ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00019299
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 14/03/2019
Workplace Relations Commission Adjudication Officer: Jim Dolan
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant commenced employment with the Respondent company on 10th April 2017 as an IT Information Architect, his initial salary was €95,000 per year. The employment ended on 26th October 2018.
This complaint was received by the Workplace Relations Commission on 22nd January 2019.
Summary of Respondent’s Case:
The Complainant commenced employment on 10 April 2017 as an IT Information Architect. He had worked in various other businesses prior to his recruitment by the Respondent and it was believed that he had good industry experience. He was considered a relatively senior hire and commenced on a starting salary of €95,000.
At induction / on commencement of employment, the Complainant was, in accordance with standard procedure for new employees, notified of the Respondents various HR policies including policies on Grievances and Dignity & Respect – These policies were at all times available on the Respondent’s Intranet
The Complainant worked on the IS Governance and Planning team. This is a small team of approximately 8 to 10 people. He initially reported to the Head of IS Governance & Planning, who heads the function. He subsequently reported to Enterprise Architect and Team Lead of the Architecture team.
The Complainant’s performance was mixed. He worked well in some respects. However, in other areas performance was not satisfactory. The Respondent’s general approach in such matters, which was applied to the Complainant, was to give employees time to settle in to the organisation and to continue to work with them regarding their performance and development.
During formal reviews the Respondent stated as follows:
March 2018: “XXXXX’s targets (referring to the Complainant) are not progressing to schedule. He feels that the volume of work is difficult to manage and prioritise. However, he is not communicating these issues effectively leading to a lack on key deliverables. It appears that in some areas he is being drawn into doing more admin type work on behalf of others (EISAR updates, OPDE call logging) - we stressed that this is not his role.” (emphasis added)
June 2018: “Key targets such as the Data Strategy (Incl. Plan) continue to miss agreed delivery dates. Feedback from key stakeholders on the Data Strategy has been poor, the presentation to the IS management team was not well received, and during engagement with PSA it was noted that XXXX’s
understanding of the organisation was lacking. Targets in relation to EISAR are progressing and showing an improvement, data quality has improved over the last quarter. Although XXXXX has been progressing the I-SEM Data Lineage target, there has been a resistance to championing this artefact and driving value from it. XXXX is engaged in Network Codes, attending meetings with internal and external stakeholders but is unable to disseminate key information when needed”. (emphasis added)
The Complainant resigned by letter of 28 September 2018.
His employment duly terminated on 26 October 2018.
RESPONSE TO THE COMPLAINANT’S ALLEGATIONS OF BULLYING
There are a number of allegations made in relation to his employment, particularly with regard to the Departmental Manager.
The Complainant relies on these allegations, set out in his claim form 22 January 2019 and his supplementary email of 28 February 2019, in claiming constructive dismissal. These allegations and the Respondent’s summary are as follows:
He was told he would not be eligible for a bonus because he was sick in the first few days of employment;
Respondent: All employees are eligible for consideration for a year-end bonus. However, it is subject to performance. The Respondent denies the allegation that any such thing was said to him in the first few days of his employment, whether because of his absence or otherwise. It is possible that at some stage he was reminded that bonuses were performance related, but not as alleged by him. As it turned out, the Complainant was paid a 3% (mid-range) bonus of €2,083 in December 2017.
He was told he had to work longer hours to make an impression;
Respondent: As noted above, the Complainant was seen as a relatively senior hire. He had a particular skill set which was important to the organisation. Such a salary and such a skill set bring certain expectations. The Complainant never or rarely worked beyond his minimum contracted hours. It is acknowledged that it was mentioned to him that senior hires sometimes have to work beyond the minimum hours (the Complainant earned €95,000).
That the Department Manager yelled at him in relation to a dentist’s appointment;
Respondent: This is strongly denied. What happened is as follows. The Complainant was scheduled on a certain day to attend an important meeting. On that morning, the Department Manager reminded him of this meeting as she was on her way to another meeting. He said he could not attend the meeting as planned as he needed to go to the dentist. He was asked by the Deparment Manager whether he needed to go to the dentist that day and whether he could go another time. The Complainant duly attended his dentist appointment. The Respondent did not appreciate at the time that it was an urgent appointment (the Complainant did not say it was) and only realised later that a tooth extraction occurred. In any event, it is absolutely denied that any “yelling” occurred. The Complainant never mentioned the matter again until he filed this claim.
That he was asked to explain something like he was explaining it to his wife;
Respondent: This was a phrase that was sometimes used by the Department Manager but not specifically in relation to the Complainant. The intention on the IS Governance and Planning team was that any team member explaining something at any meeting should do so in as straightforward a way as possible so that non-IT experts could understand. All team members were encouraged on an ongoing basis to do this. They were asked to explain matters as it they were explaining it to someone who was not involved in or had no prior knowledge of the subject matter. As such, the phrase “like you were explaining it to your wife” was used. It was used informally and not intended to be offensive to anyone. The Complainant never objected to it until he filed this claim.
That there was blaming and shaming and intensive stare downs and mockery;
Respondent: This is absolutely denied. The Complainant was subject to performance review and management on an objective basis and on the same basis as any other employee.
That he was criticised for taking notes during an instruction meeting;
Respondent: The Complainant did not always engage and communicate well on the team. He had a habit of writing down all instructions and feedback verbatim and not making eye contact when someone was talking to him. On one occasion when the Department Manager was making an important point the Complainant was told that, rather than taking prescriptive notes, it might be better for him to just listen and better understand the point through engaging directly. The Respondent felt that the Complainant was not really engaging and suggested that he would better understand the point by not taking prescriptive notes and just listening instead.
That he was told he did not deserve his salary;
Respondent: The Complainant was never told that he didn’t deserve his salary. He was told on occasion that he was a senior hire on a high salary and that his role was an important one but never as alleged by him.
That his laptop computer was grabbed from him once;
Respondent: This is utterly denied. The team preferred a collaborative and group-based working approach. A group discussion occurred on one occasion in relation to a draft presentation that the Complainant had prepared and was due to give to others within the Respondent organisation. The Department Manager did take the Complainant’s laptop and did directly input some points on the draft presentation. There was nothing improper about this and it was not “grabbed” by anyone. Again, nothing was ever said by the Complainant at the time or until this claim.
That a data strategy task was removed from him;
Respondent: The data strategy task was one of a number of projects ongoing at the time. It had been assigned to the Complainant. Despite various feedback to the Complainant, the Respondent felt that the project was not progressing well and ultimately decided to postpone or re-prioritise the project. This was a legitimate operational decision and one which the Respondent was fully entitled to do including the manner in which it did it. It was not assigned to any other person.
That he was hindered in his tasks and blamed for failure;
Respondent: This is absolutely denied. The Complainant was subject to performance review and management on an objective basis and on the same basis as any other employee.
That the Department Manager said no-one would miss him if he was hit by a bus;
Respondent: This is entirely misleading and inaccurate. It is very important that the Respondent be given an opportunity to refute this. It was explained to the Complainant on various occasions that it was important for him to keep a record of all his work in a form that was comprehensible to others and that could be used by any other employee if needed. However, he had difficulty following this instruction and maintained that all the information was in his head. On one occasion, using the colloquial analogy, the Department Manager said that, if the Complainant was hit by a bus, it would be important that the organisation could use the material he had created. The Complainant made no comment at the time. Some weeks or possibly months later he challenged the Department Manager about the use of the phrase and suggested that she (the Department Manager) would not be sorry if he was dead. The Department Manager was surprised and did not initially recall what the Complainant was referring to as the comment has passed without challenge at the time. However, when she understood what he was referring to she immediately and unreservedly apologised and explained the context in which the phrase was used.
That he was asked to attend meetings but not to speak and yet was subsequently criticised for not contributing;
Respondent: On occasions the Department Manager would ask the Complainant to attend a meeting in a listening capacity. Occasionally she advised him not to agree to take on work or to commit to projects for the team without getting approval from her first. She did not criticise him for not contributing at meetings
That he was prevented from accepting work because it was not in the IS budget.
Respondent: Like any function, the IS Governance and Planning team had capacity for only so much work. It did not have the resources to accept all projects that might be requested by other teams. This is a normal operational approach and the Respondent was absolutely entitled to adopt this position. However, it should be noted that the Complainant was assigned responsibility and had the requisite independence relative to his role. For example, he was sent to the UK and to Estonia for work related matters and was assigned many important duties.
Generally, it is important to emphasise that none of these specific issues were objected to or highlighted by the Complainant contemporaneously or at all prior to this claim being filed.
Overall, the Respondent denies generally that the Complainant was bullied or ill-treated as alleged or at all. Furthermore, even if true, which is denied, the Respondent submits that many of the incidents in question are, objectively speaking, not serious and would not be sufficiently serious to ground a claim for constructive dismissal, particularly where the Complainant did not exhaust his internal options or utilise in internal complaint mechanisms.
At a meeting on 22 August 2018 with the Department Manager and her team leader the Complainant verbally indicated that he felt he was being bullied by the Department Manager.
The Complainant was advised at that meeting that he had a right to make a complaint and rely on the Respondent’s procedures to do so. He was told that he should contact the Respondent’s HR team and was given the names of the relevant HR people who he should contact. The Complainant acknowledged at that meeting that he was aware of the Respondent’s policy on Respect & Dignity in the Workplace. Following a short discussion, the Complainant agreed he would seek advice under that policy and to consider whether he wanted to deal with the matter at the informal or formal stage.
It was decided that the team leader (who had not been implicated) would liaise with the Complainant to explain the options available to him.
The Complainant was absent for a number of days, but the team leader met with the Complainant on the next opportunity on 4 September 2018 where they discussed the options under the Respect & Dignity in the Workplace policy. At that meeting on 4 September the Complainant indicated that he wanted to deal with the matter at the informal stage. Accordingly, the team leader suggested that the Complainant meet with the Department Manager to discuss the matter with the objective of reaching an agreement on how to move forward. The team leader indicted that if agreement could not be reached then mediation or the formal procedure were still available as options.
A series of emails were then exchanged between the team leader and the Complainant over the following days. This culminated in the Complainant indicating that he did not wish to raise an informal complaint, that he was considering a formal complaint on the next occasion and that he did not wish to discuss the matter further with the team leader. This was acknowledged by the team leader on 10 September who stated “Based on your response below, my understanding is that you do not wish to proceed with the informal or formal stages of the process. You have indicated that you do not wish to discuss the matter any further. On that basis, I will consider that this matter now closed, and no further action is required.” This completed the email exchange on this issue.
Nothing further has heard from the Complaint in relation to any complaint he had.
TERMINATION OF EMPLOYMENT
As stated above, the Complainant resigned by letter of 28 September 2018. The Resignation Letter was hand delivered to the Head of IS Governance & Planning Manager on that date.
In the Resignation Letter the Complainant stated that he “would like to thank you for the opportunities provided to me during my employment with the Respondent (name removed)”. He goes on to state that he “would be happy to assist during the transition in any way I can”. No complaint, dissatisfaction or concern whatsoever is raised in the Resignation Letter. There is absolutely nothing in the Resignation Letter to suggest that the Respondent had breached his contract and that he felt he was in a constructive dismissal situation.
The Resignation Letter was handed in person to the Department Manager. The fact that the Complainant was resigning was naturally discussed between them. No particular issue was raised at that meeting by the Complainant and he did not expand on his reasons for resigning. He made some reference to having a few things in the pipeline with regard to new employment.
The Complainant never directly informed the Team Leader that he was leaving. When the Team Leader raised it with him he said very little but mentioned he had some offers.
The Complainant then went on leave and was on a mix of annual leave and sick leave during the notice period.
RESIGNATION v CONSTRUCTIVE DISMISSAL
There is a difference between a resignation and constructive dismissal. This is well established in law. The Complainant’s situation is an example of the former.
There is a “high bar” for employees in constructive dismissal cases -Katrina Burns v ACM Community Development Society Ltd – UD2166/2011
There is abundant case law on the need to exhaust internal processes before taking the final step of resignation. To ground a claim for constructive dismissal the employer’s behaviour should be “so intolerable that it justifies the claimant’s resignation and constitutes something that represents a repudiation of the contract of employment. A contract of employment is like any contract in that a party to it may not simply walk away from it for no reason” – see A Care Worker v A Health Service Provider (2017) ADJ-00005216.
As pointed out in Dr Mary Redmond’s well known employment law text book, Dismissal Law in Ireland, Dr Redmond has stated that there is “something of a mirror image between constructive dismissal and ordinary dismissal….Just as an employer, for reasons of fairness and justice, must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve the grievance. Dr. Redmond concludes that it is “imperative” that an employee do so before resigning.
The Supreme Court has held 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.’ – decision of Finnegan J in Berber v Dunnes Stores  E.L.R. 61.
DUTY TO MITIGATE LOSS
Strictly without prejudice to the above, the Respondent relies on the Complainant’s duty to mitigate his loss. It is noted that he had obtained new employment within one working week of his termination of employment with the Respondent.
1. The burden of proof in this case is on the Complainant. He has failed to discharge that burden of proof.
2. There is no dismissal – the Complainant resigned and was not dismissed.
3. The Complainant did not exhaust or even properly utilise internal procedures prior to resigning. He had an opportunity to raise a complaint and chose not to do so.
4. If the Complainant had raised a complaint as invited to under the Respondent’s procedures, that complaint would have been fully addressed.
5. The Complainant commenced new employment within one working week of the cessation of his employment.
Summary of Respondent’s Case:
The Complainant verbally summarised his experience with the Respondent company and referred to papers he had submitted to the WRC; the following was included in these papers:
I was subject to various forms of pressure and intimidation from the very first week of employment for the 18 months of my employment with the Respondent.
On the 14th of April 2017 merely 4 days after I commenced work I was told by my manager that I would not be eligible for a bonus that year because I had failed to come in to work even though I had called in sick. I had to contact the recruitment agent who spoke to the Respondent manager on my behalf. During this meeting, the Department Manager also told me that I had to work longer than the hours in my contract to make a good impression which I refused. She told me she would contact HR on the issue, but I never heard back.
The Department Manager walked over to my desk once and yelled at me in front of the team for needing my tooth extracted on short notice to the dentist and needed time off work around the last week of November 2017.
From around the first week of December 2017 the Department Manager asked me to attend a daily meeting but I was to say nothing at these meetings just be present. Later, during my review she told me she heard I was not providing value at these meetings and scolded me for not engaging and providing more value at those
meetings. When I reminded her that she told me not to speak, she responded that I should not have taken her so literally, yet she was very clear when she asked me not to speak at the meetings.
After setting up a target for me to work on a project called planetDb and organising the meeting, the Department Manager prevented me from accepting any work at the meeting because it was never in the IS budget but it was in my target. I would probably be able to get the exact date from email records in possession of the Respondent.
The same thing occurred with Network Codes where the Department Manager set the work as a target for me but would not allow me to attend the required internal or external meetings because it was not in the IS budget yet I was often criticised for not having accurate and detailed information. This was an ongoing issue and again the email records will show exact times.
After attending my first meeting for Network Codes in London around mid-September 2017, the Department Manager told me she heard I asked a stupid question that made the company look bad. She told me that if I ever attended any
of those meetings again, I should stay quiet and not say a word and she would know if I did. She told me a former employee who also attended the meeting told her and would tell her.
The Department Manager once said to me I can’t believe you have to take notes down while I was taking notes down of instructions she was giving. This was around November 2017 after my first network codes meeting.
The Department Manager once asked me at a meeting with several colleagues to explain network codes like I was explaining it to my wife. I felt really uncomfortable.
During all review meetings there would always be blaming and shaming with intensive stare downs and mockery.
In March 2018, I was in a review meeting with the Department Manager and Team Leader during which she told me I did not deserve the salary I was earning and I was not worthy of the job. She told me no one would miss me if I was hit by a bus.
Around the same period, I was at another meeting with the same person where the Department Manager physically grabbed my laptop to change the figures on a presentation I had refused to change because I felt it would be
misleading to do so. This was for the number of unknown operating systems in the asset register.
I would be asked to perform tasks but then actively hindered and subsequently blamed for failure. I was asked to create a data strategy and then the task was withdrawn after I was belittled for an inability to do it. I have emails that show the Department Managers approval of the work and subsequent reviews where she denied ever approving.
I made my feelings known to the team leader who was present for some incidents and was also my team leader.
He initially told me he had no recollection of any events and that he did not want to get involved.
At a meeting in May 2018 at which the team leader was also present, I stated to the Department Manager that I did not feel she treated me with dignity or respect and gave some examples. She laughed and explained that that was how
people in Ireland spoke colloquially (she was responding to why she said no one would miss me if I was hit by a bus).
I finally mustered the courage to speak up at my last review meeting in June. I outright stated to the Department Manager that I felt she was bullying me and that I would take it to HR if it did not stop.
After this, I was bombarded with emails from the team leader and felt intimidated in the workplace with stares and whispers. I was trying to get out of there as quickly as I could, and I made this clear during my exit interview with HR.
I have several emails which can back up my claims and clarify exact times of incidents.
I have contacted some of the named witnesses but unfortunately none of them are willing to testify officially on my behalf for various reasons.
Through this continuous abuse and contempt, I was left no option and felt I was unfairly dismissed from the role. It is a reasonable conclusion in my opinion because I was not the only one in the team who was bullied into leaving.
Findings and Conclusions:
The use of colloquialisms in the modern Irish workplace should be approached with caution or avoided if possible. In this instant case I’m quite sure the Department Managers intent in using colloquial expressions was without negative intent however it can often be the case that the intent of what is said or done is totally at odds with the impact of what is said or done.
The Respondent’s legal representative has quoted Dr Mary Redmond’s book ‘Dismissal Law inIreland’. Dr Redmond has stated that there is “something of a mirror image between constructive dismissal and ordinary dismissal….. Just as an employer, for reasons of fairness and justice, must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve the grievance. Dr. Redmond concludes that it is “imperative” that an employee do so before resigning.
Where grievance procedures exist they should be followed: The Employment Appeals Tribunal in Conway v Ulster Bank Ltd(UD474/1981) considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.
In this case the Complainant has considered the use of the formal grievance procedure and has made a decision not to pursue this course of action.
I have considered this complaint and I am unable to find that the complaint is well founded and therefore fails.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Complaint is not well founded.
Workplace Relations Commission Adjudication Officer: Jim Dolan