Recommendation
Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00001956
| Worker | Employer |
Anonymised Parties | A Car Park Attendant | A Hotel |
Representatives | Self-represented | Whitney Moore Solicitors |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00059833-001 | 06/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00059833-002 Closed | 06/11/2023 |
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Date of Hearing: 04/03/2024
Procedure:
In accordance with section 13 of the Industrial Relations Act 1969 (as amended), this dispute was assigned to me by the Director General. At a hearing on March 4th 2023, I made enquiries and gave the parties an opportunity to be heard and to put forward their positions in relation to the dispute.
The worker represented himself and the employer was represented by Mr John Lynch of Whitney Moore Solicitors. The facilities manager and the HR manager from the hotel also attended the hearing. As the subject matter is a dispute under section 13 of the Industrial Relations Act 1969, the hearing took place in private and the parties are not named but will be referred to as “the worker” and “the employer.”
On the form he submitted to the WRC on November 6th 2023, the worker ticked the part of the form to indicate that he had a complaint about his dismissal and a second complaint about “bullying and harassment procedures.” At the hearing, it was apparent that his complaint is about the fact that he left his job due to what he considered to be harassment by some of his colleagues. He has not complained about the employer’s bullying and harassment procedures, but about the effect of what he perceived to be harassment on his ability to remain in his job. This hearing was an investigation into the background that led to the worker leaving his job and the complaint with reference number CA-00059833-002 is closed.
Summary of the Worker’s Grievance:
The employer is a hotel in Dublin city and the worker started working there as a car park attendant on March 29th 2023. He didn’t come to work on Saturday, August 19th 2023, and, later that day, he sent his manager a text message saying that the job wasn’t for him. On the form he submitted to the WRC on November 6th 2023, he said that he left due to “psychological and emotional distress” he suffered because of a campaign of bullying by a chef and three members of the maintenance team. The worker said that his problems started off with the workers making remarks when he walked past and giving him “deliberate menacing looks.” He said that he felt that others were prejudiced against him because of his social status and background and he was asked to do jobs that were not in his area of work. He said that there may have been a personality clash between him and his colleagues, but that this doesn’t give people the right to “bully me out of the place.” In the last week of his job, the worker said that his colleagues took turns giving him prolonged menacing looks, making noises as he passed and starting a “smear campaign” about him and his background. He said that he brought this to the attention of the HR department, “who seemed to just brush it off.” He said that he was advised to bring his concerns to his manager which he did. When two of his colleagues were going home, they shook hands with him, and said that they had no problem with him. However, the worker feels that they were smirking. Concluding his complaint, the worker said that he felt that the response of the management wasn’t appropriate and that he has suffered psychologically and emotionally as a result. In summary therefore, the worker claims that he had to leave his job because of the failure of his employer to address his concerns. He said that he didn’t think about making a complaint until he was advised to do so by someone in the Department of Social Protection. |
Summary of the Hotel’s Response:
On behalf of the employer, Mr Lynch provided a submission at the hearing of this dispute. He referred to a conversation that the worker had with the HR manager on Friday, August 18th, in which he was clearly upset. The worker then went to the maintenance workshop and told his colleagues that, if they had anything to say to him, they should say it to his face. Following this, the facilities manager and the assistant manager met the worker to find out from him what was going on. The worker said that he might have over-reacted and it was agreed that if he was concerned about anything, he should bring it to the attention of his manager and it would be addressed. The facilities manager and the assistant manager then spoke with other staff in the department and they were instructed to report any issues to the management who would deal with them in accordance with the hotel’s grievance procedures. The worker went back to the HR officer later that day and said that things were okay. The worker didn’t come in to work the following day, Saturday, August 19th. The facilities manager sent him a text message. A copy of the message was provided at the hearing. The manager said, “Hi…I see you didn’t come in today, I’m just checking you are OK.” The worker replied, saying “grand,” but he said, “The place may not be the best for me but no bad feelings…just have to do what’s best for me.” On Monday, August 21st, in response to an email from the HR administrator, the worker wrote, “I am leaving because of severe bullying against me. But yes I have no choice but to leave.” When he was contacted by the facilities manager, the worker didn’t give any specific examples of bullying, but he said that people were taking about him behind his back and that “using that word was a bit over the top.” Later that day, the HR manager sent the worker an email in which she asked him if something happened after he came to the HR office on Friday that caused him not to come to work on Saturday. The HR manager attached a copy of the hotel’s policy on bullying and harassment. He was also directed to the contact details of the Employee Assistance Service. On Monday, August 21st, the worker replied to the HR manager and said that he wanted to take back what he said, and that he over-reacted and wasn’t thinking properly. He said that people were very fair with him and he had no animosity. He said that the job in the hotel wasn’t full-time and he was moving on. The HR manager replied the following day and told the worker that he or anyone in his family could contact the employee assistance service, even after he had left his employment in the hotel. On Tuesday, August 22nd, the worker completed an exit interview in which he described the hotel as “a very friendly, respectful and great place to work.” He gave his reason for leaving as “Not just for me anymore. I have other pursuits at the moment.” Summarising his experience working in the hotel he said, “Great place to work sincerely. Good atmosphere, people and great experience I will take with me.” |
Conclusions:
It is well established that an employee who seeks to claim that they were constructively dismissed must act reasonably and give their employer an opportunity to address the problem that is causing them to be uncomfortable or in some difficulty at work. Having listened to both sides at the hearing of this dispute, it seems to me that the worker was having a difficulty, but he failed to give his employer a chance to investigate what the problem was, so that it could be sorted out. In reply to a text message from the facilities manager on August 19th in which the manager asked him if he was okay, the worker replied that the job just wasn’t for him. When he was contacted by the HR manager the following Monday, he did not take the opportunity she offered him to deal with the issue that caused him to leave. It is my view that the worker had an opportunity to resolve the sense he had that others were making remarks about him and talking about him behind his back. At the hearing, he said that, on Friday, August 19th he had made up his mind to leave. It is unfortunate that, rather than try to sort things out, the worker left his job in August 2023. At the hearing six months later, in March 2024, he was still upset at what happened. Having considered the worker’s position, as he has taken up a new job that he is happy with, I think that the best course of action is for him to put this dispute behind him and to consider it as an experience in how not to finish up in a job. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the worker and the employer take no further action regarding this dispute. |
Dated: 7th of May 2024
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Constructive dismissal, use of procedures |