Redress / constructive dismissal after grievance?
- Thread starter messyleo
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That would depend. This person might have a previous form and reputation for causing trouble.
Can we assume the internal disciplinary procedure didn't find sufficient evidence to support a dismissal? If so, forcing a move on them now could be seen as vindictive / grounds for constructive dismissal. Limited information to go on here, but sounds like the company haven't handled this as well as they might. A change of role might be reasonable, but it should have been done before the conclusion of the disciplinary process.
Thanks other leo (this might get messy 
)
I can see your point here and it hadn't ocurred to me. I would still think that to be unfair from my POV, but of course, HR will be most interested in the legalities and liabilities.
This is helpful information to have when HR come back to me on it - I'll give them 2 weeks and see what they say. Maybe I caught them on the hop at the meeting and they wanted not to get into it so kept the prospects positive. If they do their homework, they probably won't want exposure by moving Tracey and I may be back to square one.
)I can see your point here and it hadn't ocurred to me. I would still think that to be unfair from my POV, but of course, HR will be most interested in the legalities and liabilities.
This is helpful information to have when HR come back to me on it - I'll give them 2 weeks and see what they say. Maybe I caught them on the hop at the meeting and they wanted not to get into it so kept the prospects positive. If they do their homework, they probably won't want exposure by moving Tracey and I may be back to square one.
I'd agree with you, management & HR may now realise they dropped the ball here and need to figure an acceptable way out for all.
Would definitely agree with this.
OP mentioned in first post
which seems an awful long time ago to only be revisiting the situation now. Would understand doing so if there had been further problems in the meantime but this does not appear to be the case.
The grievance process was vey long and stressful. After it I was focussed on moving on and recovering my own strength again.
I had assumed something was in the works and there would be a move or action of some sort, but this never seemed to happen. There have been a couple of minor issues since - many would see these as Lightweight but in the context of our previous history I believe it puts them in a different light to be frank. If I made a grievance about them, they probably wouldn't be upheld as serious enough by themselves - it seems the fairness of processes are stacked against genuine victims at times, while the tricky customers get handled with kid gloves
I had assumed something was in the works and there would be a move or action of some sort, but this never seemed to happen. There have been a couple of minor issues since - many would see these as Lightweight but in the context of our previous history I believe it puts them in a different light to be frank. If I made a grievance about them, they probably wouldn't be upheld as serious enough by themselves - it seems the fairness of processes are stacked against genuine victims at times, while the tricky customers get handled with kid gloves
That would be dangerous for the company.
If either party had been moved prior to the conclusion of the disciplinary process, it could be interpreted as a pre-determination of the outcome of the process. That wouldn’t be fair to either party.
It does look however as if the company took the path of least resistance by not moving Tracey. They were ethically wrong but this response isn’t unusual.
Waiting a year to request that Tracey be moved may be a little unusual but given that the issue is still weighing on your mind, the justification for doing so is still valid.
No, the move would be part of the process. The disciplinary process does not end until all findings are shared and any recommended actions are taken.
There would be no concern whatsoever defending this approach. I don't see how that could be an issue when the relevant legislation and the Code of Practice on Disciplinary Procedures includes the implementation of actions as part of the process.
You can't pretend that a disciplinary process is complete until such time as all recommended actions identified have been implemented. And you shouldn't implement any action until such time as those affected by those actions have been consulted and given the chance to respond.
Noodler
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I've had a somewhat similar experience to the OP (though I was the person who triggered the investigation) and heard this line all the time. I'm not sure what qualifies people to give this advice, and the more serious the misconduct the more inappropriate it is IMO.
Personally, I am very glad I ignored this advice and confronted my situation head on. It was without a doubt one of the hardest, riskiest things I've ever done - but it was ultimately also very rewarding. Sometimes it's important to stand up for yourself, or you'll be haunted by the fact that you never tried to do anything about it.
I completely understand why this stuff often doesn't end well. It's exceptionally tough, because you're likely going to be dealing with a dysfunctional system (e.g. lying, gaslighting, sham investigations etc). It can be a shock to realise that you are not just going up against an individual, you are going up against the company you work for and a system that just wants to pretend that nothing happened.
You really need to do your homework and ensure you have evidence (not just of the bullying, but also of procedural misconduct where applicable) - and you need to look at the different components of the law that interact with your situation. You need to pay for expertise and representation, while remembering that nobody else will provide you with a magic bullet. You need to do the work to be the expert of your own case. You need confidence in the legal strength of your claim (without bitterness or emotion), or you will crumble.
In the end, pushing something like this means that it is highly likely you will have to separate from your employer (and you will likely want to run screaming) - but you shouldn't suffer a financial hit because someone decided to harass you or because a complaint was handled inappropriately.
It's very difficult to offer the OP advice without knowing specifics of the situation, or understanding precisely how egregious the colleague's behaviour was. But I want to chime in to say that it is possible to take on this behaviour and come out the other end. I've lived it and it was both one of the worst and best experiences of my life. It ultimately depends on a cost/benefit analysis of your specific situation. For example, you may not want to be stuck in a yearlong battle over a job you don't like and a salary you can get somewhere else. That may not be worth the inevitable impact on your health.
Getting through something like this successfully usually requires a lot of support. I had a consultant, an accountant, a solicitor, a barrister, a doctor, a therapist, a mediator - and several good friends!
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Noodler
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Actually, it's not necessarily true that you can successfully sue someone for defamation in this case due to "qualified privilege".
If qualified privilege does not apply (e.g. due a failure to follow proper procedure), I highly recommend reading up on the precedent set in this case:
It is also worth remembering that people working in employment law are not necessarily experienced in defamation, so you have to do your homework.
IMO your goal should be to resolve your situation to your satisfaction using legal facts as leverage, without ever setting foot in court.
If you have a grievance against your own employer's handling of this situation, you really need to exhaust all internal procedures available to you before you consider going legal (or to the WRC). These processes feel like a sick joke when you are a genuine victim of something at work, but if you don't follow your company's policies first (however painful/inept), you will get nowhere.
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"sham investgations" - you hit the nail on the head noodler, I was shocked at how it seemed to be all brushed under the carpet! Doing the right thing by people doesn't seem to come into it - I don't know why they cover up the toxic behaviour though when it has serious impacts on the person n the receiving end. This seems to go "unnoticed"
How and ever, to update here, despite much chasing, and chasing and chasing with HR it seems Tracey doesn't want to move team. HR were very "ho hum" about it - nothing can be done and so forth. Lots of lip service given but no actual action.
I am resigned to resigning. And actively looking for a new role, I am restricted location wise so it's taking time, and I have had enough of Tracey, HR and the whole company at this stage.
I am seriously thinking of constructive dismissal now, and just leaving if I can't find something soon, and going legal on things.
Noodler
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I feel your pain. Unless you've been in the eye of the storm it's difficult for people to understand just how psychologically destabilising something like this can be. It's fairly shocking when you get to see behind the curtain of an incompetent workplace "investigation".
It sounds like your grievance at this point is really with the company. I think before you make a decision, you should speak to someone who can offer a professional assessment of your situation. Something like this first, as a solicitor is very expensive.
But please keep in mind, you cannot realistically pursue constructive dismissal if you have not exhausted internal procedures with your complaint. It sounds like you are quite hung up on their (lack of) response to a vexatious complaint against you - but it doesn't sound like you have formally pursued this. It's not enough to informally communicate this, you need to follow the same procedures that Tracey did.
Yes legal advice is my next step - hence my other post in the employment lawyer thread
I think I am stuck in a catch 22 though - I cant make a complaint purely that Tracey made a vexatious complaint against me as this was already investigated and found to be the case. Or so I was told. But honestly the more you dig into these processes teh more you realise you just get told whatever they think they can get away with and whatever you won't question, regardless of the facts.
Hopefully getting some legal advice will point me right before I do anything - an expensive route mind
I think I am stuck in a catch 22 though - I cant make a complaint purely that Tracey made a vexatious complaint against me as this was already investigated and found to be the case. Or so I was told. But honestly the more you dig into these processes teh more you realise you just get told whatever they think they can get away with and whatever you won't question, regardless of the facts.
Hopefully getting some legal advice will point me right before I do anything - an expensive route mind
Noodler
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Yes but its sounds like your grievance is now with the company and their response. It's no longer about Tracey, but about the company failing in its duty of care towards you. I don't know the specifics of your situation, but it sounds like that's the case you'd be making.
Questions coming to mind: Has Tracey has in fact changed her behaviour or are there recent incidents? What were the terms of reference of the investigation? Is this situation impacting your health? If so, have you communicated this to your employer? etc.
I recommend reaching out to a consultant before spending so much on a solicitor. You can get an honest general assessment and then decide how you want to proceed.
I know what you mean about the processes. But it sounds like you are not using them yourself, which puts you at a huge disadvantage. To actually succeed in something like this, you have to be prepared to engage in a very long, elaborate chess game. If you don't play the game, the game plays you.
Questions coming to mind: Has Tracey has in fact changed her behaviour or are there recent incidents? What were the terms of reference of the investigation? Is this situation impacting your health? If so, have you communicated this to your employer? etc.
I recommend reaching out to a consultant before spending so much on a solicitor. You can get an honest general assessment and then decide how you want to proceed.
I know what you mean about the processes. But it sounds like you are not using them yourself, which puts you at a huge disadvantage. To actually succeed in something like this, you have to be prepared to engage in a very long, elaborate chess game. If you don't play the game, the game plays you.
What do you actually want to happen? What preferred outcome do you want to pursue?
Only when you’ve answered these questions definitively should you then consider whether your preferred outcome is worth the thousands of euro it will cost to achieve.
On another point, the WRC applies a time limit of six months for submission of a complaint. You may have missed the boat anyway.
Sounds very expensive. The outcome would need to be extraordinary.
Noodler
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From what I can see, the OP has not yet made any formal complaint.
Extraordinary? Perhaps, I don't know. I've only experienced this once and hopefully never again. It really depends on the specifics of the case. In my situation, it was certainly worth it.
The legal fees are the killer, but if you have a strong case the employer will end up paying most of them (as well as their own).
I should also clarify that the reason I had these expenses was in order to respond to threat/escalation after having made a complaint. I only got legal representation towards the end of my situation, when I needed maximum firepower.
I never went to the WRC or to court, thankfully. I think people would be surprised to learn just how crap WRC awards are. For example, in the case of constructive dismissal, the best you can get is loss of earnings between your current and next job.