ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020367
Jacob and Twomey Solicitors
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: 29/08/2019
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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 Complainants’ case is that she had to leave her employment due to the conduct of her employer and others at work.
The date she left her employment was the 20th of February 2019. She confirmed she had taken up the employment since her dismissal on the 26th of February 2019.
Summary of Complainant’s Case:
On the 20th of July 2018 the Complainant submitted a letter to her manager. It stated that she wished to make a formal complaint to highlight ongoing issues that she was experiencing with a fellow employee. She decided to formally complain due to the creation of a health and safety risk. She gave the example of the latest incident on the 17th of July 2018. She advised that she found her co-worker dumping different dated salads into one bowl. This meant that the dates were now mixed up so she would have to dispose of all the entire bowl of salad leaves. When the Complainant raised this with her co-worker the reply was given was that her co-worker needed to wash the bowl in a hurry and she needed to empty the bowl. The Complainant stated this was the latest in a number of incidents where food hygiene standards were compromised.
Prior to this on the 17th of July 2018 there was a dignity at work meeting and an incident book was introduced at the meeting. Staff were advised to speak up and to write incidents into the book.
The Complainant’s case is that she approached her local manager on the 24th of July 2018 seeking a meeting to resolve ongoing issues she had in the workplace. The Complainant explained that the manager refused to arrange this meeting on three different occasions.
The head of HR attended at the workplace on the 26th of July 2018. She met the Complainant. They spoke about what was raised in the Complainant’s letter of the 20th July 2018. The head of HR advised the Complainant that the manager and supervisor had no issue with the other co-employee. The Complainant was told that she had shouted at her co-employee.
Three months later the head of HR attended at the site again. The Complainant was advised of an incident which had allegedly occurred on the 25th of October 2018. The allegation was that the Complainant had shouted at a co-employee. The Complainant was taken aback. She knew this had not happened. The Complainant had her own witness. She gave this name to the head of HR and asked that this witness be contacted. The Complainant advised that the head of HR refused the request quite aggressively. The Complainant also gave a name of a further witness to verify what had actually happened. The head of HR refused to speak to this person. The Complainant found that the meeting was aggressive.
The Complainant was informed that she was suspended with pay while an investigation into the incident take place. The Complainant’s case was that she had not been informed of the seriousness of the meeting beforehand and was not offered representation at this meeting. The Complainant received an email a number of days later including her letter of suspension and the dignity at work and disciplinary procedures. She did receive statements but these related to an alleged incident in September 2018. The Complainant was invited to an investigation meeting. The Complainant replied then that she wouldn’t attend until she was assured that key witnesses would be interviewed and she wasn’t happy with the investigator being the head of HR. She received confirmation of agreement to her request.
The investigation meeting took place on the 8th of November 2018. A representative from HR and key accounts manager were there on behalf of the Respondent. The Complainant was allowed to have representation. She attended on her own. She made a statement concerning the incident that she believed she was suspended for. The HR representative was not aware of that incident. It turned out the investigation was for a different incident. The Complainant was totally baffled as to what was going on.
Later that month the Complainant received statements from the manager and head chef and a further employee.
On the 12th of December 2018 the Complainant received an email detailing the investigation findings and requesting that she return to work on the 17th of December 2018. The findings were that she had breached her colleague’s dignity at work. One of her key witnesses had not been interviewed. She queried what would happen next. She did not receive a clear reply as to the next course of action.
The Complainant returned to work in the hope that she would just get on doing her job.
On the 11th of January 2019 she received an email inviting her to a disciplinary meeting on the 16th of January 2019. She had been back at work for three weeks at this stage. She had had no indication during these three weeks as to what was happening.
On the 16th of January 2019 she was handed a letter which was dated the 19th of December 2018. It stated that she had successfully completed her probation period and that she was going to receive a pay increase as a result.
Her manager told her that the 9.30am disciplinary meeting was just going to be a chat. He told her not to ask a lot of questions and he told her “don’t do the womanly thing”.
The Complainant attended at the 9.30am meeting. She discussed the investigation findings with the company representatives. She made her representations with regard to interviews etc., how one key witness had not been interviewed despite her request.
On the 21st of January 2019 she received the outcome of the disciplinary meeting. The sanction received was a final written warning. The Complainant was overcome with fear for her position on receipt of this letter. She attended her GP and was diagnosed with work related stress.
She engaged a solicitor to represent her. She was advised by the Respondent’s solicitors that she could appeal the decision. She had already done this via email from her solicitor to the email address that the Respondent advised that the appeal was to be sent.
The Complainant felt that there was no willingness on the Respondent’s part to reverse the decision that had been made. This and due to the continuing impact of the process on her health and her family life, she felt she had no option but to resign. On the 20th of February 2019 she resigned with the Respondent.
Summary of Respondent’s Case:
The Respondent’s case is that following a training seminar on the 17th of July 2018 the Respondent introduced an incident book to facilitate employees who wished to raise any concerns or possible breaches of the dignity at work policy.
On the 20th of July 2018 the Complainant submitted a complaint via the incident book relating to the behaviour of another employee.
On the 31st of July 2018 the HR director met with the Complainant. It was noted by the HR director that the matters which had been raised by the Complainant related to historical issues which had been previously raised with management and dealt with accordingly. As a result, the HR director was satisfied that no further action was necessary.
In September 2018 the manager of the unit informed the HR director that there was a poor atmosphere in the unit between employees. As a result, the HR director and a HR manager met with a number of those employees with a view to resolving the matter. It emerged that many of those employees were dissatisfied with the Complainant’s behaviour.
On the 26th of October 2019 the HR director was further informed of an incident involving the Complainant and a colleague. The HR director subsequently met with the Complainant and informed her that she would be suspended on full pay pending an investigation.
On the 31st of October 2018 the Complainant sent an email to the HR director which stated “I do not accept your independence given your dealings with me to date”. Furthermore, she sought confirmation that her protected disclosure would be fully and properly investigated as per her complaint of the 20th of July 2018. This was the first occasion which any reference was made by the Complainant to an alleged protected disclosure.
On the 1st of November 2018 the HR director responded to the Complainant’s email of the 31st of October 2019 in which she confirmed that she would step aside as investigator. It was decided that the HR manager would instead conduct the investigation. The HR director requested the Complainant to provide further details in relation to any protected disclosure. No details were provided by the Complainant.
On the 8th of November 2018 the HR manager met with the Complainant in order to hear from her in relation to the complaints which had been made against her. On the 12th of December 2018 the HR manager issue the findings of her investigation. It ultimately concluded that:
“It is clear from the statements taken that the Complainant’s behaviour, the fact that she does not speak with [……….] and the atmosphere that this causes has clearly upset [……….], undermined her confidence in her role. It was clear that the Complainant’s and behaviour has undermined [……….]’s right to dignity at work and has had a negative impact on the rest of the team”.
On the 17th of December 2018 the Complainant returned to work.
On the 11th of January 2019 following the findings of the HR manager’s investigation, the Complainant was invited to a disciplinary hearing which was scheduled to take place on the 16th of January 2019. The Hearing was chaired by the key account manager. The letter inviting the Complainant to the disciplinary hearing informed the Complainant that she had the right to be accompanied by an employee representative or trade union official to the meeting. It also advised that she could call witnesses during the meeting. It stated that if she intended to call witnesses please inform HR of the names of any witnesses and HR will arrange their attendance accordingly. The matter went on to state that it was a very serious matter which may constitute misconduct and may involve the need to take disciplinary action as per the company procedure.
On the 16th of January 2019 the Complainant attended the disciplinary hearing and was afforded every opportunity to make whatever points she deemed necessary. On the 18th of January 2019 the key account manager issued her decision in which she stated her decision to issue a final written warning for gross misconduct. The warning was to remain on her file for twelve months after which time it would be removed. The Complainant was offered the opportunity to appeal this decision to the group head of Human Resources and Learning and Development. The Complainant did not appeal the decision to this person. Furthermore, the Respondent offered the Complainant to extend the timeline for an appeal by the Complainant however no appeal was lodged by her.
The Respondent representative went through the correspondence that it had received from the Complainant’s solicitor from the 24th of January 2019 until the Complainant’s resignation on the 20th of February 2019.
On the 20th of February 2019 the Respondent’s solicitor sent a letter to the Complainant’s solicitor in which the Complainant was asked to reconsider her decision to resign as the Respondent was concerned that she may have decided to resign in haste. The Complainant’s solicitor replied back asking the Respondent to set out its proposals.
On the 25th of February 2019 the Respondent’s solicitors responded saying that it attempted to resolve matters amicably by:
On the 26th of March 2019 a response was received from the Complainant’s solicitors who simply stated “in the absence of meaningful proposals, matters will proceed accordingly”.
The Respondent relied on the definition of constructive dismissal in Section 1 of the Unfair Dismissals Act 1977. It stated that the burden of proof was on the Complainant to prove that it was reasonable for her to terminate her own employment due to a significant breach by the Respondent of a fundamental term of her employment contract or because of the nature of the Respondent’s conduct it left her with no alternative but to resign. The Respondent relied on the case of June McGarr –v Margaret and Michael Moriarty trading as Moriarty Centra UD 1363/2011 in which it was acknowledged by the EAT that “to involuntarily resign your employment is as a serious decision and needs justification for a constructive dismissal claim to succeed”.
As regards the protected disclosure allegation, the Respondent’s position was that there was no reference to a protected disclosure whatsoever in the July 2018 complaint. The Complainant was asked to clarify her alleged protected disclosure in October 2018 and the Respondent offered to investigate any purported protected disclosure pursuant to its own protected disclosure procedure. However, before it had an opportunity to do so the Complainant opted to resign from her employment.
The Respondent submitted that it was well settled law that prior to bringing a claim for constructive dismissal, an employee is expected to exhaust all internal procedures available to him or her. It relied on case law that stated that an employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continued employment with a particular employer intolerable.
The Respondent submitted that the Complainant resigned prematurely and did not allow the Respondent a proper opportunity to address the Complainant’s concerns prior to her resignation.
As regards mitigation of loss the Respondent submitted the Complainant took up employment some six days later and did not suffer any meaningful financial loss.
Findings and Conclusions:
In this case dismissal as a fact is in dispute. It is for the Complainant to establish as a matter of probability that her employment came to an end in circumstances amounting to a dismissal as that term is defined in the Unfair Dismissals Act and that the dismissal was unfair within the meaning of the act.
The Protected Disclosures Act 2014 came into effect on the 15th of July 2014. It gives legal protection to workers who make disclosures including protection for employees from being dismissed or penalised by their employer. I was furnished with a copy of the Respondent’s protected disclosure policy. It’s dated the 11th of February 2019, it stated that it was version number 1.
I note that the Complainant was provided with fifteen different policies in the early months after the commencement of her employment. These included the counselling and disciplinary procedure, bullying and harassment policy, grievance policy.
I have to decide if the complaint of the 20th of July 2018 was protected disclosure. The Complainant in her letter stated that she had decided to formally complain due to health and safety risk the actions of her colleague were having. Her complaint was that her colleague was dumping different dated salads into one bowl. This meant the dates were now mixed up. The Complainant advised she had to dispose of all the stock. The Complainant set out that this was the latest in a number of incidents where food hygiene standards were compromised. No other examples were given.
There has been a Code of Practice on Protected Disclosures since the 25th of October 2015. A protected disclosure is where a worker has information about a relevant wrongdoing.
The Respondent did not initially assess the complaint as a protected disclosure. It treated it as a grievance under the Dignity at Work policy. I have been furnished with the minutes of the meeting of the 31st of July 2018. The minutes of the meeting stated that the Complainant got up and said that she was having nothing more to do with it and would not be raising the issues again. She left the meeting. The Complainant took no further action in relation to this complaint. She did not at the time identify it as a protected disclosure. All indication given to her was that the matter was at an end.
Having reviewed the subject matter of her complaint, namely the scraping of salad from one bowl into another bowl, I do not accept that the notification of the 20th of July 2018 was a protected disclosure. I don’t accept that the complaint falls within Section 5 (3) of the Protected Disclosure Act in that what was complained of was a legal wrong. I find that what was complained of on the 20th of July 2018 was a grievance under Section 5 (3) (b) of the Protected Disclosure Act. On the first line of the notification the Complainant said that she wished to highlight an ongoing issue she was experiencing with a fellow employee. She later described this as a number of incidents where food hygiene standards have been compromised. No other examples were given. I don’t accept that what was described could be considered as a relevant wrongdoing and as such obtain the protection of a protected disclosure. Health and safety issues are covered the Act however this complaint does not meet the standard of being a legal wrong.
I have considered the events which occurred in the period leading to the termination of this employment. The matter of suspension was addressed by the High Court in Bank of Ireland v Reilly  IEHC 241 in which Noonan J stated that: -
“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career……Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer”
I find that the Complainant’s suspension was not justified considering the subject matter of the complaint against her and it continued for an excessive period of time. However, the Complainant did not resign during this period of suspension. The suspension came to an end and the Complainant returned to work.
On the 18th of January 2019 the key account manager issued her decision which was a final written warning for gross misconduct. The warning was to remain on the Complainants file for twelve months after which time it would be removed. For some reason unexplained to me the Respondent didn’t receive or recognise the Complainants appeal of the 24th of January 2019. and noted that the Respondent had failed to acknowledge it as an appeal.
I note the parties engaged via their solicitors for a period of four weeks before the Complainant resigned from her employment. The solicitors appear to be at cross purposes with each other at times.
The disciplinary sanction that was on her file was that of final written warning for gross misconduct. I consider this to be at the middle of the applicable scale. There was no consideration of termination of her employment by the Respondent.
Despite a number of failings on the Respondent’s part, the evidence presented to me was that the Respondent was willing to still meet the Complainant in relation to her complaint of the 20th of July 2018 and asked her to reconsider her decision to resign in the circumstances and to participate fully in the internal process.
The Complainant declined this offer and therefore did not pursue all the options available to her. The Complainant brought the employment to an end. Despite an offer in writing, she decided not to give the Respondent an opportunity to address her complaints. I cannot find that the Respondent’s conduct and behaviour in February 2019 was so unreasonable to a degree that she was left with no alternative but to terminate her employment. Nor can I find that the Respondent’s conduct such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of the Complainant’s contract of employment. Accordingly, I must hold that the Complainant’s employment did not come to an end by reason of dismissal as defined in the Unfair Dismissals Acts 1977 - 2015.
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.
I find that the complaint is not well-founded.
Dated: 27th November 2019
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Unfair dismissal. Constructive dismissal.