ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004939
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-00006777-001 | 02/09/2016 |
Date of Adjudication Hearing: 06/02/2017
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.
Attendance at Hearing:
By | Complainant | Respondent |
Parties | A Crèche Manager | A Childcare Company |
Background
The Complainant was employed as Creche Manager from 9th July 2009 to 2nd August 2016. She was paid €1,577.00 per month. She has claimed that she was constructively dismissed and has sought compensation. The Respondent operates a crèche within a retail company.
Complainant’s Submission and Presentation:
In 2015 a grievance was raised against the Complainant. She felt that the Respondent was not supporting her and she was still unsure what the grievance was about. After a full investigation it was decided that there was no case to answer. She was told over the ‘phone but she received nothing in writing. In July 2015 he had a meeting with the Operations Manager and she recommended that she meets up with the local manager (TMcD). At that meeting the local manager insulted her and put her down. She felt intimidated at that meeting. She felt that she was going to be bullied out of the job. She was afraid to speak up in case she would lose her job. After this her No 2 changed her attitude towards her. She felt that TMcD was breaking her spirit. It impacted on her work and home life. By December TMcD sent an email stating she was happy with the way matters were working out. She was informed that a revamp of the store and the crèche was going to happen, which pleased her. The revamp started on 10th April 2016 and they were to close for just 3 days whereas the main store was to close for 3 weeks. Originally TMcD wanted it done overnight. They were asked to involve themselves in the revamp setting up shelving etc. This was not part of their job but they were told by TMcD to do it. On 19th April she met with LK about her concerns that she and her staff had about the revamp. On 26th April she met with her Operations Manager and she told her that she believed that the main store wanted her out as she couldn’t put a foot right. She also told her that her No 2 was working against her. Her No 2 didn’t follow through a clear instruction and this resulted in a customer complaint. TMcD placed the blame on the Complainant. She gave other examples of where her No 2 behaved incorrectly in August 2015 she had attended the monthly meeting as the Complainant was on holidays. She neglected to bring matters to her attention. In September 2015 she and three other staff were standing around chatting and left children unattended. The Health & Safety Officer drew her attention to this. She claimed that she had dealt with a difficult customer when in fact she hadn’t. She was not communicating with the Complainant about matters and she was avoiding the floor. She neglected to check wages at the end of September. In October she used bad language at a meeting with the Store management. Had the Complainant done this it would not have been accepted. In January 2016 she was asked to attend the annual conference which was unusual and attendees were asking if the Complainant was leaving. It was stated that they were job sharing. The Complainant was convinced that her position was in trouble. The Complainant was misrepresented at a meeting on 27th April 2016. As stated that revamp was handled badly by the Store Management. The Complainant felt threatened by the Revamp manager. On 27th April her Operations Manger informed her that the Store Manager wanted her replaced as Manager of the crèche. This was because she refused to use drills during the revamp. On 28th April she emailed her Operations Manager to advise that she was struggling. She told her Operations Manager that she wanted to make an official grievance against the Store Manage but was advised not to do so. She was advised that her employer would deal with the Store Company. Her Operations Manager spoke with the Store Company. The Local Store Management continued to ignore her. This caused her to become very stressed. She wouldn’t use the canteen in case the Store Management team were there. She was too embarrassed about it all. She then decided to leave for her mental health was at risk. She had brought her work problems home. She split with her partner of three years and her child was affected. Her employer was trying to make out that everything was fine but the store manager wanted her out. On 20th June 2016 she handed in her notice and she was prepared to say anything in order to get a reference. No one from her employment came over to support her and try to sort out her issues. The store manager stopped the monthly meetings and bullied her out of her job. She had become a mental wreck because of all of this. She couldn’t stick the job anymore. Her management only came to Dublin to carryout the interviews to replace her. They gave the position of manager the No 2. She worked out her 6 weeks notice. Her employer never asked her to reconsider her position. She has found another job and is paid €13.50 per hour instead of €15.62 and she works 30/35 hours instead of 20 hours per week. She stated that her position is that she was bullied out of her job by the Store Management who were not part of her direct employment. She constantly raised her grievances with her Operations Manager and they did not deal with the problems. She was left with no option but to resign her position that she loved very much. This has caused her untold personal suffering. She had no option but to resign her position. This was constructive dismissal and she is seeking compensation. |
Respondent’s Submission and Presentation:
The Complainant resigned her position giving six weeks’ notice on 20th June and left on 2nd August. The circumstances giving rise to her resignation refers to an incident occurring between her staff and the Retail Store staff while a revamp was being implemented. This was in or around 10th April 2016. The Complainant had objected to providing practical assistance with the physical revamp. On 23rd April the Complainant set out her concerns to the Operations Manager. The Operations Manager had a discussion with her the next day and then spoke to the Retail Store management about the Complainant’s concerns. At a meeting on 27th April the Retail Store management requested that the Complainant be dismissed. The Respondent did not accede to this and they fully supported the Complainant. The Respondent continued to support the Complainant and this was acknowledged by the Complainant in emails where she acknowledged her appreciation of the support that she received. The Complainant made the Respondent aware of her inability to cope. The Respondent offered her time off to help her to cope. The Complainant has spoken openly about her difficulties at work with the Retail Store and this shows the very good relationship that she had with the Respondent. On 7th June the Head of Operations told the Retail store management that there was no basis to dismiss the Complainant. The Respondent rejects the allegation that they allowed the Retail Store to bully the Complainant. The Complainant resigned her position on 20th June 2016 giving 6 weeks noticed. She worked her notice and assisted with the transition to a new manager. Nowhere in the letter of resignation does she state that she was resigning due to the conduct of the Respondent. She stated, “You have been a tower of strength to me and I would like to thank you and the Respondent for all the support I have been given. I have no issue the Respondent as I have been working with them brilliant. The learning that I gained during my time with the company will stay with me forever…I would like to thank you (Operations Manager) for all your help and support over the past 3 years. I have no problems in helping in the new manager”. The Complainant also refers to incidents that occurred in 2015 which were not related to her reason for resignation. It is well established that that in order to rely upon in a constructive dismissal case employees must resign in or around the time of the breach. Following these incidents in 2015 the Respondent put in place support mechanisms to help her deal with them. She had been a well-supported employee up to the date of her resignation. She was not isolated or ignored. The concerns that she raised were immediately acknowledged and enquiries were made. She voluntarily and without justification whatsoever resigned her position. She left to take up new employment.
It is the Respondent’s position that the Complainant voluntary resignation falls well short of the standard required in order to shift the burden of proof in a constructive dismissal case. They applied the two tests of Contract and Reasonableness. Her allegation that the Respondent allowed the Retail Store bully her out of her job is not borne out by her own words quoted above. Regarding the contract test the Respondent stated that they did not breach any aspect of her contract. She voluntarily resigned her position and worked out 6 weeks’ notice.
Regarding the reasonableness test her emails to the Respondent shows that she thanked the company for the support given. Despite being asked by the Retail Store management to remove her from her post they robustly refused to do so.
It is well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve her grievance prior to resigning and initiating a claim for unfair dismissal. She was aware of the applicable procedures she did not raise a formal grievance in accordance with the Respondent’s Grievance Procedure. She had been the subject of complaints/grievances in 2014 and 2015. This complaint is rejected as it is unwarranted. She voluntarily resigned her position. There was no dismissal.
Findings
I note that the Complainant was employed by a Crèche operation and the place of work was within a Retail Store not owned or controlled by the Respondent.
I note the Complainant’s concerns are about the conduct of the Retail Store management towards her.
I accept her evidence that matters became very difficult and that the Retail Store management requested that she be dismissed from her post, which was outside their control.
I note that she had been the subject of two grievances all of which when investigated it was found that she had no case to answer.
I note that she believed that the Retail store management had acted outside their area of control in requesting her and her team to physically assist with the revamp up to and including the use of drills.
I note that the Respondent defended her in this matter and made it clear to the Retail Company that this was not their responsibility and that she was within her rights to decline such a request.
However the complaint before this hearing is against the Respondent not the Retail Store.
In defining constructive dismissal Sec 1(b) of the Act states, “the termination by the employee of his/her contract of employment with his/her 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”.
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 UD 1146/2011 the EAT held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.
I find that it is well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve her grievance prior to resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”.
Tierney v DER Ireland Ltd UD866/1999 “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”.
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 had no option but to resign her position”.
In this case I find that while the Complainant spoke with the Operations Manager on a number of occasions she did not invoke or exhaust the grievance procedure.
I find that the Respondent did not agree to the Retail Store management’s request to remove her from the job. The evidence is that they clearly supported the Complainant.
I find that her letter of resignation and the working of 6 weeks’ notice are not in keeping with a typical constructive dismissal case where she might have no option but to resign.
I find that she gave 6 weeks’ notice and offered to support her replacement.
I find that she was clearly thankful for the support that she received from the Respondent and confirmed this is writing.
I find that this evidence from the Complainant is at odds with her complaint against the Respondent that she had no option but to resign her position.
I find that the Complainant has not established that the Respondent had breached any term of her contract of employment.
I note that she found other work and there was not at a monetary loss.
I find that the Complainant has not established that she had no option but to resign her position.
I find that she decided to resign her position and this was clearly influenced by the conduct of the Retail Store management but not the conduct of the Respondent.
I find that she has not established a case for constructive dismissal.
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 should fail.
Eugene Hanly
Adjudication Officer
Dated: 08 May 2017