Case Number: ADJ-00012712. Workplace Relations Commission
| Docket Number | ADJ-00012712 |
| Hearing Date | 16 August 2018 |
| Date | 01 February 2019 |
| Year | 2019 |
| Court | Workplace Relations Commission |
| Parties | A Support Administrator v A Software Company |
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
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The Complainant claims that she was constructively dismissed by the Respondent on or about 10 July 2017 after she was discriminated on the grounds of her Gender and Age and penalised for making a complaint relating to safety, health or welfare in the workplace. The Respondent denies all the claims made against it by the Complainant, it claims that the Complainant resigned by way of letter without any pre-notice of any issues that are now complained about. They were only subsequently raised with it, post resignation. |
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Preliminary matters The Complainant, in reply to the Respondent’s claim that the Employment Equality complaint is not correctly before the Workplace Relations Commission, said that it is properly before me for consideration. She said that her solicitor had written to the Workplace Relations Commission and sought to withdraw part of the Employment Equality claim but admits that there was an error in this instruction. However, the Employment Equality complaint was lodged correctly with the Workplace Relations Commission originally, and the Respondent would not be prejudiced in any way as it was ample given time to consider the Complainant’s submission. The Complainant, in reply to the Respondent’s claim that she is attempting to run parallel claims under both the Unfair Dismissal Act and the Safety, Health and Welfare at Work Act, said this is not true. The three claims before the Workplace Relations Commission relate to three different issues covered by three different Acts and are compatible in this instance. Substantive matters The Complainant said she commenced her employment with the Respondent as a receptionist on 2 January 2014. The Complainant claims that her contract did not provide for a formal or established grievance procedure instead the Respondent encouraged employees to bring grievances to the attention of their immediate superior. The Complainant claims that in and around 31 August 2016 she was promoted to position of Support Administrator, where she received a gross salary of €27,300 and the Respondent paid her annual telephone bill of €720. Her role and responsibilities included, receiving and logging progress and tracking cases, administering calls, ensuring support technicians cases were logged and monitoring outstanding cases. The Complainant was located in a regional office away from its Dublin office where her superiors were located. She said the Managing Director, Ms. A, would attend the regional office on a fortnightly basis and that her direct line manager, Mr. B, would attend the regional office on a weekly basis at the start, but that arrangement diminished over time. She had no problems whatsoever working there prior to her taking up her promotion on 7 September 2016, when things changed. On taking up this promotion the Complainant had to work closely with Ms. X, a technician, who was about ten years older and had just returned from maternity leave. The Complainant claims that Ms. X was fine at the start, but all changed on her return to work and she subjected the Complainant to “rude comments, aggression, undue scrutiny, unfair criticism” and “bully and harassment with the purpose of isolating, undermining and pressurising [the Complainant]”. The Complainant presented a list of situations that she claims supports her position, including when Ms. X questioned her administrative role, and whether it was needed at all, asking if Ms. A “[got] her claws into her [yet]”; questioned her qualifications to represent the organisation at events; stating she was far more senior within the Respondent than the Complainant; questioned whether the Complainant was making out to be an “expert” in IT packages; undermining her team suggestions and then taking credit for those same suggestions herself; being rude and pointed in conversations and making suggestions that the Complainant was not looking well. The Complainant said that she met with Ms. A and outlined the issues she had with Ms. X, where Ms. A said she would keep an eye on things and sort it out. The Complainant said that Ms. X was having a severe impact on her health and wellbeing. She was diagnosed with stress and anxiety, she experienced physical sickness and suffered huge emotional pressure, so much so that the Complainant’s partner contacted a friend working within the Respondent in November 2016 raising concerns about the state the Complainant was in. The Complainant said that she felt undermined at technical support meetings and she was not asked to meetings from March/April time onwards. On 14 February the Complainant claims that she took a day off work sick due to the anxiety caused by Ms. X’s conduct toward her and said that Ms. X made comments about the Complainant’s appearance such as, “looks like you’ve seen a ghost” and “any news for us”, which the Complainant suggested relates to possible pregnancy related sickness. The Complainant said that Ms. X was promoted to Support Manager in March 2017 following that her misconduct was having an even more profound effect on the Complainant thereafter. Around that time the Complainant had a meeting with Ms. A about her role, her tasks and responsibilities. She said that she realised that her grievance was not being progressed and as far as she was aware she had exhausted the grievance procedure. She claims that she went out on sick leave suffering from stress, depression and anxiety. She remained on sick leave until she resigned her position by way of letter dated 10 July 2017 effective from 31 July 2017. She said that she was in contact by email with Ms. A regarding her resignation and she mentioned she had been to her doctor “on some personal issues” and she maintained that Ms. A would realise that it related to the stress and anxiety that she was going through on account of working with Ms. X. She said Ms. A was entirely aware of the situation at all times. On 21 July 2017 the Complainant claims that she sent another email to Ms. A and in that email explained in full terms that she could not cope any longer with her work situation and felt bullied by Ms. X, that she was constantly on her back and it had now “stated to come into my personal life” and she “felt devasted that it had come to this” but she had to resign. There followed a telephone conversation with Ms. A however, the Complainant felt Ms. A did nothing to address her complaint. The Complainant claims that she was approached after she sent in her letter of resignation by other members of the Respondent’s senior management team to see if they could assist but that she had made her decision and was not going back at that point. She said that she commenced new employment with another employer soon afterwards on 21 August 2017 on a gross annual salary of €28,000. She said that her solicitor took up her case with the Respondent on 20 December 2017, but it was not responded to. Legal Submissions Comparator The Complainant claims that she was discriminated by the Respondent on the basis of her Gender and Age. She identified Ms. X as her comparator, she is also female and is 10 years or so older and was treated more favourably by the Respondent. The Complainant contends that if the aforementioned comparator is not applicable then the Complainant can use a hypothetical comparator. Constructive dismissal The Complainant referred to the Labour Court’s decision in An Employer v. A Worker (Mr O)(No. 2) [EED0410] on the two tests for a valid constructive dismissal – the contract and reasonable tests. She points to the fact in this case that the Complainant was not penalised for failing to enact the Respondent’s grievance procedure, she also mentioned Allen v. Independent Newspapers (Ireland) Limited 202 ELR 84 and Monaghan v. Sherry Brothers [2003] ELR 293, in this respect, and the non-sympathetic and less than supportive manner of the Respondent on her return to work and where misconduct went unaddressed, un-investigated and unresolved. She also referred to Kennedy v. Foxfield Inns Ltd [1995] ELR 216 and Richardson v. Avant Shipping UD 145/07. Discrimination In relation to Section 6(1) of the Employment Equality Acts, 1998 -2008, the Complainant relied up on the rationale as cited in Ntoko v. Citibank [2004] ELR 116 regarding the nature of discrimination “a person who discriminates... |
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