Ireland’s biggest tobacco distributor has been ordered to pay €40,000 after trying to press on with a performance improvement plan for a worker who said she was sick with the stress of the job.
Upholding a complaint under the Unfair Dismissals Act 1977, a Workplace Relations Commission adjudicator wrote that she did not consider it “appropriate” that the performance review that led to the improvement plan was done without any reassessment of targets set before the manager was instructed to take time off for stress by her doctor.
The employee, Caroline McGarry, said she was forced to quit her job of 13 years with JTI (Ireland) Ltd because her bosses made no response of any substance to a letter she termed a “cry for help” – and she decided she had to make her health the priority.
The firm, the Irish arm of Japan Tobacco International, sells the cigarette brands Benson & Hedges and Silk Cut, along with Amber Leaf pouch tobacco and the Logic vape brand. It denied the claims.
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Ms McGarry’s barrister Cillian McGovern, who appeared instructed by solicitor Barry Crushell, said his client had suffered “significant stress and anxiety” as a result of cutbacks in her area of work during a global restructuring plan in 2019 – leading to “burnout”.
“I had always been busy. I took the responsibilities of the role seriously, but I started to have pressure in my chest, almost as though I was being sat on. I had increasing trouble sleeping – the thoughts of work, what had been done, what hadn’t been done, what should be done, kept me awake at night. It kept on building, kept on building,” she said.
She said her line manager in 2021 called her a “drain” because “there never seemed to be good news” – and said she was told in an early 2021 performance review that she “needed to project a more steady persona”.
“I went to my GP in February [2021] with the hope that ... it’d be a simple fix because I didn’t want not to cope. I didn’t want to go out sick. I didn’t want to put pressure on the rest of the team. I didn’t want to be not steady. I didn’t want to be a failure,” Ms McGarry said.
In April that year, her GP insisted strongly that she take time off, prescribed anti-anxiety medication and then “upped the dose”, she said.
She took sick leave for the effects of stress in April 2021 and resumed with a six-week “phased return” to the office at the end of July that year, the WRC was told.
Ms McGarry said she was “floored” when she was presented with an annual review for 2021 calling her an “inconsistent player” and rating her as “needs improvement” by a new line manager, Rebeca Crotty, in January 2022.
“[The call] needed to be cut short because I had my first anxiety attack in nine months afterwards,” she said, adding that her GP again increased the dosage of her anti-anxiety medication after this.
The complainant was notified that she was going to be placed on a performance improvement plan in April 2022, the tribunal heard.
Ms McGarry said her concerns with the review document that led to the PIP were “quashed” by management and she had to “put my head down and keep going”.
She said she suffered another anxiety attack when the performance plan based on that review was put to her, and that her further protests in an April 2022 email to the firm’s Ireland HR chief Linda Cramer, other than: “well received and noted”.
“I felt gaslit. I felt as though what I was experiencing wasn’t being recognised, that it wasn’t important,” she said.
She gave three months’ notice at the start of June 2022 and left at the end of that period, the tribunal heard.
“I realised I didn’t want to medicate to do my job, so to save myself and protect myself, I resigned, because no, I didn’t feel I had any other option because I didn’t want to relapse,” Ms McGarry said.
Appearing for JTI, solicitor Rachel Barry of law firm Arthur Cox argued that Ms McGarry had failed to invoke the company grievance process and so could not claim to have been constructively dismissed.
Mr McGovern said his client was “showed towards the door by being put on a PIP”.
In its decision, the Workplace Relations Commission found that the April 2022 letter “clearly raised grievances” which should have been escalated beyond line management and the PIP process, but “were not properly responded to or addressed”.
Adjudicator Kara Turner wrote that she accepted Ms McGarry’s evidence that the letter was a “cry for help” and noted evidence that the complainant had been “upset” at two subsequent meetings.
Ms Turner added that calling Ms McGarry an “inconsistent player” in the performance review that led to the PIP was “unfortunate and did not assist the situation”.
“Ms Crotty said that she didn’t think the complainant engaged in the PIP. I am satisfied that the complainant’s letter of 25 April gives context as to why this was the case,” Ms Turner wrote.
“This is not a case where the respondent was not aware of issues and difficulties on the part of the complainant and didn’t have an opportunity to address same,” Ms Turner added.
Ms Turner wrote that she was “not satisfied there was clear and open informal discussion” with Ms McGarry about her performance as required by JTI Ireland’s employee handbook, nor any reappraisal of the expectations after the complainant’s sick leave.
“In my opinion this was critical in the latter part of 2021 given the complainant’s time out of the business and the personal difficulties she had experienced,” she wrote.
Ms Turner wrote that the complainant had satisfied the legal test to establish that her resignation was reasonable, and that she had discharged the burden of proving constructive dismissal.
The adjudicator added that there was no contribution to dismissal on the part of the complainant, nor to financial loss, as Ms McGarry’s efforts to find new work after resigning were “reasonable”.
She awarded six months’ pay, €40,000, as compensation for unfair dismissal.
