ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001459

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 27/09/2016

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The Respondent denies that it contributed to the Complainants termination. The Respondent is a Charity with the goal of reaching a 200,000 Euro contribution target each year. The Complainant was not entitled to sick pay under her contract and there was no verbal agreement to pay her sick pay. The Complainant raised two issues when her contract was presented to her prior to employment and these were agreed to by the Respondent. None of these issues related to being paid for sick pay. The Respondent has paid the Complainant on occasion for sick leave as a gesture of goodwill but it was always at the discretion of Management. The Sick Pay matter was subject to a WRC Rights Commissioner Hearing and the Commissioner found there was no entitlement to sick pay but did recommend the Respondent pay an additional two days. The Respondent had already paid 13 of 18 days sick. The Complainant was not harassed but as the employer the Respondent had the right to query her actions and performance. With regard to the Fashion show that was cancelled the Complainant decided to go against the advice of using a committee structure to get tickets sold and instead went with a social media campaign that sold only 35 tickets. The event had to be cancelled; a first for the Charity and it caused reputational damage with a donor who as giving the fashion show services free of charge. With regard to the Force Majeure day the Complainant “informed” the company that she as taking the day as a Force Majeure day and did not seek consent or approval. With regard to the Event that the Complainant said she knew nothing about she had nothing done on the promotion through social media up to the day before the event and it is not accepted that she knew nothing about the event , but instead did not fulfil her duties properly. With regard to coming into the office to admonish her, the Manager stated he would visit the Charities office once or twice a week normally for fifteen to twenty minutes each week. He did not specifically to admonish the Complainant as she was the only employee plus an Intern. The conversation related to the performance of her duties which he as, as her employer, entitled to do. The Complainant had never been the subject of disciplinary action and the relationship was good until the time she realised that she was not entitled to be paid sick pay. With regard to the phone all on December 1^st 2015 the Respondent acknowledges that the call took place but that it was not abusive or intimidating. The Complainant had the services of a HR Consultant on the sick pay issue and the company engaged with the HR Consultant to see could a resolution to the sick pay issue be found, which unfortunately it was not possible to do so. The Complainant was offered the services of Mediation, a former Chair of the Labour Court to mediate in her resignation. She refused to participate in this. The Complainant has never once invoked the grievance procedure (other than sending the sick pay issue to the WRC) and was written to on December 3^rd 2015 after she resigned to ask her to reconsider her resignation and that they would consider her absence as sick leave. The Complainant rejected this offer on December 4^th2015. The Respondent wrote to the Complainant again that day stating that if she had a “change of heart” regarding her resignation to call the Respondent.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section (1b) of the Unfair Dismissals Ac 1977 states” the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. The burden of proof, which is a very high one, is with the Complainant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, an Adjudicator must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract “if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

 If the Adjudicator is not satisfied that the “contract” test has been proven then it is obliged to consider the “reasonableness” test, “The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”.  When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate her contract of employment.

 In this case, in addition to satisfying the test set out by Lord Denning in Western Excavation (E.C.C) Ltd the Complainant, must also show that she exhausted the internal grievance process prior to lodging her claim with any external body. In that regard I quote on the case of Conway V Ulster Bank Limited UD 474/1981 where in the Employment Appeals Tribunal stated:-

 “In writing the letter of resignation, the appellant did not take the steps outlined in the grievance procedure. The Tribunal has long considered that such agreements, usually described as Union Management agreements, are binding on the parties because they chose to be bound by them”.

 The Complainant did not argue that it is not a mandatory requirement to exhaust the internal grievance process prior to commencing proceedings externally. In that regard they could have relied on the case of An Employee v An Employer 1274/2010 wherein an employee who had not exhausted the internal grievance process nevertheless succeeded in her claim for constructive dismissal. However, it is well established in law that the general rule is that a claimant must exhaust the internal process prior to lodging a claim with any external body. On occasion, and in very limited circumstances, when a claimant can prove, by the production of evidence, that the invoking of a grievance process would be a fruitless exercise the general rule can be displaced.

Following the detailed initial submissions by both parties, additional information was provided to the Hearing and the parties were given the opportunity, through the Adjudicator, to provide verbal contributions regarding the incidents in question. Following on from this part of the Hearing I went through the core issues, as I saw them, in the case to seek responses from both parties. I will now deal with these issues. The Complainant was asked whether her resignation was due to a single event or a series of events. She advised that it was a series of events. Therefore all the issues and their implications for her constructive Dismissal claim have to be considered individually and in their totality, as to whether “because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.  

With regard to the Sick Pay scheme entitlement there is no legal contractual entitlement for the Complainant to be paid sick pay. She advised she had a verbal commitment to this effect and said precedence supported her positon, yet she never sought to have her contract amended at the commencement of her employment or subsequently to document this change. The Respondent denied they ever made a verbal commitment to pay sick leave but that when it was done, it was as a gesture of kindness and as it was on a small number of days that they could take the cost but as they were not able to financially pay sick pay on an ongoing basis they could and did not give the Complainant a legal entitlement to it. This contractual position was supported by a previous Rights Commissioner decision, a claim taken outside the internal grievance procedure.

With regard to the Fashion Show issue, in my view there was a difference in approach as to how to approach this event between the Fashion Show service provider and the Complainant. The difference of opinion was not with the Respondent. The Respondent was entitled to question their employee as to why a freely provided event did not go ahead and to understand the reasons. This cancellation was a first in the history of the Charity and the Directors wanted to understand the causes of the cancellation.

As the Complainant said that the events that caused her to resign took place over a three and a half month period after she notified the Responded of her pregnancy, despite a multiple of emails being introduced as evidence by the Complainant, therefore showing a tendency to communicate between the parties in writing, the Complainant never raised any formal grievance about any of the issues she alleges contributed to her constructive dismissal.

With regard to the Director coming into the office to admonish the Complainant, when he knew she was on her own, I cannot see how a legitimate visit by a Director of a Company to their own office can be construed by the Complainant as being targeted. Given that there is no independent collaboration of the conversation that occurred that day and there are only two employees in the company, there is a difference of view with regard to the conversation between the parties.

The Complainant stated in her submission that “ I Explained that I would be taking time off as Force Majeure due to the emergency nature of my absence. The Director seemed exasperated by this and I though that maybe she did not know what Force Majeure was so I started to explain it”. This statement implies a knowledge by the Complainant of the law and yet she did not comply with the legislation by submitting the prescribed form as section 3 of the Parental Act 1998 Section 13.3 which states “

The respondent offered the Complainant the opportunity to rescind her resignation twice and the offer of mediation on the issue. This does not sound like the act of an employer who wants to get rid of an employee.

The Complainant advised that she went to her Doctor on December 1^st after the phone call. The Doctor wrote the following note given to the Complainant after the visit;

“To whom it Concerns,

(The Complainant) presented to our surgery on the 1^st of December 2015 in an acute state of anxiety secondary to on going issues at work. (The Complainant) is currently in the second semester of her pregnancy. Physical examination was normal but she describes how she has been under a lot of stress at work over the past few months”.

While I have every sympathy for the Complainant presenting to her doctor while pregnant this medical report merely states the Complainants view that she was under a lot of pressure and not a medical fact or reasoning that the Directors contributed to this stress.

The Complainant advised that at then end of the phone call that she feels was the last straw in the working relationship that “she was getting very upset and I can’t exactly remember how things ended but it took me a long tome to hang up the Phone”. After that phone conversation with the Director she stated in her submission that “I got very upset and stared crying, I also felt like I couldn’t breathe, I decided to step outside for a few minutes to calm down. Once outside I started to feel worse I was shaking, crying and couldn’t catch my breath. I then started to getting pains in my chest. It was at this point that I Tried to call (The Complainants HR Consultant). I felt overwhelmed and just wanted to get out of there”.

At the very end of the Hearing the Complainant produced, in writing an in extensive detail, a recount of the phone conversation with the Respondent that took place on December 1st. She documented this conversation the evening she resigned and after seeing her doctor. This is almost a verbatim record of events of the twenty minute phone call, from her perspective. It totals almost five pages and recounts in detail her version of the conversation. I am unable to reconcile how the Complainant can recount the detail she has recounted, given what she alleges she had felt that day and especially as she stated “she was getting very upset and I cant exactly remember how things ended” which implies she was in a state of distress during the call and that she had attended the doctor in such a stressed state that she resigned her positon.

During the hearing of this matter it was clear that the Complainant believed that she could not continue in the Respondent‘s employment. However, the burden of proving that it was due to the Respondents conduct that she had to leave, as stated above, is a high one and this was stressed to the Complainant at the commencement of the Hearing. There is a conflict of evidence in relation to many issues in this case. There is no evidence of the formal grievance process being invoked. I am satisfied that the Complainant, despite stating she had a series of grievances in bringing up matters with the respondent, did not invoke the formal grievance process.  

The Adjudicator finds that the ‘contract’ test “if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance” has not been satisfied as there are no breaches of the employment contract in this claim.

 In circumstances were the contract test has not been satisfied the Adjudicator must look at the ‘reasonableness’ test “The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”.  The Adjudicator finds that it was not reasonable for the Complainant to terminate her contract of employment in circumstances were she failed to invoke any grievance in relation to her concerns. Furthermore, the Adjudicator finds that the Respondent acted reasonably in their dealings with the claimant and was fair and objective at all times. No evidence was adduced before the Adjudicator which could lead the Adjudicator to conclude that the failure to invoke the grievance process was justified or that the Respondent was very unreasonable.. The Adjudicator also finds that the claimant’s reaction to the issues was disproportionate to the issues themselves. In summary the Complainants case for constructive dismissal was built on a claim for sick pay which she was not contractually entitled to, a dispute over a Fashion Show which does not seem to have been well organized, a dispute about Force Majeure which the Complainant was in breach of the Parental Leave Act 1998, a telephone conversation which she states seriously affected her and she could not remember how it ended but yet could recall and document the conversation in minute detail that evening and a medical certificate which recounts only her statement that she was stressed at work.

 As a result of all of the above analysis, I deem the Complainant’s claim for constructive unfair dismissal, pursuant to the Unfair Dismissal Acts, 1977 to 2007, is not well founded.

Dated:   18 November 2016