Complainant

Respondent

Parties

Giardini  Fernandez Azura

Expeditors Ireland Ltd

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-00063333-001

07/05/2024

The complainant gave evidence on affirmation.

She returned to work in September 2023 after a short period of sick leave and had a return-to-work meeting with her manager. At that meeting she revealed that she was having difficulties with her supervisor and alleges that the supervisor was making her uncomfortable and also made other complaints.

She says that nothing more came out of that meeting and a week after that she was put on a Performance Improvement Plan, (in fact, on November 16th).

There was no mention of any performance review and KPIs were not clearly established until after her complaint against the supervisor. She got commendations from customers and colleagues from time to time and no grave complaints.

The errors she was alleged to have made were attributable to overwork arising from short staffing and overwork in her department.

There is provision in the company procedures for counselling, but this was ‘skipped’ although it could have resolved things. Accordingly, the issue proceeded to the disciplinary stage.

 During the disciplinary  meeting, she was allowed representation and chose a colleague just back from vacation, so she had inadequate information to provide support.

The supervisor failed to follow the Disciplinary Procedures correctly as she did not provide counseling/coaching to mitigate the issues raised at the Disciplinary meeting; issues which could have been resolved then.

The complainant had been diagnosed with ADHD a few years ago but has always managed at work. She explicitly informed a previous manager (who has since resigned) about her diagnosis, and when she attended the PIP meeting with her new manager and district manager, she assumed they were aware of this diagnosis as the District Manager questioned her on it and she replied that she was managing it.

During one of the meetings with her manager (who also is a Mental Health First Aider), she suggested a transfer to a different desk from her supervisor who she alleged was antagonistic but this was not addressed and there was no transfer.

In the course of different meetings with HR and her manager, they encouraged her to avail of the Employment Assistance Program that includes counseling, and she did, but there were no serious discussions on it.

This has significantly impacted her performance at work, exacerbating her anxiety

She appealed against the disciplinary finding and had two managers from other departments review her case after which they concluded that my appeal will not be upheld without giving further explanation.

In response to questions, she confirmed that she had never raised either the relationship with her supervisor or the overwork issue as a grievance.

Also, despite initially saying that she resigned following the appeal outcome she accepted that she resigned some thirteen days before, on December 6th. The appeal outcome was issued on December 19th, 2023.

The respondent Employee Relations (ER) Manager, Ms Denise Duffy gave evidence on affirmation.

Areturn-to-workmeetingwasheldwithMs.Fernandezandher managerLauraCorkery on September 25th,2023.Thesemeetings arecompany standard to ensureproper management of thesickleavepolicy.DuringthismeetingMs.Fernandezattributed her absence on sick leavetopanicattacks.

Hermanagerdiscussedwhetherithad beenworkrelated andwhether sheneededanysupport.ShethenescalatedtoERtoensureappropriate follow upaction.

Specifically, in relation to the complainant’sconcernsofbeingtoobusy,her manager reviewed her workload and output.It was significantlylowerthanexpected(showingelevenfilesinoneworkingmonth(20daysaverage),less thantwo filesperday)whichraisedmoreconcernsastohowshewasdoingherjobandfillingher day.Theaverageis one hundred and fiftyfilespermonth.

Her target was halved but there was little improvement.

ER and hermanagerinvestigated thetraining and supports being given toMs. Fernandez and whether she received the training, there were regular 1-2-1’s, about managing her workload involving hermanagerand her supervisor.

ER also met with Ms. Fernandez which involved going through the work, asking where she needed help and support, but none was requested. At numerous 1-2-1’s both the manager and supervisor advised Ms. Fernandez to process her work in a certain way.

She would agree in the meetings but once back at her desk she continued doing her work in a way that took so much time it led to her underperforming.

There were other  regular meetings between the relevant managers and the complainant and detailed supports were given. She was also given the EAP Employee Assistance Program details as well as a direct line to both the District Manager and Employee Relations Team if needed.

Followingtheregular updates, itwasnotedthatdespite all this attention to her workload Ms. Fernandezrefusedtoimplementanychangestoallowherworktobecomeeasier.

Shecontinued todoubleupbydoingunnecessaryexcelspreadsheetswhichweretakingmuch longer.Shewas agreeingtochangesinthemeetingsbutthenwouldgobacktoherdeskandreturntoherwayof working.

This question was asked numerous times in numerous ways and ‘no’ was always the response.

At no time did Ms. Fernandez ever disclose that she suffered with ADHD.

Unfortunately, continued mistakes and low shipment count each week the Manager and ER felt that a formal process was required as the coaching and support approach was not working.

On October 16th  2023 an achievable PIP was installed which issued a support network around Ms. Fernandez to give her every chance of success. This was discussed at length during the meeting and on the same day her manager followed up with summary notes to ensure everything was clear. Gia had asked for the file count which was supplied to her the following day on October 17th  2023.

OnNovember 3rdfollowingaseriousissuewithaTop10customerduetocontinuederrorswhich againresulted infines for the respondent,Ms.Fernandezwasissued notice ofaDisciplinaryInvestigationforTuesday November 7th.

She requested a postponement to November 13th, as she needed time. This was agreed and the meeting was rearranged for  November 14th, 2023. On November 23rd  the outcome of the disciplinary process was released and a Formal Orla warning was issued.

On  November 27th, Ms. Fernandez appealed this decision. The appeal was heard on December 5th, and in the appeal outcome on December 19th the warning was upheld. In the meantime the complainant had resigned on December 6th.

The respondent denies any unfairness to the complainant at any time. At no stage did the complainant invoke the grievance procedure on any aspect of the issues she refers to.

The facts are as set out above. While the complainant expressed grievances about many aspects of her experience working with the respondent the relevance of these to the complaint of constructive unfair dismissal will be the focus of the decision.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of any contract of employment.  It is, after all, a breach of a legally binding contract.

When an employer wishes to terminate the contract of employment, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions having regard to the conduct giving rise to the disciplinary proceedings.

The most common source of complaints under the Act is when an employer has terminated the employment, and the criteria referred to are then the key tests as to whether the dismissal has been a fair one.

On the other hand, and in general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning. In most, if not all cases an action for breach of the employment contract is unlikely to arise.

But when an employee terminates the contract of employment and makes a complaint of constructive unfair dismissal then that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that.

 ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

 Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

This eloquently sets out the bar that an employee has to meet.

While the behaviour of the employer is critical, the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to mean whether the employer’s conduct has been so intolerable that it justifies the complainant’s resignation.

In other words, has it been at a level and of a nature that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

The tribunal and its predecessor has made it clear in a series of decisions that failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above) before the bar referred to above can be said to have been met.

In this case the complainant was unhappy that she was subjected to disciplinary action on the basis that alternative options were open to the respondent. However, the respondent for its part stated that while such options did exist it was not compelled to use them, and a decision in that regard is dependent on the facts of each particular case.

There was no case made out by the complainant that the disciplinary action was irrational or unfounded, although she did offer argument in mitigation of the performance issues which gave rise to it. And of course, the proper place to have done so was at the hearing of the disciplinary charges.

I find that the respondent did not act unreasonably in initiating the disciplinary action and did so on the basis of cause and in good faith. It was not a response to the complainant allegedly raising a complaint against her supervisor.

Following the disciplinary process, she received a warning and appealed on December 5th, 2023.

Despite initially stating to the hearing that she resigned because she had exhausted all options when the appeal outcome was issued, she accepted when put to her that she had actually resigned the day after the hearing and some thirteen days before the outcome was published.

This is a critical consideration, and it is fatal to her complaint.

This is especially the case when taken with the fact that she failed at the level of the workplace to pursue any of the alleged grievances she referred to in respect of her workload or inter-personal relationships.

Accordingly, she falls short of the bar necessary to ground a complaint under the Act by quite some distance and her complaint is not well founded.

For the reasons set out above, complaint CA-00063333-001 is not well founded and I determine that the dismissal was not unfair.

Constructive Unfair Dismissal. Failure to exhaust procedures