an appeal would also be available, but that none of those processes got completed. Collective grievance process It was raised with him that the store was unionised, that a union official had been involved in individual issues in the past but not involved in collective grievances; that a union official attended the Complainant’s individual grievance. He was asked whether she ‘chasing him for an outcome’. He said “No” and explained that the “next meeting was not complete.” In terms of the collective grievance, he said that he wrote to all the people inviting them to meet him. He said that he may have had one reply, but he was not sure. The Complainant wrote back in July and said she did not feel comfortable meeting. On Cross-examination It was put to the witness that he was aware from November that there were a lot of problems in the store. He agreed with that. It was put to him that he received the collective letter, setting out all sorts of problems, that the previous meeting on November 27th was an informal meeting. It was put to him that the letter of July 7th said: “decide how you wish to proceed” and the response of July 9th set out that the response he got decided to go the route of a formal process, that the staff wanted to keep it that way. It was put to him that a formal route means an investigation. It was put to him that on July 12th, that he made a second attempt to ‘pull this down the informal route.’ He said that (proposed) meeting was to explain the process that was to happen (‘how they will be addressed’), it was not that he was not agreeing to it [the formal route.] It was put to him that the collective letter sets out clearly: “We want a hearing.”; And that the response from the Complainant herself stated clearly, that she wanted to go the formal route. It was put to him that the next letter, on July 12th uses the phrase: “I have already stated in previous correspondence” and sets out that she does not want an informal route, and that she does not wish to speak to him the following day. It was put to him that the Complainant wanted a formal investigation and that there was no formal investigation. It was put to him that he had received a litany of complaints from six members of the staff. He said that the process in relation to the collective grievance is that informally, the company meets with the Complainants first. He said that he did discuss it with the store manager but that he could not process it because “we hadn’t met with the Complainants informally.” He was asked about the administrative error and agreed with Counsel for the Complainant that it was “offensive” when that was put to him. It was put to him that the Complainant was out on sick leave for 6/7 months (and unpaid for a large portion of that), that she was anxious and stressed – she was in a serious psychological state. It was put to him that she was not in a position to deal with the matter for a good length of time and that it was understandable that she did not reply to him for a good period of time. It was put to him that she then responded, once well enough to do so, and requested that the matter be dealt with “as a matter of urgency.” It was put to him that the complaint was in relation to two (2) people, and one was out on leave (Ms. McCarthy) but the other was available. He was asked whether he could have initiated a meeting with Ms. Topp? He said: “Yes, I could in hindsight, but it would not have changed the fact that I could not close out the investigation.” He was asked how the Complainant could have returned to work when he could not conclude the investigation. It was put to him that one person was available (Ms. Topp) and he “didn’t take that up.” On re-direct He was asked of the four items raised in the collective grievance, how many of those were raised in November 2020. He said that miscommunication was the biggest. In terms of the timeline, the CCTV incident had not happened yet. It was put to him that it was entirely reasonable to meet the individuals individually.
Closing submissions: Counsel for the Complainant, made no closing statement, relying instead on his opening statement and written submissions. The representative for the Respondent highlighted three things, in closing: 1. There is no evidence of a unilateral breach in the terms and conditions of employment of the Complainant. 2. It is submitted that by the Complainant’s own admission, that there is no breach of the grievance procedure. 3. In relation to the collective grievance, there was no effort to meet with the Respondent. In terms of mitigation of loss, it is submitted that the Complainant remains unavailable for work, that she remains on sick leave. It is submitted that even if there were a finding of unfair dismissal, that she would therefore be limited to a maximum award of four (4) weeks pay, but it is submitted that there is no evidence of constructive dismissal. Counsel for the Complainant responded to the point on mitigation as follows: He said that evidence had been led – the letter from the Complainant’s doctor, (copy of letter submitted) which set out that her symptoms had been caused by the work environment. He said that the Complainant resigned because the Respondent was not dealing with her case. The failure to deal with her grievances caused the toxic work environment. He cited Liz Allen V Independent Newspapers [2002] E.L.R. 84 and submitted that the Adjudication Officer had an extremely wide jurisdiction to award compensation, in such circumstances. He submitted that the effects on the Complainant’s health can be taken into account, where a constructive dismissal has occurred caused by the employer and as a result the employee is out on sick leave after being dismissed, she is not precluded from receiving full compensation. He submitted that the Chair of the Tribunal in the Liz Allen case is now a member of the Court of Appeal, and that it is reasonable to give weight to the approach taken, in that case. Ms. Crosbie for the Respondent responded by submitting that the standard in the Liz Allen case has not been met in this case, stating that no evidence was led in relation to the Complainant’s health. She said that there was no doctor. She said that there was “not a shred of evidence” in relation to the cause of the Complainant’s ill health. She said that “any such instances can be caused by any number of people or situations” and that it was “clear from the evidence of the Complainant’s witnesses here today they all had their own issues [with the Respondent company]”. She said it was her view that the Complainant and her witnesses were “a group of women who didn’t like being managed.” Mr. John Curran BL, on behalf of the Complainant, objected and expressed the view that Ms. Crosbie should retract her last comment. The Adjudication Officer enquired as to whether she wished to do so. Ms. Crosbie declined. She said that she was entitled to comment. She said offensive allegations of bullying and harassment against two managers had been made but they were broad general allegations only and there was “not a shred of evidence” to support them, and that she was “entitled to comment.” |
Findings and Conclusions:
Constructive dismissal – burden of proof Section 1(b) of the Unfair Dismissals Acts, 1977 defines dismissal in relation to an employee as, inter alia: "the termination by the employee of his contract of employmentwith 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 tens or would have been entitled, or if 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 definition of ‘dismissal’ in section 1 of the Unfair Dismissals Act sets out that dismissal includes ‘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.’ This definition sets out two circumstances in which an employee might consider themselves to have been dismissed by the ‘conduct’ of the employer, i.e., where they were ‘entitled’ to terminate their contract or where it was ‘reasonable’ for them to do so. An employee is ‘entitled’ to consider themselves to have been dismissed when the employer has repudiated the contract of employment. It is ‘reasonable’ for the employee to consider that they have been dismissed when they can no longer be expected to put up with the ‘conduct’ in question. Berber v Dunnes Stores In a claim of (constructive) wrongful dismissal, the Supreme Court in Berber v Dunnes Stores (12th February 2009) 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.’ Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence: ‘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.’ In Berber, the Supreme Court held that the employer had committed a repudiatory breach that went to the root of the contract of employment through ‘oppressive conduct’ in the light of the employee’s precarious physical and psychological health. In a constructive dismissal case, the burden of proof rests on the Complainant. The evidence in this case was very compelling and I am satisfied that the Complainant was constructively dismissed. In particular, I find that the Complainant was subject to an oppressive atmosphere at work, mismanagement and over-scrutiny, that she made multiple concerted attempts to resolve the matter, including, but not limited to, the raising of a formal grievance by the Complainant as well as the raising of a formal collective grievance to which she was also a named signatory, which were not processed adequately or at all by the Respondent company. I find that there is an inexorable thread from the start of the employer’s complained-of behaviour to the Complainant’s need to resign in circumstances where she could no longer stay in her employment, due to the conduct of her employer. The evidence of both the Complainant and her former colleagues – who were long-standing, successful and award-winning employees who had previously loved their jobs and had loved working for the Respondent company - was cogent, credible and compelling. The contemporaneous impact on the Complainant, as observed and described in uncontested evidence by her former colleagues was also very striking, as is the contents of her doctor’s report and the fact that she was on sick leave for many months and never referred to Occupational Health by the Respondent company. By contrast, I found the evidence of Ms. Maher, HR, to be very unconvincing. I find that the Complainant was subject to an unfounded investigation on the basis of fourth-hand gossip, and that that is oppressive by definition. The Complainant was not provided with the name of her accuser, or the actual allegation. There was no record on her HR file of the nature of the complaint (even that would have been third hand had it existed, but it did not exist.) I agree with the Complainant’s evidence that there was nothing to investigate, and with her Counsel’s submission that the disciplinary process has to be viewed in the context of the surrounding events going on at the time. Ms. Maher stated on evidence that “colleagues were blatantly seen watching CCTV” but that is not the case, and it was not the finding of the Respondent in its own (incredibly flawed) investigation. It found that the Complainant had no case to answer, but still issued a bizarre, narrative recommendation to a person it found had no case to answer. Needless to say, I do not accept Ms. Maher’s evidence that “all natural justice was followed.” The threshold for triggering an investigation was not outlined but Ms. Maher stated that sometimes a decision is taken not to trigger an investigation; and also stated that an assistant manager or a manager or HR can trigger an investigation. The approach taken in this case was not just high handed and heavy handed, it was unfounded. It falls in stark contrast to how the Complainant was treated – the Complainant’s complaints were not processed adequately or at all. The Respondent company was on notice of the problems in the Midleton store, certainly, from November 2020 – that was acknowledged in his evidence by Mr. McCasker. It was on notice of Complainant’s doctor’s medical assessment clearly identifying her health issues occurring on foot of work-related stress. It was then formally on notice that five long-standing employees, including the Complainant, raised a formal collective grievance, in writing, and sent it to the HR Operations Manager (in shared services), i.e. they notified the company at the highest level of the very considerable and ongoing problems and requested a formal hearing, having already tried the informal approach. The company was also on notice of the turnover of long-standing staff members in the store in question. I find that the Respondent, through its accumulative conduct committed a repudiatory breach of the Complainant’s employment contract, such that she could not be expected to put up with it any further, as trust and confidence between the parties had been dissolved by the conduct of the Respondent employer, and I therefore find that it was reasonable in the circumstances for the Complainant to resign her employment. I reject the representative for the Respondent’s submission that the Complainant was one member of a “bunch of women who did not like to be managed.” Instead, I find that a very long-standing, successful and happy employee who was excellent at her job as evidenced both by the Respondent’s own internal assessment of her performance (‘legendary’) and the external metrics applied (the store previously won ‘Small Store of the Year’) and who clearly had no difficulty whatsoever operating within a reasonable management and reporting structure over a period of many years, was, in recent years, subject to a pattern of nitpicking and oppression, and subject to an unfounded and oppressive disciplinary procedure and to the misuse of performance review. There is a pattern of a mountain being made out of a molehill, e.g. the ‘Jesus Christ’ incident, insofar as it is an incident at all, was blown out of all proportion. There is a pattern of local management engaging in oppressive behaviour and having a hair trigger, e.g. the evidence that SP put a particular construction on what she witnessed and then she described it to Monika Topp, who in turn described it to Anna McCarthy who in turn rang HR and spoke to Jamie Murphy, who says that on foot of a “mental note” that she was “categorically” the person who decided to launch an investigation on the basis that “colleagues were blatantly seen watching CCTV” – this is a description of a route with no backstops – in other words, there was no fair procedure or natural justice; and no-one seemed to consider the possibility that this was not an incident at all, or that perhaps there was an entirely innocent and reasonable explanation, as the company ultimately found that there was. The Complainant, an employee with an excellent performance record and who had never previously been the subject of any disciplinary procedure or sanction, then received an unsigned letter out of the blue threatening her with potential disciplinary sanction up to and including dismissal. Notably, the person who made the allegation, SP, was not interviewed; and, shockingly, the Complainant only learned of her identity at the WRC hearing on foot of an enquiry from the Adjudication Officer. Up until that point, the Complainant’s requests for that basic piece of information theretofore had been denied, as were her rights to the most basic aspects of fair procedure and natural justice. I fully accept the Complainant’s uncontroverted evidence at the shock and horror she felt at receiving the investigation letter, out of the blue, and the impact seeing the word “dismissal” had on her when she read it. I fully accept her evidence as cogent, credible and compelling in relation to the stress she experienced and its observed detriment to her health at trying to go to work and put on a professional and happy façade in a customer-facing role, in what I note was a very psychologically uncertain working environment. I also accept the uncontroverted evidence of her colleagues who observed her that she was excellent at her job, as well as popular with the customers. Mid-year Performance Review: In terms of the “feedback” re: behaviour, it is a well-worn truism that there should be no surprises in performance review. I note that the alleged issue was not raised with the Complainant at the time thus depriving her of an opportunity to respond, that one allegation referred to a time-frame outside the performance review in question, that the Complainant flatly denies the allegations and has always denied them, and her further evidence that one of the two allegations had changed on several occasions. I also note the timeline of the surrounding events. Ms. Topp was not a witness at the hearing due to being on statutory leave. I find that there is also a pattern of the Respondent company failing to process grievances adequately or at all. Its complete failure to address the formal collective grievance is striking. I accept the submission made by Counsel for the Complainant that the disparity between the speed, and indeed undue haste, with which the Complainant was subject to an unfounded disciplinary investigation is in stark contrast with the indefinite delays with which the processing of the employees’ grievances were met, as one by one they left the company until, as the Complainant put it, she was the “last woman standing.” For completeness, I note that the error made by Mr. McCasker was a minor administrative error, and one for which he has apologised, but I fully accept the Complainant found it deeply hurtful, as she outlined in her evidence. I accept the witnesses’ evidence that the working environment was “toxic” and the submission of Counsel for the Complainant that what rendered it toxic was the failure to address the complaints raised by the employees, including the Complainant, adequately or at all. The collective grievance was never processed. It is the Complainant’s case, that in addition to all the surrounding issues which applied to the group of employees in the store, she was also subject to a baseless investigation, and to two allegations in relation to behaviour which she has also categorically stated were false – neither of which were raised with her at the time – one of which was outside the time-frame of the performance review, and one of which it is the Complainant’s uncontested evidence changed on several occasions. There are three remedies available under the Unfair Dismissals Act 1977. However, re-instatement and re-engagement were not sought. Compensation was the only remedy sought and I find that it is the appropriate remedy in this case. I am required to make an award which is just and equitable in all the circumstances, which has regard to the conduct of the employer, mitigation undertaken by the Complainant, and economic loss including future loss. I have considered the full remuneration package which the Complainant had in this employment. The maximum jurisdiction under the Unfair Dismissals Act 1977 is two years’ remuneration and it is a monetary and not a temporal amount. Under s. 7(3) of the Unfair Dismissals Act 1977: “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Act, 1967 to 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay. I have read the case law cited and submitted and have had regard to it. The ratio decidendi of the Liz Allen case is that it would not meet the justice of the case – it would be unjust - if an employer which by its conduct had, on the balance of probabilities, rendered an employee ill, could then rely upon the fact of that illness to the detriment of the employee, by claiming that the employee was limited, to a maximum of the equivalent of four weeks’ wages, in the compensation she could receive, due to her unfitness for work caused by her employer’s conduct and consequent inability to mitigate her losses. It also sets out that this does not mean that a Complainant can therefore automatically recover the maximum jurisdiction, but rather that the amount awarded still has to do justice between the parties, on the facts of the case. I accept the submission of the representative for the Respondent that (unlike in the Liz Allen case) no doctor was called to give evidence, as an expert witness, in this case. However, in the case before me for determination, I am entitled to have regard to the direct evidence of the Complainant, the evidence of her long-standing, former colleagues including their contemporaneous observations of the observed impact on the Complainant which was very compelling, coupled with the medical report submitted by the Complainant and the fact that the Respondent did not refer the Complainant to an Occupational Health doctor at any point but instead accepted her own doctor’s assessment of her health and medical situation throughout, in order to do justice between the parties. I find that the Complainant’s work environment affected her health and her confidence to such a degree that it necessitated medical intervention. I have also had particular regard to s. 7(3) of the Unfair Dismissals Act 1977 - in this instance, the Complainant had fifteen years’ service, and her constructive dismissal which resulted “in the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Act, 1967 to 1973” is very significant.
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Decision:
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.
I find for the Complainant. I find that this complaint of constructive dismissal is well founded. I direct the Respondent to pay the Complainant the sum of €23,500 within 42 days of the date of this decision. |
Dated: 04th of January 2024
Workplace Relations Commission Adjudication Officer: Lefre de Burgh
Key Words:
Constructive Dismissal; Bullying; Grievances; Procedure; |