The case of O’Dwyer v A Respondent UD1232/2010 revisits the extremely difficult issue of workplace bullying together with constructive dismissal. It is an interesting decision in a number of areas and perhaps one could question whether the Respondent did deal with the attempts reportedly made by the Claimant to resolve her situation adequately. The Tribunal found that as the Claimant was ultimately on sick leave, that it would not have been appropriate for the Respondent to engage with her in relation to her second complaint. The Claimant’s claim for unfair dismissal in any event failed as she failed to discharge the burden she bore in respect of constructive dismissal.
The Respondent in this case was a travel agency with a small team. The Claimant commenced employment in 2005 and stated that she never received a contract of employment, terms and conditions of employment or grievance and disciplinary procedures. The Claimant alleged that the atmosphere within the Respondent changed in 2007. On 1st August the Claimant alleged that she saw an email exchange between two of her colleagues giving out about her and although upset, she did not make a complaint in relation to this. In August 2008 the Managing Director mentioned that there was a lot of jealousy directed at the Claimant from other staff. The Claimant saw further email comments on her colleagues computers and subsequently spoke to one of the perpetrators which made matters worse. Two days later the Claimant spoke to the Managing Director about two incidents and alleged that the Managing Director stated that it was only a small problem. The alleged perpetrator also complained to the Managing Director and said she was unwilling to return to work.
In February 2009 the Claimant tried to change her Saturday shift with one of the alleged perpetrators and received an offensive text in error from another colleague who subsequently apologised but the atmosphere remained very tense. The Claimant raised the issue directly with the Managing Director on 11th March 2009 and asked him to investigate and find a resolution to the matter. The Claimant alleged that the Managing Director did not revert to her. The Claimant alleged at thus point that none of the staff were speaking to her at this point and she felt totally isolated.
On 20th March 2009 the Claimant sent an official letter of complaint regarding her situation to the Managing Director and stated that he did not reply. On 11th April 2009 the Claimant again asked the Managing Director for help. The Claimant wrote again on 28th April 2009 and reminded her Managing Director of his responsibilities in respect of health and safety and bullying and harassment. She received no response. The Claimant subsequently went on sick leave on 19th May and was paid sick pay until August 2009. The Claimant stated it was normal for the Respondent to pay sick pay and wrote stating that she did not receive her salary for September or October 2009. The Respondent replied on 30th November 2009 stating that business was slow and enclosed a bank draft for the outstanding pay.
The Claimant resigned by letter dated 30th November referring to the “ongoing systematic bullying, intimidation and harassment to which I have been subjected by the company, its management and staff”.
- The Tribunal finds that there was no conduct on the part of the Respondent which would allow the Claimant to consider herself constructively dismissed. The Claimant did not discharge the burden she bore in relation to her claim for constructive dismissal.
- The Tribunal finds that there was no bullying or harassment of the Claimant within the meaning of law as only two incidents were put forward by the Claimant rather than a pattern of systematic and persistent behaviour. The first incident was a text message and the second incident was a tranche of emails none of which were addressed to the Claimant.
- The Respondent was not made aware of any allegation of bullying or harassment until 20th March 2009 and again on 28th April 2009.
- The Tribunal finds that the Respondent did deal with the first incident albeit the Claimant may not have been satisfied with the way it was dealt with.
- Concerning the second incident, the Claimant went on sick leave within a few days after the complaint was notified and the Respondent did not have sufficient time to deal with it.
- The Tribunal finds that it would have been totally inappropriate for the Respondent to engage with the Claimant in any procedure regarding the second complaint whilst absent from work on sick leave.
The Claim under the Unfair Dismissal Act fails.
Any thoughts on this case?