When It May Be Critically Important to Make a Grievance or Complaint in the Workplace

workplace grievance

Mary suffered in silence in her job for a long time-nearly 12 months, in fact. She was brave, and hard working, and stoic and just got on with it.

Her boss was a headcase, a bully with no regard for the dignity or feelings of those around him.

He wanted to get the job done, he wanted results, he wanted them now, and if you wanted to give him some cock and bull story or excuses, well ‘you know where the door is’.

At first, she joked with her husband and friends that she now worked in ‘Dante’s Inferno’. She called him ‘Lucifer’. The joke soon wore thin, however.

And eventually, Mary-or more accurately, her health-just broke down.

The first sign was her mood-it became irritable at home and she was much more inclined to snap at her husband and the kids. She was impatient and tired all the time and devoid of energy or interest in stuff outside work.

Then it insidiously crept into her bedroom and she had trouble sleeping.

At night her mind would race as she lay in bed thinking about what she had done in work that day, what she had and hadn’t achieved, what was on the calendar tomorrow, had she forgotten or overlooked anything, how long can she endure more of this crap, should she just quit and walk away.

She had worked hard for this career, did well in college, did well in her previous jobs, always performed well and had good performance reviews, and did well in this one until he-Lucifer- arrived.

At first, she thought it was just a personality or ‘style’ issue, a clash of approaches/cultures, and she was determined she would get used to him, and his moods. She would adapt. She was strong, resilient, tough. She hadn’t failed before.

Breakdown

One day in November, however, she just couldn’t face it. She was literally frozen with fear and apprehension and went to her doctor. Her GP listened patiently and sympathetically for 45 minutes while Mary poured her heart out. He told her he had no doubt- she was suffering from severe stress and anxiety as a consequence of the issues in the workplace and she needed a break immediately. He also referred her to a psychiatrist.

Six months later Mary came to see me. She was still off work and her condition had only improved very marginally. She could not see any way under the sun she could return to that job under that man and wanted to enquire about her legal options.

She told me the kids wanted their mammy back, and she could not see this happening if she returned to the same workplace. This time she felt she had to walk away. It simply wasn’t worth it.

She’d get another job. But had she any legal redress, she enquired.

The Legal Options

This type of situation is not uncommon and the most obvious options would be one or all of the following:

  1. A claim for constructive dismissal
  2. A personal injury claim
  3. A breach of contract claim

She had one major problem, however, no matter which way she approached the problem: she never complained. Not formally, not informally-she just ‘got on with it’.

To succeed with any of these claims she will have a difficult time overcoming the one fatal flaw in her case: the employer will claim ‘we never knew there was a problem, for she never complained’.

And this is a big problem for her.

No doubt, the employer should know what is going on in the workplace, and is obliged to know. But when the accusation is thrown at the employer the employer will argue that he acted reasonably and did what any employer would do in circumstances where no complaint was made: nothing.

Mary may claim that she did not get a copy of the staff handbook, or did not know how to make a complaint, or did not know what procedure to use, or did not know what the grievance procedure involved.

But this will be a problem. Since we were kids we know how to make complaint. And that complaint, at a minimum, would have helped Mary’s situation immensely.

It would have been better again if she had made a formal written complaint in accordance with the grievance or dignity at work procedure in the workplace. And if her complaint was not dealt with properly she could have followed up.

But she needed to complain. And then exhausted the internal procedures open to her. Because the problems she faces are as follows:

Constructive Dismissal

Generally, to win a claim for constructive dismissal, you must show you acted reasonably before quitting your job. This involves

  1. Telling the employer that you have an issue or problem
  2. Giving him the chance to rectify the situation
  3. Exhaust the internal procedure
  4. After this you can leave the job, bring a case for constructive dismissal, and claim that you acted reasonably by virtue of taking all the steps outlined here.

Otherwise, you face the problem of the employer saying, ‘he/she never told me there was a problem-we would have fixed it if we knew’.

Personal Injury Claim

To win a personal injury claim against your employer you need to show:

  1. You have suffered a personal injury-in Mary’s case, a psychological or psychiatric injury
  2. The employer was negligent

To prove the employer was negligent you will need to show that he did not act reasonably. This is easier to prove when you have made a complaint to the employer and he does nothing. Then you can claim he did not act reasonably, or at all.

But if you don’t make a complaint? It will be hard to prove the employer failed to act reasonably. And harder, therefore, to prove negligence and win your case.

Conclusion

I am not telling you that you should be making complaints or raising grievances in the workplace at the drop of a hat.

You are required to have a certain degree of robustness in the normal day to day activities in the workplace. There will be a certain element of rough and tumble in the normal interactions between human beings.

But if you at some point in the future want to bring a claim or legal proceedings against your employer, and you wish to prove you had no choice but to leave the job or suffered a personal injury and he is liable, you will need to show some evidence of difficulties in the workplace and your attempts to resolve the problem.

Suffering in silence is not advisable from a health or legal perspective. If you do there is a good chance that, as the old Turkish proverb goes, the dogs will bark but the caravan will move on.

What Melissa’s Story Can Teach Us About Bullying in the Workplace

workplace bullying ireland

When Melissa¹ came to see me she was very upset and was anxious to pursue her employer if that was possible.

Except she didn’t say ‘pursue her employer’.

She wanted to teach him a costly lesson and ‘put manners on him’. She wanted to take him into a metaphorical darkened room and give him a good ‘seeing to’.

To help me visualise what he looked like she told me to just picture Boycie, the second hand car dealer, in ‘Only Fools and Horses’.

Anyway, once she was seated and settled she told me her story.

Melissa told me that she was being bullied in work, nothing she did appeared to be good enough, she had enough and now wanted to see about taking legal action against the bully (her manager) or her employer, or both.

I asked her to tell me her story, the gory details. What she told me over the next 45 minutes was her version of ‘being bullied’.

Firstly, she told me she had been a loyal, hardworking member of staff for over 5 years and had never received a raise.

She also told me that recently she had looked for a day off because she had nobody to mind her child when the school was closed for a day. And her manager, the alleged bully, had made such a song and dance of it that you would think she was asking him to give her the rest of the month off, or something.

And then she told me about the nitpicking way her manager had of going on about her work.

Melissa was a member of the administrative staff and had to do a bit of debt collection, too, to chase up slow debtors. Her manager was forever pointing out mistakes or typographical errors she made but she made the point that she only made these mistakes because she was trying so hard and was under pressure.

Now he is criticising her for her phone manner in speaking with customers, now it’s the odd mistake in the letters she is sending out, now it is her time-keeping.

And then, he has mentioned the possibility of putting her on a PIP-a performance improvement plan-if her performance does not improve.

She had reached the end of the line with him and her employer and now wanted to bring a claim or legal proceedings to ensure the bullying stopped and ensure ‘others did not have to go through what I have to endure’.

And if she was compensated for the distress caused to her by her manager and/or employer, well all the better. She was finding it hard enough to make ends meet as it is.

I keep a box of tissues in the back office and had already placed them on my desk in front of her before she started telling me her story. Now, I had to give her my opinion and advise her about the prospects for any claim she brought against her employer. I feared the tissues would be now used more liberally for the news I had to give her was not what she wanted to hear.

Firstly, I had to tell her that not being given a pay rise for 5 years or thereabouts was very unlikely to be considered bullying behaviour. I explained that bullying behaviour is defined as:

“repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual‘s right to dignity at work.” (Health and Safety Authority)

Supreme Court’s view on bullying

The Supreme Court, in Quigley v Complex Tooling and Moulding Limited, held that bullying must be ‘repeated, inappropriate and undermining of the dignity of the employee at work’.

The Supreme Court, in 2017 in the Ruffley v Board of Management of St. Anne’s school case, held that the behaviour complained of must be repeated, a pattern of behaviour and the question of undermining the dignity of the employee is critical; such behaviours must be “behaviour which is inappropriate at a human level” and Mr. Justice Charleton said, “conduct is be judged according to the standard of human beings, and not of angels.”

I tried to impress upon Melissa that the conduct she complained of was unlikely to reach the required standard as confirmed by the Supreme Court. In fact, the manager making a song and dance of a request for a day off, while frustrating and annoying for her, is a one off event and cannot constitute bullying, unless it is part of a pattern of repeated behaviour.

I moved on to the question of mistakes in her work and the concern of her manager with her performance, particularly mistakes in letters going out or poor treatment of customers on the phone.

I had to tell her that any employer is entitled to expect a certain standard in the workplace and if the employee does not meet this standard then a Performance Improvement Plan is always a lawful possibility.

But that this was not, of itself, bullying behaviour.

Remedies for bullying

I then had to give Melissa more bad news in relation to her ‘case’.

And that was that even if she managed to surmount the high bar set by the Supreme Court in ‘Ruffley’ to actually prove truly bullying behaviour the options open to her by way of remedy also brought their own problems.

One remedy open to her, for example, was to bring a claim to the WRC under the Industrial Relations act 1969 claiming that there was a trade dispute between her and her employer insofar as the employer had failed to prevent bullying in the workplace. However, if the employer objected to such an investigation by the WRC, as it was referred under the Industrial Relations legislation, the WRC could not deal with it.

If this happened she could go to the Labour Court, but any recommendation in her favour from the Labour Court would be legally unenforceable-the employer could simply ignore it and the only way to enforce it would be through industrial relations action such as a picket.

Constructive Dismissal

A second remedy open to her would be to resign and bring a claim for constructive dismissal. I had to advise her that her claim had little chance of success as she had not exhausted the internal procedures yet.

Personal Injury Claim

A third remedy would be to bring a personal injuries claim. The difficulty with this is that she would have to prove she had suffered an identifiable psychiatric injury as the Supreme Court held,

“the plaintiff cannot succeed in his claim unless he also proved that he suffered damage amounting to personal injury as a result of his employer’s breach of duty. Where the personal injury is not a direct physical kind it must amount to an identifiable psychiatric injury.”

I was also obliged to tell her that this type of case was a difficult case to win, and would be slow and costly due to legal costs and expert medical reports required, including a consultant psychiatric report which would be relied upon to proved she had suffered an identifiable psychiatric injury.

Conclusion

Bullying is an easy allegation to throw around, and I hear it all the time, quite frankly. But from a legal perspective bullying requires a particularly high standard of proof and, according to the Supreme Court, “conduct is be judged according to the standard of human beings, and not of angels.”

Melissa was exceptionally disappointed but I would be doing her a grave disservice if I did not tell her what I made of her situation honestly and plainly. Last I heard Melissa had left that job and is happy in her new role which, fortunately, is closer to her home.

¹Please note: “Melissa” is not a real name, although the facts of the story above are true.

If you are unsure of your rights you may be interested in arranging a consultation to find out where you stand from a legal perspective. You can learn more about arranging a consultation here.

The 2 Big Problems With Claiming for Bullying in the Workplace

workplace bullying

Are you being bullied at work?

No, I mean really being bullied. As in repeated inappropriate behaviour which undermines your dignity as an employee.

Let me explain.

If I got a euro for every time an employee came to me and told me he/she was being bullied in work I would be a wealthy man.

But the vast majority of the time it what is described to me is not bullying, and will not fall within the legal definition of bullying.

For example, often, the employee will tell me she has been subjected to the disciplinary procedure in the workplace. There is two problems with claiming this is bullying:

  1. It is a one off situation, and not part of a repeated pattern of behaviour which undermines the employee’s dignity;
  2. Management is entitled to invoke the disciplinary procedure in the workplace, for obvious reasons.

So, being involved in a disciplinary procedure is not bullying, per se, although if it was part of a concerted campaign of inappropriate behaviour.

On other occasions, an employee will have an issue or complaint in relation to some aspect of their work, or terms and conditions of their employment. They will, correctly, invoke the grievance procedure in the workplace, but disagree with the outcome.

They simply will not accept the decision, as it was not what they wanted or expected. The disappointment is understandable, but bullying it is not.

Remember if you raise a complaint or grievance or bring a claim or legal proceedings there is a number of potential outcomes. One of these is that you will lose. You need to be ready for this, and ready to put it behind you and move on.

The legal definition of bullying was recently affirmed in the Supreme Court decision in the Ruffley v Board of Management of St. Anne’s School. Remember, we are talking about repeated, inappropriate behaviour which undermines the dignity of the employee.

What does this mean?

Firstly, the conduct complained of must be repeated. This probably means a period of at least 6 months. It is not possible to say, with any confidence, that a lesser period will not be considered bullying. But the point you must take from this is: the inappropriate conduct must not be a one off situation, or of short duration.

Secondly, the conduct complained of as bullying behaviour must undermine the dignity of the employee. What does this mean?

According to the Supreme Court decision the type of behaviour you must prove

must be outrageous, unacceptable, and exceeding all bounds tolerated by decent society.

This, clearly, is a pretty high hurdle to clear.

The Court also held that a certain degree of robustness is required of the employee in the workplace. Instruction, direction and even, on occasion, robust management, are all necessary in a workplace to ensure efficiency, that the work gets done, and health and safety in the workplace is maintained.

The treatment you endure at work may make you very annoyed, it may upset you from time to time, you may feel it is personal, you may feel it is bullying.

But from a legal perspective, proving bullying behaviour, according to Justice Charleton in the Supreme Court, must clear a high standard of proof:

“the test for bullying is of necessity to be set very high”.

The reason for this, I presume, is that for workplaces to function management must be able to manage and organise the affairs of the workplace safely, without facing frequent Court proceedings for perceived slights, give necessary direction and instruction, and, occasionally, robust management.

The Legal Redress for Bullying

There are two substantial types of claim (one more substantial than the other) you can bring arising from being a victim of bullying, assuming that you can prove that what you have experienced is bullying, as discussed above.

  1. A Claim in Civil Court

Your claim will be that a tort (civil wrong) has occurred.

You must prove that the employer has been negligent in failing to discharge his duty of care, discharging his duty to provide a safe place of work, that you have suffered a recognised psychiatric or psychological injury as a result of that negligence, and are entitled to recover damages. You would also claim that the employer is in breach of the contract of employment in failing to deal property and promptly with your complaints.

Going to Court is expensive and, in relation to costs, the winner takes all. (Elsewhere on my site I have set out what you need to prove to win your case in Court).

2. A Claim for Constructive Dismissal

This claim is brought to the WRC (Workplace Relations Commission) and involves you quitting your job and claiming that the bullying you have suffered in the workplace has not been dealt with by the employer, and you have had no real choice but to leave your job.

This claim does not have the cost implications of going to Court, but the redress you can be awarded is significantly less, too, as you cannot be awarded damages for pain and suffering.

You can only be awarded financial loss for your loss of employment. The amount of financial loos will depend on how quickly you get a new job.

Conclusion

You will see from the above that the two main options open to you if you are a victim of bullying in the workplace have inherent difficulties.

Going to Court is a high stakes endeavour with potentially high legal costs, a high burden of proof to prove bullying, and you must be able to prove you have suffered a recognised injury of a psychological or psychiatric nature.

Going to the WRC on a constructive dismissal claim will see you losing your job and only being able to recover your financial loss for being out of work between jobs.

The two big problems with commencing some type of claim or redress for bullying in the workplace are:

  1. Satisfying the legal proof required to prove bullying
  2. The difficulties associated with the avenues of redress open to you.

If you suffer from bullying you do not have to suffer in silence. There is action you can take to resolve the difficulty.

But it is probably useful that you are aware of the difficulties at the outset.

Bullying in the Workplace in Ireland-Supreme Court Raises the Bar to Successful Claims?

workplace bullying

Has the Supreme Court raised the bar to successful bullying claims with this decision delivered on 26th May, 2017?

Are you being bullied at work? A lot of people complain to me about bullying.

You would not believe the large number of queries I received from people about bullying, and allegations of being bullied in work.

Many of them are, quite frankly, misguided and do a disservice to genuine victims of bullying in the workplace.

I have written quite a few posts about bullying in the workplace, such as

  1. Workplace bullying and non-physical injuries-what you need to prove
  2. The High Court Ruffley case (Una Ruffley v Board of Management of St. Anne’s School).

I also wrote about the Court of Appeal overturning the High Court decision in the Ruffley case.

This case has recently been dealt with by the Supreme Court in May, 2017, and as the Supreme Court is the highest ranking Court in Ireland what it has held in the Ruffley case is well worth taking a look at.

The Court itself has held that “this novel case will set a benchmark for all bullying claims.”

So, if you feel you are being bullied and are considering a claim on the grounds of bullying in the workplace you need to consider carefully what the Supreme Court has to say.

The background to the case is that Una Ruffley was a special needs assistant in a primary school in Kildare, St. Annes. In January, 2010 she was disciplined by her employer, the Board of Management of the School.

Una Ruffley claimed that this disciplinary procedure was part of a bullying campaign against her, and had suffered a personal injury of a psychological nature as a result.

Ms Ruffley commenced a personal injury claim in the High Court and was awarded over €255,000 euros in 2014.

Judge O’Neill in that case held that she had been bullied as she was subjected to repeated inappropriate behaviour which affected her dignity at work, and Judge O’Neill accepted the definition of bullying as set out in para 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17/2002) as follows:

“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”

Appeal

This decision was appealed to the Court of Appeal and Judge O’Neill’s finding in her favour was overturned by 2 to 1. The reasons for this was the finding that in this particular case the Board of Management had not been guilty of the type of repetitive inappropriate conduct which undermined the right to dignity in the workplace for a period of over one year as was found by the trial judge.

One of the Judges stated that the absence of fair procedures on its own could constitute bullying; another Judge held that the behaviour had to be repeated and reasonably proximate in time.

These are obviously two completely different, contradictory opinions. For this reason, the appeal to the Supreme Court was watched closely by legal professionals because it was hoped that the Supreme Court would clarify the actual test of what constituted repeated, inappropriate behaviour-that is, bullying-from a practical perspective.

Appeal to Supreme Court

The Court agreed that the test for bullying, as set out in Quigley v Complex Tool and Moulding Limited [2008] IESC 44, was still the correct test. This means the conduct complained of must be

  • Repeated
  • Inappropriate
  • Undermining of the dignity of the employee at work.

The Court on this occasion held that each part of this test must be fulfilled on each occasion of behaviour which is argued constitutes a pattern of bullying, and found against Ms Ruffley and held that this case was not one that should have attracted damages.

The Court also distinguishes ordinary management from bullying, and holds that there is a certain degree of robustness expected from employees.

It is clear from this case that the bar over which an employee must jump to prove bullying has been raised.

The Court held:

Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary.”

It also clarifies that the conduct required to prove the undermining of the employee’s dignity at work must be outrageous, unacceptable, and exceeding all bounds tolerated by decent society.

Justice Charleton, in his decision, states that “the test for bullying is of necessity to be set very high”.

It appears from the Supreme Court decision in this case that it has succeeded in setting the bar high.

You can read the full decision ( Ruffley -v- The Board of Management of Saint Anne’s School, [2017] IESC 33) of the Supreme Court here-it is well worth a read.

Interestingly, Mr. Justice Peter Charleton states that

“Not every wrong, even one which results from unfair or unfortunate circumstances, gives rise to a cause of action.Given that the test for bullying is of necessity to be set very high, these are not circumstances which can attract damages.”

Employers’ Liability in Negligence Claims-the Essentials

employers negligence

“Duty of care” is a phrase that you will hear bandied about often.

What does it mean, though? What is the extent of that duty of care?

What happens if an employer is in breach of that duty?

Let’s take a look, shall we?

 

It is well settled law that an employer owes a duty of care to his/her employee(s). The employer’s duty is not an unlimited one though, and he is not an insurer.

He will have discharged his duty if he does what a reasonable and prudent employer would have done in the circumstances.

Therefore for an employee to succeed in a claim of negligence he must prove how and why the employer was in breach of his duty of care.

Courts have not laid down one single duty of care but have recognised that it will vary in the circumstances depending on the employee’s age, experience, knowledge, and the risks inherent in the particular type of work.

The Courts have laid down general guidelines as to the extent of the duty of care:

  • There is no obligation to warn of obvious risks
  • Reasonable care is what is required of the employer
  • An argument that an employer was guilty by omission will be closely scrutinised on the basis that it is easy to be wise with the benefit of hindsight.

Employers’ Liability in Negligence v Breach of statutory duty

The negligence action depends on whether the employer acted unreasonably or not. A claim for breach of statutory duty depends on the precise terms of the particular statutory provision and what is the duty set out. The Safety, Health and Welfare at Work Act, 1989 and 2005 looms large in this context.

An employee can sue for either or both of these causes of action.

Is the employer only liable for physical injury?

No, provided a duty of care can be established an employee who suffers a psychiatric/psychological injury or pure economic loss as a result of the employer’s negligence should be entitled to compensation.

Psychiatric Injury

An employer who is or ought to be aware that an employee is working under such pressures as to cause his mental health to break down owes a duty to take reasonable steps to deal with the problem. (Please refer to this article and this article for more information about non physical injuries in the workplace).

Property Damage

There is a reluctance of the courts to accept that the employer is liable for an employee’s property damage where there is no physical injury/damage. Therefore, it is clear there is an obligation on the employer in respect of physical injury but not property damage on its own.

Assessment of Employer’s Liability

The scope of the duty of care is generally assessed under 4 headings:

  1. The provision of competent staff
  2. The provision of a safe place of work
  3. The provision of proper equipment
  4. The provision of a safe system of work.

Competent Staff

It will need to be shown that the employer was aware of the staff incompetence. It may also be the case that failing to provide competent staff may fall under the heading of failing to provide a safe system of work through inadequate supervision of employees.

Safe Place of Work

The employer must ensure a reasonably safe place of work. The employer’s obligation is not to make accidents impossible, and it will be “a matter of degree and fact” in every case involving premises not under the employer’s control, for example, a worker visiting a house as a home help.

Again, the employer has a legal duty to take reasonable care to provide proper appliances/equipment and maintain them in a proper condition.

However, where the employer supplies a standard tool with a latent defect which he had no means of discovering, the employer may avoid liability in negligence if the employee is injured.

Safe System of Work

There is no definition of a safe system of work and safe will mean “as safe as reasonably possible in the circumstances”. This will obviously depend on the particular job.

Lifting weights would be a significant part of a safe system but at the employer only needs to take reasonable care to withstand a negligence claim the 3employhee will probably have greater protection from the various statutory provisions/regulations made concerning health and safety, lifting weights etc.

Ensuring a safe system in work would certainly involve proper training, depending on the job eg lifting weights, turning patients etc.

From an employer’s perspective, it is not enough to merely provide a safe system but he must ensure that the system is adhered to.

The provision of a safe system can cause particular difficulties for the defence forces and security firms.

Employer’s Negligence Must Have Caused the Injury

It is not enough to show the employer was negligent; the injured party must show this negligence caused the injury complained of and the injury was reasonably foreseeable.

The contributory negligence of the employee will be a factor in assessing any case but in an employment situation it will be the employer who will be setting the standard of care. Also, the junior status of an employee may prohibit him from complaining and an employee’s desire to get on with the job may be praiseworthy rather than amounting to contributory negligence on his behalf.

Voluntarily Assumption of Risk

It used to be a defence that the employee voluntarily assumed the risk; however, this defence has practically disappeared in cases of common law negligence.

Conclusion

The employer’s duty of care will be discharged if he does what a reasonable and prudent employer would have done in the circumstances.

If he has not done this he may be liable for an injury arising from that failure, provided the negligence caused the injury.