Complainant

Respondent

Parties

Agnieszka  Michalak

Glenbeigh Records Management Limited

Complainant

Respondent

 Parties

Agnieszka  Michalak

Glenbeigh Records Management Limited

Representatives

Sylwia Nowakowska Migrant Rights Centre Ireland

Nicola Murphy Peninsula Business Services Ireland

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00062492-001

28/03/2024

The Complainant is a Polish national. She commenced her employment on 15/09/2022 and her employment ended on 10/03/2024 and alleges that she was constructively dismissed. In her complaint form she states that:

“I have raised a grievance with the company. I do not feel the company investigated my grievance fully and properly and I do not believe that the company followed due process and fair procedures conducting it. Based on my experience I do not believe the company is fulfilling its duty of care to protect the health, safety, and welfare of its employees. Therefore, based on the above and a loss of trust and confidence I feel I had no other choice but to leave my position with the company”

The Respondent stated that the conduct of the Complainant was unreasonable and what was a normal part of day-to-day work feedback and supervision became a bone of contention for her. The Complainant simply could not take feedback from her supervisor. The feedback was so incidental and unremarkable about a quality matter without any inference of discipline or sanction yet was perceived to be a serious injustice. It became distorted and then the Complainant believed that management was siding with the supervisor to somehow punish her. There is no basis in fact to any of these allegations.

When the Complainant first resigned, she was asked to reconsider her position and to pursue her grievance and it would be heard. The Company then brought in an independent party to hear that grievance. However, what the Complainant wanted was a process similar to a court hearing. That is totally not appropriate to what this matter is about. At its height it is about a supervisor and a team member who may misread one another. There is no breach of a contract term and at no time was the Complainant subjected to a pattern of conduct that could meet the bullying threshold. There simply was no malice shown towards her. It came down to an employee who was highly sensitive to any negative feedback and then wished to blame others for how she over reacted to what was in fact said to her.

 The Complainant was employed as a scanning operative, and she was being paid in line with the national minimum rates. Her working hours were 6 am to 2 pm. The Complainant’s primary duty was to scan external clients' documents. She worked in a scanning room shared with five other colleagues. It is alleged that on or about the 27th of June 2023 she was informed that she had erred in scanning files of an external client; specifically, one client’s files were mistakenly scanned into another client’s folder. She was advised to exercise greater caution and to ensure that the “exit” button is always pressed upon completion of each task. The Complainant acknowledged this information by saying “ok” and subsequently returned to her own workstation.

 After returning to her workstation, she began to recall the day the alleged mistake was made and concluded that she could not have made the mistake, as she never used the other client's folder. To verify her accuracy, she reviewed the timesheets, which served as evidence of the tasks she had completed. Based on these documents, she was confident that she did not make such a mistake.

After the morning break the Complainant stated that she approached her supervisor to explain that she hadn’t made a mistake and alleged that as she started to speak, she was not listened to and was not allowed to speak and was interrupted. 

The Complainant said that she asked her supervisor to stop talking over her. The supervisor ignored this request and continued speaking. The Complainant told her supervisor that she would not tolerate such treatment and went back to her workstation.

 The Complainant alleges that after returning to her workstation her supervisor began to speak to another colleague, and saying “Did you hear that?” and “Did you hear what she said?”, “This is unacceptable”, “I need to report her”.

The Complainant alleges that this was not the first occurrence of a difficult interaction between the Complainant and her supervisor. When she heard how her supervisor was talking about her in public, she became distressed and subsequently left her workstation and went to the staff canteen. There, she met two colleagues to whom she told what had just happened.

 The Complainant believed that she was being reported to a senior manager by her supervisor and became very agitated and anxious. She said that she felt trapped and for that reason collected her belongings and left the workplace. That same morning, shortly after she left work, she received an email from her manager, asking that she call him. Shortly after 10 am the Complainant said she replied and told him that she was too stressed to speak, apologised for leaving her work, and expressed that she could no longer work with her supervisor. Additionally, the Claimant indicated that she would revert to the manager in the evening with a more detailed explanation of the situation.

 Shortly after 3 pm, the Claimant received an additional email from the manager. In this correspondence, it is alleged that the manager informed her that her supervisor visited his office in the morning and appeared to be quite distressed. The Complainant believes that her supervisor reported the events of the morning and made a complaint about her and alleged that she was disrespectful towards her and that she had overreacted about the feedback given to her. The manager wrote in his email that “I can’t have a situation where a supervisor cannot perform her duties because she is afraid to bring up errors (which will always happen from time to time) with members of the team, for fear of a backlash”. This statement led the Complainant to believe that her manager had already concluded that her supervisor was correct and that the complainant was at fault.

The Complainant wrote to Manager to explain what happened and that her supervisor just wouldn’t listen to her. This wasn’t the only time that she had been treated badly by her supervisor and that she didn’t want to put up with it anymore and would resign.

 The manager wrote to her to say that he believed she had decided to terminate her employment "in the heat of the moment," and asked her to reconsider her decision and based on the content of her email from the previous day, to initiate grievance procedures. She rescinded her resignation and filed a formal complaint under the Personal Harassment Policy, Bullying Prevention Policy, and Dignity At Work Policy on July 7, 2023, detailing various incidents involving her interactions with her supervisor, during which she alleged that her supervisor’s conduct was inappropriate.

The Complainant also requested any CCTV from the morning of the incident of 27 June 2023 to be kept as part of the investigation. When the Complainant asked why the recording wasn’t saved as requested, she received a very weak explanation that that the employer didn’t believe it was required to be retained.

The Respondent decided to engage a third-party company, Graphite HRM Ltd, to carry out the investigation. As the Complainant was on certified sick leave, the investigation did not start until the end of September 2023.  During the investigation, on 27 September 2023, the Complainant requested an update from the manager about the CCTV footage. In his email on 28 September 2023 her manager stated that he was "concerned with the complaint and getting HR advise on it and I failed to see the importance of securing the CCTV. I also felt from your complaint that the CCTV may not be able to add much value considering the issues involve an exchange of words, body language rather than any physical confrontation". He informed her that the CCTV footage is no longer available. The Complainant was deeply disappointed with this failure to retain the CCTV. The Manager apologised to her, stating that the failure to secure the CCTV footage was an error on the part of the company.

 On 16 October 2023, the Complainant received a report containing the findings of the investigation. The investigation concluded that, based on the allegations made, her supervisor had not displayed behaviour towards the Claimant that was recurrent or capable of undermining her dignity at the workplace. Furthermore, the investigation determined that her supervisor had on multiple occasions issued reasonable management instructions to her, which the Complainant found difficult to accept. It also emphasised that, for a productive work environment, the Complainant must be able to accept instructions from her line supervisor and must demonstrate a level of respect appropriate to her position.

 Upon receiving the report, the Complainant observed that the investigation team did not focus on her reported concerns about her supervisor’s behaviour towards her. Instead, they concentrated on assessing whether her supervisor was justified in bringing certain issues to the Complainant’s attention.  It was clear from the initial report, as well as from the investigation meeting with a representative of the third-party company, that the primary issue and grievance that her feeling of being ignored, patronised, undervalued, and disrespected by her supervisor had been totally ignored by the investigation.

 Additionally, the Complainant noted that, despite her requests and suggestions, the investigator did not summon any witnesses. The Complainant acknowledges that the decision regarding the necessity of witness statements resides with the investigator. Nevertheless, the Complainant wanted to highlight that the investigator received conflicting statements from both the Complainant and the Respondent, each referring to the reaction of another work colleague. The Complainant considered it a matter of common sense to attempt to clarify the situation by calling that witness.

 The investigation meeting notes also indicated that the Complainant mentioned certain colleagues being witnesses to the situations she complained about. Once again, the Complainant considered it a matter of common sense to call these witnesses, especially when the statements of the Complainant and her supervisor were contradictory.

 The Complainant appealed the decision. The outcome of the appeal was issued to the Complainant on 22 November 2023. The Appeal Officer found no new evidence and subsequently upheld the initial decision.

The Complainant was on sick leave from 27 June 2023. Her GP cleared her to engage in the investigation process. The Complainant was suffering from work-related stress and anxiety and was availing of a counselling service. On 13 August 2023, as the Complainant’s sick certificate was nearing its expiration, she received an electronic mail from her manager indicating that the organisation anticipated her return to work. The Complainant replied to this and  inquired whether it would be possible to be separated from her supervisor.

On the 28th October 2023, the Complaint sent an email to her manager expressing her reservations about the conduct of the investigation by the external company. She stated that the investigation should be invalidated due to errors in factual findings and misunderstandings of the essence of her complaint, as certain findings were based on no evidence. The Complainant stated in her email that she found the investigation unfair and believed her right to hear her witnesses was violated (she requested this on two occasions). She also believes that the findings did not align with the investigation documentation; for example, one of their conclusions was that "on many occasions" she had an issue in following supervisor instructions, and she informed the company that this is not even mentioned in the statements given by her supervisor. The Complainant pointed out that the investigator, when formulating conclusions, clearly assessed the Complainant as a disobedient employee who showed no respect for her supervisor, and stated she should be treated “with a level of respect that is assigned to someone of her position”.

 The Complainant said she had never received any feedback at work, suggesting she did not respect her supervisor. Therefore, she believed such judgmental and unfounded opinions should not be part of the investigation outcome. The Complainant emphasised this point in her email to illustrate the ideology of Graphite, which clearly indicated that respect is linked to a specific position. She expressed her belief that either a supervisor or a scanning operative deserved respect.

 In February 2024, the Complainant emailed the company stating that she did not feel the company did everything to facilitate her return to work, such as allowing her to work at a different station. The Complainant expressed her dissatisfaction with the investigation process and informed her manager that her health had deteriorated as a result of the events that began on 27th June 2023.

On the 9 February 2024, the Complainant sent an email to her manager, informing him of her health concerns attributed to work-related stress, and expressing a diminished sense of safety within the workplace. The Complainant was open to reach a reasonable agreement, but the Company would not meaningfully engage with her  and she formally resigned  on 10 March 2024.

The Complainant asserts that the grievances she raised were not adequately

responded to or addressed. Furthermore, the Respondent failed in its obligation to engage

constructively with her after she formally indicated health difficulties, thereby breaching their

duty of care to her.

The Complainant stated that she mitigated her loss in demonstrating a reasonable level

of activity in making job applications.

 The Complainant stated she met the reasonableness test for constructive dismissal and had

discharged the burden of proving that she was constructively dismissed by the Respondent. The

Complainant established that it was reasonable for her to have terminated her employment

because of the Respondent’s conduct.

In a constructive dismissal case, the fact of dismissal is in dispute, and it is up to the Complainant to prove on the balance of probabilities that she was constructively dismissed. The bar is a high one and the Complainant must show that conduct of the employer was such that no employee would put up with it.

The facts in this case show an employee who is very sensitive to feedback about her work and that a quality issue arose on a particular shift. Based on how the Complainant interacted with her supervisor, she perceived the issue to be far greater that it was. The issue then became so important to her that what at most was an ordinary day to day interaction that gave her critical feedback, between a supervisor and a team member, was amplified into a battle and alleged bullying.

The perception of what occurred was simply blown out of all proportion by the Complainant.

The company wanted to resolve the matter and investigated the issues raised fairly. This investigation is not a court and the issues raised were fairly reviewed by a third party. The Complainant alleges that the process was unfair and flawed because she perceives the issues she raised as grave infringements. The facts simply do not substantiate that allegation.

What in fact was in issue was an interpersonal difference between the Complainant and her supervisor. The matters complained of cannot amount to conduct so bad that she had to leave.

There was no risk to this employee’s safety. She was out sick and when fit to return to work wished to set down conditions where she would work. However, the basis of that demand was her accusation that she was subjected to unreasonable conduct. That was never the case. The Complainant simply did not like her supervisor and that is not a ground to agree to her demand that she should no longer have to work with her supervisor.

The Complainant carries the burden to show that she was constructively dismissed.

The facts do not tend to support the test as referenced in Berber(Berber v Dunnes Stores [2009] IESC 10).

The parties have opened extensive case law to support their respective positions. The test set out in Berber provide a useful framework to assess if the conduct complained of meets the test to establish a constructive dismissal. While Berber related to a wrongful dismissal and not to a statutory remedy, it is a helpful framework when dismissal is in dispute arising from alleged repudiation of the contract.

In Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee as a whole when assessing if constructive dismissal has in fact occurred; and the following 4 principles are also relevant in this case:

1. The test is objective
2. The test requires that the conduct of both employer and employee be considered
3. The conduct of the parties as a whole and the accumulative effect must be looked at
4. 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.

In Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them

An objective test means the issues detailed must be viewed not in relation to this particular employee and her personal circumstances; rather did the conduct of the employer objectively judged repudiate the contract. If not a contract breach, was the conduct of the employer so unreasonable to justify leaving?

Redmond on Dismissal Law elaborates on what this means:

[5.25]

A breach of the implied duty of mutual trust and confidence is always regarded as repudiatory. The EAT in Britain regarded it as a fundamental breach in Morrow v Safeway Stores Ltd. 44 If a breach was not sufficiently serious to amount to a repudiation of the contract, it could not be a breach of the implied duty. Cumulative acts on an employer’s part may be taken into account in determining whether or not the employer has acted in a manner which has undermined the implied obligation of mutual trust and confidence: Lewis v Motorworld Garages. 45 The Court of Appeal in Lewis emphasised another important aspect of the implied obligation: the employer’s conduct is judged objectively, not subjectively. There may of course be circumstances in which it will be self-evident that the employer intends to undermine the relationship of mutual trust and confidence, as in Cantor Fitzgerald v Bird, 46 in which event a subjective intention will be of strong probative value.

The statutory test also provides for a reasonableness test even where no contract provision has been breached that would repudiate the contract. The working relationship between the Complainant and her Supervisor is alleged to be an ongoing pattern. However, the objective test requires that the conduct complained about must be what most people would consider unacceptable conduct. That threshold has not been met in this case.

The conduct of the employer has not been unreasonable.

In McKelvey v Irish Rail [2019] IESC 79 Clarke CJ stated that the standard for an internal disciplinary process does not have to match the court process; however, it must be fair.

7.4 It should be recalled that an internal disciplinary process such as this is not a criminal trial. While the process must be fair, the formal rules of evidence or the procedures which govern either criminal or civil proceedings do not necessarily apply. The position of persons who may also have been the subject of investigation and the question of any evidence which they might give is not necessarily governed by the procedures or rules of evidence which would apply in a similar situation in the courts. Of course, the credibility of such persons may, in an appropriate case, be questioned on the basis of their own possible involvement. But they do not necessarily have to be treated in exactly the same way as a potential accomplice, co-accused or co-defendant in court proceedings. What is required is that Mr. McKelvey and his trade union representative be given a reasonable opportunity to challenge the evidence of any such persons on any reasonable basis. In those circumstances, it does not seem to me that there is, at least at present, any real basis for suggesting that legal issues of any substance will emerge.

The same standard applies to a grievance investigation. The procedure in this case based on what was alleged at face value is appropriate. The matters complained about are quite nuanced and in terms of seriousness again at face value do not impact with a force that make them very grave. The two actors who principally were involved in this grievance were heard. There is no evidence of any formal complaints before this incident.

The Complainant states the grievance and appeal process also were flawed and that also contributed to her reason for resigning.

The Complainant states that she experienced the independent investigation to be far from independent and flawed. Such a process can be used to punish and I note the Supreme Courts determination about this in of Ruffley v Board of Management for St Annes School [2017] IESC 33.

O’Donnell J also stated at paragraph 32 in Ruffley that:

It is also important to keep in mind the role of fair procedures in this case. They clearly loom large in the High Court judge’s assessment of the case, and were relied on to a significant extent in the dissenting judgment of Finlay Geoghegan J. in the Court of Appeal. However, it is not necessary to establish a breach of fair procedures to succeed in a bullying claim, and conversely, the presence of unfair procedures does not establish bullying. Bullying often involves a question as to how something was done rather than what was done. In theory it is possible that a disciplinary process conducted in accordance with the rules of fair procedures might still constitute bullying, and even irrespective of the outcome of the process. An ostensibly fair process, and punishment for an established breach may constitute bullying if it is established it was instituted maliciously, and as part of a campaign to victimise an individual. It is important therefore not to blur the distinction between these two different claims by assuming that there is any logical connection between a breach of procedures, and a claim of bullying entitling a party to substantial damages.

Even if it could be established that there was a breach of fair procedures which has not been established; there is no evidence to show any malice in how the process was conducted. In fact the conclusions based on the factual matrix that was presented at this hearing do not establish a pattern of conduct that could be classed as bullying.

The Respondent did not call any witness to give evidence on what they perceived to be the strength of the Complainant’s case and that she had not met the burden of proof to ground her complaint.

I find that on the facts the Complainant’s employment ended by reason of resignation and she was not unfairly dismissed. The threshold to establish a constructive dismissal is a high one and in this case it has not been met. It cannot be said that the conduct of this employer was so unreasonable that this employee had no alternative but to leave her employment. The complaint is not well founded.

I find that on the facts the Complainant’s employment ended by reason of resignation, and she was not unfairly dismissed. The threshold to establish a constructive dismissal is a high one and, in this case, it has not been met. It cannot be said that the conduct of this employer was so unreasonable this employee had no alternative but to leave her employment. The complaint is not well founded

Constructive dismissal