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Employment Claims Employment Law Procedures and Policies

Don’t make the mistake of falling in love with your grievance

Workplace grievance?

I meet a large number of employees on a daily and weekly basis. The vast majority of them have something bothering them in connection with their job or workplace. 

A small number are simply seeking clarification about an aspect of employment law or their contract of employment or something related.

But most of them have some issue that is eating them up and causing them stress and anxiety. Some issue which causes them confusion and uncertainty and maybe even damages their confidence and sense of self worth. 

This may go so far as to have the employee questioning whether to stay in the job or move on or take some other course of action such as a career change.

Occasionally, however, I encounter a small number of employees who seem to have fallen in love with their grievance. They appear to have developed a highly attuned sense of being wronged. 

These persons appear to be happier being in conflict with their employer, especially if they have actually been wronged as a consequence of the employer making some mistake in dealing with them, rather than sorting out the issue and moving on.

These employees, rather than being committed to a quick resolution of the problem that has arisen, want to prolong the situation and want to nurture their sense of being ill used. Some even want to watch the employer squirm and bend over backwards to accommodate them.

Fair enough. Human nature is human nature and we all, from time to time, take satisfaction from watching the other party abase themselves to try to make amends for some slight or wrong.

But this can be a dangerous game, one which can backfire. The long term relationship between employee and employer can be damaged beyond repair, especially if the employer has taken great steps to sort out the problem.

I only encounter this on an infrequent basis. But there appears to be a healthy number  of individuals who would rather drag their grievance around with them like a clanking chain than arrive at a solution and move on to normal resumption of the employment relationship.

This is a mistake which should be guarded against. You need to pick your battles and ensure that you do not make the mistake of winning a battle and losing the war. 

It is the long game you need to keep in the forefront of your mind, not some short term win which may carry hidden costs.

Categories
Employment Claims

3 frequent mistakes employees make regarding their rights in the workplace

Are you an employee? Have you a problem or issue regarding your employment?

I receive a large number of queries from employees every day of every week and I notice the same sort of mistake being repeatedly made from employees at all levels of an organisation. These mistakes are understandable, but avoidable, and in this piece I will identify 3 such mistakes.

1.Failing to distinguish between a grievance and a breach of a legal entitlement

The rights of employees derive primarily from the constitution (Bunreacht na hÉireann), statutes on the statute book-for example, the Unfair Dismissals Act 1977-and the contract of employment between employer and employee.

If you cannot place your issue firmly and unequivocally into one of these 3 categories then the only route open to you may be to make a grievance internally in accordance with the grievance procedures in the workplace.

This may or may not produce a satisfactory outcome for you and there are other factors to consider, also. For example, your grievance may not be upheld and your relationship with the employer or a colleague may be degraded.

So, it is vitally important that you know whether you have a real remedy open to you or you may choose to fight a different battle on another day.

I have written articles about this topic previously, including this one: Have you a genuine employment case or merely a grievance? Answer these 4 questions

2. Mistaking occupational stress with actionable workplace stress

There is a gulf of difference between ordinary occupational stress and the type of stress that causes a psychiatric/psychological injury and leave the employer open to a negligence claim for damages arising from the injury.

The Courts have repeatedly held that occupational stress is normal and acceptable. Work is not play or recreation and there is bound to be a certain amount of stress involved. This is not enough to allow you bring a claim which might succeed and it can be easy for the employee to misunderstand this.

For example, I have had employees complaining to me about the stress arising from a workplace investigation or disciplinary process. I have to explain that I recognise it is certainly a stressful time but the employer has an obligation to investigate certain matters in the workplace-for example, allegations of bullying or sexual harassment or theft or gross misconduct in the workplace.

Sometimes, it is tempting to point out to an employee, “dude, you are accused of stealing €19,500 worth of stock/sexual harassment/bulling/discrimination/misconduct-of course the employer is going to investigate and, yes, of course it is stressful, but you cannot sue him for the stress”.

But no matter how tempting I have to calmly and patiently explain the difference between ordinary occupational stress and actionable stress that is so great that the employee’s mind has been overwhelmed and has suffered a breakdown.

Read more about  Occupational Stress and Actionable Workplace Stress-the Crucial Difference here.

3. Believing the contract of employment can only be interpreted literally

It is undoubtedly true that the contract of employment can only be changed with the consent of both parties, including the employee. This does not mean, however, that certain work practices cannot be changed by the employer, and such changes may not be contractual changes.

Also, there are certain terms implied into every contract of employment, even though they may not be express terms set out in the contract document itself. Some employees fall into the mistake of interpreting their contract in an extremely literal way and refusing to adapt themselves to changing circumstances in the workplace. This can lead to difficulties and tensions between employer and employee.

Conclusion

The three mistakes I discuss above are easy ones to make, especially for any employee who does not have frequent interaction with the law in general or employment law in particular. This is why it is a good idea to get some professional advice before you embark on a dispute with your employer, and why clarity is such a vital prize to seek.

If you don’t you may be picking a battle that you cannot win, or you might win but lose the war, so to speak.

Categories
Equality and Discrimination Health and Safety

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.