In Jade Gannon v Fides Playhouse Limited[1], the Complainant issued three complaints against her former employer, including a claim for constructive dismissal under the Unfair Dismissals legislation.
Facts: The Complainant commenced employment with the Respondent as a housekeeper on 9th July 2018. She was paid the minimum wage until the end of July 2021, following which her pay increased to €240.00 gross per week for a 20-hour week.
The Complainant gave evidence that she enjoyed her work most of the time and had a good relationship with her colleagues, but began to experience difficulties in 2020 particularly with a colleague (R). She told the Workplace Relations Commission (“WRC”) that she raised concerns with management, but that their response only made matters worse. The Complainant lodged a formal bullying complaint on 30th May 2021.
As part of its “investigation”, the Respondent met with a number of staff members, but did not meet with the Complainant. The Complainant was issued with a written response from management on 29th June 2021, dismissing her complaint and making accusations against her. It was only at that late stage that she was provided with a copy of the Respondent’s Anti-Bullying policy. No report was issued, and no notes were taken of any of the meetings forming part of the investigation.
A meeting took place on 6th July between the Complainant and a manager and director. The Complainant gave evidence that the meeting took place in a “snug” and that it was not an appropriate or private place for a meeting. Her evidence was that she was not afforded an opportunity to talk about her issues. The Adjudicator noted that the Complainant had been “visibly agitated” in the meeting according to the testimony of one of the Respondent’s witnesses. The Complainant wrote to the Respondent on 7th July reiterating her issues and noting her dissatisfaction with the meeting, but she did not receive a response. A staff meeting was held on 9th July, the purpose of which was to be to discuss the workplace environment. The Complainant attended the meeting. Her evidence was that not all staff members were in attendance and that there was no mention of bullying in the workplace during the meeting. However, the Adjudication Officer was satisfied that management had expressed the need “for everyone to get along” and noted that the employee whom the Complainant identified as the main source of her grievances appeared to make an effort to “bury the hatchet”, but the Complainant did not feel able to do so.
According to the Complainant, she continued to experience issues with the same person following the 9th July meeting. She resigned on 9th August 2021, terminating her employment with effect from 17th August 2021.
Decision: The Adjudication Officer (“AO”) made it clear that the purpose of the hearing was not to make any decision regarding the merits or otherwise of the Complainant’s bullying complaint.
The AO noted that the Respondent had addressed the Complainant’s formal complaint in a timely manner. However, there were a number of issues with the manner in which the Respondent did so, most notably in not meeting with the Complainant to discuss her complaint. The AO was of the view that the extent of the breach of fair procedures was so great that the Complainant would have been justified in “contending that her position in the employment was compromised to the extent that her trust in that contract was irretrievably broken rendering the contract effectively inoperable as a mutual agreement” when she received the letter from the Respondent of 29th June 2021.
In criticising the Respondent for not having met with and spoken to the Complainant prior to issuing that letter to her, the AO pointed out that
“No written complaint could adequately capture all of the issues or nuance around issues. In any event an investigation must include dialogue and input from the Complainant and not solely those who the employer choses to interview. And then only interviewing those who the Complainant felt were excluding or ignoring her and then taking no notes of those meetings and then denying the Complainant the opportunity to comment on the notes or statements of others-essentially no right of reply. And finally, to issue a response to a complaint based on those unrecorded interviews with no right of reply not only dismissing her own complaint but also making accusations against the Complainant without hearing her on those charges either.”
The AO also criticised the Respondent for failing to provide the Complainant with a copy of its Anti-Bullying policy “until they had concluded their own one-sided inquiries.”
However, the Adjudicator noted that the Complainant continued in employment for a further five weeks before resigning. Her view regarding the Complainant’s evidence in respect of what had occurred within the workplace between the staff meeting on 9th July and her resignation was that it did not “provide anything so clear which suggested her actual problems were continuing or were repeated to an extent that they would have formed a basis for a valid complaint against the Respondent of Constructive Dismissal.”
The AO nevertheless found in favour of the Complainant, noting that the Respondent had failed to respond to her letter of 7th July in circumstances where the language of the letter still related to bullying and the letter raised issues relating to the 6th July meeting and the 29th June letter. The AO noted that the Complainant’s letter of 7th July referred to a job which had become “intolerable and distressing”.
“It is not a sufficient response to that letter that the Respondent considered matters resolved by either the meeting the day before when the Complainant was clearly saying they were not or the meeting a couple of days later when that conclusion was not verified with the Complainant. The absence of a properly conducted response to the initial complaint of bullying in the first place was compounded by the lack of any response to the letter of July 7th, 2021. In the circumstances, the absence of responses and/or the inadequacy of the responses to complaints of bullying was sufficient to allow the Complainant to conclude, not unreasonably, that the Respondent had fundamentally breached the relationship of trust, confidence and fairness all of which must exist in an employment relationship on both sides.”
Takeaway: This case demonstrates the importance of ensuring fair procedures in carrying out an investigation into grievances raised by an employee and, in particular, where a complaint involves an allegation(s) of bullying. While there is a high bar for constructive dismissal cases, the Adjudication Officer in this case was satisfied that the Respondent’s response to the Complainant’s bullying complaint fell well below the standard required:
“The conduct of the inquiry by the Respondent does not come near the standard of inquiry required for a grievance, let alone an allegation of bullying.”
This case also emphasises the requirement for complainants in unfair/constructive unfair dismissal cases to ensure that they can demonstrate that they made genuine and substantial efforts to mitigate their loss following dismissal/resignation. In this case, the Complainant was awarded only three weeks’ compensation largely because she had failed to provide “any detail of substantial efforts to obtain alternative employment”. The AO accepted that there was a period when she was unable to seek alternative work following issues requiring surgery post resignation, but was not satisfied that she had made sufficient efforts to obtain new employment prior to this period. She was awarded only €720.00 in compensation.
Footnotes
[1] ADJ-00035897, 4th August 2022.
Authors – Jenny Wakely and Anne O’Connell
30th September 2022