ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00002124

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:             25/04/2024

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute  and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

The Worker was employed as a Valuation Associate for a period of some 4 months July to October 2023.  She had a dispute with the Employer which resulted in her resignation from her job following what she alleges was bullying and harassment.

Summary of Workers Case:

Claimant was hired for Senior Valuation Associate. Claimant's manager Mr. E, initially offered a salary that did not meet Claimant's expectations. The Human Resources Partner, Ms G, praised Mr. E as an excellent manager and mentioned the company's sponsorship for training in Luxembourg during the first month.   After accepting the offer, Claimant cooperated with the company's requirements, obtained a Schengen visa for training in Luxembourg, and relocated to A small town. However, the promised Luxembourg training was repeatedly postponed by the company, leading to a sense of distrust towards the Complainant and Mr. E.

Starting from the time with Respondent, Manager E made unreasonable work demands, behaved aggressively towards Claimant, and frequently implied overtime, resulting in immense work pressure, anxiety, and insomnia for Claimant, eventually diagnosed as moderate anxiety and moderate depression.

Claimant initially sought to earn recognition from Manager E during the early stages of employment by striving to complete all tasks within her capabilities. However, after some time, Claimant realized that this unpaid overtime trend did not improve despite her growing proficiency in her duties and increased efficiency. Feeling the need to advocate for her rightful interests, Claimant raised concerns with Manager E regarding reduced overtime. Unfortunately, it led to multiple instances of verbal suppression from Manager E in the work. Manager E is a head and director of the department. As a newly hired foreign employee, Claimant was unsure whom to turn to for assistance. 

Workplace discussions and mockery severely affected Claimant's mental and physical health, causing extreme fear of going to the office or crowded places. Seeking help from Manager E, Claimant requested sick leave and a change of seat, with temporary remote work at home until the change. Manager E agreed to the requests.

However, despite agreeing to Claimant's sick leave request, Manager E sent an evaluation form on the same day afternoon (13 October 2023), indicating that Claimant did not meet Senior role. One of the criteria stated that Claimant did not go to the office the expected 3 days in the last weeks, despite not recovering from the illness, and required confirmation from Claimant. 90 days assessment form. This evaluation form may relate to whether the probationary period is passed or extended, potentially affecting Claimant's visa status. Consequently, Claimant felt anxious and panicked, feeling compelled to return to work without recovering from the illness. Although Manager E confirmed her return to work and requested proof of cancel sick note, the fear and distrust instilled by Manager E made it impossible for Claimant to determine the sincerity of his words, remaining deeply concerned that Manager E might make a decision during the probationary period that she couldn't pass.

On October 17th , 2023, during a meeting between Manager E and HR, it was suggested that Claimant could reapply for sick leave if feeling unwell. Upon returning to the office, Claimant found out that according to company regulations, she would have to wait another two weeks for her seat to be changed, resulting in severe insomnia for Claimant during those days, requiring increased medication. On the 18th October, Claimant again requested sick leave, and Manager E proposed consulting with HR, informing her at the end of Friday (the 20th) that she needed to obtain a new sick leave certificate. However, Claimant's condition had deteriorated significantly by then, both physically and mentally, and she could not endure the process of waiting for a new sick leave certificate. Therefore, Claimant was issued a resign mail on the morning of 21st October.

In response to the Respondent’s submission:

Regarding Respondent's code of ethics, the employer hired employees from 38 countries, promoting diversity. However, small town (C) is merely a small place with the majority being locals.

During discussions with Manager E and HR, Manager E explicitly mentioned that local colleagues were just merely curious about Claimant. While Claimant described details of surrounding discussions during meetings, HR required precise written documentation specifying the exact time, location, and nature of the incidents. In response, Claimant believed that she did not effectively utilize the company's internal grievance procedures, partly attributing it to the lack of training provided by the company before the incidents occurred. Additionally, Claimant was not familiar with the specific usage rules of internal complaint mechanisms, causing them to miss opportunities to collect and preserve evidence.

As a foreign employee, especially one who relocated from Dublin to a small town for the job and found themselves isolated without friends, Claimant felt ill-equipped to handle situations involving the company, Manager E, colleagues, rumors, or privacy breaches in a normal and rational manner. She may not accurately recall every discomforting statement, who uttered it, during which conversation, and at what specific time and date. Moreover, the Respondent's rigid and impersonal mode of communication at the time made Claimant feel that their privacy needed to be exposed publicly. Claimant did not perceive this as assistance from the Respondent. Considering the critical skills visa requirement binding them to the Respondent for two years, Claimant only requested remote work before changing seats. However, the lack of diversity in the office's environment was also a significant factor contributing to Claimant’s illness.

Claim for Constructive Dismissal

Claimant admits that her resignation citing an inability to adapt to the company culture was hastily made, but it was influenced by multiple complex factors.

Firstly, since joining, Claimant has endured immense work pressure due to unreasonable demands and aggressive behavior from Manager E. The fear arising from unfriendly discussions among company colleagues and the insecurity stemming from being alone in a foreign land without family or friends has severely impacted Claimant's mental and physical health, requiring medication to sleep.

Secondly, the company's leadership and HR failed to provide effective assistance, instead, at Claimant’s most vulnerable moments, they coldly advised she to submit written evidence of bullying, demanding precise details of specific times and statements made by specific individuals as proof of experiencing workplace injustice.

Most importantly, when Claimant first requested sick leave at 13rd October 2023, Manager E initially agreed but promptly sent the 90 days evaluation form indicating non-compliance with workplace standards, causing Claimant to fear failing probation and returning to the same environment. Upon the second sick leave request at 17th October 2023, Manager E replied that he proposed to negotiate with Ms C, and two days later, he stating that Claimant needed to re-visit the GP to obtain a sick leave certificate and restart the leave request process. Instructed Claimant to go through the sick leave process again. But Claimant was in a panicked and depressed state, longing to leave the fearful environment.

 As a foreign girl isolated and unsupported, Claimant cannot guarantee that every action taken was correct, beneficial, or reasonable for self-protection. HR's formulaic approach without proactive communication on bullying and harassment procedures or relevant training left Claimant unable to fully comprehend or effectively utilize the procedures mechanisms when faced with issues. Despite HR's assertion of the company's promotion of diversity and Manager E's caring leadership, his higher position and the company's impersonal handling led Claimant to reasonably believe they were not receiving adequate assistance.

Summary of Employer’s Case:

The Claimant alleges that there is no diversity in the workplace, and that colleagues talk about her and invade her privacy. The Respondent would refute this allegation in its entirety. The Respondent is an equal opportunities employer and promotes a diverse and inclusive work environment. The Respondent employs circa 38 nationalities within its Irish operation and has extensive diversity and inclusion policies in place.

The Claimant alleges she raised an issue of discrimination at work with her line manager, Mr E. Meetings were convened with the Claimant as soon as she raised concerns informally relating to colleagues speaking about her. The Claimant at all times in these meetings failed to give any detail or confirm any incident that the Respondent could investigate.

The Respondent on multiple occasions outlined the policies and procedures available to the Claimant to address these alleged issues and at no point did the Claimant utilise these, and the Respondent was placed in a position where it was unable to investigate any allegations as none were made.

Claim of Constructive Dismissal

Section 1(b) of the Unfair Dismissals Acts, 1977 – 2015 (as amended) defines dismissal in relation to an employee as, inter alia: “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”

In light of this definition, and established principles adopted by the Tribunal and the Courts, there exists 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. It is the Respondent’s position that neither criterion has been met.

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).

It is the Respondent’s position that in advance of the Claimant furnishing her resignation, she could have notified the Respondent of any concerns she may have had in relation to her employment and utilised internal procedures to resolve any grievance, which she failed to do. The Respondent maintains that the Claimant acted in a hasty and unreasonable manner by resigning from her position before notifying the Respondent of her concerns and in advance of exhausting internal procedures.

On 21 October 2023 the Claimant furnished the Respondent with her resignation stating, “I feel I am not very comfortable with the company culture”.  Ms C and Mr E met with the Claimant on 23rd October 2023 in order to discuss the resignation. The Claimant disclosed at this meeting that she missed China and intended to return in 3 days. The Claimant also stated she felt she was being spoken about in the office, however again failed to provide any detail of instances where this may have occurred or details of any persons who she thought were speaking about her. Moreover, the Claimant never raised these points of concern via the Respondent’s grievance and bullying & harassment policies prior to her resignation. The Claimant requested that she finish up that day and this was agreed to in order to facilitate the Claimant’s plans to return to China.

Conclusions:

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

CA-00060970-001           Industrial Relations Act 1969

I am not in a position to make a recommendation as the Worker would not take part in an investigation process.

CA-00060970-003           Industrial Relations Act 1969

As a gesture of goodwill, and in order to draw a line under the dispute I recommend the Employer re-imburse the Worker with the amount of €1,300.

Dated:   30th May 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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