ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005699

Complaint(s)/Dispute(s) 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-00007905-001	01/11/2016

Date of Adjudication Hearing: 14/03/2017

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Act 1977 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:

The Complainant stated that she had to leave the employment due to losing confidence in the Respondent to treat her fairly and claimed constructive dismissal. She gave details of a number of incidents where she felt she had not been treated fairly or given notice of certain events to do with her personal circumstances at work. The Complainant worked in the service as a night worker for 23 years. Her role was to admit women who came looking for refuge, to take helpline calls, to look after the security of the building and for the most part to be available to the residents to speak to them about domestic abuse, about breaking the cycle of the abuse etc. The Complainants difficulties at work started in August 2014. The Complainant gave details of an interaction between a Client and a Manager in the service stating that a door had been left open during this interaction and she had never seen her Manager do this before and the Complainant was concerned by it as management knew it was Friday evening and there would be only two staff members on each night for the weekend. The Complainant also stated there was another incident with the young woman late that night and the following morning the Complainant report it to reported the incident to the member of the management team on that Saturday. When the Complainant returned to work that evening the young woman became extremely abusive towards her, she made what the Complainant perceived to be serious threats towards both herself and other members of her family and was able to tell her the location of her house along with other personal details. The Complainant rang management and reported what was going on and was told to let the other staff member on duty deal with the woman for the rest of my shift and they would deal with it the next day. The following morning the woman was told to leave the refuge and the Complainant went to the doctor and was signed off work with "work related post traumatic stress disorder". The Complainant returned to work after about five weeks and met with a member of the management team who apologised for what had happened and stated that she had gone over it in her head and saw that management should have done something sooner and it was a mistake but hopefully they would learn from this. The Complainant stated this was the start of not being able to trust that the management would care about welfare of the staff, however she had worked there for such a long time she tried to put it behind her and continue in work. She stated she suffered (and still does) from panic attacks on and off and was on medication for same from time to time. The Complainant then had an issue with the Respondent over a Labour Court decision regarding sleepover allowance being paid while Carers were on holidays. The Complainant confirmed this decision was not implemented by the Respondent. In June of the following year the Complainant had an issue with her sons ex partner being allowed use the service without the Complainant being informed in advance. She stated she was disturbed by this and felt it difficult to do her job while her sons ex partner was in the building and their children were also in the building where she worked. She believed allowing her to go into that group had seriously damaged her credibility with residents to the point where it would be impossible for her to continue to do the job she had done for the last 23 years. The Complainant was asked if she would work in a different part of the building, but declined. Between all the three incidents the Complainant stated she really did not trust the management of the Respondent any longer. She told her Manager at that point that she would not be returning to work and the Manager accepted her resignation.

Respondent’s Submission and Presentation:

The Respondent provides domestic abuse services provide emergency accommodation for women and children who have had to leave their homes due to domestic abuse. They also provide an outreach service, a child and youth facility and support groups where women come together to talk about the abuse.

The Respondent stated that they had no obligation to inform the Complainant that her sons ex partner was about to use the service of the Respondent.

The Respondent stated that the Complainant never used the grievance procedure.

The Respondent stated that no change to the overtime/sleep over had been implemented.

The Respondent stated they felt it unfortunate how the Complainant had reacted to various situations but that none of them merited grounds for constructive dismissal.

The Respondent stated that the Complainant was highly respected and they were sorry to see her leave.

The Complainant had failed to use the internal grievance possibility of having any issue sent to the House HR Committee for examination.

Decision:

Section 41(4) 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 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.

It is to be noted in this case that due to the sensitivity of certain information not all issues presented are covered in this decision.

The Complainant left her employment and claimed constructive dismissal.

Section 1 (b) of the Unfair Dismissal Act 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, lies on the claimant. 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, the 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.

The Respondent argued that the claimant, must also show that she exhausted the internal grievance process prior to lodging her claim with any external body. In that regard the case of Conway V Ulster Bank Limited UD 474/1981 is relevant where in the 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 Claimant advised that she raised internal “informal” grievances and did not accept the offer of making her grievances formal. 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. In that regard 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.

The claimant commenced her employment with the Respondent in 2006. She enjoyed her work and had the respect of Management and indeed was a personal friend of the Manager. No formal complaint was lodged. The claimant did not invoke the grievance procedure. As far as the respondent was concerned that was the end of the matter.

During the hearing of this matter it was clear that the claimant had four main issues:

The issue of her Manager leaving a door open in conversation with a Client
The possibility of a reduction in her sleepover allowance when on holidays
The fact that the Respondent did not inform her in advance of her sons ex partner using the services of her place of work.
She had lost trust in management

The issue of the Manager leaving to door open to a client is not grounds for constructive dismissal and has no significance to the issue at hand.

From the evidence it seems that the reduction in the allowance situation did not materialize.

On the third issue the Complainant agreed that the Respondent did not have any legal obligation to inform her in advance of the situation complained of and that they did offer a relocation of work. The Complainant also agreed that her sons ex partner had a right to the use of the service like any other person.

On the last issue the Complainant obviously was affected by the situation with her sons ex partner but that is not a breach of a contractual obligation. It definitely affected the relationship and trust between the Respondent and her Manager. However, from an employment process perspective the Respondent apologized and offered relocation and the use of the Grievance Procedure.

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.

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 Complainant and were fair and objective at all times. No evidence was adduced before the Adjudicator which could lead me to conclude that the failure to invoke the grievance process was justified. The Adjudicator also finds that the claimant’s reaction to the allowance issue was disproportionate to the issue themselves as no change had been implemented. It is understandable that she was upset about the situation with her sons ex partner but she failed to see that the Respondent also had an obligation to offer their service to that person.

The claimant’s claim pursuant to the Unfair Dismissal Acts, 1977 and the Workplace Relations Act 2015 is not well founded and fails. However, I would like to add a foot note to this decision, in that the Complainants concerns as a human being is totally understandable in the circumstances however she cannot hold her employer responsible in law for her feelings. I also commend her for the manner and composure in presenting her case.

Dated: 8^th May 2017