Worker

Employer

Anonymised Parties

Account Manager

Service Provider

Representatives

Johanne Duignan Solr                   Ledwith Solicitors LLP

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00060584-001

09/06/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

The hearing was not conducted in public as it involved a dispute brought under Section 13 of the Industrial Relations Act of 1969. Any recommendation made under the Industrial Relations Acts is anonymised.

The specific details of the dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 9th of June 2023.

In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to require that all parties giving oral evidence before me, to swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

The Complainant was not represented and made her own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form and she also gave additional oral evidence.  The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that she was forced to resign her employment in circumstances where she says her line Manager was micro managing her work and performance and refusing to end the Complainant’s probationary period. The Complainant’s complaint is one of Constructive Dismissal which means that the onus is on the Complainant to demonstrate that her Employer’s conduct or behaviour was such that she had no reasonable alternative other than to tender her resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that she  was forced to terminate her Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate her employment.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had representation at this hearing. The Respondent provided me with a written submission dated the 3rd of November 2023. I have additionally heard from a number of witnesses for the Respondent including the Respondent HR Manager and the Complainant’s Line Manager. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent witnesses were challenged and questioned by the Complainant as appropriate.

The Respondent rejects the proposition that the employer has conducted it’s affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving. The test is objective. The test requires that the conduct of both employer and employee be considered. The conduct of the parties as a whole and the cumulative effect must be looked at. The conduct of the employer that is being 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.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I have carefully listened to the evidence adduced in the course of hearing. The Complainant commenced her employment with the Respondent company on or about the 23rd of August 2021. Initially the Complainant came into the Respondent on a temporary basis, covering the work being carried out by an individual who was out on sick leave. The Complainant was an Account Manager in digital sales. The Complainant’s client base was situated across Germany, Austria and Switzerland.

I note that the Complainant was provided with a Contract of Employment dated the 16th of August 2021. On the face of it, this Contract appears to set out the criteria laid down in the Terms of Employment (Information) Act.

The Complainant believed that her Line Manager GA was overzealous in her micro-management of the Complainant. The Complainant was expected to go through a probation period of six months during which she described having intensive and copious meetings with GA to scrutinise her work, to oversee her understanding of the product and to go over her presentation to clients (old and new). The Complainant believed that this programme for on boarding was not normal in its intensity. As I understand it, the Complainant was working from home during this period and that all the meetings as described would therefore have been taking place on a remote platform.

The Complainant reached her targets and appeared to be at the top of the table for results and revenues. In her evidence she says that her work colleagues who were her comparators were placed behind her in terms of sales. Despite this, and to her own surprise, the Complainant’s probation period was extended in February of 2022.

The Complainant was upset with her line manager GA who maintained that the Complainant did not fully understand everything that was required of her for the purposes of making a presentation and accurately describing a product to potential clients. As part of the ongoing coaching and mentoring programme, GA required that the Complainant prepare a written “offering” (being a description and explanation) for each product which she might have to pitch to a client. The Complainant described this as an exercise in preparing “Essays” and sought to make the case that this onerous task was not in her job description and was in fact a move away from the work she was engaged to do.

The Complainant repeatedly returned to the point that GA was preventing her from progressing. The constant monitoring and managing was unproductive and that this interference was particularly incomprehensible given the results being achieved by the Complainant.

To her surprise and consternation, the complainant’s probation period was extended for a further two month period from May of 2022 to July of 2022.

The company’s express policy is to retain staff and to allow for inter departmental movement. In line with company policy the Complainant started to look at other positions within the Irish set up. I understand that the complainant had gone so far as to apply for alternative positions but had not been invited to take up an alternative role in-house. In the course of her evidence the Complainant asserted that she believed that GA was blocking her movement out of the department. The Complainant provided no evidence to back up this allegation.

On the 14th of June 2022 the Complainant resigned her position. In her email the Complainant thanked GA for her engagement and support. The Complainant worked out her Notice period to the 18th of July 2022.

It is worth noting that, after tendering her resignation, the complainant had a meeting with HR. At that meeting, the Complainant made no complaint as to how she had been treated by her Line Manager -GA- for the duration of her employment. In her evidence the Complainant confirmed that she did not raise a Grievance against her line Manager either before or after she had tendered her letter/email of resignation. Surprisingly, the Complainant said that she did not know that she could.

The Complainant confirmed that she moved straight into another position when she left the Respondent company. In her evidence the Complainant confirmed that her salary in the next role was greater than the salary she had been receiving with the Respondent. The Complainant was therefore at no financial loss in moving employment when she did.

When she was asked about the period after her departure from the Respondent company, the Complainant confirmed that she was not immediately minded to bring a claim before the WRC. Whilst, she says she had misgivings about the way in which her line Management handled her, she did not want to bring it to the next level. It was only after two former colleagues talked to her that she re-considered her position. These colleagues did not present to give evidence. The Complainant therefore initiated a claim before the WRC on the 9th of June 2023 which was a few days shy of twelve months from the date when she tendered her resignation.

I am not satisfied that the Complainant had no alternative other than to tender her resignation when she did so on the 14th of June 2022. In situations such as these, there is some obligation on the unhappy Employee to make the source of that unhappiness known to the Employer. This might be done by way of a formal grievance or some other (less formal) mechanism. This affords the Employer an opportunity or a  chance of finding accommodation, or otherwise remedying the situation. The Complainant herein did not signify she was unhappy at how she was being managed in the course of the employment. She presented her resignation without comment, and it was not until nearly a year later that she suggested she had been unhappy and forced out of the workplace.

On balance I therefore find that the complainant has not made out a case of constructive dismissal.