EMPLOYMENT APPEALS TRIBUNAL
Dara Mitchell - appellant
against the recommendation of the Rights Commissioner in the case of:
Optimum Results Ltd - respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr W. Power
Mr A. Butler
heard this appeal at Dublin on 20th March 2015, 2nd September 2015, and 28th October 2015
Appellant(s) : Ms Sinead Dullaghan BL instructed by McDonough & Breen, Solicitors, Distillery House, Distillery Lane, Dundalk, Co Louth
Respondent(s) : Mr Patrick O’Brien BL instructed by Tallon & Co, Solicitors, Haymarket, Drogheda, Co. Louth
This case came before the Tribunal by way of an appeal by the employee (appellant) against the recommendation of the Rights Commissioner ref (r-132816-ud-13/RG) under the Unfair Dismissals Acts 1977 to 2007.
The Tribunal heard evidence from the appellant that she was employed as a programme administrator with the respondent company from September 2007 earning €28,000 per annum. The company delivers training programmes to state agencies and private clients. From late 2008 her role expanded resulting in her taking over the duties of a programme manager who was absent on maternity leave. Following the return to work of this colleague the appellant was required to continue carrying out the duties of the programme manger along with her own duties. She received a salary increase to €32,000 per annum after a period of a further six months.
The Tribunal heard further evidence that the company introduced a total of 8 redundancies in 2009 and two employees were placed on short time. This resulted in an increased workload for the appellant and it became increasingly difficult for her to carry out her duties in an efficient manner. She took work home with her regularly as it was impossible to carry out her tasks during the normal working day. She was then forced to take a 10% pay reduction. She spoke to the general manager, known as (R) about the situation but was informed that the company could not afford to hire other employees. She was subsequently asked to carry out extra tasks in a sales role. She complained about this further extra workload stating that she neither had the time nor experience to work in a sales position. She sought direction from her managers in relation to this, in particular from company director (AH), but gave evidence that his response was “just get it done”.
She was left to carry out her sales duties without any materials or resources and felt that she was being set up for a fall. She gave evidence that she could no longer deal with state agencies as the company did not have a tax clearance cert. A number of e-mails between herself and her managers (copies of which were opened to the Tribunal) were exchanged. She had several daily tasks and was reporting to four managers. She gave evidence that she reported her difficulties to (R) on several occasions and begged for help. Her relationship with (AH) was becoming strained as he was abusive towards her and making negative comments about her work performance. She was accused of not being proactive and of dumping tasks. On 19 July 2011 she e-mailed (R) complaining about (AH’s) unacceptable behaviour. She stated that she could not endure any further outburst from (AH).
She gave further evidence that from June 2011 onwards her salary was constantly paid late by one to three days. From January 2012 to May 2012, in an effort to deal with matters she sent a number of e-mails requesting to have her performance review carried out. However this was never done. Finally, at a meeting on 4 September 2012 she attempted to explain the position concerning an invitation to tender from a state agency. She explained that the tender in question was not her responsibility and (R) was dealing with the tender. She gave evidence that (AH) replied “F… lies”. She could no longer accept his intolerable behaviour and his outbursts and told him that she had to leave. She told the Tribunal that when she did so (AH) replied “good, it was a long time coming”.
She visited her doctor and was certified as being medically unfit for work due to stress at work. She remained absent from work and gave evidence that she attended an agreed meeting with a mediator in January 2013 as she wanted a resolution to the matter. She discussed the situation with the mediator and it was suggested that she meet with (AH) as part of the mediation process. She considered this suggestion but ultimately declined to meet with (AH). She outlined in detail her reasons for declining to meet with him by way of an e-mail to the mediator dated 1 February 2013, a copy of which was opened to the Tribunal. She expected that she would receive a copy of the mediator’s report but this did not happen. She denied that she wanted to be made redundant but accepted that she spoke to the mediator about a redundancy deal and outlined conditions to any such deal. She resigned from her employment by way of letter dated 5 March 2013. The Tribunal heard further evidence in relation to her efforts to mitigate her loss and heard evidence that she is now attending a college course.
She accepted that she was provided with a contract of employment which required her to be flexible in the workplace. She was also provided with a copy of an employee handbook which contained grievance procedures to be followed. She believed that she invoked the grievance procedures as she informed (R) that she was being bullied and harassed. She accepted that she may have breached a confidentiality clause in the contract by sending e-mails to her personal e-mail account. She did not accept that the FAS tender was a lucrative tender and in any event she was told by (R) not to prepare the tender. When (A) raised the tender issue with her she informed him that (R) had instructed her not to work on the tender.
(R) gave evidence that he was the general manager at the time of the appellant’s employment. He has since left the company. He outlined to the Tribunal the nature of the appellant’s duties in her employment as a programme manager. In 2012 her role evolved and she was effectively reporting to 2/3 managers including himself. He told the Tribunal that a strategy was agreed at weekly management meetings in relation to the appellant’s work for the forthcoming week but she would then be asked by (AH) to carry out other tasks not agreed at the meetings. He gave evidence that this placed the appellant in a difficult position as (AH) was the M.D. and the appellant felt she had to do these tasks. He told the Tribunal that the appellant raised these matters with him and he tried to resolve them by re-adjusting her priorities but she was in a very difficult situation.
He gave further evidence that the relationship between (AH) and the appellant became strained. He told the Tribunal that (AH) was generally aggressive towards her. He described (AH’s) behaviour as aggressive, hostile, and intimidating towards the appellant and she made it clear to him (the witness) that she found (AH’s) behaviour intimidating. He reported this to (EH) and also told (AH) that he should deal with any issues he had with the appellant away from the open plan office which they all shared.
He gave further evidence that circa September 2012 he instructed the appellant to attend to issues concerning certification and payment matters in relation to a customer and to forget about the FAS tender. He made this clear to (AH) telling him that he had given such an instruction to the appellant. He gave evidence that the appellant’s performance review was not a priority because of the financial pressure that the company was under.
He did not advise the appellant to invoke the grievance procedure as communications were conducted on an informal basis. He accepted that on 10 July 2013 in an e-mail response to (EH) concerning a complaint from the appellant regarding (AH’s) behaviour, he replied that the appellant was being overly sensitive. He accepted that he was responsible for wages and employees were always informed if wages were going to be paid late. He had a good relationship with the employees. He told the Tribunal that the appellant’s work performance was good and she performed her role more than adequately.
(EH), director of the respondent company outlined to the Tribunal the nature of the appellant’s position and duties. In that regard a copy of her contract of employment was opened to the Tribunal. She described the office plan to the Tribunal. It is an open plan office with two separate meeting rooms and a conference room. In 2008, in line with the economic downturn the company suffered a dramatic decline in business over a very short period of time. Due to this reduction in work for the respondent company the appellant was given work for a related company called Customer Perceptions which is a wholly owned subsidiary of the respondent company, operating from the same office.
The witness gave further evidence that she never observed the appellant struggling with her workload and the appellant never made her aware of such. She had a good working relationship with the appellant who was a valued employee. She never witnessed the appellant working beyond her normal finishing time of 5.30pm. She never witnessed (AH) being abusive to the appellant or anyone in the workplace and was not aware of any bad relationship between the appellant and (AH). The appellant was never targeted or isolated in any way. She gave evidence that on 4 September 2012 she was attending a progress meeting with (TB), operations manager. The appellant burst into the meeting room and said “I’m out of here”. The appellant had been at a meeting with (AH) in an adjoining room and the witness told the Tribunal that she heard no raised voices or abusive language from (AH) prior to the appellant entering their meeting room. The appellant then left the room and departed the office. She (the witness) subsequently attempted to call the appellant on numerous occasions but received no response. The appellant then commenced submitting sick notes for her absence.
The witness then wrote to the appellant on 6 September 2012 seeking to meet with her on 11 September 2012 in an effort to review and investigate the events of 4 September 2012. This proposed meeting did not take place as the appellant was certified unfit to attend work. Further correspondence was exchanged between the company and the appellant’s legal representative, and ultimately an independent mediator was appointed to carry out an investigation and bring a resolution to the matter. The appellant initially engaged in the process, meeting with the independent mediator on 30 January 2013. A follow up meeting was to be arranged but the appellant withdrew from the process on 31 January 2013 and resigned from the company by way of letter dated 5 March 2013.
The witness gave further evidence that prior to her resignation the appellant never raised any issues with her in relation to (AH) and at no time utilised the company’s grievance procedure. She accepted that there were occasions when the appellant was paid her wages late, but she was always paid her wages. She was unaware as to whether or not (R) had told the appellant that she was not responsible for the FAS tender project.
(TB), operations manager at the time of the appellant’s employment gave evidence that she had a good working relationship with the appellant who was part of team managed by the witness. She told the Tribunal all members of the team could carry out their duties daily and no member of the team had any extra workload. The appellant did not work beyond her normal finishing time of 5.30pm and her work duties were exceptionally clear. She never witnessed any verbal abuse from (AH) towards the appellant and was unaware of any issues between them. She gave further evidence that she never instructed the appellant to forward work related e-mails to her private e-mail address, and if she had known the appellant was doing so, she would have wanted to know the reason for doing so.
On 4 September 2012 she was at a meeting with (EH) when the appellant barged into the room and said “I’m out of here”. She had not heard any heated exchange between the appellant and (AH) prior to this. The appellant had never made any complaint to her about her workload or in relation to any issues/concerns she had with (AH). She did approach her in relation to issues she had with (R) and she (the witness) resolved that matter.
(AH), managing director of the respondent company outlined the nature of the respondent’s business and gave evidence that he had an excellent relationship with the appellant up to 2009. Thereafter he described their relationship as quite good. The appellant was good at her job. He gave evidence that the company had to restructure and remodel its business operations following a 70% decline in business. In the Summer of 2012 the company was involved in a tender process for a FAS project. This was a big piece of work, valued at €6.4 million and there was a high probability that the company could capture a lump of this work which the company desperately needed. There was no ambiguity about the importance of the contract and the appellant knew the importance of her role in relation to the compilation of the tender. On the morning of 4 September 2012 he became aware that work on the tender process had not been completed. He asked the appellant why the work had not been carried out and she responded by informing him that (R) had told her not to carry the work. He then challenged (R) on this point who informed him that he had never told the appellant not to carry out the work. He questioned the appellant further in a meeting room and fairly assertively communicated his annoyance. He told her that she needed to take responsibility and this day was a long time coming. He told the Tribunal that he did not shout or intimidate the appellant. She retaliated aggressively and stormed out of the meeting.
He subsequently supported (EH’s) attempts to resolve the matter and met with an agreed mediator as part of that process. He told the Tribunal that the appellant had never made a complaint about his behaviour. He never harassed her or treated her in an abusive or aggressive manner. Any such behaviour would not have been tolerated in the company.
He accepted that there were occasions over a two year period where the company did not have a tax clearance cert. He told the Tribunal that it is not necessary to have a tax clearance cert to submit a tender, but it is necessary if the tender is successful. If the company had been successful in obtaining the FAS tender, a tax clearance cert would have been obtained. He told the Tribunal that the appellant has been replaced in her position and a redundancy situation did not exist.
There is no doubt that there was a certain amount of tension between the parties, and that this was exacerbated by the difficulties experienced by the respondent company during the recession. However this Tribunal finds on the facts that this was insufficient to force her resignation. The Tribunal also finds that her failure to engage fully in the grievance procedure as provided, and later in the mediation process, did not help her case. Her reason for this namely that she could not face (AH) is difficult to accept given that she worked with him since 2007. While (AH’s) behaviour was not perfect nevertheless the Tribunal accepts that overall, serious and genuine attempts were made by the respondent to resolve and ease the situation, but the appellant did not engage in the process, nor did she pass on complaints concerning any alleged inappropriate behaviour in a timely manner or at all. If she had engaged fully with the grievance procedure and/or mediation process the outcome may have been different. On the facts as outlined, the Tribunal is of the view that the situation was not so intolerable so as to force her resignation.
The Tribunal finds that the appellant has failed to establish the onus of proof necessary for constructive dismissal. Accordingly this claim fails.
Sealed with the Seal of the