Complainant

Respondent

Parties

Liam  Howlin

Indeed Ireland Operations Limited

Complainant

Respondent

Anonymised Parties

Representatives

Killian McGovern BL                                     Lara Kennedy Solicitor                                Crushell & Co Solicitors

Des Ryan BL                                              Laura Ensor Solicitor                     Lewis Silkin Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00055895-001

03/04/2023

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. The hearing ran to three days of evidence.

In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021)  the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the likely event of a potential for a serious and/or direct conflict in evidence between the parties to the complaint, then an oath or affirmation would be required to be administered to any person giving evidence before me.

I confirm that I have administered the said oath/affirmation as appropriate and in order that matters might progress. It is noted that the giving of false statements or evidence is an offence.

It should also be noted that all the Complainant and Respondent witnesses were agreeable to the giving of a formal affirmation/oath that all evidence provided would be truthful.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 3rd of April 2023.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant was fully represented by Solicitor and Barrister. When it came time to hear the Complainant’s evidence, the Complainant agreed to swear an Oath to tell the truth. I was provided with a comprehensive submission dated the 17th day of October 2023 together with a booklet of supporting documents. An additional booklet on mitigation of losses was also presented on the 17th of October 2023. The Complainant also relied on the submission outlined in the Workplace Relations Complaint Form.  No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he was constructively dismissed from his place of work.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had full legal representation at this hearing. The Respondent entity was also represented by a number of witnesses giving evidence on behalf of eh Respondent. The witnesses heard included DB who was the team leader for the division wherein the Complainant was working.      

The Respondent provided me with comprehensive written submission on the 20th day of October 2023 together with two booklets of supporting documents. At the later date of the 7th of February 2024, the Respondent provide me with a witness supplementary booklet. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation/Oath. The Respondent witnesses were all cross examined by the Complainant representatives.

The Respondent rejects that there has been a Constructive Dismissal and does not accept any contravention of Employment Rights as protected by statute.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced over the course of three days of hearing. The Complainant works in recruitment and in particular he was engaged to recruit individuals with senior technical skills and ability. This is a highly specialised role and requires the recruiter to have a unique understanding of the technical issues with which he or she needs to match a potential employee with a potential employer. The Complainant commenced with the Respondent company in and around the middle of November 2021. This was during Covid so much of the Complainant’s on-boarding was done remotely, and I understand he continued to work remotely for the duration of his employment. The Respondent is an international recruitment specialist.

The Complainant gave evidence on his own behalf and on Oath. As noted, he commenced his employment on the 15th of November 2021. He reported to DB who was the Team lead. The Team was known as the Talent Attraction Team.

Some six or seven months into the employment an incident occurred. There had been an online interview process involving a potential candidate. As part of the process the Complainant engaged in a series of text messages (raised on a system known as “slack”) with a colleague SOC who was not happy with the manner and tone of the communications. This was raised as an issue. Ultimately, WA was brought in from HR to mediate an outcome which he did to everyone’s satisfaction. It involved a three-way phone call between the Complainant, SOC and WA.

The Complainant went so far as to point out to his Team Leader (DB) and the Line Manager Mr. P that it had been simply a question of interpretation. The Complainant was of a mind that this matter had been put to bed and that this was not a formal process so it’s reappearance down the line seemed unfair to him.

Another incident occurred on or about the 5th of August 2022 when DB – the team lead - communicated with the Complainant concerning the way that the Complainant had communicated with another member of staff D. I understand that D had escalated a complaint concerning the way he was communicated with in a series of emails with the Complainant. I note that a non-party assessment of the said email exchange gave rise to an assessment of confrontational, condescending and passive aggressive language on the part of the Complainant in dealing with this colleague - D.

The Line Manger DB was therefore obliged to address this matter with the Complainant which he did in an email on the 12th of August 2022. DB gave evidence to the effect that this was not a particularly onerous chastisement. In the email, which also addressed a number of unrelated matters, he clearly states

2) Communication Style.

Please be mindful of your communications on Slack…..

- Please assume good intent when others message you - the team is working towards the same mission and goals as part of TA so demonstrating a consultative approach to relationship management is important. Specific reference to your messages with [named employee] on August 5th over Slack.

- Please be mindful to incorporate a softer, more welcoming tone to all Indeed employees - this is the minimum expectation for a level 3 recruiter here.

- Please also take the time again to familiarise yourself with the Indeed in Code of conduct - attached for your reference.

- The above is in specific reference to your messages with  [named employee]  on August 5th over Slack.

The fact of these two separate incidents having happened is clearly then referenced in the Q3 Review/assessment performed by DB and involving a look back  in relation to the Complainant’s work in the months of July, August and September 2022 (assessed in October 2022). In this quarterly review the Complainant was (for various different work-related reasons) found not to have met expectations, and it was further noted in the assessment that:

Liam also has had a 2nd slack incident with a colleague at Indeed this quarter. In this incident, Liam did not embrace a softer, more inclusive tone as encouraged by his team lead after the previous slack incident in Q2. Liam's message was condescending, dismissive and abrasive. He (meaning the Complainant) also referenced management's "pedantic, controlling slack monitoring policy" during our call, which indicates to me that Liam did not embrace any constructive learnings or want to take any accountability from the previous slack incident with [named employee], an incident in which we needed to get HR involved to help resolve the situation.

As I understand it the Complainant was given a rating of 2 out of a possible of 5 where 3 has a positive rating and the Respondent asserting that 2 merely suggests that there is some work to be done on core areas (per DB’s evidence). In fact, the Respondent points out that the assessment confirms that Liam has great potential here. It was put to me that the Complainant never saw the assessment as opportunity to improve and to learn from feedback. DB in his evidence stated the scoring was intended to convey an acknowledgement that there was room for improvement. Further, the evidence tended to suggest that the score herein was as much a result of performance issues with targets and never had anything to do with the instances of internal disharmony – though admittedly these were referenced per the quote above. DB stated that there was a wider matrix which included feedback which he clearly received from SOC and D.

In his first day of evidence before the WRC the Complainant suggested to me that he believed that management were from this point intending to push him from the company. Getting a 1 or 2 rating meant (for him) that he was in line to be gone. The Complainant was particularly upset at the defamatory (as he saw it) language describing him as "condescending, dismissive and abrasive”. He believed the review contained at least one actual falsity.

I have to note that the Complainant in the process of his cross examination was forced time and again to accept that the language used by DB was generally more conciliatory and in line with good management than it was dismissive of him. Also the Complainant had raised issues such as the perceived threat to his level 3 status in the workplace which he conceded had never been an issue.

Ultimately the Complainant raised a formal Grievance concerning the outcome of the Quarterly Review including the issue of how he had addressed colleagues. This was presented on the 18th of October 2022 with an investigative meeting conducted on the 7th of November 2022. Much was made of the jump from an informal process to a formal process at this point in time, however it should be noted that Management did not push back against this escalation at the time and I must assume that the escalation was not problematic in October 2022. It is clear that the Complainant had no faith that he could gain traction with DB (his Line Manager) at this time.  The Investigation was therefore overseen by a Sales Manager EB at the Complainant’s request. As a part of this Investigation meeting the Complainant wanted it noted that he was, by then, being excluded from certain work activities both professional and casual. He believed he had also  lost mentoring opportunities and career development opportunities as a result of this exclusionary tactic. The Complainant appeared to identify DB as the person to blame for these developments.

I was struck by the very strong sense of grievance articulated by the Complainant in his evidence. He was highly aggrieved at the way everything in relation to him had been handled. He was attributing wilful acts of misinterpretation (and indeed falsification) to his own subordinates as well as to his direct line management. To my mind the Complainant had no insight or acceptance of any wrongdoing on his part. The Complainant was deeply annoyed at the management quarterly review evaluation which had slipped from above expectation to not meeting expectations.

It is worth noting that the Complainant got a better review at the end of the 4th quarter of 2022.

In the aftermath of the Investigation meeting the Complainant adopts a very hostile tone in his dealings with the Investigator team and with the notes taken of the meeting which he strongly disagreed with. The Complainant suggests that there is an attempt to obstruct the Investigation.

A Grievance outcome meeting was conducted on the 9th of December 2022 and to some extent the Complainant might have been happy with the outcome which is recorded in the following way:

Conclusion & Recommendations

In conclusion, having considered all the above, we have upheld your grievance in relation to the inappropriate statements as mentioned in your Q3 feedback, the recommendation is that this wording disputed at your Q3 reviewing meeting be deleted from the review document.

We have upheld the grievance in relation to feedback of the 121 document which lacked any evidence that you were meeting expectations or otherwise to indicate you were not. Our recommendation is that this document is populated appropriately by each party for open discussion going forward.

Overall, our recommendation is that your Q3 rating should be reviewed by Senior Director RH and an outline of the expectations of your role should be provided, as well as an appropriate rating applied.

In light of observed behaviours, we are recommending your participation in formal training for your communication / interpersonal skills as the lack of respect shown at times is concerning and would not meet the expectations as set out in our Code of Conduct for respect within Indeed.

However, as stated in his evidence before me the Complainant was definitely not happy with the outcome. In particular, he is not happy at the recommendation that he needs formal training in the area of his interpersonal skills. He is unhappy that they (the Investigatory team) have drawn conclusions based on their apparent observations of his behaviour in the course of the meeting held and thereafter. The Complainant believed that he was being treated very badly by his immediate management and definitely formed the absolute view that they wanted him out of the workplace. This was despite the fact that, for example, the Complainant’s Q 3 assessment was to be presented to another Manager RH for a fresh review. This should have been seen as a fair outcome to the Complainant’s Grievance. The Complainant’s concern, instead, was the need for clarity around how such a review might work.

EB gave evidence concerning his role in the Investigation meeting. He indicated that the phrase In light of observed behaviours related to how EB had personally observed the way that the Complainant conducted himself in the Grievance process and that the Grievance panel agreed the this Employee needed some real communication training.

Ultimately, an appeal was brought by the Complainant against every aspect of the Grievance outcome. This Appeal was heard by the next level of Management (Mr. CT). The Complainant was somewhat happier with the way that this hearing was conducted though in the end, it is noted, the previous grievance outcome was largely upheld. The Appeal outcome was made known on the 9th of February 2023.

By now the Complainant said he had developed the view that this had become an unsafe place for him to work. The Complainant gave evidence that he started to look for alternative employment at this time and had had some success with a proposed job move to Microsoft but that the funding got pulled last minute.

The Complainant said that at the end of the process he had no relationship with his immediate Management structure. He had no confidence in them and felt that their attitude towards him was all wrong. The Complainant continued to feel excluded and believed this was a campaign of victimisation and penalisation for bringing a Grievance.

As noted, the Appeal outcome was made known to the Complainant and this had happened on the 9th of February 2023. On that same date, the Complainant wrote a long letter to HR raising many issues that had not necessarily been a part of the Grievance process but which as he said

 have made it impossible for me to continue my role as an Indeed employee.

The Complainant accuses HR of failing to provide him with a safe work environment and asserts that he has been subjected to ongoing aggression, threats and defamation. I have to accept that these are very serious allegations but also that they were never the subject of a formal Grievance. The letter of resignation is, to my mind a diatribe of bitter attack against every level of Management that had tried to both assist and/or manage the Complainant. He stated:

HR has failed to resolve my Grievance, is attempting to delete evidence and I am surprised that no call was scheduled to deliver this outcome, my understanding is that we have now exhausted the HR process. I find this situation absolutely appalling where clear defamation and harassment is present. As I received a second direct personal attack and defamatory email from [named employee] today Indeed is again in breach of its own commitments to me as an Employee and I have no choice but resign with Immediate effect as Management is now making it impossible for me to fulfil my role at Indeed.

I wish to reiterate the following for your attention, I have attempted to resolve the issues raised with Management and HR on multiple occasions spanning several months. The defamation, harassment and unreasonable behaviour is not only continuing but has intensified since I attempted to use the company HR resolution processes at my disposal. I have now exhausted these avenues. Specific details are as follows:

Continuation of Bullying, Harassment, Victimisation and Defamation as flagged in 2022 and is not outside of the scope of the Grievance raised…

The Complainant wrote three pages of complaint against his Employers. He talks of threatening behaviour, denial of his Rights, unacceptable behaviour from Management, the falsification of the accounts of meetings, harassment and attempts to twist the dictionary meaning of English. Reading through the letter it is clear that most of the complaints relate to events that happened in January and early February of 2023 and so do not have any bearing on the Grievance procedure already completed. I note that his interactions with another Manager Mr. P loom large at this time. I accept that the Complainant may have felt that processing further Grievances might have been pointless in light of his disappointment at the outcome of the Grievance just completed. However, looking objectively at the procedures adopted by the Employer as well as at the outcome achieved in this Grievance process, I do not share the Complainant’s view that the Grievance process was some sort of  pointless whitewash.

Crucially, I note that HR come back to the Complainant asking him to reconsider the decision to resign. It is pointed out to him that he might want to re-consider a decision which was made so hastily and in such close proximity to the appeal outcome. HR advised that steps will be taken to allow for the Complainant to consider whether he wishes to resign or not. The Complainant opted not to avail of this cooling off period and confirmed his resignation.

On balance I find that the Complainant has failed to convince me that it was reasonable for him to tender his resignation on the 9th of February 2023. There were other options open to the Complainant at a time when considerable effort was being made by Management to see him through what was a seemingly difficult time for the Complainant.

It is quite clear that the Complainant took exceptional umbrage at the outcome of the 3rd Quarterly review of 2022. However, this was not a PIP. This was one of four reviews conducted on an annual basis and, I accept, intended to be helpful. There was no element of punishment attaching, and the clear implication is that there was room for improvement. There had been a number of inter-personal communication issues which had been addressed and highlighted. DB was simply trying to nip this matter in the bud.

Rather than take this criticism on board, the Complainant chose to reject the truth of the criticism and instead triggered a formal grievance. It was suggested to me that this was an unusual and disproportionate reaction to a routine review.

The Grievance panel found for the Complainant to some extent. For example, in relation to targets. The outcome also suggested the Quarterly review could be reviewed.  However, the issue around communication style was very much still in issue and had become an even larger issue by reason of how the Complainant had conducted himself in the Investigation process. The Grievance panel went on to suggest – by reason of their own observations- that the Complainant needed help with his communication style. The Complainant found this suggestion to be untenable and appealed upwards. Thereafter the Complainant’s sense of grievance, persecution and outrage snowballed.

It is a regrettable fact that the Complainant had little to no insight into how his actions, written tone and abrasive manner were being picked up on by others. Instead of stepping back and really reflecting on this, the Complainant went into full combat mode. Matters duly escalated, culminating in the Complainant resigning from a position that he was good at performing. The fault herein lay with the Complainant and not with the Employer.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00055895-001 – The complaint of Unfair dismissal, by reason of constructive dismissal, fails.