Background:
The Complainant lodged a bullying complaint against her boss, Mr. Lyons, which led to an external investigation by the Respondent’s HR consultant. The investigator found no evidence of bullying, but the Complainant felt the investigation process was flawed. She was informed that her appeal could be directed to either Mr. Lyons or another involved manager, raising concerns about impartiality. Despite repeatedly seeking guidance on the appeal process, she was not provided with an appropriate alternative, leading her to resign. The Complainant claimed she felt unsupported and pushed out by her employer. In terms of background, she commenced temporary employment in January 2023, followed by a permanent role in February 2023 (albeit with less favourable terms initially). During the hearing, the Complainant’s representative argued that the matter escalated due to the Respondent’s failure to provide clear information regarding the appeal process, thus resulting in a procedurally flawed resolution to the complaint.

The Respondent refuted the bullying allegations, arguing that proper procedures were followed and an appeal process was available through the Complainant's employment contract and Employee Handbook. The Respondent asserted that had the Complainant formally initiated an appeal, it would likely have been outsourced by the HR Director. The CEO (Mr. Lyons) emphasised that although the Employee Handbook states that appeals should be submitted to management, this did not mean he and/or another manager would personally hear it; instead, it would have been outsourced. He stated that no formal appeal was received from the Complainant, and thus no process could begin. The HR Director confirmed he informed the Complainant that she could contact Mr. Lyons to initiate her appeal. The Respondent concluded that the investigation conducted by the external consultant found no bullying took place, and that the Complainant failed to utilise the available appeal mechanism, preventing any further review.

Finding:
The Adjudicating Officer held that Constructive dismissal requires the employee to prove that the employer's actions breached their contract and made their continued employment untenable. The Unfair Dismissals Act 1977 provides that an employee may resign without notice if the employer's conduct makes this reasonable. The Adjudicating Officer found that the employer failed the ‘contract test’ by not providing a suitable contact for the appeal, which breached the fundamental right of the employee to appeal decisions. The ‘reasonableness test’ was also failed, as the Respondent insisted the Complainant appeal to individuals previously involved in her case, which undermined trust. They concluded that these actions breached the implied obligation of mutual trust and confidence, constituting constructive dismissal. Given her subsequent employment, they deemed compensation of six weeks' pay just and equitable

Practical Guidance for Employers:

Employers should:

• Ensure Impartial Appeal Processes: Provide an unbiased and clear path for appeals, avoiding involvement of individuals previously connected to the original complaint.
• Communicate Appeal Procedures Clearly: Clearly communicate the appeal process and designate appropriate, unbiased contacts to prevent confusion or mistrust among employees.
• Document All Communication: Maintain records of all communication related to complaints and appeals to demonstrate adherence to procedures and ensure transparency.
• Offer External Review Options: Consider outsourcing the appeal process to an impartial third party when internal neutrality is difficult to guarantee.
• Avoid Procedural Ambiguities: Ensure that the Employee Handbook and contracts clearly outline the appeal mechanisms, avoiding vague instructions that may confuse employees.
• Maintain Mutual Trust: Foster an environment of support by addressing complaints professionally and avoiding actions that may undermine mutual trust and confidence.
• Adopt Fair Procedure Policies: Ensure that procedural fairness is applied consistently, adhering to the principles of the Unfair Dismissals Act(s) to avoid constructive dismissal claims.

The full case can be found here:
https://www.workplacerelations.ie/en/cases/2024/adj-00045068.html