ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001698

Complaint for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00002351-001	03/02/2016

Venue: Ashdown Park Hotel, Gorey, Co Wexford

Date of Adjudication Hearing: 30/01/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background

The Complainant was employed as a Room Leader in a crèche from 22^nd February 2013 to 12^th October 2015. She was paid €525.00 per week. She has claimed that she was constructively dismissed and has sought compensation.

Complainant’s Submission and Presentation:

She stated that the Respondent failed to protect her by not properly investigating the constant bullying that was going on. She continued to voice her concerns about certain staff and their behaviour and they only received verbal warnings. An anti bullying policy was never put in place despite several requests. When she tried to approach management about her concerns and to set out in her evidence and to highlight poor practice she was made to feel that she had done wrong. There was poor support mechanism by management.

A colleague SH was placed in her room from 19^th to 23^rd January 2015 and she used abusive language and kicked chairs. But when the Complainant made a complaint it was ignored. Management were of the view that the Complainant was at fault. On a number of occasions she asked for the Staff Handbook but was not given a copy of it. A matter was reported to management in February 2014 but she felt that she was being put in her place concerning this matter.

While she was on maternity leave in July 2014 she spoke to the manager about her unhappiness with the treatment that her son had received and that she was going to take him out of the crèche. The manager’s only concern was that it would look bad for the crèche. Her complaint was never addressed. She raised concerns about poor practice in the crèche. There were no meetings with the supervisors. There was no whistleblowing procedures in place along with no anti bullying policy and no staff handbook already referred to.

There were numerous breaches of confidentiality e.g. the discussion about her son was made known to other staff, poor hygiene reported to management was referred to the Chef who confronted her.

The lack of dealing with all these matters led to her health deteriorating.

All these incidents built up over the years.

The Complainant told the Team Leader that she was resigning on Friday 16^th October 2015. On the following Monday she worked as normal and then a meeting with the Manager, Team Leader a note taker and the Complaint took place. This was a long meeting. The Complainant told them what had happened how this had built up that led to her resignation. The Team Leader asked could this be worked out? Matters could change. The Complainant didn’t believe that matters could change. It was actions by staff that had caused the problems. She had asked her Team Leader for help in the past but it didn’t happen. The problem staff were protected. Matters raised by her were brought back to her. She stated that she never said that the crèche was a bad place. She was branded a trouble maker. She overheard conversations about her. She accepts that they are old issues but they have continued. Staff had said very hurtful things about her and her mental state. She had no option but to resign her position because the Respondent did nothing about it.

She looked for work immediately. Three months after her resignation she got an Internship for 9 months, training as a volunteer. She has not worked since the internship ended. She is seeking compensation.

Respondent’s Submission and Presentation:

The Respondent stated that copies of the Staff Handbook were available around the premises with a “do not remove” sign on them. Others confirmed that the handbook was available. The Complainant had worked with the crèche before. She returned as a Room Leader. She was given a lot of support because she was a leader and had to deal with staff. The Respondent then commented on the incidents raised by the Complainant.

Incident 1: The Respondent spoke to the staff member and the outcome was that disciplinary action was taken and the sanction of a verbal warning was issued. That incident was not repeated.

Incident 2: The Team Leader investigated this and the three staff members denied any wrongdoing. There was no evidence to progress the matter. No further reports or incidents were notified.

Incident 3: A clear the air meeting took place and no further matters were raised.

Poor Practice: The matter of poor practice was not particularised by the complainant. She was not present at the incident and so was relying upon hearsay.

Breach of Confidentiality: Regarding breach of confidentiality the manager rejects that she told anyone else about these incidents.

Health: Regarding the impact on her health they stated that they were unaware that issues at work were impacting upon her health.

Resignation: They stated that on Friday 16^th October the Complainant spoke to the Team Leader about wanting to resign. She was asked why she wanted to resign but she was too upset to talk. She was asked to think about it and to talk to the manager on Monday. On Monday 19^th October 2015 she met with the Manager, Team Leader and a note taker. She was asked to tell them about why she had decided to resign. She went through all the issues that she had problems with. The Respondent reminded her that all these had been dealt with before. They told her that they didn’t want her to leave. They asked if they could do anything to alleviate her concerns. The notes of that meeting supplied at the hearing are all about the issues of the past that the Respondent believed were dealt with.

Their position is that the Staff Handbook was available to all staff and there were a number of witnesses to confirm this. They stated that no formal grievance had been raised. They stated that if she was so concerned about the bullying and harassment in the crèche then why did she bring her son into that environment.

The burden of proof rests with the Complainant in a constructive dismissal case. She had not established that she had no option but to resign. The complaint is rejected.

Findings

I find that in a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The claimant needs to demonstrate that they have no option but to resign. In addition there must have to be something wrong with the employer’s conduct.

In Tierney v DER Ireland Ltd UD866/1999 the Employment Appeals Tribunal (EAT) stated, “central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”.

I note in the EAT case John Travers v MBNA Ireland Ltd [UD720/2006] it stated, “We find that the claimant did not exhaustthe grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84) the High Court found that:

i) the onus is on the claimant to prove his case,

ii) the test for the claimant is whether it was reasonable for him to terminate his contract”.

The EAT in Donnegan Vs Co Limerick VEC UD828/2011 stated, “In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace”. Also the respondent’s conduct was “not so unfair or so damaging to the claimant’s rights and entitlements that she hid no option but to resign her position”

I find that the Complainant referred to many incidents that had been raised over the years that she believed were not properly addressed by the Respondent.

I note the Respondent believed that they had dealt with each of these matters as they arose and that the matters had concluded.

I find that the Complainant made reference to many incidents and made some general comments and statement concerning issues that had been raised but she believed were continuing.

I find that he Complainant produced no evidence to support that position.

I find that there has been a lack of specifics in these complaints that were dealt with in the past. These issues have remained in the Complainant’s mind and she has formed the view that they still are grievances. However these have been presented as generalities and they have lacked particularisation.

I find that conversations that she has had with management have been confused with the making of complaints.

I find that hard facts have not been established.

I note that the Complainant has not raised a formal grievance through the grievance procedure.

I note the conflict of evidence regarding the Staff Handbook. I note that the Respondent’s representatives were adamant that the handbook was available. On the balance of probability I find that the Handbook was available.

Even in the absence of the handbook I find that it’s reasonable to expect that a person would have some knowledge of how to raise a grievance.

I note that when the Complainant informed the Team Leader that she was contemplating resignation of Friday 16^th October 2015 she was asked to think about it over the weekend and to speak with the manager on Monday.

I find that after she had met with management following a long meeting she still decided to resign her position.

I find that the Complainant has not established the burden of proof needed in a constructive case in order to succeed.

I find that she has not established that she raised a grievance and that she exhausted the grievance procedure.

I find that she has not established that the Respondent’s conduct was such that she had no option but to resign her position.

I find that her complaint does not succeed.

Decision:

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the above stated reasons I have decided that this complaint was not well founded and that it fails.

Dated: 26^th April 2017