ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046756
Parties:
| Complainant | Respondent |
Parties | Linda Callaghan | Pelco Limited |
Representatives | James McEvoy, Work Matters Ireland | Michelle Bolger, Bolger and Company, Solicitors |
Complaints:
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-00057729-001 | 15/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00057729-002 | 15/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00057729-003 Withdrawn | 15/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00057729-004 Withdrawn | 15/07/2023 |
Date of Adjudication Hearing: 20/03/2024
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015 and section 8 of the Unfair Dismissals Acts 1977 - 2015, these complaints were assigned to me by the Director General. A hearing was held over two days, on January 19th and March 20th 2024, at which I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaints. The complainant, Ms Linda Callaghan, was represented by Mr James McEvoy of Work Matters Ireland. Ms Callaghan was the only witness for her case and she was accompanied by a friend, Ms Siobhán McGinley. Pelco Limited was represented by Mr James Doran BL, instructed by Ms Michelle Bolger, of Bolger and Company, Solicitors. Evidence for Pelco Limited was given by Mr Joseph Bolger, and by the company’s Fresh Food Operations Manager, Ms Erica Gavigan. The managing director, Mr Paul Fitzgerald and the HR manager, Mr Patrick Shanny also attended the hearing.
At the opening of the hearing, on behalf of Ms Callaghan, Mr McEvoy said that complaint CA-00057729-003, under the Organisation of Working Time Act 1997, and CA-00057729-004, under the Terms of Employment (Information) Act 1994 are withdrawn.
While the parties are named in this document, I will refer to Ms Callaghan as “the complainant” and to Pelco Limited as “the respondent.” I wish to acknowledge the delay issuing this decision and I apologise for the inconvenience that this has caused to the parties.
Background:
The respondent is a retail business employing around 250 staff, operating service stations, convenience stores and fast-food outlets mainly in the Dublin suburbs. The complainant joined the company in October 2017 as an assistant food manager. Her starting salary was €29,000. When she resigned in May 2023, she was in the role of compliance and safety manager, on a gross annual salary of €51,000 and with the benefit of a company car. The complainant resigned from her job because of the way in which a complaint of bullying was investigated. At the time of her resignation, the investigation into her complaint was still ongoing, but she felt that the investigator was biased. She claims that her decision to leave amounts to a constructive dismissal. Under the heading of the Safety, Health and Welfare at Work Act 2002, the complainant claims that she was penalised for making a complaint of bullying. Chronology of Events Leading to the Complainant’s Resignation Having commenced in October 2017 as an assistant food manager, the complainant was subsequently promoted to the role of fresh food manager. In February 2021, she was promoted to the role of compliance and safety manager, reporting to the HR manager at the time. When the HR manager left in March 2022, Mr Patrick Shanny took on the role and the complainant then reported to Mr Shanny. In October 2022, Ms Erica Gavigan was appointed to the role of fresh food operations manager and the complainant’s reporting line changed to Ms Gavigan. The complainant claims that Ms Gavigan excluded the complainant from meetings and began to manage her in a bullying and controlling manner. She claims that Ms Gavigan instructed her to attend at various locations to work as a deli assistant and that these instructions impacted on her ability to meet the requirements of her job as a compliance and safety manager. On November 25th 2022, the complainant sent an email to Ms Gavigan outlining her concerns about her workload and asking for clarity as to how her difficulties could be addressed. On December 1st, the complainant attended a meeting with Ms Gavigan, with another member of the HR team who took notes. The purpose of the meeting was to address the issues raised by the complainant in her email of November 25th. The complainant claims that Ms Gavigan’s conduct at the meeting was challenging and undermining and that that Ms Gavigan insisted that the complainant’s role as compliance and safety manager included the responsibilities of her previous job of assistant food manager. On December 13th 2022, Ms Gavigan wrote to the complainant and confirmed to her that “assisting in the deli and other areas of the business is part of the duties and responsibilities of your role and is deemed a reasonable instruction by the Company.” The complainant requested a meeting to discuss the notes of the meeting of December 1st 2022 and a second meeting took place on January 4th 2023. The complainant alleges that, at this meeting, Ms Gavigan engaged in bullying behaviour, challenging the complainant by quoting from her contract of employment regarding flexibility in her role and undertaking duties outside her area of work. She claims that Ms Gavigan suggested that she was the reason that some employees had left the company and that she was refusing to do her job. The complainant claims that Ms Gavigan’s efforts to schedule her work and to assign her to a role as a deli assistant exposes the company to considerable risk. She also claims that Ms Gavigan threatened to demote her. On January 23rd 2023, the complainant was assigned by Ms Gavigan to work as a deli assistant in a unit in Blanchardstown. On that day, Ms Gavigan called to the site and asked for a catch up. Ms Gavigan issued the complainant with a roster and a schedule of duties. The complainant said that she asked Ms Gavigan why she was constantly assigned to work as a deli assistant. She claims that Ms Gavigan told her that she shouldn’t question her authority. Without any notice, the complainant said that she attended a meeting with Ms Gavigan the next day. She said that she expressed her opinion to Ms Gavigan that she was being bullied and victimised by her. It is the complainant’s case that Ms Gavigan bullied her at this meeting. As compliance and safety manager, the complainant had been responsible for manging her own time, but Ms Gavigan instructed her to clock out during breaks and to inform her of any deviation from the schedule. The complainant said that this is not the policy for head office employees and she felt that it was a form of micro-management and bullying. At the end of the meeting, Ms Gavigan asked the complainant to sign a document in which she stated, “Explained to Linda that this is not victimisation, a conversation about how we communicate and in what manner.” On February 3rd 2023, the complainant attended a meeting with the HR manager, Mr Shanny. The purpose of the meeting was to discuss the complainant’s alleged misconduct, consisting of her refusal to attend a meeting with Ms Gavigan. At this meeting, the complainant claims that Mr Shanny was complicit in bullying her. On March 9th 2023, the complainant submitted a formal grievance to the managing director, Mr Paul Fitzgerald, alleging that she was bullied by Ms Gavigan and Mr Shanny. On March 25th 2023, she submitted two complaints to the WRC under the Terms of Employment (Information) Act 1994. An independent investigator, Mr Joe Bolger of ESA Consultants, was appointed to consider her grievance and she attended two meetings on March 28th and April 6th 2023. On April 14th, the complainant withdrew from the investigation, claiming that Mr Bolger was not impartial and that she had no confidence in the process being managed by him. On April 24th, she submitted a dispute to the WRC under the Industrial Relations Act 1969. On May 26th 2023, the complainant resigned, alleging that the cause of her termination was the bullying conduct of her manager, Ms Gavigan and the HR manager, Mr Shanny. On June 5th 2023, she commenced in a new job with a different employer. The complaints that the complainant submitted to the WRC on March 25th and April 24th 2023 were withdrawn. These two new complaints were submitted on July 15th 2023. It is the complainant’s case that she was forced to resign due to the behaviour of the respondent’s managers and that she was penalised for raising concerns about excess monitoring, micromanaging and threats of disciplinary action by Ms Gavigan and Mr Shanny. She also claims that the managing director, Mr Fitzgerald, ignored her when she raised her concerns and that she was isolated in the workplace. |
Summary of Complainant’s Case:
Opening Submission on Behalf of the Complainant Mr McEvoy submitted that Ms Gavigan seems to consider that the complainant was required to work as a deli assistant in addition to her role as compliance and safety manager. She did the work of a deli assistant for three or four days a week, compromising her actual job. Mr McEvoy said that others could have been assigned to work in the delis rather than the complainant. Mr McEvoy said that the complainant was the only member of head office staff who had to sign in and out. Mr Shanny, in his role as HR manager, did not support the complainant, but conducted what her referred to as an “informal meeting” but which turned out to be under the heading of the disciplinary procedure. When she submitted a complaint about Ms Gavigan, the complainant said that the managing director, Mr Fitzgerald, ignored her. The complainant was accused of not being flexible and Mr Shanny accused her of being mischievous and lying. Mr McEvoy said that, because of how she was treated by Ms Gavigan and Mr Shanny, the complainant had to resign and get another job. Evidence of the Complainant, Ms Linda Callaghan Ms Callaghan said that she always managed her own time and that she didn’t work according to a roster. It was only after she started to report to Ms Gavigan in October 2022 that she had to clock in and out. She said that her difficulties started in November 2022 when Ms Gavigan asked her to train staff in the Blanchardstown deli and to change the oil in the fryer. She said that she questioned why she was being asked to change the oil because an external company had been contracted to do that job. The complainant said that she asked for clarity about her role. She said that there were two “floating” deli staff. She said that Ms Gavigan told her that her previous role and responsibilities applied to her job as compliance and safety manager, but she said that she didn’t agree with this. The complainant said that she was the only person in head office to have to work to a roster. She said that she told Ms Gavigan that she thought that the way she was being treated was bullying. On December 1st 2022, she said that she attended a meeting with Ms Gavigan, at which she asked her to sign a pre-typed note. The complainant said that she didn’t sign the note and that she didn’t agree with it. After the meeting on December 1st 2022, the complainant said that there were constant meetings with Ms Gavigan. She said that she asked for notes of these meetings, and sometimes she had to wait for three weeks to get the notes. The complainant said that, when she was working on the deli in the Airside and Blanchardstown units, Ms Gavigan arrived in the units. When she was in Blanchardstown, Ms Gavigan asked her if she had issues. She said that she asked Ms Gavigan why she was on the deli and that she told her that her job of compliance and safety manager was being compromised. The complainant said that she couldn’t get her work done in this role and she asked Ms Gavigan to let her go back to the office. When she refused to sign the notes of the December 1st meeting, the complainant said that she was called to a meeting by Mr Shanny. She said that Mr Shanny was aware that she was being bullied, but he conducted the meeting of February 3rd 2023 under the disciplinary procedure. She said that she was accompanied at the meeting by the site manager from Blanchardstown. She said that Mr Shanny wanted to know why she wouldn’t sign the notes of the meeting with Ms Gavigan on December 1st 2022. Between then and May 2023, the complainant said that she attended five meetings with Ms Gavigan or Mr Shanny. The subject of the first meeting was why she didn’t sign the notes. The other meetings were about her role and responsibilities. She said that she was informed that Ms Gavigan was her manager and that she had to do what she said. The complainant said that Ms Gavigan organised her activities for the week and if there was a blank day on her roster, she told her what to do. On one occasion, the complainant said that she worked in the deli in a unit in Skerries for two weeks. She said that there are four full-time employees in Balbriggan who could have been asked to provide cover in Skerries. Between January and May 2023, the complainant said that she worked for 25 days on the deli in one unit or another. She said that Ms Gavigan amalgamated her responsibility for food safety audits and health and safety audits with working as a deli assistant. She said that she wasn’t allowed to accompany the environmental health officer on visits. When she was working in the delis, she said that the site manager would let her know that Ms Gavigan phoned and told her where to report for work. Cross-examining of the Complainant Mr Doran asked the complainant if she agreed that the tasks that she was assigned to by Ms Gavigan were in her job description. The complainant replied that she didn’t understand this question. Mr Doran reminded the complainant that she was promoted in 2021 and that she got an increase in her annual salary of €5,000 and she was provided with a company car. Mr Doran read the section from the complainant’s contract of employment which states that she is required to do work that may be changed and that, apart from the tasks specified, she may be assigned to “other duties” and that she is required to be flexible in her role. The complainant agreed that she accepted these terms and that she signed her contract. She said however that 25 days working on the deli is not what she understands by “flexible.” She said that she was flexible and that she expected that she would be required to be flexible from time to time. She said that she was more often working on the deli than she was working at her job of compliance and safety manager. She said that there was always someone who could have covered the shifts she worked on the deli. Mr Doran asked the complainant if she fell behind with her work as compliance and safety manager. He referred to the letter issued to the complainant on December 13th which states that “the company would like to clarify that assisting in the deli is part of your role.” He said that the deadlines were eased with regard to the compliance and safety element of the complainant’s job. The complainant replied that she had the job of compliance and safety manager and that she was put working on the delis when others were available. She referred again to the requirement in her contract to be flexible “from time to time.” The complainant agreed with Mr Doran that outlets had to be kept open and that the company had to make sales to generate a profit. She did not agree that Ms Gavigan worked in the delis three times as often as her. Mr Doran suggested to the complainant that she had progressed in the company, had received end of year bonuses and had been promoted. She replied that everyone got a bonus of €1,000 at Christmas. Mr Doran referred to a note of a meeting of November 25th 2022 at which the complainant said that her job had changed. She said that, “over the last few weeks, tasks are being added back to my role” and she said that she found it hard and stressful to complete her work. She looked for clarity in writing on her role and responsibilities. From that email, Mr Doran said that a meeting took place on December 1st. Mr Doran referred to the complainant’s statement that the company failed to properly respond to her complaint of bullying. He reminded her that she asked for an investigation to be carried out. The complainant said that she asked the managing director to protect her from being bullied and that he didn’t. She said that she continued to report to the people who were bullying her. Mr Doran referred to the fact that the complainant withdrew from the investigation into her complaint and instead submitted complaints to the WRC under the Terms of Employment (Information) Act and the Industrial Relations Act, both of which were withdrawn. Mr Doran referred to the fact that the complainant resigned and got another job, and then submitted new complaints. The complainant repeated that Mr Fitzgerald allowed the bullying to continue and ignored her in the office. She said that she wasn’t invited to any meetings. She said that she was threatened with disciplinary action when she raised a concern about her terms and conditions. Mr Doran referred to the letter Ms Gavigan sent to the complainant on December 13th 2022 in which Ms Gavigan said that, “…assisting in the deli and other areas of the business when requested is part of the duties and responsibilities of your role and is deemed a reasonable instruction…” She went on to say that, to ease the pressure on the complainant, the company would be lenient regarding deadlines. In response to Mr Doran’s suggestion that this was an indication that Ms Gavigan was taking responsibility for any implications arising from the complainant’s work in the delis, the complainant disagreed and said that she still had a workload to complete and that audits had to be done at certain times. Mr Doran referred to the meeting on December 1st 2022 with Ms Gavigan and the complainant. A note-taker was also present. The complainant said that she was informed by Ms Gavigan at the meeting that her previous role and responsibilities were part of her job as compliance and safety manager. She referred to a request from Ms Gavigan to train staff on using and cleaning the fryer in the deli units and she said that this work was previously done by the managers. She agreed with Mr Doran that training was part of her role and she said that she helped out with training. Referring to a meeting with Ms Gavigan on January 4th 2023, the complainant said that Ms Gavigan bullied her by continuously quoting from emails. When Mr Doran asked her to explain how this was bullying, the complainant said that it was “the way it was said and continuously said.” The complainant said that it was her job to ensure that training was done and that Ms Gavigan stopped her from doing her job. She said that her job was to protect the company from risks to health and safety. Mr Doran referred to the complainant’s responsibility to conduct audits on the company’s 14 units. He said that Ms Gavigan wanted to know what the complainant’s schedule was for any given week. The complainant said that she always told Ms Gavigan what her schedule was. The complainant said that Ms Gavigan suggested that the managers could do the audits. She said that she felt that this was a threat to her job. She said that no one else was given a roster by Ms Gavigan. She said that she was micro-managed. On days that she was free, Ms Gavigan was to decide what work she was to do. She said that she wasn’t allowed to plan her own day. She said that she didn’t have to be the only person who helped out on the deli. Mr Doran referred to the meeting scheduled for February 3rd 2023, which was categorised by Mr Shanny as an “informal counselling meeting.” The complainant said that, from this point on, Mr Shanny was complicit with Ms Gavigan in bullying her. She said that, at the meeting, Mr Shanny wasn’t interested in anything she had to say. Referring to the rationale for assigning the complainant to work in the delis, Mr Doran said that there was a shortage of staff and that one unit had to close because there was only one person available. The complainant said that she was willing to be flexible, but that it was the number of times that she was required to be flexible that was the problem. She said that she was the only manager in head office required to fill in on the delis. Mr Doran said that, although the complainant resigned on May 26th 2023, there was an opportunity for her to come back and to report to a different manager. He referred to the email from Mr Fitzgerald on May 30th 2023, in which Mr Fitzgerald suggested that a potential solution could be for the complainant to report to the retail manager. The complainant repeated that Mr Fitzgerald ignored her, as if she didn’t exist. The complainant agreed that she left a Christmas present from Ms Gavigan unopened on her desk. |
Summary of Respondent’s Case:
Opening Submission on Behalf of the Respondent Mr Doran submitted that the complainant is seeking to re-litigate withdrawn complaints. He argued that the complaints under consideration should be dismissed, in line with the principle in Henderson v Henderson[1], that a party is precluded from raising in subsequent proceedings matters which were not but could and should have been raised in the earlier proceedings. With regard to her complaint under the Unfair Dismissals Act 1977, Mr Doran referred to the complaint of bullying lodged by the complainant on March 9th 2023. This was investigated in accordance with the respondent’s procedures. Mr Doran referred to the test of the reasonableness of the conduct of the employer, which, he conceded, may not have been perfect, but ultimately, the management acted reasonably with regard to the complainant. He referred to the second test regarding repudiation of contract and he submitted that there was no breach of the complainant’s contract and that she was asked to perform work that was within the scope of her contract. Considering the complaint of penalisation, Mr Doran referred to s.27 of the Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”) and he submitted that the complainant did not suffer any penalisation in the form of lay-off, dismissal, suspension, discipline, coercion or intimidation. Mr Doran argued that the complainant has not discharged the evidential burden that shows that she was subjected to any detriment that could be encompassed by the meaning of s.27 of the 2005 Act. Mr Doran referred to judgement of the Supreme Court in Ruffley v The Board of Management of St Anne’s School[2] where the Court held that, “Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work in engaged in. It may be necessary to point out faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit.” Mr Doran referred to the complainant’s allegation that she was “gaslighted” and bullied by Ms Gavigan. He suggested that it is reckless and unfair to former colleagues to make allegations of bullying and gaslighting without knowing what this term means. He argued that there is no merit in these claims and that they are an abuse of process. Evidence of the Investigator of the Complainant’s Allegation of Bullying, Mr Joe Bolger Mr Bolger said that he is a qualified arbitrator and that he has carried out hundreds of workplace investigations, having been commissioned by employers and state bodies. When he was contacted by Mr Fitzgerald in March 2023 with regard to the complainant’s complaint against a senior manager, Mr Bolger said that he arranged to meet the relevant people. He said that he met the complainant on March 28th and April 6th 2023, and, although she was advised that she had the right to be accompanied, she attended the two meetings on her own. After the first meeting, the complainant sent an email to Mr Bolger in which she said that she wasn’t happy with his approach, and specifically, his question about if she wanted to leave the company and his opinion that, if she referred a complaint to the WRC that it would be “thrown out.” At the second meeting on April 6th, the complainant informed Mr Bolger that she had submitted a complaint to the WRC. He said that he told her that that wouldn’t be well received and that it was an unwise move. At his meetings with Ms Gavigan and Mr Shanny, Mr Bolger said that they described the complainant as an excellent and skilled worker. Mr Bolger said he found no evidence of bullying by either manager. He said that he drafted a report and, in summary, he found that the complainant undertook a lot of work in the delis. He accepted that the addendum to her contract of employment provided that she could be assigned to other work and he noted that Ms Gavigan also worked in the deli. He said that there were no consequences for the complainant when she wasn’t able to spend all her time on her own job. He said that her complaints about bullying did not stand up. He thought that there were a lack of communication and that the complainant was given short notice of meetings. Mr Bolger described the complainant as “pushing back” when asked to do the job in the deli, but he said that there was no substance to her allegation that the company treated her wrongly. Mr Bolger said that he provided his final report to the complainant and he heard that she resigned. Cross-examining of Mr Bolger In response to Mr McEvoy, Mr Bolger pointed to s.33.2 and 33.3 of his report and his conclusion that, “33.2 While the complainant’s position was at best misplaced, this does not prohibit her rights to seek to clarify of her position (sic). 33.3 However, it is self-evident that the Contract and more importantly the addendum are not complicated documents and therefore I fail to see why the complainant turned her face away from the obvious.” Mr Bolger said that the complainant’s complaint was predicated on her case that she was being asked to do work that was not in her terms and conditions of employment or in the addendum to her contract. Mr Bolger said that the complainant told him that she made a complaint to the WRC about bullying and harassment. Mr Bolger agreed with Mr McEvoy who said that the WRC’s Code of Practice to Address Bullying in the Workplace requires an investigator to reach a conclusion on the balance of probabilities. Mr Bolger said that he also relied on facts that emerged from his investigation. Mr McEvoy referred to the addendum to the complainant’s contract, issued to her on March 3rd 2021, when she was appointed to the role of compliance and safety manager. The main paragraph of the addendum provides as follows: “You will be employed as Compliance and Safety Manager, as outlined in enclosed job description. You will be required to be flexible in this position and must be prepared to undertake such other duties as may be assigned to you by the company from time to time. Such duties can be outside the area of your normal work.” Mr McEvoy asked Mr Bolger if he thought it was acceptable for the complainant to spend 80% of her time working in the delis. Mr Bolger said that he didn’t look at the complainant’s roster and, in any event, he didn’t think this was relevant. Mr Bolger referred to a text message from the complainant to Mr Shanny in which she said that she would not attend work in the deli in Airside. Mr Bolger said that this was a refusal to comply with a reasonable instruction. On the day in question, Ms Gavigan was working on the deli in Blanchardstown. Mr McEvoy referred to the fact that the paragraph above refers to a requirement for the complainant to undertake other duties “from time to time.” Mr Bolger said that there was a massive shortage of staff. He said that the complainant never told him that she spent 80% of her time in the delis. She said that she was in the delis “a good bit” but that she was continuing to perform the duties of her job as compliance and safety manager. Mr Bolger said that he reviewed the complainant’s job description and he saw that her duties included training in hazard analysis and critical control points (HACCP), health and safety compliance and training on manual handling. He said that he concluded that she performed her job to an excellent standard. He said that he had a very good conversation with the complainant. He understood that she started work early and that she finished early. He said that it was her view that she couldn’t get all her duties done because she was assigned to work on the delis. Evidence of the Fresh Foods Operations Manager, Ms Erica Gavigan Ms Gavigan described her background in the fresh food retail business before she came to work for the respondent in October 2022. When she commenced, she said that, for the first few weeks, she reviewed what was happening in the stores. She said that one of the fallouts from Covid-19 was staff shortages, with huge turnover in the stores. When new employees were recruited, they had to be trained. As an example, Ms Gavigan referred to the Blanchardstown store where there is a requirement for seven staff, but it regularly only had between two and three. Turnover there was between 65% and 75%. She said that some units, such as the one in Ballygall, had to close, even though it was a small unit, it still needed people with experience. Ms Gavigan said that she worked in the Blanchardstown deli for three and a half weeks. She recruited agency staff at a high cost. In that unit, she utilised 421 hours of agency staff at €19 per hour. She said that staff that weren’t trained were assigned to cleaning so that the experienced staff could work on the counters. She said that part of the objective of hiring agency staff was so that permanent employees would have a sense that they were part of a team. Ms Gavigan said that, apart from the complainant, no one who reported to her could have helped out on the delis. She said that the complainant had the necessary experience. Mr Doran referred to the email that the complainant sent to Ms Gavigan on November 25th 2022 in which she referred to being under stress. He referred to the meeting which took place on December 1st and he asked Ms Gavigan why she brought a note-taker to the meeting. Ms Gavigan replied that she found it difficult to communicate with the complainant. She said that anything she asked her to do, she pushed back or procrastinated. She said that she decided to ask someone to take notes at the meeting because the complainant asked for clarity and she also wanted clarity on what she expected from the complainant. Mr Doran referred to an issue regarding traceability training. Ms Gavigan said that this is a basic element of HACCP and relates to the hot holding temperature of food. She wanted the staff to be trained in how to probe products. Ms Gavigan said that she was discussing induction training with the complainant and she wanted a deeper induction to include HACCP training. Ms Gavigan said that she had tried to introduce “floating” deli managers. She said that new employees didn’t know how to change the oil in the fryers and she asked the complainant to train them. She gave this job to herself also, and the floating deli managers. Ms Gavigan said that the complainant replied that she didn’t do this training and that it was done by the company that provided chemicals. Mr Doran asked Ms Gavigan about the complainant’s concern that she was being moved out of the business. Two or three weeks after she joined the company, Ms Gavigan said that she invited the complainant for lunch. She said that the complainant referred to two employees who had left, including her former line manager. She said that the complainant said that she was feeling pushed out. Ms Gavigan said that the complainant didn’t point to anything she did or said to make her feel this way. Ms Gavigan said that she phoned the complainant on December 21st or 23rd and asked her to cover the deli in Airside. The complainant was in the Blanchardstown unit at the time and the manager there told Ms Gavigan that the complainant didn’t look well. Ms Gavigan said that she phoned her and told her to go home. She said that she also said that she wanted to drop a Christmas gift into the office for her. Ms Gavigan said that the gift was left on the complainant’s desk unopened. Ms Gavigan described this as “a punch in the stomach” and embarrassing. Asked by Mr Doran to respond to the allegation of bullying, Ms Gavigan said that she doesn’t understand how the complainant could perceive how she treated her as bullying. She said that they had two meetings, on December 1st and January 4th and that they agreed to continue on. She said that they agreed on a planner, which the complainant then referred to as a roster. Ms Gavigan said that her job is to look at efficiencies, but the complainant said that she found her workload over-bearing. When the complainant told her that it took four hours to conduct an audit, she said that she asked her how it could be done more efficiently. She said that the complainant suggested that she wanted to know where she was every minute of every day. Mr Doran referred to the complainant’s allegation that Ms Gavigan was “gaslighting” her. Ms Gavigan said that she didn’t know what that term meant and she had to do a Google search to find out. Ms Gavigan said that the complainant was required to work 40 hours a week, including an hour for lunch every day. Cross-examining of Ms Gavigan Mr McEvoy referred to the meeting on December 1st 2022 that Ms Gavigan had with the complainant and he suggested that, as Ms Gavigan brought someone to take notes, this was a formal meeting. Ms Gavigan said that in hindsight, she can see why the complainant thought it was a formal meeting. She said that if she was to have this meeting again, she wouldn’t have a note taker. Ms Gavigan agreed that she sent the complainant an email at 7.05am, asking her to attend a meeting that day. She said that she explained to her that it was an informal meeting, in response to her request for clarity around her job. She had also refused to do the traceability training. At the meeting, Ms Gavigan said that she told the complainant that there would be no consequences for her if she didn’t get her job done. Ms Gavigan said that, when the complainant was working on the delis, no one was in charge of health and safety. She said that manual handling training was scheduled for a time that the complainant wasn’t working on the deli. If the complainant worked for two or three days on a deli, then she had at least two days to do her job of compliance and safety manager. She said that on one of the planners she sent to the complainant, she asked her to let her know if health and safety needed to be prioritised. On December 1st, Ms Gavigan said that the complainant remarked, “so now I’m getting a roster.” Mr McEvoy said that the complainant managed her own time and she objected to this roster. Ms Gavigan said that she clocks in and out of work. In response to a question from Mr McEvoy about the cost of agency work, Ms Gavigan said that the issue with the complainant was not about cost. The complainant is an experienced food operations manager. She said that she herself worked on the delis, and she is paid more than the complainant. Ms Gavigan said that Blanchardstown now has six or seven employees, but in 2022 and early 2023, there were just two or three. Some branches had to be shut down. Mr McEvoy suggested to Ms Gavigan that her strategy was simply to cover the deli shortages with herself and the complainant. Ms Gavigan said that she wasn’t aware of anyone else who could fill the gaps. Mr McEvoy named a person in the HR department, but Ms Gavigan said that she wasn’t aware that this person had a food background. Mr McEvoy suggested people who worked in finance who might have a background in hospitality, or, he said, Mr Shanny has experience. Ms Gavigan said that Mr Shanny works in HR. Mr McEvoy asked Ms Gavigan if she could have appointed the complainant as a deli manager. Ms Gavigan replied that the complainant hadn’t got site manager experience. Ms Gavigan said that she accepted the complainant’s position that she didn’t know anything about the operation of the fryers. In response to questions from me, Ms Gavigan said that the complainant used to report to the retail manager, who reported to the chief executive officer. She then reported to the HR manager. When Ms Gavigan joined the company, the complainant was assigned to report to her. Ms Gavigan said that, when she joined the company, she thought her focus would be on the fresh foods business. She said that she didn’t anticipate the staff shortages and she didn’t expect to have to assign the complainant to the delis. She said that she set goals for the complainant’s compliance job on the planner. Ms Gavigan said that, one of the complainant’s responsibilities as compliance and safety manager is the auditing of each of the 14 sites four times a year. In addition, two health and safety audits must be carried out on each site. In her discussions with the complainant, Ms Gavigan said that she learned that each audit took about four hours. In a previous role, Ms Gavigan said that an audit took about an hour and a half. When she joined the company in October 2022, Ms Gavigan said that 58 employees had not done manual handling training. At the meeting with the complainant on December 1st, Ms Gavigan said that she learned that a significant number of audits were outstanding and she looked at ways of doing them more efficiently. She said that this is where the planner came into focus. Ms Gavigan said that she brought in a consultant in auditing and she asked how the audits could be done more efficiently. She said that they reduced the time taken to do the audits, but doubled the amount done. Ms Gavigan referred to the first four planners she drew up for the complainant. For the first two weeks, the complainant was on holidays. For the next two weeks, she was assigned to health and safety work. As things progressed, she said that the planners were “fine-tuned.” Ms Gavigan said that she assigned the complainant to start audits at 8.00am. She said, “in my view, the planners worked.” Further Questions from Mr McEvoy Mr McEvoy referred to the meeting on December 1st when, he said that the complainant referred to being stressed with an overbearing workload. Ms Gavigan said that the complainant did not say this, and she said that she was able to get all her work done. Mr McEvoy suggested to Ms Gavigan that it was her view that the complainant had to carry out the tasks associated with her old job, as well as that of compliance and safety manager. Ms Gavigan disagreed. She said that the complainant looked for clarity regarding her job and that she tried to provide clarity. By asking the complainant to adhere to the planner, Mr McEvoy suggested that Ms Gavigan was micro-managing her. Ms Gavigan said that she was asking the complainant to support the business. In response to a question from Mr McEvoy, Ms Gavigan said that, at the meeting on December 1st, she read out emails so that she could address the complainant’s concerns point by point. Ms Gavigan agreed that the complainant did not have prior notice of the meeting on January 24th. Ms Gavigan recalled that the complainant said that she felt ambushed. She said that she wanted the complainant to understand how her behaviour was affected her and how it was impacting on her dignity. She said that the complainant ignored her when she was in a store and when she requested a meeting with her, she refused to attend. Then the HR manager stepped in. Following this, Ms Gavigan said that she thinks she told the complainant about the grievance policy. Asked if it was absolutely necessary to implement a work planner, Ms Gavigan said that the complainant agreed to this. She said that the complainant “repeatedly asked me to clarify her role and responsibilities.” She said that the complainant said, “I want written clarity of what you want. I want to know what your expectations of me are.” Ms Gavigan said that the planner was 100% necessary because she needed to make sure that the complainant had time to do her job. She said that the complainant knew where she was needed in the business. The complainant had told Ms Gavigan that it was difficult to manage her workload. She said, “we offset some of her duties and put in deli cover.” She said that she needed the complainant to manage different duties. She said that she sat and agreed the planner with the complainant every two weeks. Mr McEvoy suggested that a more reasonable approach might have been to aske the complainant to send her movements for the week. Ms Gavigan said that when she tried that on two occasions, she got no response. On other occasions, the complainant refused to carry out work she was asked to do. Mr McEvoy said that there was no rationale for the complainant to be assigned to the deli so often and that this compromised health and safety in the company. He said that this amounts to bullying. |
Closing Statements:
Mr Horan, on Behalf of the Respondent On behalf of the respondent, Mr Horan said that the complainant has attempted to make out a case that she had to leave her job because of bullying. He submitted that the complainant has shown disregard for her colleagues, ignoring them and behaving outrageously. The case presented by the complainant is a problem with autonomy. Mr Horan said that the complainant is not a free agent, and not a consultant. The company is a business with the objective of making a profit. Due to Covid and other reasons, the business was short-staffed, and people were needed in “front of house” roles in the delis. The company could call on two people, Ms Gavigan and the complainant, to help out. The complainant said that she felt under pressure when she was asked to work in the deli. The addendum to the complainant’s contract of employment provides that she was required to do work to keep the business going. She looked for clarification about this. Mr Horan said that the requirement to help out wasn’t voluntary, but that it was driven by business needs. The complainant didn’t like the work planner. She didn’t appreciate being called to meetings at short notice and she complained about the note taker being present. She then complained when she didn’t get the notes quickly enough. She didn’t agree to the notes. Mr Horan submitted that the complainant “cannot be satisfied” and that she wants to do what she wants on her own terms. The complainant was given an indemnity regarding her health and safety responsibilities. She was not personally responsible for health and safety in the company. Considering the complainant’s claim that she was penalised, Mr Horan said that she can point to no instance of penalty, punishment or discipline that demonstrates that she was penalised. The complainant was required to carry out 84 audits each year, some of which could have been combined, resulting in a saving of time. Mr Horan submitted that the complainant was never too busy to help in the delis. There is no evidence that she had to work any extra hours. Mr Horan referred to the correspondence from the managing director, Mr Fitzgerald on May 30th 2023, following the resignation of the complainant on May 26th. Mr Fitzgerald asked the complainant to meet him to “de-escalate this whole issue.” He suggested that the complainant could report to a different manager “until we can sort out these issues.” On June 6th, he wrote again to the complainant and said, “…your resignation is not our desired outcome.” Mr McEvoy, on Behalf of the Complainant Mr McEvoy said that the complainant was willing to step outside the requirements of her normal role, until it became excessive. He said that the complainant suffered no penalties, and that there was no reason to penalise her. He said that she was threatened with reverting back to her original position. He said that Mr McEvoy’s letters to the complainant about not resigning are a damage limitation exercise. Although the HR manager was on notice that the complainant was being victimised, Mr McEvoy said that the complainant wasn’t believed. He said that the issue is not about the complainant not being flexible, but about her being told that she had to work as a deli assistant. Mr McEvoy said that the complainant felt bullied because of this. Before the complainant reported to Ms Gavigan, she managed her own time. Mr McEvoy said that the work planner was used to micro-manage her. Mr McEvoy submitted that emails sent by Mr Bolger to the complainant are outside the terms of reference for the investigation into her complaint of bullying. He said that Mr Bolger sent the complainant examples of constructive dismissal cases to undermine her confidence in her complaint. Mr Bolger did not look for evidence to support the complainant’s view. Mr McEvoy suggested that Ms Gavigan was “allowed to plough her own furrow” and that Mr Fitzgerald used to have a good relationship with the complainant, but that he ignored her when Ms Gavigan joined. As a result of being continuously assigned to the deli, the complainant felt that she had no option but to resign. |
CA-00057729-001: Complaint under the Unfair Dismissals Act 1977
Findings and Conclusions:
The Relevant Law It is the complainant’s case that she was constructively dismissed, meaning that she had to leave her job because of the conduct of her employer. The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal: [D]ismissal, in relation to an employee means - 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 without giving prior notice of the termination to the employer… In her submission and, in her evidence at the hearing, the complainant said that she resigned because of bullying. She said that her manager bullied her by assigning her to work on the delis too frequently and that this wasn’t part of her job as compliance and safety manager. She said that by expecting her to clock in and out and by scheduling her activities in a work planner, her manager engaged in micro-management. She objected to her manager calling her to meetings at short notice and having a note taker at the meetings. She also claims that the HR manager was complicit in the bullying and that she was ignored by the managing director. On March 9th 2023, the complainant submitted a complaint of bullying to the managing director. Mr Joe Bolger was appointed as the investigator of this complaint and he met the complainant on March 29th and April 4th 2023. The complainant resigned on May 26th, before Mr Bolger’s investigation was completed and she started in a new job on June 5th. The Burden of Proof in Constructive Dismissal Cases An employee who claims that they have been constructively dismissed must satisfy two tests, known as the “contract test” and the “test of reasonableness.” As a third component of this burden of proof, an employee who decides to resign and who argues that their resignation was because of the conduct of their employer, is generally expected to try to have their grievances addressed, by utilising their employer’s grievance procedures. The complainant made no allegation regarding a breach of her contract by her former employer and therefore, the issues for consideration are, 1. Was the conduct of the employer so unreasonable that the complainant had to resign? 2. Did the complainant act reasonably by using her employer’s grievance procedures to address her concerns? In the decision of the Court of Appeal in the United Kingdom in Western Excavating v Sharp[3], the reasonableness of the employer’s conduct was examined to determine if, “…the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with any longer…If so, the employee is justified in leaving.” The complainant’s decision to leave her job is grounded on her belief that she was bullied mainly by her line manager, but also by the conduct of the HR manager and the managing director. As the adjudicator of this complaint, it is not my role to re-open the investigation into the complainant’s allegation of bullying. That task was assigned to Mr Joe Bolger, who found that the complainant was not subjected to bullying. The complainant did not appeal against the outcome of this decision. My job is to consider if the employer’s treatment of the complainant was so unreasonable that it was reasonable for her to terminate her contract and to claim that she was constructively dismissed. Clearly, the complainant had a difficult relationship with her manager. As an experienced food services professional, Ms Gavigan was a more suitable manager for the complainant, compared to the HR manager, who had no experience in food operations. Ms Gavigan was trying to make the best use of the complainant’s skills and, in the context of a severe staff shortage, she assigned her to work as a deli assistant for a significant number of days. The complainant’s evidence is that she worked on the delis for 25 days between January and May 2023. The effect of this is that the complainant worked on the delis for five weeks during a period of 21 weeks, or one day out of every four days. The complainant was clearly annoyed about his, but she presented no evidence that it caused her to be under pressure. She said that it didn’t cause her stress and that she didn’t have to work extra hours to keep up with her own job. She said that the lack of clarity regarding her role was causing her stress. At the meeting on December 1st 2023, Ms Gavigan attempted to provide clarity, and she told the complainant that she was expected to help out on the deli if needed. The complainant described this communication as “challenging” and “undermining.” Ms Gavigan said that she agreed a work planner with the complainant and that she scheduled time for her to do her work as a compliance and safety manager. The complainant referred to this planner as a “roster.” The complainant said that, in her role as compliance and safety manager, she had to audit each of the 14 units twice a year, and that each audit took four hours. She also carried out health and safety audits twice a year in each unit. By my estimation, this work amounted to approximately 130 days. This left the complainant with around 100 days annually to do training and other work. Ms Gavigan decided that some of that “other work” could involve helping out when the delis were short of staff. The problem with the shortage of staff was being addressed by the respondent and was not intended to be ongoing. By any reasonable standard, the requirement to help out in a job that is within the capabilities of the person being asked to help out, is not adequate to support a complaint of constructive dismissal. It is clear to me from the evidence that the complainant had no respect for Ms Gavigan and that she resented having to report to her. It seems that Ms Gavigan had a greater oversight of the complainant’s role compared to Mr Shanny or her previous manager. This must have had the effect of changing the complainant’s working environment. When she complained that Ms Gavigan decided what work she was to do on the days that she was “free,” the complainant seems to miss the point that, while she was at work, her time was not “free,” and not her time, but that she was expected to carry out the instructions of her manager. The complainant claims that Mr Shanny colluded with Ms Gavigan in bullying her and that the managing director, Mr Fitzgerald, didn’t protect her from being bullied. It is my view that Mr Shanny’s decision to invoke the “informal counselling” stage of the disciplinary procedure was premature, and that, as her former line manager, some more creative intervention may have been possible. However, the fact that Mr Shanny started at the first point of the disciplinary procedure to address the complainant’s resistance to being managed by Ms Gavigan cannot be considered as bullying. The complainant’s position is that Mr Fitzgerald had a responsibility to protect her from being bullied. Certainly, every managing director must be mindful of the risk of bullying in the workplace and must have procedures in place to prevent bullying. I understand that the complainant attended training in bullying prevention and that the respondent has a policy on bullying and harassment. When she submitted her complaint of bullying, Mr Fitzgerald wrote to the complainant and told her that he was taking her complaint seriously and that he had appointed an external consultant to carry out an investigation. It seems that, when he reviewed her complaint, Mr Fitzgerald saw no risk to the complainant with her continuing to report to Ms Gavigan. It is the job of a managing director to make such decisions and it is my view that Mr Fitzgerald acted reasonably when he appointed an external person to carry out an investigation, while, at the same time, not making any change to the complainant’s reporting line. The behaviour of a bully is devious, manipulative, controlling and intended to undermine a person to such an extent that they begin to lose confidence in their abilities. This was not the conduct of Ms Gavigan, who believed that the complainant had a great deal to contribute and wanted her to add value to the business. The complainant’s response to her manager says more about her inability to adapt to a change in management style than about the effect on her of that change. She wasn’t expected to work longer hours or to do work that was beyond her capability. She was required to account for all of her time at work, and this seems to have been the issue that she found most difficult. It is my view that the complainant’s accusations about her manager are examples of a strained relationship affected by the change in the reporting structure and the level of visibility that Ms Gavigan had regarding the complainant’s responsibilities and the time taken to do her work. Conclusion The complainant resigned in circumstances where she was strongly opposed to being asked to do work that she felt wasn’t part of her job. It seems to me that she made this decision with a clear head on May 26th 2023, having found an alternative job, which she started on June 5th. While it was reasonable for the complainant to resign, she has not demonstrated that the conduct of her employer was so unreasonable that she had to resign. For her part, I find that she acted unreasonably by resigning before the outcome of the investigation into her complaint of bullying. I find therefore, that her decision to resign does not meet the test of reasonableness required to discharge the burden of demonstrating that she was entitled to terminate her employment and to claim that she was constructively dismissed. |
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.
For the reasons I have set out above, I decide that this complaint is not well founded. |
CA-00057729-002:
Complaint under the Safety, Health and Welfare at Work Act 2005
Findings and Conclusions:
The Relevant Law Section 27(1) of the Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”) refers to “penalisation” as, any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. Subsection (2) provides examples of the conduct of an employer encompassed by the definition of penalisation: (2) Without prejudice to the generality of subsection (1), penalisation includes— (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation. It is the complainant’s case that, when she raised a concern about her terms and conditions of employment, she was subjected to “increased bullying behaviour on behalf of my manager and other senior employees in the Company, including the Managing Director.” The investigation into the complainant’s claim of bullying resulted in a finding that she was not bullied. On behalf of the respondent, Mr Horan said that the complainant has not identified any instance of penalty, punishment or discipline that demonstrates that she was penalised. Apart from the difficulties in her relationship with her manager, the complainant provided no evidence of penalisation. In his closing remarks, Mr McEvoy said that the complainant suffered no penalties, and that there was no reason to penalise her. Conclusion Feelings are subjective, and I must accept the complainant’s assertion that she felt stressed because of what she considered a lack of clarity regarding her job. Ms Gavigan endeavoured to provide clarity and the complainant was not in agreement with her interpretation of the scope of her job, which included helping out in the delis when required. The definition of penalisation at s.27(2) of the 2005 Act, includes suspension, dismissal, demotion, transfer of duties, coercion or intimidation or a disciplinary sanction. It is apparent therefore, that the Act intends a detriment to be a serious and negative imposition on an employee which must constitute more than the emotional response of that employee to a workplace grievance. Taking all the facts into account, I find that no detriment, within the meaning of s.27(2) of the 2005 Act, was imposed on the complainant in advance of her resignation on May 26th 2023. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons I have set out above, I decide that this complaint is not well founded. |
Dated: 29-11-24
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Bullying, constructive dismissal, penalisation |
[1] Henderson v Henderson (1843) 3 Hare 100
[2] Ruffley v The Board of Management of St Anne’s School [2017] IESC 33
[3] Western Excavating v Sharp, [1978] ICR 221