ADJUDICATION OFFICER RECOMMENDATION & DECISIONS
Adjudication Reference: ADJ-00026140
A post-doctoral researcher
Mairead McKenna BL, instructed by Arthur Cox Solicitors
Dispute and complaints:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Date of Adjudication Hearing: 15/09/2020
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 23rd December 2019, the worker submitted complaints pursuant to the Payment of Wages Act and the Organisation of Working Time, as well as a dispute pursuant to the Industrial Relations Act. They were scheduled for hearing on the 15th September 2020.
The worker worked at the employer at the same time as their spouse. They both resigned on the 1st October 2019 and together submitted these complaints and dispute. The decision of the worker’s spouse is addressed in ADJ-00026141.
The worker and their spouse attended the adjudication. The employer was represented by Mairead McKenna, BL instructed by Arthur Cox solicitors. The HR Deputy Director attended for the employer, referred to in this report as the ‘HR Manager’. The report also refers to the worker’s line manager as the ‘head of department’.
In accordance with section 41 of the Workplace Relations Act, 2015 andsection 13 of the Industrial Relations Acts 1969following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.
The worker resigned from their employment with the employer following raising issues of bullying in the workplace, a third level institution. The employer denies that the dispute has merit.
Summary of the Worker’s Case:
At the outset of the hearing, the worker withdrew the complaints pursuant to the Payment of Wages Act and the Organisation of Working Time Act.
The worker resigned on 1st October 2019 due to abusive conduct by the head of department. The worker outlined that the employer breached a fundamental term of the contract. The internal procedures would not have helped.
The worker and their spouse were employed as postdoctoral researchers in the university and commenced their employment from 1st April 2019. One worker’s salary was reduced to €45,540 per year and this was rectified in June 2019. This arose from a miscalculation in the level of pay. There also an issue with the date of the contract as this stated that the employment began in January 2019.
The employer changed the terms of the contract without notice regarding relocation assistance. The claimant had been offered €700 to help move from an EEA state to Ireland, but this was not paid. The May 2019 payslips misrepresented the amount paid (the payslip stated a high amount as if the whole pay was paid from January, but the lower amount was paid). The worker received the monies stated as net. This caused problems with opening bank accounts.
The worker outlined that the head of department was not known to them prior to them taking up the role. They had been informed of the roles via a colleague. They applied for the two positions and they arrived in January 2019 to take up the roles.
The role involves scientific experiments on tissues and animals, using technical equipment. They started on technical aspects of the role, for example the calibration of instruments. The worker commented that normally the head of department would be an ‘ideas generator’, but they never heard from the head of department. They had no clear idea of what they were going to do. They needed to publish in high profile journals as part of their ongoing professional development. They needed to have a proposal to get funding from State bodies. They would normally seek and be awarded a research grant on the basis of their detailed proposal.
The worker joined one project, but this ended in late May. They started a new project in June 2019, but this was also cancelled. They started a new project in July, and this was ongoing at the time they left. They also contributed to other experiments. The scientific work requires time, for example several months to learn to work with the tissue, the machine and the data. It was bad that they had to jump from one project to another in such short time and they could not, therefore, publish anything. The worker outlined that publication was their ‘bread’ and it could take a year to complete the article.
The worker outlined that the main thing was the behaviour of the head of department. The head of department could be very aggressive and would shout at people, including the two workers and one other named researcher. The head of department would target the worker and their spouse, asking for results to be submitted in six weeks. He said, ‘you are here for six months and this is a joke.’ This was the first occasion of such an interaction with the head of department and they were shocked. The worker put this behaviour down to the head of department’s bad mood.
The second incident arose from a practice where researchers would indicate their attendance on a white board. On this occasion, the worker and their spouse forgot to mark their names when taking a 15-minute break. The head of department started to shout at the worker and their spouse for this omission.
There were many occasions where the head of department scared them and prohibited them from speaking in their native language, even during their lunch time. The worker and their spouse had to complete a period of probation of one year, but also a special probation every three months. The head of department told them to think about their behaviour and results or they might not pass the probation. The first probation meeting took place at the end of July, which they passed. The head of department had recorded that one worker was ‘inadequate’ but without explanation.
The worker outlined that they had specialist roles and they should all do their specialist jobs. The head of department was not providing ideas and became too involved in the setting up of experiments. They had, for example, been setting up an experiment with a named colleague, but this was interrupted by the head of department. This took place in August 2019 and caused stress.
The worker and spouse spoke about the head of department’s behaviour with colleagues in the laboratory. The colleagues warned that they should not complain as they would lose their jobs. They described the atmosphere in the laboratory as stressed and people spoke quietly to each other.
The worker outlined that they spoke to a member of HR in June 2019 to ask about ending their employment. They were thinking about leaving and spoke to her again in September 2019. The member of HR wrote a minute of their meeting, where they described the situation in the laboratory. They did not understand what the member of HR was going to do.
The worker outlined that the ‘last scandal’ took place on the 26th September and they resigned that day. This incident occurred when the head of department started to argue about cooling down a solution. The cooler had been moved to another room, and the head of department challenged this. The head of department began swearing and said that the ‘door was open’ and the worker ‘could leave right now’. The worker described this as the ‘last drop’ and it was not possible to work there anymore.
At the meeting of the 1st October meeting, the employer set out steps to be taken, but because of the head of department, there was no future for the worker and their spouse. The head of department was not listening to them. The head of department could control himself, but also lost control.
After tendering their resignation, the worker and their spouse continued to work even though the employer had said they could stay away. There was another incident at the end of October. They then went on garden leave but were threatened by letter. The worker outlined that a letter of recommendation was very important in finding new employment. The employer did not provide such a recommendation. The worker outlined that their employment ended on the 30th November and that they are seeking work. Employers however have stopped hiring because of the pandemic.
The worker outlined that it was during a meeting with HR in the middle of October that the head of department said that they must teach. The worker said that they are not teachers and are not licensed to do so. They had a research contract, but the head of department tried to insist that they teach.
The worker outlined that the second probation meeting was due to take place on the 15th October, but they had resigned on 1st October. At the meeting of the 10th October, the head of department had said that they would be recorded as failing their probation, but HR did not accept that this was the case. The worker outlined that the head of department organised a party to celebrate their leaving. They described this as mocking.
In reply to the employer, the worker said that they asked about making a complaint and the HR manager replied that this would not be a good idea. This took place at the meeting of the 22nd October. The meeting of the 15th October related to the teaching issue and the worker could not say whether they had raised the issue of the behaviour of the head of department. The worker outlined that they had said they were leaving because of his behaviour. They also said that the conditions in the laboratory were very bad and there was a lot of stress. The worker had explained the situation the first time and member of HR said that there was no need to write down all their complaints.
Summary of the Employer’s Case:
The employer outlined that it had not requested the worker or their spouse to teach or to lecture. There was no request for them to do a handover. Their salary was stopped in October and November as they did not attend work and there was no agreed garden leave.
The employer outlined that the worker and their spouse resigned in advance of the meeting of the 1st October. In response, they were provided with the grievance procedure. The worker did not invoke this procedure despite there being several meetings. The employer outlined that the worker had given notice, and this was inconsistent with constructive dismissal. The employer also offered the procedure to address the issues raised.
The employer referred to the offer of the 6th November 2019 for the worker and their spouse to leave on an earlier date but having taken certain steps. Instead, they stopped attending work and there was no agreement for any garden leave. The employer did not pay as this was an undocumented absence. The worker returned in November 2019 and completed a handover. They were, therefore, returned to pay roll.
The employer outlined that the worker had not engaged the procedure. It offered to complete the process even after the worker’s employment ended. The pay and annual leave issues were addressed following mediation.
The employer submitted that the worker did not like how the department ran its successful operation. The worker decided to resign without invoking the grievance procedure. It described the pay issue at the start of employment has a teething problem. It submitted that the employer could not be criticised for their response. It could not engage an investigation into the bullying allegation without a formal complaint from the worker.
The HR Manager outlined that there were three meetings with the worker, and they encouraged the worker and their spouse to follow the procedure. They encouraged informal interaction. He outlined that the meeting of the 15th October was about the handover, while the meetings before and after this were about the process. There were no minutes of the 15th October. He outlined that the worker’s allegations were not backed up and he asked the worker to make a formal complaint. He outlined that all they heard was allegations. He said that he did not believe that there was substance to the allegations, in answer to my question why the other steps in the Dignity at Work policy were not engaged.
The employer outlined that it offered to provide a reference to the worker, but none was requested.
Findings and Conclusions:
This is a dispute referred by the worker against their employer. It falls on me to issue a recommendation in accordance with the merits of the dispute.
The worker and their spouse clearly communicated their dissatisfaction about their roles, in particular their interactions with the head of department. The employer Dignity at Work policy provides for a series of steps to be invoked in addressing a concern of bullying or harassment. Step 3 is a resolution through facilitation or mediation, specifically addressing the situation where a line manager is the person complained about.
The worker and their spouse raised their concerns with the employer and resigned on the 1st October 2019. There followed a series of meetings including three in October 2019. The first and third meeting are minuted and involved the worker, their spouse and HR. They discussed the issues raised by the worker and their spouse about the head of department. The second meeting was not minuted and this time involved the head of department. It related to the handover as opposed to the issues raised by the worker and their spouse. It was not a facilitation or mediation as envisaged by Step 3 of the Dignity at Work policy.
The employer is correct that the worker did not submit a formal complaint in line with Step 4. The worker, however, did engage the Dignity at Work procedure by raising the issue and meeting HR. This is sufficient to engage the policy and to avail of the steps other than Step 4. The employer, however, did not engage these other steps, for example facilitation or mediation. In response to my question, the employer indicated that this was because it did not believe that the allegation was true. The policy, however, does not provide for such a preliminary examination or decision on the veracity of a complaint.
The policy provides for self-appraisal, direct contact, mediation/facilitation and a formal process. Engaging Step 3 is facilitating or mediating a solution, without any definite finding. It is an alternative to fact-finding and appropriate in cases involving behaviour because there can be an element of subjective assessment of whether, for example, behaviour is overbearing or whether it is merely assertive.
I find that there is merit in the dispute in respect of the employer not engaging the Dignity at Work policy in line with Step 3 of the policy. The meeting attended by the head of department was not about the complaint, but about the handover. The employer decided to only process the complaint by Step 4, but the policy does not allow for this restricted approach. The policy also does not allow it to make a preliminary decision on the validity of a complaint in order to decide how it should be processed. Step 3 is available in all cases.
While I find merit in respect of the employer not engaging the Dignity at Work policy, I find that the worker was not entitled to resign. Repudiation is not the same as breach of contract. I find that not engaging the policy could amount to a breach of contract, it was not such as to amount to repudiation. The worker was not entitled to consider themselves to have been dismissed and it was not otherwise reasonable for them to resign. This is because they should have engaged the grievance and dignity at work procedures in full before resigning.
To the extent outlined above, I recommend that the employer pay to the worker compensation of €2,000.
CA-00033414-002 and CA-00033414-003
I formally find that these complaints are not well-founded. They were addressed by the parties at mediation and withdrawn by the worker at the hearing.
Recommendation and decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the employer pay to the worker compensation of €2,000 in respect of the failure to engage the dignity at work policy.
I decide that the complaint pursuant to the Payment of Wages Act is not well-founded.
I decide that the complaint pursuant to the Organisation of Working Time Act is not well-founded.
Dated: 23rd November 2020
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Industrial Relations Act
University / bullying and harassment