Worker

Employer

Anonymised Parties

A worker

An employer

Representatives

 In person.

Tina Ochelle Deasy IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00001507

04/07/2023

The complainant commenced employment with the respondent on 21st November 2022 and remained in employment until 23rd May 2023 when she resigned.

This complaint was received by the Workplace Relations Commission on 4th July 2023.

It should be noted that in complaints heard under section 13 of the Industrial Relations Act, 1969, the complainant is referred to as the Worker and the respondent is referred to as the Employer.

Background to Employment:

The Worker was employed as a Project Specialist from 21 November 2022 until her resignation on 23 May 2023. In March, a significant management transition occurred due to internal restructuring, with Ms. CJ being succeeded by Ms. KA.

Before this managerial transition, the Worker’s professional relationship with Ms. CJ was positive. There was no negative feedback regarding the Worker’s performance and extended opportunities typically reserved for employees who had successfully completed their probationary period. Specifically, the Worker was permitted to register for The Insurance Institute of Ireland for the APA and CIP Certification.

Additionally, when the Worker sought guidance from Ms. CJ on the documentation required from HR related to her probation status for purchasing a house, she was assured that the necessary steps would be taken. Ms. CJ advised the Worker to reach out to HR, ensuring that the process would be smooth and that any required information could be obtained.

This period of positive collaboration and support with Ms. CJ is essential to highlight, as it forms the backdrop for the subsequent challenges following the management transition to Ms. KA

During the interactions detailed on 5 May 2023, 8 May 2023, and 12 May 2023, it is important to highlight that these conversations with Ms. KA were marred by what the Worker perceived as mistreatment. Throughout these discussions, the Worker consistently felt demeaned and belittled, creating an environment where she felt undermined and devalued.

Respondent's Harassment and Bullying Policy:

While the Employer highlights its Harassment and Bullying Policy, the Worker wants to emphasise that policies alone do not guarantee a harassment-free workplace. In her case, the alleged mistreatment was not appropriately addressed despite the existence of such policies.

Failure to Exhaust Internal Procedures:

The Employer argues that the Worker did not follow the correct procedures in raising her concerns, citing legal precedents. However, on May 19th, after Ms KA’s meeting where she informed the Worker about her probation and criticised her knowledge, the Worker expressed her deep dissatisfaction and uncertainty about continuing with the company. The Worker sent a message to Ms CJ who called the Worker to discuss her concerns. The Worker highlighted the challenging work environment she had experienced since Ms KA became her manager and the lack of empathy from Ms KA. Ms CJ apologised and offered support, suggesting that if she didn’t wish to interact with Ms KA further, she would communicate her decision. Subsequently, the Worker resigned due to pressure from Ms KA regarding her decision to leave or stay, as she told the Worker that she needed to advertise the position. Despite the Worker’s clear emotional distress and the revelation of a difficult working relationship with Ms KA, the company did not propose any alternatives or encourage the Worker to follow a formal procedure. The Worker chose to resign because the prospect of continued interactions with Ms KA was emotionally overwhelming. HR was aware of the strained relationship the Worker had with Ms KA when she sent the resignation. Still, Ms CJ and Ms KA knew, and a more supportive approach could have been taken rather than simply accepting the resignation without exploring other options.

Inadequate Investigation:

The Employer argues that the Industrial Relations Act does not allow an Adjudication Officer to make specific findings regarding the substantive merits of the bullying allegations. However, she resigned due to the alleged mistreatment, indicating a failure on the part of the Employer to address her concerns adequately.

Role of the Adjudication Officer:

The Employer contends that the role of the Adjudication Officer is to ensure fair procedures are followed, not to substitute their decision for that made at the workplace level. The Adjudication Officer plays a crucial role in ensuring that workplace processes are fair and just. If the internal procedures were flawed, it is within the purview of the Adjudication Officer to address this.

Developments After the Hearing:

On 24 November 2023, the hearing took place, and on that occasion, the parties reached an agreement. We mutually agreed on the terms of a settlement, intending to resolve the matter without further proceedings. By 5 December 2023, the company sent a settlement agreement and requested that the Worker obtain legal advice before signing it. As she had no financial means to pay for legal advice, she sought free legal assistance from FLAC, Citizens Information, and a Community Centre. Following the advice from Citizens Information and WRC, the Worker requested that the company cover the legal fees, but they denied this request. On 27 December 2023, the Worker emailed the company and their representative to explain why she hadn't signed the agreement yet, detailing her efforts to obtain legal advice and the financial difficulties preventing her from doing so. The Worker received no response to this email. Subsequently, on 30 January 2024, the company withdrew the settlement agreement without providing any justification or explanation for this action. On 8 February 2024, the Worker emailed the company again, expressing her desire to resolve the matter amicably and avoid going to court. The Worker requested a deadline to sign the agreement, hoping to finalize the settlement, but again received no response. After numerous attempts to communicate and resolve the issue without success, the WRC replied on 12 March 2024, stating that they would schedule a new hearing due to the company's failure to pay the agreed settlement.

Conclusion:

In light of the information provided, the Worker respectfully requests that the Adjudication Officer consider the unique circumstances of the case. The alleged mistreatment led to her resignation, and the subsequent actions of the Employer indicate a failure to adequately address her concerns under established policies and legal requirements. The company's withdrawal of the settlement agreement without justification further demonstrates a lack of commitment to resolving this issue fairly. The Worker urges the Adjudication Officer to ensure that fair procedures are followed and that her case is evaluated with the due diligence it deserves.

Background to the Employer.

The Employer is a global partner for protection and care with an office located in Dublin.

Background to the Worker.

The Worker was employed as a Project Specialist from 21 November 2022 until her resignation on 23 May 2023.

Background to the Claim

The Worker commenced employment as a Project Specialist on 21 November 2022, initially under the management of Ms. CJ. The Worker was employed initially on probationary basis for 6 months.

In March 2023, because of an internal restructure the Worker started to report to Ms. KA.

While feedback and support had been provided to the Worker it was felt by both Ms. CJ and Ms. KA that there was room for improvement by the Worker and that an extension of her probation should be considered.

On 28 April, Ms. CJ and Ms. KA received advice regarding this from the HR Country Lead, in advance of the end of the Worker’s termination period on 21 May 2023.

It was subsequently decided, that due to the recent internal restructure, it would be reasonable to delay any decision to extend the Claimant’s probation.

On 5 May 2023, Ms. KA had a conversation with the Worker during which the Worker stated that she was unclear as to her deliverables and was not satisfied with the induction she had received. On foot of this, Ms. KA increased the frequency of her catch up meetings with the Worker from once per week to twice per week. The Worker would also continue to have weekly meetings with Ms. CJ and another manager Mr. CF.

On 8 May 2023, the Worker had a meeting with Mr. CF where she was requested to compile a list of areas for development that she had identified. The Worker shared this list with Ms. KA, upon which clear steps to improve her deliverables could be based.

On 12 May 2023, Ms. KA discussed with the Worker ways in which she could achieve project targets. The Worker was provided with a template to track her weekly progress. The Worker was also asked to increase her presence in the office as part of this performance improvement process.

 On 15 May 2023, the Worker met with Ms. KA. The Worker agreed with the performance improvement plan but stated that she could not fulfil the request to increase her presence in the office as she had to attend to a family issue abroad immediately. Ms. KA explained to the Worker that she had not made the company aware of this in reasonable time and, as such, she would not be granted approval to work from outside Ireland. 

On 19 May 2023, Ms. KA had a meeting with the Worker where she informed her that her probationary period would be extended by two months based on the performance improvement plan as outlined.

On 23 May 2023, the Worker emailed the HR Country Lead informing her of her immediate resignation. As well as her notice of resignation, this email also contained details of mistreatment the Worker was allegedly subjected to by Ms. KA. This was the first time the Employer had been informed of such alleged mistreatment.

Respondent’s Arguments.

In the claim form, the Worker describes various instances of alleged mistreatment by Ms. KA. The Employer asserts that at no time over the course of the Worker’s employment were these allegations brought to its attention, save for their inclusion in the Worker’s letter of resignation.

The Employer’s Harassment and Bullying Policy, which was provided to the Worker on commencement of employment, outlines clearly the procedures open to an employee who believes they are experiencing bullying or harassment. The Harassment and Bullying Policy states that, in the first instance: “Prior to any formal action being instigated, employees who feel they are being bullied or harassed should therefore raise the issue informally with the alleged perpetrator(s) pointing out that their conduct is unwelcome, offensive or interfering with work. Alternatively, if the employee feels uncomfortable with a direct approach, the issue may be raised with the employee’s line manager, a colleague, or the Human Resources department to gain assistance in reaching an informal solution. In this situation the approach of the contact person will be by way of a confidential, non-confrontational discussion with a view to resolving the issue in an informal manner.”

Should the above not lead to a resolution of the issue, or where the employee is not comfortable raising the issue with the alleged perpetrator, an employee is free to invoke the formal procedure contained within the Policy.

At no point during her employment prior to her resignation did the Worker utilise the procedure as outlined above. The allegations of mistreatment were never raised formally with the Employer, nor were they ever raised on an informal basis with Ms. KA herself, even though she and the Worker were in regular contact. The decision of A Part-Time Teaching Assistant v A University, (ADJ 00006488) held,

“It is well established that disputes under this Act should be raised and exhausted at local level through the respondent’s grievance procedure. I find in this case that this did not occur. As outlined to both parties at the Hearing, The Workplace Relations Commission should not be the first port of call when a person has a grievance under the Industrial Relations Act. I note in the Labour Court case INT1014 it stated” The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed.” This was further confirmed in A Sales Manager v A Large Company (ADJ-00006959), where it was decided that; “On the sole basis that local resolution procedures have not been exhausted by the Appellant, I do not find merit in the dispute before me.”

The Claimant has requested “a thorough investigation into the conduct of Ms KA and appropriate action to be taken to ensure that no other employee within the organisation suffers from similar mistreatment”. It is the Employer’s position that a thorough investigation could and would have been conducted had the Worker utilised the procedures that were open to her for a complaint such as hers to be made.

In the case A Driver v Warehouse & Delivery [ADJ-0001406] the Adjudication Officer concluded as follows:

“He never invoked and exhausted the grievance procedure, and this claim is rejected”. “I find that there is a requirement that a person taking a claim under this Act must raise a formal grievance and have it fully exhausted before submitting a claim to the Workplace Relations Commission”. “The WRC must not be the first port of call in a dispute resolution”.

S.l. No. 674 of 2020, section 5.1 states,

“If Internal Procedures Do Not Resolve a Bullying Complaint “If full utilisation of the range of available internal procedures has not resolved a bullying complaint, the matter may be referred to a WRC Adjudicator under Section 13 of the Industrial Relations Act, 1969 Furthermore, section 6.2, sets out the role of the WRC in terms of resolution of, disputes and issues which arise in the workplace including cases of alleged bullying as being "The provision of Adjudication services under Section 13 of the Industrial Relations Act 1969 following the exhaustion of internal procedures (note: the grounds of a referral to an Adjudication Officer is around the conduct of an investigation in terms of fairness and adherence to fair process and procedure).

In A Personal Assistant v A Trade Union (ADJ-00030334) the Adjudication Officer stated:

“The jurisdiction of an Adjudication Officer under this legislation is somewhat constrained. It is essentially an oversight role to ensure that a worker’s rights have not been breached and to seek to apply equitable (in the colloquial sense) remedies where that will be of assistance to the parties. The Adjudicator has no role in substituting their decision for that made at the level of the workplace in the absence of some serious error in the processes. There is no evidence that the respondent failed to follow fair and proper procedures in the course of processing the grievance, only that the procedures applied failed to produce an outcome acceptable to the complainant.”

The Employer asserts that, had such a process been initiated on foot of an official complaint by the Worker through the appropriate internal procedures, these principles would have been followed and a satisfactory investigation would have been conducted. It is the position of the Employer that the claimant has not exhausted local procedures. The Employer has well established and agreed dispute resolution procedures that allows for the handling of all complaints at local level in the first instance, including this instant case. The Employer contends that it is not fair or reasonable for the Worker to rely on an external third party prior to engaging in the Employer’s own complaint resolution mechanisms.

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

At the first hearing of this complaint on 24th November 2023 the parties agreed terms of settlement. On 5th December 2023 the Employer sent a settlement agreement and a request that the Worker seek legal advice before signing said agreement. Due to the cost involved the Worker was unable to seek legal advice and advised the Employer of this fact on 27th December 2023, she received no reply to this communication. On 30th January 2024 the Employer withdrew the offer.

The parties attended a second scheduled hearing on 18th June 2024.

I now recommend that the initial offer is made again to the Worker and that she accepts such offer.

Both parties accept that the offer made and accepted is in full and final settlement of all aspects of the Worker’s employment with the Employer.

Should it be the case that the Employer insists on the Worker obtaining legal advice then the cost of such legal advice should be covered by the Employer.

Industrial Relations Act, 1969.