02 Nov Failure to Investigate Complaint

A successful appeal to the Labour Court for a constructive dismissal claim resulted in the Adjudication Officer’s decision being overturned and compensation of €10,000 being awarded to a former Training Co-Ordinator/Instructor who had been employed by the Rehab Group for 17 years before she resigned in 2018 due to the behaviour of a colleague. (Ref UDD2026)

The Complainant was appealing a decision of an Adjudication Officer that had not upheld her claim of constructive dismissal, after she resigned due to the behaviour of a colleague (Ms X) in a toxic and dysfunctional work environment, which had not been investigated by her employer.

The Complainant said Ms X had a history of bullying and abusive behaviour towards colleagues that was directed against her from late 2017 onwards and outlined that following an incident on 04.01.2018, which gave rise to a complaint to her manager on 05.01.2018, she was forced to take sick leave due to stress and had no option but to resign on 20.04.2018 as the complaint was not addressed. The Complainant said she was subjected to an aggressive verbal attack on 04.01.2018 and had believed that she was submitting a formal complaint by putting her report in writing on 05.01.2018.

The Complainant was seen by the Company’s Doctor on 12.02.2018 who advised that she was unfit to return to work for a number of weeks but could engage with the Company.Following a meeting with the Complainant, her Manager and the HR Business Partner on 22.03.2018 to discuss matters, it was agreed they would revert to her by 09.04.2018., which did not happen.

The Complainant’s Manager then phoned her on 12.04.2018 regarding a work matter, and when was asked about the investigation, the Complainant was told that HR were in the process of appointing an Investigation Team.

The Complainant resigned on 20.04.2018, as she considered that the matter had not been addressed adequately in an appropriate time frame, and she had just needed it sorted prior to returning to work, and she had lost trust in her employer in this regard due to the inaction and delay in dealing with the matter promptly as per their Dignity at Work Procedure.

The Respondent indicated that the Complainant had not wanted to make a formal complaint when she reported the incident and it was not until the meeting on 22.03.2018 that she confirmed she wanted her complaint investigated formally. The process of appointing the Investigator had begun when the resignation letter was received.

The Respondent denied that there had been previous complaints made against Ms X, or that they understood that the Complainant had wanted the matter dealt with formally, prior to the meeting of 22.03.2018, or in any other way.

The Respondent did accept in hindsight that the Complainant should have been kept up to date and made aware of what was happening after the meeting of 22.03.2018.

The Respondent further contended that the Complainant had not exhausted all internal procedures available to her before resigning, as is normally required before a constructive dismissal claim can be successful.

The Court referred to the two tests that needed to be satisfied for a successful constructive dismissal claim i.e. whether a breach of the employment contract had occurred and secondly whether the behaviour of the employer was so unreasonable,that it was reasonable for the employee to terminate their contract of employment.

The Court accepted that all internal procedures had not been exhausted by the Complainant but noted with some concern that the Respondent had failed to adhere to its first class procedure for dealing with complaints of bullying. It was also considered that there were contradictions in how the Manager had viewed whether the Complainant wanted her complaint dealt with formally or not, given that she requested that it be put in writing, and furthermore that the Respondent appeared unwilling to have any conversation with Ms X, unless the matter was put in writing. The Court noted that it would be incumbent on a manager to speak to an employee as may be required when issues arise, as if this was not the case, there would be no need to provide for informal resolution to complaints

The Court found that the Respondent had not taken a reasonable and prompt approach in the four month period from the complaint arising through to the resignation, that had resulted in the Complainant being absent on sick leave and that a decisive early intervention could have assisted in a resolution and facilitated a return to work. The Court noted that the Complainant had made it clear that she just needed the matter dealt with so that she could return to work.

It was also noted by the Court that the only update the Complainant received after the meeting in March was due to another matter being communicated to her, and it was clear that there was no priority or emphasis being placed on having her concerns addressed.

The Court was clear that the behaviour of the Respondent in not dealing with the Complainant’s complaint in a prompt and appropriate manner was at a unreasonable level that allowed the Complainant to resign, and determined it was a case of constructive dismissal.

Compensation of €10,000 was awarded.

This case demonstrates the need for employers to take all complaints of inappropriate behaviour seriously, and for the need to be proactive and prompt in dealing with such matters. It is also very clear that this does not necessarily mean a formal investigation, and the facts of this case as outlined point very much to a lost opportunity to deal with the matter informally.

All organisations must ensure that they have a clear Dignity at Work Policy in place which incorporates both a practical informal resolution approach as well as a more formal investigation option.