EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Patricia Barry-Relph UD980/14
- Claimant
Against
Health Service Executive T/A HSE West North West
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Dr. A. Courell B.L.
Members: Mr. D. Morrison
Mr T. Gill
heard this claim at Sligo on 15th September 2015,and 11th November and
12th November 2015, and 22nd February, 23rd February and 24th February 2016.
Representation:
Claimant: Ms. Laura Reid, Callan Tansey, Solicitors, The Law Chambers, 3 Wine Street,
Sligo, Co. Sligo
Respondent: Ms Mary Fay BL, instructed by Mr. Cian Beecher, Arthur Cox, Solicitors, Earlsfort Centre, Earlsfort Terrace, Dublin 2
This being a case of constructive dismissal it fell to the claimant to present her case first.
It should be noted both parties in this matter submitted a vast quantity of correspondence, including minutes / notes of meetings, emails and letters which were all opened to the Tribunal in full.
Claimant’s Case:
The claimant has many qualifications in social work and child protection and worked as a senior practitioner in A & E. She gained a lot of her experience in the UK.
She was encouraged to apply for and was interviewed for the position of Principal Social Worker with the respondent. Her place of work was in the North West of the country. She was offered the position in June 2011 but with a public service embargo she did not commence in her new position until 23rd January 2012. She told the Tribunal that she was really excited about returning to Ireland having worked in the UK for a considerable time. It was an honour to return to Ireland. She was mindful she had a lot to learn. The position had been vacant for twenty months prior to the claimant commencing in that role. Her job specification included working within the Integrated Service Directorate as part of multi-disciplinary teams delivering a co-ordinated approach to client care. Her role also included the Primary Care Social Work Service. Three team leaders reported to her. The leaders had been in acting up positions which carried additional allowances. They in turn managed social workers within their team. One team leader was responsible for learning disability services, another team leader was responsible for mental health services and the final team leader was responsible for older persons/hospital services.
On commencement of her employment the claimant reported to CON, General Manager. After three to four months, CON commenced maternity leave and FM assumed the role of Acting General Manager. The Area Manager was DMcC.
At her first meeting with the Team Leaders she was made aware that one Team Leader had applied for her position and was quite disappointed not to secure the position. Two Team Leaders had opposed her appointment. The claimant was quite shocked to learn of this and felt undermined and belittled.
The claimant became aware that she was on a lesser salary than the Team Leaders were on and raised this in a Memo to her General Manager and again felt undermined. She lost her appeal on this issue.
She prepared and addressed a Memorandum to DMcC on the social work team structure in which she believed there were a number of anomalies in relation to social work budget, blurred differentiation of internal operational structures leading to role ambiguity and lack of capacity within the administrative services to fulfil demands being placed on it.
The claimant spent eight months trying to access files and she experienced hostility from team leaders. She had concerns about the direction of travel the SLWC Social Work Service would take if it was moved out of her social work role and in this regard she emailed DMcC on 20 December 2012. Social Workers were not reporting to her. She made recommendations and devised a lengthy report.
In the first year of her employment meetings were held every two months.
As a tribute to the employees’ hard work the claimant set about organising a Christmas gathering. Because of the poor uptake from staff the gathering had to be cancelled. The claimant had no recollection of GT inviting her to his Team’s Christmas lunch. Just before Christmas time a secretary working in the administration area informed the claimant that a Team Leader had arranged a lunch but that the claimant had not been invited. The claimant felt that this was a deliberate exclusion. A separate Christmas lunch was also organised by two Team Leaders and the claimant was again not invited. The claimant was really upset and went on Christmas holidays. No Team Leader had communicated with her about the Christmas lunch. She felt humiliated, very hurt and ostracised.
In early January 2013 the claimant wrote to the three team leaders expressing her disappointment at not being invited to the Christmas lunch. She suggested a social work service staff team Development Day and invited the Team Leaders. In that letter the claimant also said that she would be attending team meetings when the social workers were present on a quarterly basis throughout 2013. She did not believe the language used was intemperate. She wanted to put on record that she had been undermined in her efforts by exclusion of the whole service. She was facing a year of being isolated. The three Team Leaders did exclude the claimant from their Christmas lunches. The rationale behind writing the letter was that she wanted senior management to be aware and for it to be put on the record.
On one occasion a Parliamentary Question required a reply. A Team Leader investigated it but the claimant did not know about it and was not prepared to sign the document. The Team Leader was very angry. The claimant contacted FM about the matter. His understanding was that because the Team Leader had understood it and investigated the matter, he failed to see why the claimant did not believe it.
The three Team Leaders were all different individuals. There was obstructive resistance from GB throughout 2012. He was very selective in the issues he brought to the claimant. He brought significant issues to FM. Clinical risk issues were not discussed with the claimant. The claimant found GB to be so unreasonable and she believed he was autonomous before the claimant commenced employment and she tried very hard to work with him. SOC was quite appreciative that the claimant had been appointed. BT had said at one point that he would get the claimant’s job.
GB one of the Team Leaders responded to the claimant’s letter of 7 January 2013. He was deeply troubled and hurt and asked for an apology. He was totally appalled at the totally unfounded allegations that were levelled at SOC, BT and himself in her letter. He said the claimant’s allegations amounted to a character assassination, personal and professional of the three Team Leaders. A full apology in writing was required.
Subsequently, FM telephoned the claimant and told her of the need to be rest assured and that he was organising a meeting. The meeting was set down for 10th January 2013 but the evening before GB suggested it be would wise to cancel and it was subsequently cancelled.
FM spoke to the three Team Leaders separately and he asked the claimant to apologise or there would be a grievance raised against her. The claimant believed FM had been influenced by the three Team Leaders, had formed a judgment and he was not objective when he met the claimant.
The claimant drew up an incident log which covered the period from commencement of her employment to date which outlined violations of dignity at work. She felt social exclusion in the workplace at her being appointed as Principal Social Worker. She considered she was being bullied.
She met with DMcC, Area Manager on 31st January 2013 and had a general discussion surrounding her role profile and lines of reporting. She needed the Team Leaders support and expected their support in line with her job description.
On 3rd February 2013 the claimant emailed DMcC. She felt FM was struggling and she did not have any hope that she would get her position back on course. She felt bullied but understood that while mediation was a very important tool given the history so far she did not want to go down the road of mediation. She wanted senior management to contain the situation. She was constantly being told of the requirement to apologise. She needed management to address issues directly with the three Team Leaders.
In mid-February 2013 DMcC met with the three Team Leaders together. The three Team Leaders wanted the claimant to withdraw her letter of 7th January 2013 and make a full apology or they would take a grievance complaint against her. DMcC suggested mediation to resolving the ongoing issues but the claimant expressed her reservations about mediation. DMcC also indicated that he would ask FM to appoint a person from HR to deal with the grievances. The 3 Team Leaders continued to threaten the claimant with initiating a grievance complaint against her if she did not withdraw her letter and make a full apology.
The claimant wanted to find a solution and took advice. There was lack of co-operation from the Team Leaders. They stopped reporting to the claimant. She was led to believe that the Team Leaders agreed to mediation. At a later stage the claimant became aware that BT and GB would not take part in mediation until they received an apology from her. SOC realised that they should talk through this.
The claimant was due to have a management meeting with the 3 Team Leaders. She proposed to continue running the Adult Social Welfare Service to get monthly reports. Neither BT nor GB attended supervision while SOC had been in contact. GB was not in a position to furnish the claimant with supervision files due to lack of reasonable notice. His area was down 2 posts and he had to undertake extra work. He had given a commitment to have them with the claimant by the end of January but this had been overtaken by events of the claimant’s making. He explained this to her in an email.
The claimant found the tone of GB’s email to be obstructive, hostile, threatening and disrespectful. She replied to GB’s email and copied it to FM and DMcC. The claimant proceeded to view the hospital supervision files.
Mediation continued on the table as a way forward and unbeknown to the claimant the 3 Team Leaders had attended mediation but she had not agreed to do so. She asked DMcC what the grievances against her were but these were never furnished to her.
On 19th February 2013 the claimant wrote to the three Team Leaders indicating that she was sorry that they had chosen to interpret what was communicated as a personal attack. She looked forward to their full co-operation and engagement in the development of the Adult Social Work Service.
On 3rd March 2013 the claimant wrote to DMcC with her concerns. She felt her relationship with her line manager FM had been compromised possibly because of his deep rooted and lengthy relationships with the three Team Leaders who continued to challenge the authority of her role. She was concerned that FM had met the three Team Leaders and had made up his mind before he met the claimant. He had said he would support the claimant but it seemed the support had evaporated. He did not appear to give merit to what the claimant had said.
On 4th March 2013 DMcC emailed the claimant and the 3 Team Leaders with a copy to FM. A mediator, CG was being appointed to meet with each of them on an individual basis. The mediation was voluntary. This came as a bolt out of the blue to the claimant. CG was available on 7th March 2013 to meet each person on a one to one basis. By this time the claimant had lost confidence in Management. She was being prevented from doing her job.
She emailed DMcC and restated her concerns re her role. She was being prevented from taking responsibility for the Hospital Social Work Department’s work by the refusal of the Team Leader GB’s co-operation on several issues.
On 6th March 2013 DMcC was insisting that the claimant go to mediation. In a meeting on Friday, 8th March 2013 with both DMcC and FM the claimant indicated that she was not prepared to undertake mediation at this point. DMcC accepted this as mediation was entirely a voluntary process. He said he would reflect on the overall situation and agree the next steps to resolve the current issues with FM the following week.
The purpose of the 11th March 2013 meeting was to go through role profiles and discuss other issues. Two Team Leaders spoke of the hurt and disappointment that the claimant’s letter of 7th January 2013 had generated. The claimant became aware that CG had conducted mediation with the three Team Leaders without the claimant’s agreement. DMcC said the system had to be restructured with a flatter structure. The claimant felt there were no need for a Principal Social Worker and her role had been dissolved. She took issue with that. As the claimant did not engage in mediation DMcC decided to refer the issues to HR for investigation given the allegations that had been made. He wanted everyone to have access to the necessary supports. The claimant’s job description was being reduced to two areas. She lost faith in management and believed they were trying to get rid of her.
In FR’s letter of 12th April to the claimant FR strongly advised all parties to agree to his proposal to engage the services of the LRC Mediation Service. The claimant had an issue with mediation. She did not feel it was appropriate and wrote to the respondent on 21st May 2013. In her letter she did not believe that matter could be addressed through a local HR investigation or mediation.
The claimant applied for reduced working hours. She had unexpected adverse and challenging life events which took their toll on her. FM made it very clear that she would be allowed to work these hours for six months.
Following the claimant’s analysis of the hospital social work supervision files her fears were reinforced regarding the possible historical organisational aspects of the lack of management oversight and clinical governance of the hospital social work service. Due to the limited information provided by Team Leader, GB, the findings were restricted. The claimant felt that the hospital social work supervision files would not bear external audit. She was very concerned regarding the content of the files. They fell short of clinical governance. She raised her concerns with DMcC on 8 April 2013.
The claimant was unaware until 8th August 2013 that DMcC had referred documentation and correspondence in relation to complaints/disagreements between the three Team Leaders and the claimant to JOD, Industrial Relations Officer to be dealt with under the HSE Grievance Procedures. The claimant felt that JOD had a conflict of interest and it was inconceivable that he was asked to carry out preliminary screening.
The claimant believed that any complaint raised should be sorted informally and that she should have been informed within seven days.
The claimant commenced a period of sick leave in April 2013 for approximately four weeks. As she had pre booked annual leave she did not return to work until 15th May 2013.
While the claimant was absent on sick leave she received an email from CON who had returned from maternity leave informing her that a meeting was scheduled for 4th April 2013. MB was available to attend the claimant’s Team Meeting.
The claimant and the three Team Leaders were strongly advised to consider FR’s proposal to engage the services of the Labour Relations Commission Mediation Service. The service was a voluntary process. The claimant, together with the three Team Leaders were urged to give serious consideration to FR’s proposal. The claimant believed the presenting issues were not about interpersonal relationships and the LRC was inappropriate to address the serious shortcoming of the adult social work service. She did not believe that matters could be addressed through a local HR investigation or mediation either.
During the course of a return to work meeting on 15th May 2013 the claimant became aware that the Team Leader for Intellectual Disability was now reporting to her. CON was concerned that the claimant felt unsafe and was reassigning her. The suggestion was that the claimant undertook research on the homeless in Sligo or she could work with MC. CON had looked at the audit the claimant had carried out.
By letter dated 23rd May 2013 from the claimant to FR she stated that she was of the opinion for any enquiry to be effective it should be seen as neutral. She saw no benefit in proceeding with an internal enquiry or meeting with CON or KL and also could not see how mediation could resolve matters.
At an informal meeting attended by the claimant, CON and KL the claimant was asked to withdraw earlier correspondence from the HSE system as it was FOI accessible as a journalist or one of the Team Managers concerned could access it.
By email dated 17th June 2013 from the claimant to CON the claimant pointed out that the information on the HSE system needed to be available for the HSE to carry out any investigation under the HSE’s Grievance and Dignity at Work Policy. She pointed out that no grievances had been raised.
The claimant received an email from CON on 17th June 2013 advising her that she was temporarily reassigned to work on the CAMHS Review for the next 3 months. As a result the three Team Leaders would report directly to CON on all HSE work related matters. The claimant’s principal duties were taken off her.
On 20th June 2013 the claimant took legal advice and her legal adviser corresponded with the respondent. She had lost complete trust in management and they failed to support her. There was no response to this letter.
As the claimant did not receive a response to the legal representative’s letter she felt she could not comply with a request to attend the CAMHS Review Meeting and communicated this to CON in an email on 2nd July 2013. CON replied that as the claimant was not accepting her instructions she would have to invoke the HSE’s disciplinary procedures for gross insubordination. The claimant then commenced a period of sick leave on 8th July 2013 until her resignation on 1st January 2014. She had lost faith in the respondent. The group of people assigned to investigate the issues were all former colleagues of senior management. The relationship with her Line Manager had broken down and she felt very unwell.
On 1st August 2013 she received a file of documents from the respondent. She was confused and wrote to KL enquiring when JOD had completed his investigation. JOD had not been independent. On 2nd September 2014 the respondent replied to the claimant’s letter and indicated that the respondent would be passing on the claimant’s correspondence to JOD in advance of her meeting with him regarding the investigation. This was not acceptable to the claimant as she believed JOD had a conflict of interest. She was not engaging with JOD.
KL wrote to the claimant on 6th November 2013 and stated that he believed that it would be in order to ask the LRC to provide assistance with the substantive matters of dispute. She had been out on sick leave during this time and did not respond to this letter.
A meeting was convened on 25th November 2013 to clarify the position regarding a grievance. The claimant attended that meeting with friend A. A advised that the substantive grievance was with senior management. Post that meeting the claimant wrote to DMcC indicating that she felt traumatised at the prospect of returning to the memories of past unresolved history in the workplace and her previous meetings she had attended with DMcC regarding these concerns.
By letter dated 10th December 2013 to the claimant DMcC clarified that the three team leaders had not formally lodged grievances with the respondent but advised the respondent of their concerns (which were in the nature of grievances) as part of the ongoing resolution process. They were anxious that the grievance process would commence so that all issues could be addressed and this process had paused for some time until occupational health felt that the claimant had recovered and was unable to participate.
The claimant wanted to return to work and retain her former position but had concerns reporting to CON. She was told she would have to report to CON. She could return to work in a different capacity.
On 12th December 2013 the claimant wrote to DMcC and said that the issues had not been resolved and she felt pressurised into returning to work.
On 31st December 2013 the respondent informed the claimant that they had secured two named individuals, JN and GC to undertake the investigation. They all worked with the respondent.
The claimant resigned her position on 1st January 2014. She did not want to resign or leave Ireland. She had never been told that he was a valued member of staff and no efforts were made by the respondent to ask her to stay. By the end of March 2013 she was not being listened to. She had been held ultimately responsible for the Service and it was nothing to do with personalities. She had been on half pay since the end of October 2013.
While the claimant had been absent on sick leave she was interviewed for a position in the UK. She had registered with a locum agency in the UK. She secured a full time position on 6th January 2014. Approximately a month after taking up her new position she suffered ill health and was on a period of sick leave for three months. In April 2014 she applied for a position in Tusla as she really wanted to work in Ireland. She came first on the panel but due to health issues and an unfavourable reference she did not secure that position.
Her employment in the UK was terminated on 1st December 2014 due to an extensive period of sick leave. She subsequently applied for numerous positions and she was looking for reduced hours. She secured a position on 3rd March 2015. She works a 30 hour week.
Respondent’s Case:
FM gave evidence. The claimant reported to him in the absence of her Line Manager, CON. In 2012 the claimant raised the issue of her rate of pay on the respondent’s payscale. On the 11th June 2012 he brought the claimant’s query to the Human Resources Manager (KL) who reviewed the matter. In November 2012 the claimant again raised the issue regarding her placement on the company payscale and cited the differences in monthly salary point between her grade, the 3 Team Leaders and 2 Senior Practitioners. FM again passed on the matter to KL.
FM told the Tribunal he was surprised and shocked to see the claimant’s email dated the 7th January 2013. He had no prior knowledge of any issues with the claimant and the 3 Team Leaders. A Team meeting was scheduled for the 10th March 2013 and having obtained advice from HR a decision was made to cancel the meeting. FM decided to meet the claimant and the 3 Team Leaders individually. FM had previously arranged to meet with one of the Team Leaders – BT and he took this opportunity to discuss the contents of the claimant’s email. FM then met with the other two Team Leaders – GB and SOC. On the 14th January 2013 FM met with the claimant.
FM told the Tribunal he had tried to meet the claimant before this but she was unavailable. At this meeting he did say to the clamant that the three Team leaders would require and apology and it “seemed clear” that claimant wanted to “start over”.
On the 18th January 2013 he again met with the claimant. Since the previous meeting the claimant had sought legal advice and did not want to “start over” again. FM said the claimant’s tone had changed and the claimant felt he had failed the process by meeting with the three Team Leaders before herself. FM felt there had been a breakdown in trust and told the claimant that no matter what he did she may feel he was biased and informed her he would refer the whole matter to DMcC. FM also notified the three Team Leaders of his decision.
On the 11th March 2013 FM attended a meeting with DMcC, the claimant and the three Team Leaders. FM told the tribunal he felt the meeting was constructive. When asked, FM said GB had raised the issue of the “elephant in the room” but he felt the comment was in no way threatening towards the claimant and did not think GB was in any way aggressive.
On cross-examination FM said he was aware the appointment of the claimant had opposed by two of the Team Leaders who the claimant subsequently managed but did not believe it was an issue.
When the issue of the Parliamentary Question (PQ) was put to FM he explained an issue had arose in June when GB received a letter of complaint regarding a client’s case. At the time his Manager, the claimant, was absent of sick leave. The matter was dealt with in her absence. However, the same complaint was submitted to the Minister which resulted in the PQ which was sent to the claimant in September. GB asked the claimant to sign off on the PQ but she refused.
When put to him he said he felt mediation would have been a “good tool” to assist in resolving the issues between the claimant and the three Team Leaders.
CON gave evidence. She first met the claimant in December 2011 which was prior to the claimant’s appointment as Principal Social Worker. The claimant’s first induction meeting was a three-hour duration held in January 2012. CON also met with the claimant in February and March before she departed on maternity leave in April 2012.
CON told the Tribunal she was aware the claimant was new to the organisation and gave her a list of people she should meet during her induction.
CON returned on the 3rd April 2013 and DMcC briefed her on the claimant’s email of the 7th March 2013 also the meeting that had been scheduled for April 2013 and the claimant’s request for a member of management to be present. CON emailed the claimant that day to advise her she had just returned from maternity leave and to inform her who from the management team would attend the team meeting the following day.
The claimant replied that she was on sick leave. (All emails were opened to the Tribunal). CON told the Tribunal she was taken aback by the claimant’s response.
The claimant returned to work and CON met her on the 15th and 16th March 213 to discuss matters. The claimant told her she felt unsafe in the workplace. CON told the Tribunal she was very concerned and felt she should discuss the matter with DMcC and the HR department. She also felt that as a protective measure it may be wise to re-assign the claimant temporarily. CON discussed the use of supervision files with the claimant. CON told the Tribunal that she felt a full audit of the supervision files was inappropriate with management names included.
CON met the claimant on the 16th May 2013. The claimant was quite angry at the meeting. On the 30th May 2013 CON and KL met with the claimant informally.
On the 11th June 2013 a CAMHS Review was held with the claimant in attendance. The meeting did not go well and there appeared to be a lot of confusion regarding personal roles. On the same day CON sent a memo to the claimant regarding her return to work meeting. The claimant was also informed the three Team Leaders would now report to her, CON and the claimant would be temporarily assigned to CAMHS Review. When asked, CON said after this time she was absent on leave, this could be the reason the claimant did not receive the memo for a few days.
CON wrote to the claimant on the 14th June 2013 and met with her on the 18th June 2013. Correspondence then crossed between the claimant and CON during June and July 2013. CON told the Tribunal that she had allotted the claimant work to preform which the claimant objected to, had points of issue and wanted clarification. CON said she was very frustrated at this point and could not understand why the claimant could not concentrate on carrying out the duties she had been assigned.
In cross-examination CON said she had told the claimant she would invoke the disciplinary procedure if she did not attend another CAMHS Review but she, CON, never invoked the process. CON stated, when asked, that it had been the claimant’s suggestion to be re-assigned. The claimant had told her she had worked on CAMHS when employed in the UK.
When asked, CON said she did not take part of the investigation process. When put to her she agreed that the three Team Leaders had remained working in their positions while the claimant had been re-assigned. CON told the Tribunal that “they could not have moved all the Team Leaders from their roles, “it was a difficult time.”
CON told the Tribunal that she felt she had no option but to progress the matter further. She had wanted to claimant to “get on” with her work but the claimant refused to work under protest.
DMcC, the National Director of the respondent company gave evidence. He told the Tribunal he had spoken with the claimant at various meetings and a Christmas lunch and no issues or concerns regarding her work or her colleagues had been raised by the claimant. Consequently he had been very surprised to read the contents of the claimant’s letter dated the 7th January 2013. Efforts had been made to resolve the issues between the claimant and the Team Leaders and the claimant’s other concerns, but to no avail. FM then referred the matter to him.
On the 31st March 2013 he met the claimant and then met the three Team Leaders and tried to bring a “team intervention”. The three Team Leaders agreed to take part in the mediation offered to them, the claimant refused. When asked, DMcC said at no point did he make mediation conditional to an apology being given. He had told the three Team Leaders that they could lodge a formal grievance against the claimant if they so wished.
DMcC told the Tribunal that as the informal process was not working, a formal process had to be invoked. The suggestion of the services of the Labour Relations Commission was offered but was never taken up. The claimant still contested she had no grievance.
In July 2013 the claimant went absent on sick leave and never returned to work. DMcC told the Tribunal that during this time the respondent remained in contact with the claimant to resolve issues and get her back to work. The claimant resigned in January 2014.
KL, the Employment Relations Manager and Deputy Director of Human Resources, gave evidence. His first contact with the claimant was in relation to her query regarding her salary.
KL’s next involvement was in May 2013 when he attended an informal meeting with CON and the claimant. KL told the Tribunal that the claimant had cited in previous correspondence that she had no inter personal difficulties at work but by May 2013 her position appeared to have changed.
On the 1st August 2013 KL wrote to the claimant informing her two investigators had been appointed. On the 14th August 2013 the claimant replied to him acknowledging a file she had received with neither a covering note or an index. Also in this letter the claimant questioned the appointment of JOD and his screening of documentation regarding her issues, when she had previously cited him in her complaint.
Correspondence crossed between the claimant and KL with the Labour Relations Commission being suggested to assist in the matter. At this time the claimant was absent on sick leave. KL told the Tribunal that he had discussed the matter of the claimant’s absence on certified sick leave with Occupational Health and was advised not to organise any meetings with her at that time. However, by late November KL was advised by Occupational Health that a meeting with the claimant could be arranged.
On the 25th November 2013 KL and DMcC met the claimant to clarify the position of any grievance she may or may not have and to discuss options as to the claimant returning to work. The claimant was asked to consider other areas of work she was interested in with a view to a return to work and to reflect on the grievance raised and revert back to them.
KL told the Tribunal that was his last involvement in the matter.
On cross-examination KL explained the screening process JOD carried out was “just a desktop exercise”, looking at the claimant’s letter of complaint. KL said he did not feel JOD was in any way biased and felt JOD’s recommendation was a reasonable one.
KL said the claimant’s complaint was “exceptional”. Initially the complaint involved the three Team Leaders then it evolved and included the two managers who had investigated the initial complaint by the claimant.
When put to him that the claimant had a number of issues and a terms of reference for an investigation would have been helpful to assist the process, KL replied that terms of reference were not a requirement under the company’s procedures.
KL refuted there had been a “lot of talk and no action” in respect of addressing the claimant’s issues.
When put to him that there was a failure by management to deal with the substantive issue and the claimant’s issues with management, KL replied that the claimant could have addressed all of these at the Labour Relations Commission, had they attended.
Determination:
This is a constructive dismissal case and the burden of proof rests with the claimant. There was agreement between the parties representatives in relation to the relevant legal principles to be applied to the case. The Tribunal is required to look at the reasonableness of the claimant’s decision to resign from her employment. This issue raises the question of the reasonableness of conduct of the employer and also, whether, or not, the claimant had raised her grievance with management and given them an opportunity to respond before terminating her employment.
The background to the case was that the claimant had complained about her exclusion from the Christmas party in an e-mail dated January, 2013. The e-mail was unusual in that it identified a number of matters about which the claimant was unhappy but it did not directly raise a grievance. The evidence indicated that the claimant wanted these matters dealt with informally. She also raised an issue in relation to her access to supervision files and after some delay this issue was resolved.
With regard to the other issues which the claimant raised with her employer, she made it clear that she wanted management to address the issues. However, she did not specify how she wished this to be achieved. FM attempted to deal with the issues she had raised. However, the claimant she objected to the involvement FM in the process as he had met the three team leaders before her. The claimant was then offered team intervention, which she rejected. Mediation was suggested but the claimant refused to attend. When the LRC was suggested the claimant also declined.
The claimant never elected between a grievance or a dignity at work procedure. She wanted management to simply back her up. Having carefully considered the evidence adduced by both parties, the Tribunal finds that the claimant did not give her employer an opportunity to deal with her complaints. The Tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she had failed to exhaust any of the several avenues open to her.
Accordingly the Tribunal finds unanimously that the claimant was not constructively dismissed from her employment, but that she resigned in January 2014. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)