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.

A Constructive Dismissal Story (Agnieszka’s Story)

constructive dismissal story

There’s a Polish woman (Agnieszka) from outside Maynooth who came to me one day about 15 months ago.

She told me a story I found hard to believe.

But I can assure you it was true.

She told me she came to Ireland about 12 years ago and got a job in a shop. Agnieszka was excellent at her job, friendly with customers and colleagues, worked hard and did everything that was required of her.

She got on well in the job, so much so that after 27 months she was promoted to manager of the shop. She continued to do a good job, and got great feedback from her bosses and from the shop’s customers, and her colleagues.

Then, approximately 6 weeks before she came to visit me, she was visited in her shop by the company accountant/financial controller (Phillip) and a director (Sinead).

“We need to speak to you urgently Agnieszka”, they said.

“No problem”, Agnieszka responded. “Nothing serious, I hope?”

“Actually, there is a serious problem which we have just uncovered. Can we speak to you in the store room?”

“Sure”.

Agnieszka was puzzled, but not yet overly concerned.

Once they entered the storeroom Phillip and Sinead quickly got down to business.

They told Agnieszka the gross profit margin for the last 6 months in her store was unacceptably low, and had dropped from 23% to 19%, and they concluded there must be a “serious problem” in the shop. As Agnieszka was the manager they were there to get an explanation from her.

Agnieszka was completely flummoxed and taken aback. It was like a bus had hit her. She noticed, too, that the demeanour of Phillip and Sinead was less than the usual friendly tone they adopted with her.

They told her they were going to have a meeting the next day at head office, and Agnieszka was to be there, but she was not told what type of meeting it was.

Agnieszka spent that evening and next morning worrying about the issue raised, and what might have caused the problem of the falling profit margin.

Could it have been an error with the stocktake? Could it have been a mistake in entering a delivery or invoice?

She was also concerned about the change in tone, and the way that Phillip and Sinead had spoken to her when they came to the shop.

The next day Agnieszka waited anxiously in reception at head office at 2.30 pm, waiting for the meeting.

She chatted with Sheila, the receptionist, trying to take her mind off the anxiety she felt in the pit of her stomach.

When Sinead and Phillip arrived, they immediately said to Agnieszka, “you can bring in Sheila to the meeting, as a witness”.

“Why do I need a witness?” Agnieszka asked.

“You might be more comfortable”, Phillip replied.

Agnieszka went in alone as she did not know Sheila very well, and, besides, she could not understand why she would need a witness if they were only going to have a meeting to try to sort out the apparent problem with one profit margin report.

Once inside the office it was clear that Phillip and Sinead had one thing in mind: Agnieszka’s resignation from her job.

They produced a sheet of paper, typed up, with a space at the bottom for Agnieszka’s signature.

It was a resignation letter. Agnieszka was stunned, and became upset.

They quickly pointed out that if she resigned they would give her a reference, and she could get another job easily enough; if she didn’t then there would be no reference and she would have great difficulty getting a job in Ireland again.

Agnieszka was astounded at the turn of events. She could not believe it. It seemed like a bad dream.

She had done nothing wrong, was in the job 12 years, had worked extremely hard and showed great diligence and loyalty, and, finally, it came down to this.

She refused to sign. No way was she signing that letter of resignation, it would look terrible, and she needed this job.

Her husband, Wojciek, had recently lost his job in a warehouse and she was the only breadwinner in her household, and they had two young children.

But the pressure mounted, the afternoon dragged on, the veiled threats became more explicit, and Agnieszka was reduced to tears.

After what seemed like the afternoon, but was probably no more than 1.5 hours, Agnieszka relented in order to have the meeting and the pressure stop, and just get out of there and go home,  and she signed her resignation letter.

Phillip and Sinead shook hands with her, reassured her she had done the “right thing”, and wished her well for the future, told her she would have her P45 and final pay within days.

The next day Agnieszka could not believe what had happened, and had a sick feeling in her stomach for weeks.

She began to do a bit of research online, and Googled terms like “unfair dismissal”, “constructive dismissal”, “forced resignation”, etc. The more she learned, the angrier she got.

Eventually, after some prompting from friends and Wojciek, she made an appointment to see me to see what her rights were, and what redress she may have, if any.

Constructive Dismissal?

It seemed to me that she had a strong case to bring a claim for constructive dismissal. The factors that would support her claim were:

  • The absence of a fair disciplinary procedure,
  • not knowing in advance she was being invited to a disciplinary hearing,
  • not being told she was entitled to representation,
  • not being given the chance to put her side of the story,
  • being pressured into resigning her employment,
  • not being given a letter in advance setting out the allegation in sufficient details that she could challenge it
  • being threatened with no reference if she did not resign and was dismissed.

I submitted a claim to the WRC for constructive dismissal and we were eventually given a hearing date approximately 20 weeks later.

Just before the hearing, a solicitor acting for the employer in this case contacted us and offered a derisory “nuisance” type sum of money to settle the claim.

I had to advise Agnieszka that I could not advise her to accept is, although it was entirely her decision.

She agreed with me, though, and the case went ahead on the scheduled day.

Constructive dismissal cases can be difficult cases to win because the burden of proof of an unfair dismissal shifts from the employer to the employee-remember it is the employee who has terminated the employment in a constructive dismissal case, not the employer.

There are certain required recommendations I would advise any employee contemplating bringing a claim for constructive dismissal. The most important one is that the employee should, if possible, exhaust any internal grievance procedure before resigning.

This did not happen in Agnieszka’s case. So, this was a concern, but not fatal as there is decided case law on this point which supports the proposition that it is not always essential.

Another factor she had to face in the hearing was she was the only witness to support her version of events. On the employer’s side Phillip and Sinead were going to put forward a consistent and different account of what happened at the fateful meeting where Agnieszka resigned.

The case itself was a tough one for Agnieszka because she had no idea whether the WRC adjudicator believed her account or the employer’s, and she was, to a large extent, on her own even though she had me with her to represent her.

She was still the only witness on her side of the dispute, though, and that’s never easy. But she was happy to get a formal forum where she could put her version of events, and describe how she felt about the way she was treated.

She was relieved when the whole ordeal was over, and she said she felt a certain liberation from having the chance to tell her story to an impartial adjudicator, even if she did not win the case.

Thankfully, that adjudicator was sufficiently impressed with her story and the explanations of what had happened, accepted that she was very poorly treated, and that she was constructively dismissed.

He also made a generous award-approximately 9 months’ salary-and was very pleasing to Agnieszka.

She was delighted, and felt vindicated.

She had been badly and unlawfully treated, stood up for herself, put her case before an independent adjudicator at significant personal cost, and the adjudicator had agreed with her.

Conclusion

It is worth repeating that constructive dismissal cases can be difficult to win, and each case will be judged on its particular facts and circumstances.

The facts of Agnieszka’s case were strong enough to support the argument that she was put under significant duress to resign and she was not given fair procedures or natural justice. For those reasons, she won her case.

I hear from people every week, however, who are considering quitting their job and wondering whether they will have a claim for constructive dismissal.

I always tell them the same thing, which is summed up in these two articles on my website:

15 Things You Should Know About Unfair Dismissal in Ireland

unfair dismissal-1

Are you confused about the law surrounding unfair dismissal in Ireland?

Do you know the difference between unfair dismissal and constructive dismissal?

You should, you know, before embarking on an unfair dismissal claim.

Or, if you are an employer, defending such a claim.

In this piece, I am going to give you 15 things in plain language to help your understanding, and prevent you taking out your metaphorical gun and shooting yourself in not just one foot, but both feet.

Let’s get started, shall we?

  1. The important acts are the Unfair Dismissals Act, 1977, which you can access here, and the Unfair Dismissals (Amendment) Act, 1993.
  2. Unfair dismissal arises when the employer terminates the employee’s employment; constructive dismissal arises when the employee resigns due to the conduct of the employer. In an unfair dismissal case the burden of proof is on the employer. In a constructive dismissal case this burden shifts from the employer to employee; this means the employee must prove he/she left the employment due to the conduct of the employer which he/she could no longer be expected to tolerate.
  3. You must bring your claim to the WRC (Workplace Relations Commission) within 6 months of the dismissal, unless you can show reasonable cause in which case you may be allowed 12 months by the WRC.
  4. Redress possible for the employee, if he/she wins, can be reinstatement, re-engagement, financial compensation.
  5. Financial compensation is financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances, subject to a maximum of 104 weeks remuneration. Receipt of social welfare payments by the employee is disregarded in calculating financial loss.
  6. An employee who is on probation, or who has less than 12 months’ employment is excluded from the rights afforded by the unfair dismissal legislation, although there are some limited exceptions, for example a dismissal arising from a discriminatory ground.
  7. A dismissal shall be deemed to be an unfair dismissal, unless there are substantial grounds for it.
  8. A dismissal will not be an unfair dismissal if it arises from one of the following: conduct, performance, redundancy, the employee being in breach of the law in order to continue in his position (eg loss of driving licence if it was essential to hold one to do the job).
  9. An employer must give an employee a written statement of the procedure to be used in dismissing him within 28 days of commencement of employment.
  10. You can also go to the Civil Courts with a common law claim of wrongful dismissal, but you cannot do both-you must choose between the WRC or the Civil Courts. A wrongful dismissal claim is basically a breach of contract claim, for example your contract of employment provided for 1 month’s notice and you only received 1 week’s notice. This is a clear breach of contract and allows you to go to the Civil Courts and sue for breach of contract/wrongful dismissal.
  11. If an employer is going to dismiss on the grounds of competence he should give the employee clear notice of the shortcomings, and sufficient time to improve. A performance improvement plan (PIP) is recommended, and I would recommend that this lasts for 6 months, or thereabouts.
  12. Even if an employee is to be dismissed he/she should be afforded fair procedures and natural justice prior to termination, unless situation if one of gross misconduct which may justify a summary dismissal. Here are 6 steps which should be taken in any fair disciplinary procedure.
  13. An employee on long term sick leave can be dismissed on the grounds of incapacity, that is, he/she is unable to fulfil the contract of employment. There are recommended procedures, however, before an employer should terminate an employee on long term sick leave.
  14. A decision making body such as the WRC or Labour Court will apply 2 well known tests to decide wither the employee was justified in leaving the employment in a constructive dismissal case.
  15. Being dismissed from your job can seem like the end of the world at the time. But some of the most famous, successful people were fired from their job at one time or another. Here is 10 ultra-successful people who were dismissed from their employment.

“I don’t know whether I have a case or not”

“I don’t know whether I should resign and forget about it”

Get professional advice before you take an action that you might regret later.

Timing is Critical for Employees Seeking to Stand Up For Their Employment Rights

timing

*Sigh*

Yes, I admit it. It’s trite and glib and a cliché to say that “timing is everything”.

You’ve heard it before, and from all types of people, in a variety of circumstances.

But it’s true.

Because the veracity of the statement was never clearer to me than when 3 employees came to me for help in the last 12 months.

Let me explain.

“You can keep your job-I’m not putting up with this”

Let’s call him Mick.

Mick was employed in the same job for nearly 20 years. A few years ago, the business changed hands and Mick had a new boss.

From day one, there were difficulties in their relationship, with regular disputes between them about minor things.

Eventually Mick felt the cumulative build up and drip, drip nature of disputes and niggles becoming too much.

He quit his job. After nearly 20 years.

Mick brought a claim for constructive dismissal.

However, it would have been a much stronger case if he hung on a little longer. Because he should have exhausted all internal procedures first, before quitting, even if it was a futile exercise.

This would have strengthened his case considerably.

If he came to me before she resigned, this is what I would have told him: to exhaust all avenues in the workplace and position himself as an employee who behaved reasonably and simply wanted to sort out the difficulties.

Remember, he walked away from any benefits that would have flown from his 20 year’s service, for example a substantial redundancy payment, if this arose in the future.

However, his timing was poor-he should have got advice before quitting, not after.

He settled his claim, but would have been negotiating from a far stronger position if he had obtained advice when he was still in the job.

Settlement/Termination Agreement

Jackie was also in the job a long, long time. She had a number of grievances and issues with the employer.

To put it simply, she believed the employer owed her a considerable amount of money under various headings. She was considering bringing a claim against her employer, having tried to resolve her issues internally.

Jackie came to me and I advised her about the various causes of action that may have been open to her.

I didn’t hear anything further from her for a while.

Then she returned and told me she had left the job and the employer paid her off. Jackie now wanted to bring a case against her former employer and was wondering about the strength of her case, and what it might be worth.

There was one major problem: when Jackie left the job, the employer, when paying her off, had Jackie sign a compromise/settlement agreement.

(I have written extensively before about waivers/settlement agreements/negotiated exits from the workplace. Take a look at “Avoid this costly mistake in your settlement agreement” and “The Minimalist guide to the tax treatment of employment law awards and settlements”.)

A fundamental part of all these agreements is the undertaking by the employee not to bring any claims or legal cases arising from the employment. Basically, the employer buys this peace of mind by paying the employee money and settling her existing claim, and any future ones.

So, when Jackie came to me I had to tell her that she could not bring any claim because of the agreement she had signed.

The timing problem here was that she should have ensured to obtain legal advice about what she was being asked to sign before she signed it, not months later when it was too late.

WRC had no jurisdiction

Jasminka was a Croatian nanny. She had a number of complaints arising from her employment including not getting rest breaks, excessively long working weeks, being on call and not getting paid, and not receiving the minimum wage.

By the time she came to me, it was too late. She was out of time to submit her complaints, only by a few weeks, but out of time nevertheless.

We submitted the claims on her behalf, but ultimately the WRC decided she was out of time (over 6 months), and there were no exceptional circumstances to justify an extension of time.

So, the WRC decided it had no jurisdiction to hear her claims.

 

These 3 cases illustrate clearly that, yes, timing can be absolutely critical for employees seeking to redress wrongs and stand up for their employment rights.