ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007653
A Customer Care Member
A Communication Company
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 21/05/2018
Workplace Relations Commission Adjudication Officer: Peter O'Brien
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The Complainant was claiming constructive dismissal, claim reference number CA-00010308-001. The claim reference number CA-00010308-002 under section 77 of the Employment Equality Act, 1998 was withdrawn at the Hearing.
Summary of Complainant’s Case:
The Complainant had to leave her employment due to an unfair review compared to prior years.
The Complainant had no prior warnings.
The Complainants new Manager did not understand her contribution to the job and her personal style.
The Complainant had long service and no issues.
The review process was flawed.
The Complainant won awards for the Company and represented the Company at an Award Ceremony.
The Complainant is quite and easy going and this can be misinterpreted as lacking interest.
The Complainant was working in a toxic environment.
The Complainant had to leave due to the pressure of being given the wrong assessment.
Summary of Respondent’s Case:
The case concerns a claim by the Complainant under the Unfair Dismissals Acts 1977 to 2007.
It is the company position that the cessation of the Complainant’s employment does not fall within the definition of a “dismissal” as set out in Section 1 of the Unfair Dismissals Act 1977 (as amended). No dismissal took place but rather the Complainant voluntarily resigned her position before exhausting the internal grievance process. As such no jurisdiction exists for this claim to be heard under the Unfair Dismissals Acts.
On 18 April 2006 the Complainant commenced employment as Customer Care Executive. The Complainant was employed in the company until she resigned her employment on Monday 6 February 2016.
Up until this date on 06 February the Complainant had been on a period of annual leave since end of December. She was approved by HR and her Department lead, to take all of her 2017 annual leave prior to accrual to allow her spend time with her family as sadly her father had passed away in Nigeria. Her being on leave from the end of December also followed her attendance at an appeal meeting regarding a grievance raised by her about her mid-year review, this appeal was still ongoing until the date of her resignation. While no end date was provided in her resignation email, her Manager contacted her by email afterwards to confirm the usual notice of 1 month and end date of 28 February 2018. The Complainant however did not attend work again to work out her notice or arrange repayment for holidays paid in advance or other monies.
The company uses a performance system which incorporates objective setting like many other organisations. A mid-year review is completed in the summer which gives employees an indication of where the company sees their performance at the mid-year point. The review process is then completed by the provision of the final year review at year-end. The mid-year review is an opportunity to highlight to employees any areas that may need improvement and to where appropriate to provide examples of behaviours in support.
At the end of 2015 the Complainant had received a ‘Developing Rating’ and this rating is described on the staff intranet as follows:
· Individuals require support in the form of coaching, mentoring and regular feedback to continue.
· Performance does not consistently meet objectives and some performance objectives are below expectations.
· Individuals in this category are not consistently demonstrating all of our Three behaviours.
In July 2016, the mid-year review was held. Her line manager, was her manager for approx. 2 months prior to this review and therefore she sought input from the Complainant’s former line manager for the majority of the period being considered.
The mid-year rating which the Complainant received was that of ‘developing performer’. There are five ratings which she could have been allocated; ‘Exceeds’, ‘high’, ‘Good’, ‘Developing’ and underperformer’. [120 other employees in the company were provided with developing performer rating in 2016]
There were four areas on the mid-year review in respect of ‘behavioural’ objectives which were deemed to be ‘does not meet behaviour’. The comments are as set out below;
We go beyond the expected
Manager’s assessment at Mid-year:
“(the Complainant) is the most experienced person on the team and one of our long-standing employees. I would like to see (the Complainant) imparting her knowledge and experience with the newer members but currently I do not see the passion to do this. I would expect (the Complainant) to start stepping outside her role and doing a little more than the newer team.”
We work as one team
Manager’s assessment at mid-year:
“(the Complainant) works well independently but doesn't contribute as much as she could to support the team in regards Knowledge and skills she has acquired over the years. (the Complainant) does not participate with the rest of the team in our group chat every day. I would like to see more initiative from her to help the team, i.e. updates, share knowledge, and interact”
We take responsibility
Manager’s assessment at mid-year:
“(the Complainant) has been spoken to on a number of occasions in regards keeping her outlook up to date in order to respond to urgent queries especially from her TL. There has been a few occurrences of this again recently. The Complainant did not submit her timesheet for April and therefore did not get paid correctly, the Complainant was advised that this is her responsibility to ensure this is sent. Again in May, the Complainant missed the deadline to send her timesheet and I had to ask her numerous times to send it. I would like her to take more responsibility for things that are within her control.”
We appreciate each other
Manager’s assessment at mid-year:
“(the Complainant) has been led by a new TL since April. There has been occasions whereby (the Complainant) has been abrupt and hasn’t considered others work load & value of time. I.e. Not being prepared for meetings (request for unpaid leave). (the Complainant) also tends to question how people treat her ((the Complainant) was in wrap for 5 minutes and real time called her to check was she ok and (the Complainant) argued that she was on a break). I would like to see (the Complainant) appreciate that everyone has a responsibility in their role and that she needs to remove the emotion that comes with this.”
It was the comments substantiating these four behavioural elements which formed the basis of the Complainant’s subsequent grievance. There were also other areas in the review relating to productivity and objectives which were not at the required level for a higher rating. Prior to the mid-year review outcome the Complainant had not raised any prior informal or formal grievances regarding any behaviour towards her from her manners. The Complainant’s grievance was based upon the mid-year review document.
The mid-year review was completed and uploaded to ‘Oracle’ for the Complainant to view on 30 July. On 19 September 2016 the Complainant lodged her grievance against her Managers who gave her mid-year review feedback and rating. The grievance was lodged under three broad headings below but dealt with the Complainant’s dissatisfaction at how the rating of ‘developing performer’ was reached in the mid-year review process. The Complainant outlined that she felt that the above comments from the mid-year review and the examples used to support the review constituted;
Undermining and undervaluing
Intimidation and Lack of Dignity at Work
Excessive monitoring at work.
On 5 October 2016, the grievance meeting was held. In attendance at the grievance meeting was the Complainant and a work colleague.
At the outset of the meeting, the process was explained, and the Complainant confirmed that she was in receipt of the grievance procedure. The Complainant confirmed that her grievance was specifically related to ‘comments made in her mid-year review’. At the outset the Complainant was asked what rating did she feel she should have been given in the mid-year review. The Complainant’s response to this was that while she felt that the grade did not reflect the work she had done in the six months prior to the review that she did not know what grade she should have been given.
At the end of the grievance meeting the Complainant discussed the possibility of taking 8 months unpaid leave from the company form 1 January 2017 to 31 August 2017. The discussion involved the Complainant’s attendance at college in 2017.
While the Complainant stated in her written grievance ‘I really wonder how many white Irish are insulted and poorly treated the way I have been by my Managers’ in the meeting she stated that ‘I should have said colleagues instead of white Irish’. She went on to confirm that ‘I don’t see race’ … ‘I should have said colleagues’. She also confirmed in the grievance appeal that race did not form any part of her grievance. It is important to state that within the grievance meeting when it was asked of the Complainant whether she felt that the ‘fairness of the review’ or any treatment she received was in any way related to her race she denied this.
On 16 November 2017 the grievance outcome was issued.
The investigation found that;
The assessment form used was the standard form used for all employees at mid-year;
Examples were provided to support the rating given;
There was no evidence provided to support a claim that (the Complainant) was treated differently or less favourably due to her race;
Both Managers gave input to (the Complainant)’s mid-year review which is standard practice where both had managed (the Complainant) during the first half of 2016;
There was insufficient evidence to support a claim of intimidation, excess monitoring or undermining against the Complainant;
This outcome found that the Complainant had given a preference for direct feedback in the past and the review reflects this. Some of the specific examples shared on the day of the review related to 2015 and further examples from 2016 should have been shared on the day.
The finding was that there was a difference in self-assessment and manager assessment of the Complainant’s performance in the first half of 2016, however, the reason for determining the Complainants rating was supported by factual examples provided by the Managers in the grievance process.
The grievance investigation did find that the full reasons for the ratings at mid-year were not articulated in the most detailed fashion which may have led to the Complainant feeling that the review was overly negative. Furthermore, some of the examples shared to give context related to a period prior to the first half of 2016. It was found that the reason for this was that the Complainant had previously requested feedback to be clear, fair and relevant. The Managers both agreed that they generally raised issues with the Complainant as they occurred during work and so, did not include those detailed examples on the mid-year review document.
The grievance investigation found that while this represented a less than ideal mid-year review meeting, that it did not indicate that the mid-year rating given was not fair and correct. The grievance outcome stated that it was the responsibility of a Team leader to provide feedback to team members. This feedback would not always be positive however it was not a deliberate attempt to undermine, intimidate or undervalue the Complainant ad did not constitute such.
It was pointed out in the outcome, as already referenced at the start of this submission that over 120 staff members received a ‘developing performer’ rating. It also noted that ‘developing performer’ is not the lowest rating that can be given at mid-year. As per the rating descriptor on the staff intranet or HR Hub a developing rating means that certain aspects of performance can be improved upon and is not an indication that nothing positive has happened in the first half of the year. Both managers shared positive examples during the investigation which evidently were not shared during the review meeting. The outcome stated that the articulation of the feedback could have been better and more critical examples relied upon.
Importantly, however, the finding was that the Complainant had not provided examples, nor had the investigation found examples of undermining, undervaluing or intimidation. While the report indicated that the mid-year review meeting itself and the examples used to base the rating could be improved the claim of undermining, excess monitoring or intimidation was not upheld. The Complainant was given the right to appeal the decision to the next level. On 23 November 2016 the Complainant submitted her appeal by e-mail.
The appeal was scheduled for 19 December 2016. This meeting was arranged for this date with the Complainant as she had parental leave already approved for certain dates over December. The Complainant attended with a work colleague.
The appeal meeting progressed, and the purpose of the appeal and the process was explained. In the course of the meeting it came to light that the Complainant’s father had tragically passed away in the days prior to the meeting. While the Managers had been made aware the Complainant had taken time off prior to the meeting due to a loss they were not aware it was her father. The Complainant herself indicated that she was a ‘bit lost’ in the meeting and the company found it difficult to pinpoint the specifics of the Complainant appeal. It also transpired in the meeting that a detailed appeal document which the Complainant believed she had e-mailed to the company for the purpose of the appeal had not actually been sent and would need to be furnished again.
While the company sought to understand the grounds of the appeal, the meeting ended with the Complainant committing to send the company the appeal document, which she did that evening. The Complainant was informed during the meeting that there may be a requirement to meet again prior to the any outcome being provided, and again this was largely due to the difficultly the Company had understanding the specifics of the appeal at the meeting.
On 23 December 2016, the company made an exception due to the Complainant’s personal circumstances and confirmed to the Complainant that she could take her full allocation of annual leave for 2017 in January resulting in her commencing leave from 3 January to return on 6 February 2017. On 23 December the Department Lead approved the advance payment considering the personal circumstances and that she had to travel to Nigeria and her leave was confirmed.
By e-mail dated the 13 January 2017, the Complainant contacted the company and requested that she be provided with the outcome of the process.
On 13 January 2017 the Company replied and stated that she was aware that the Complainant was on leave for all of January and discussed reconvening the grievance appeal when she returned. She informed the Complainant that ‘as per the normal appeal process the outcome is discussed in a meeting to ensure all the details considered are reviewed and to go outside that process may not be possible.’’ At this point the appeal process was ongoing and the company were not in a position to provide an outcome until further clarity on matters was provided.
By E-mail on 6 February 2017, the Complainant’s first day back in work following her leave, the Complainant e-mailed HR and her manager stating;
My name is x , I would like to hand in my resignation.
The Complainant did not inform the people conducting the appeal of her intention to resign, nor had she informed either of her extended period of leave in January 2016. HR Operations was aware of the leave being approved and that it was due to end 6 February. The Appeal Chair had a reminder set in her diary notifying her of the Complainant’s date of return in order that she could arrange to reconvene the grievance process.
On 6 February 2017, the Appeal Chair e-mailed the Complainant and stated that the appeal process may require a reconvened meeting and further questions before an outcome is finalised. The Chair asked the Complainant to contact her upon her return to work so that they could reconvene the meeting. The Complainant never responded to those emails or made any further contact regarding her appeal. The Complainant was employed up to 28 February 2017 but did not to attend work as part of her notice.
On 13 February 2017, in a call with the Company the Complainant confirmed that she was resigning her employment. It was agreed that her final day of employment would be 28 February 2017. It was also agreed that the Complainant would have to agree some form of payment plan to repay the company for leave taken but not accrued.
Due to the Complainant having been provide with all her annual leave for 2017 in advance in addition to being paid for her notice period which was not worked, the Complainant has been overpaid at the point of resignation which is in total €4,079. This includes payment for the month of February and Holidays paid in advance, again the Complainant did not attend work during February over her notice period. This has not been repaid to the company and is outstanding.
The Complainant submitted her claims to the WRC on 20 March 2017.
Section 1 of the Unfair Dismissals Act 1977 (as amended) defines dismissal in relation to an employee as, inter alia:
“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 of employment without giving prior notice of the termination to the employer”
In light of this definition, and established principles adopted by the Tribunal and the Courts, there exists a burden on the employee to demonstrate that:
The employer had acted in such a manner so as to breach a fundamental term of the employment contract, or
The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.
It is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. It is the company’s position that neither criterion has been met. The Complainant’s grievances are based upon an unsatisfactory mid-year review. There is nothing within her grievance which would entitle her to terminate her employment and claim constructive dismissal. Furthermore, the Complainant continued to work for the period between the mid-year review and the commencement of her absence in December 2016. This is evidence of the fact that her employment was not ‘intolerable’ as would be required in such a claim.
The respondent at all times operated within the terms of the contract of employment between the parties. No contractual violation occurred. The company would draw on the explanation of the contractual test for constructive dismissal as set out in Conway v Ulster Bank, UD474/1981 to confirm this position.
The Complainant’s expressed justification for her resignation arose from dissatisfaction with her mid-year review. it is clear that there has been no fundamental breach of the Complainant’s contract of employment.
The respondent did not violate any term of the contract or company policies, express or otherwise. The respondent’s actions were in no manner “a repudiation of the contract of employment” and did not demonstrate “that the respondent no longer intended to be bound by the contract”. (Quotations from Conway v Ulster Bank, UD474/1981)
In light of this, it is the respondent’s position that the termination of employment fails on a contractual test to be a constructive dismissal.
In respect to reasonableness, it is the company’s position that there exist two interwoven factors to be considered: (a) did the employer act unreasonably so as to render the relationship intolerable, and (b) did the employee act reasonably in resigning, particularly in respect of exercising internal grievance procedures. This is in accordance with established approaches, as expressed by the Tribunal, for example in McCormack v Dunnes Stores, UD 1421/2008, where the Tribunal stated:
“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”
In addition, in Kenouche v Four Star Pizza, UD962/2008, the Tribunal stated:
“the conduct [of the employer] referred to in the Act cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee. Consequently, the Tribunal must look at the conduct of the employer and the reasonableness of the resignation by the employee.”
Reasonableness: the conduct of the employer
The company acted reasonably and fairly at all times. The conduct of the employer can in no way be considered to be anything “serious or significant which goes to the root of the relationship between the employer and the employee”.
Reasonableness: the resignation of the employee
The company has established formal and informal grievance procedures, which the Complainant was aware of and which she commenced but did not exhaust as is required. At the point it was raised the company investigated the Complainant’s grievance, however, the Complainant resigned her employment without allowing the company time to conclude the process. It is clear that the Complainant had no entitlement to resign. The company grievance policy outlines how an appeal with take place. The process incorporates the outlining of the appeal, an investigation then resulting in a decision/recommendation. This is then communicated to the employee in writing by way of an outcome meeting. The Complainant resigned prior to the completion of this process, thereby failing to exhaust the internal grievance procedures.
It is clear that the Complainant’s intention was to leave regardless of the grievance appeal outcome. Due to the Complainant absenting herself from the process the company were unable to conclude such process. It is not for the Complainant to determine when the internal procedure is complete. Nor is the process completed when the Complainant decided to withdraw. Therefore, as the Complainant did not genuinely engage in the full grievance procedure to conclusion and had clearly signalled her intention to resign prior to any appeal outcome, her claim for constructive dismissal must fail.
The Complainant resigned in the middle of the appeal process, without exhausting the internal process. Furthermore, the Complainant did not take the opportunity to take a claim under the industrial relations acts as is expected in advance of resigning her employment as would be expected.
In conclusion, it is the company’s position that no dismissal occurred within the meaning of Section 1 of the Unfair Dismissals Act 1977 to 2007. Furthermore the claim under the employment equality acts must also fail. The company respectfully asks the Adjudicator to find that the Complainant fails to meet the required burden of proof and thus her claims should be rejected.
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.
The Complainants case is had she had to leave her work due to a new Supervisor wrongly evaluating her and keeping “tabs” on her constantly and that she was being singled out for this treatment. She also stated she was wrongly evaluated and this contributed to her reason to leave. The grounds for constructive dismissal are that the actions of the employer must be so substantial and unreasonable that the Complainant had no choice but to leave the employment without recourse to waiting.
However it is well established that an employee must lodge a grievance, except in exceptional cases, of their complaints against their employer to allow the employer to deal with the complaints. The Complainat did not lodge any grievance in this case. Also her issues were , to the Adjudicator, not “substantial” grounds for leaving her employment. A poor review and being monitored closely by her Supervisor are not substantial grounds to leave your employment. The Complainant was one of 120 staff who received this level of review so therefore she was not “singled out” for this level of review. Critically, at the end of the Hearing the Complainant admitted that she had received a job offer two weeks prior to resigning her post with the Respondent and she had accepted this offer. This implies pre- planning by the Complainant in the circumstances, to leave. She also did not return to work with the Respondent after being allowed substantial time off to deal with her grievance. Overall, the Complainants case does not show she had substantial grounds to justify her claim for constructive dismissal and the taking of a new role two weeks prior to resigning also affects the credibility of her case. According her claim for Unfair Dismissal is not well founded.
Dated: 1st August 2018.
Workplace Relations Commission Adjudication Officer: Peter O'Brien