ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00003083

Complaint:

Date of Adjudication Hearing: 10^th October 2017

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 80 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Act 1977 and 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 by the Respondent from 26^th January 2015 to 15^th March 2016 and her weekly rate of pay was €576.92c. The Complainant was submitting that she had been constructively dismissed by the Respondent and the Respondent was denying the complaint.

Summary of Complainant’s Case:

The Complainant said that she was employed by the Respondent in Credit Control and Payroll Section of the Company.   The Complainant said the Company have approximately 80 trucks on the road and they employ around 90 employees.

The Complainant said that initially her salary was €25,000.00c per annum, but after the first month it increased to €30,000 per annum.   She said that after this pay increase it was agreed that her salary would be reviewed after 12 months, but she said this never occurred, despite requests from her.

The Complainant said that she resigned from her job with the Respondent on 9^th March 2016, and her last day at work was 15^th March 2016. The Complainant said that she was left with no alternative but to resign from her job due to the behaviour of the Managing Director (MD) of the Respondent.

The Complainant said that her relationship with the MD was okay for the first few months.   The Complainant said she had a chat with the MD (at the Christmas Party) when they were on good terms when she said to him that perhaps if he praised the employees for good work a little more instead of always roaring at them when things go wrong perhaps he would get more from the employees.   The Complainant said that from that the MD started to have ‘a go’ at her in relation to this comment from her and she said that he encouraged all the employees in the Transport Department, which is made up of approximately 19 persons to do the same.   The Complainant said one day she informed the MD of a job priced too low, that he told her she was correct shouting down the ‘phone to her “Jaysus …. you are fantastic, everyone else might think you’re fucking useless, but I think you’re fucking fantastic.”   The Complainant said that all of the Transport Office heard this. She said that anytime she contacted the Transport Office the employees would tell her she was fantastic as soon as they answered the telephone to her and would start laughing at her expense.   The Complainant said that initially she did not pay much attention, but as it went on it became tiresome and she felt that she was being treated like the Company Clown.   She said she did not feel she could complain about the MD’s behaviour as he was the MD and that she believed that she just had to play along.

The Complainant said that after the MD’s attitude towards her changed, he became aggressive and nasty towards her.   She said that when she had taken up the job with the Respondent that she made it clear to the MD that believed the salary of €28,000 p.a. was very low given her 25 years’ experience and she said he agreed to increase her salary after one month to €30,000 p.a.   She said that he also agreed he would review her salary after 12 months, so on 19^th or 20^th January 2016 she approached the MD seeking a pay increase in line with what had been agreed when she commenced employment.   In response, the MD asked her to provide him with the wage details of the 2 females working in the Transport Office, one of whom was employed as an Intern.  

He also asked her for the details of her colleagues in the Accounts Office wages details.   The Complainant provided the MD with the information requested and he reverted to her and said;     “As you can see you are being paid above average in the Company and I will not be looking at this again until next year.”   The Complainant emailed him back and she asked him could she please discuss the matter as her colleague in the Accounts Department was on a considerable higher salary than her, but the MD made no response to her.

The Complainant said that 2 days later she was asked by the MD to contact the ESB to arrange for the connection of electricity to the new premises and she provided all of the information she had to the ESB, but there was some information she did not have. She contacted the MD by telephone and he said to her; “Fuck’s sake, I don’t have time for this shit, can you not even sort this out.”   The Complainant said she explained to the MD that the ESB needed details she did not have and she needed to put them through to him.   She said she tried to explain that she did not have the MPRN numbers and other information needed but he just roared at her “Who is the boss here, sort it out.”   The Complainant said that she spoke to the woman from the ESB and was not able to provide the information required.   She said the MD then rang her again and said “We have a problem here.”.   She replied “No I just could not answer her questions.”   The MD then said to her: “You just remember who the boss is here, if I tell you to speak to someone, you speak to them.”   The Complainant said she just agreed.   She said that all of this was said in front of all other office employees and it was said in a very threatening manner by the MD.   The Complainant said that she felt humiliated and undermined in her job and that she was very upset by the MD’s behaviour towards her.   The Complainant said that on the same day, shortly after this conversation she received an email from the MD instructing her to increase the wages of the 2 females in the Transport Office that he had originally compared her too.   She said that she learned the 2 females had not sought a pay increase and when they received their wages they contacted her as they were surprised to receive the extra wages.   The Complainant said that she had asked for a pay rise, but the MD had refused it and she believes the decision to increase the wages of the other 2 females was made to undermine, humiliate and belittle her.

The Complainant said that on Thursday 18^th February 2016, the Respondent was moving premises and the MD instructed the Complainant and her Colleague in the Accounts Office, to pack up all their stuff and to prepare for the move to the new premises on the Friday afternoon.   On the Friday morning the Complainant asked if she could have some help in moving the large amount of files and equipment from the old office to the new office, as her Colleague was aged 64 and had a bad back and that she herself did not feel she would be able to move all of the materials involved.   She said the MD responded; “We (the transport employees) have enough to do without moving you, stay here till Monday if you can’t move yourselves, if we have time we will move youse tomorrow.”

The Complainant said that on Sunday 21^st February 2016, she had to text the MD to find out where to go to work.   She said it was clear the MD knew she did not know where to go on Monday ad he deliberately did not tell her until she contacted him.

The Complainant said that on Monday 22^nd February 2016, she arrived in the new Office and all the files and equipment were in her new Office.   She began unpacking and sorting out the Office with her named Colleague.

She said that when she went into the Transport Office, the MD was there and that he shouted “You can now thank the A Team for moving you” (the A Team was the Transport Department).   The Complainant believes this was done to further undermine her and to belittle her in front of her colleagues.   The Complainant said that later in the morning a named Office Supplies Company delivered 2 new chairs and they took the 2 old ones from the Office where she was working.   She said that 10 minutes later the MD burst into the Office roaring; “What the fuck are we doing moving all of your shit and cleaning up here all day on Saturday for youse to come in and throw these chairs out here.”   The Complainant said she tried to explain to the MD that it was the Office Supplies Company who had put the old chairs out of the Office as they had delivered 2 new chairs.   She said he did not want to listen to her explanation and he again roared; “The chairs are not for you, out” and he took out the 2 new chairs.   The Complainant said that when she and her Colleague went to get their old chairs the MD told her Colleague she could have the new one, but he told her that she would have to use her old one.

The Complainant said that on Wednesday 24^th February 2016, the MD came into her Office and again roared at her; “Are you fucking waiting on us to get rid of these boxes for you, get them out of here now.”   She said this was very frightening for her that it was completely unreasonable as they had only moved into the Office on Monday and had spent all their time trying to perform their normal duties while at the same time trying to sort out the files and equipment that had been moved from the old Office.

On Thursday 25^th February 2016, the Complainant arrived into work and noticed that one of her computer screens had been removed and she now only had one computer screen.   She said that as with every employee she always had 2 computer screens while working for the Respondent.   She asked the MD what had happened with the second screen and he said that he had taken the screen because the Transport Office screens did not match.   The Complainant said the MD was well aware that she above most needed 2 screens as she was responsible for the payroll and had to track lorries while seeking information.   The Complainant said that her request for second screen was ignored.   She said at this stage she had become very much afraid of the MD, because his attitude towards her was aggressive and demeaning in all his dealings with her.

The Complainant arrived at work on Friday 2016 and her remaining computer screen had no stand.   She said that she had to lean the screen up against a box, but it kept switching itself on and off as the on/off button was at the bottom of the screen.   The Complainant said that when she queried this she was told that a female who works in the Compliance Office needed 2 matching screens; she said that this was not true as the female in the Compliance Office does not need to track the lorries.   She asked if they could buy a stand for the screen and the MD said “No way, there must be a stand for it somewhere in the Office and she should simply look for it.”   She said that about one week later she got a second small old screen, but after 2 days it stopped working, leaving her again as the only person in the Company with one screen that did not have a stand and kept switching itself on and off.   She said that at this point she was too afraid to ask the MD anything further about the screens and she tried to make the best of the available equipment.   She said it was clear to her that the MD was not prepared to provide her with the equipment that she needed to carry out her job and it was becoming obvious to her that he did not want her working in the business.

The Complainant said that on 5^th March 2016, the MD contacted her and he told her that there was a traffic warden at her Car and she should go outside and move it immediately.   She said she ran from her Office to her Car and when she got there was no traffic warden near her car.   She said that on her way back from to the Office she could see all of the Transport Department employees were standing looking at her from the windows upstairs in the Office laughing at her.   She said that it was clear that the MD had lied to her to demean her and undermine her in the eyes of her colleagues.

The Complainant said that when she joined the Company and started doing the payroll, some of the areas regarding payroll were slightly grey as some lorries shipped in on different ships at different time leaving some drivers depending on what they had to do or where they lived, finishing at different times on a Saturday.   She said that she went in some detail through all those areas with the MD and the previous employee who did this payroll work before her.   The MD told her that the bottom line was if a lorry shipped in on at 8.55am on a Saturday morning it was a day’s pay regardless.   She said that every week the MD got a copy of the wages before they were paid.

The Complainant said that on Friday 6^th March 2016, there was a payroll query from 2 of the drivers regarding shipping in on the Saturday morning; basically, one said he had shipped in on the 8.55am and had been paid the reduced rate.   The Complainant apologised to him and told him she would look at it and pay him the balance the following week if incorrect.   She said a second driver rang shortly after and got rather angry as he said that he shipped in on the same ship as the other driver, which was the 3.00am ship and he wanted full pay also.   She said when she tracked both lorries, they had both shipped in on the 3.00am, meaning the reduced payment was correct.   She said the first driver was not happy with this and she told him to contact the MD if he needed to discuss the matter further.   The Complainant rang the MD about this matter and he said that he would deal with it.   She said she then heard roaring and shouting upstairs and he rang her back and said the 2 men would be ringing her to apologise to her before 6.00pm or else they would be out of a job.   She said that during this conversation he told her “Always remember there is only one man allowed to shout around here and that is the man who pays the wages.”

The Complainant said that on the same day the MD informed her and her Colleague, a 64 year old woman were from then on responsible for putting the bins out on a Thursday.   She said that this was despite the fact there were 4 men working in close proximity to them who were better equipped to put out the bins.

The Complainant said that on 10^th March the first of the 2 drivers referred to earlier contacted a female employee in the Transport Section and asked her to come and talk to the Complainant and to go through his work sheets as had some queries.   The Complainant went through the work sheets with both of them, but he still had some queries and he asked the Complainant to speak with the MD on his behalf, this driver lived in Dublin. When the Complainant raised the queries with the MD, he started shouting and roaring at her and he suggested to her that she had been overpaying the Dublin drivers.   She responded no she had been paying the drivers the way she had been instructed when she started in the job and that he (the MD) passed the wages each week.    The Complainant said that she tried to tell the MD that if he looked back even long before she started, this was the way it had been done.   She said the MD then said to her “I don’t want to hear that bullshit, are you telling me that you are overpaying all year?"”

The Complainant said that she again tried to explain, but the MD had completely lost his temper at this stage and he was roaring and shouting at her, every time she tried to speak ….. he said “I don’t want to hear bullshit”, when she would speak again, he roared down the ‘phone at her saying; “are you actually saying that again.”   The Complainant said that this discussion took place in the hearing of all the Transport employees.   She said the MD then said to her “You’d know it wasn’t your own money you are spending.” – the Complainant said that at this stage she was shaking like a leaf and could hardly breathe, she said she realised that she just could not take any more of the abuse she had been subject to by the MD and it was very clear the MD did not want her working for him.   She then said: “You can take from this minute I am giving you my weeks’ notice.”   She said that he did not respond immediately, but he then said “Fine”.   She said that the MD never spoke to her in her last week of employment with the Respondent.  

The Complainant said that she finished her employment with the Respondent on 15^th March 2016 and she said that she was left with no alternative due to the behaviour of the MD.   She said that she had experienced significant health problems as a result of the MD’s treatment of her during the course of her employment with the Respondent and she had attended her GP in January 2016 for treatment and she was put on medication for anxiety.   The Complainant had got to the stage that she was feeling sick every day going into work.   She said she was continually on edge as she did not know when the MD was going to subject her to tirade of foul language and unjustified abuse.   The Complainant said that she was due her final weeks’ wages and her holiday pay on Friday 27^th March 2016 and when it did not arrive in her Bank, she asked her named colleague why she had not been paid.   Her colleague confirmed that she had received her wages on 27^th March 2016.   The Complainant said that she believes that the MD deliberately delayed the paying of her wages and holiday pay as punishment for her as he had instructed her to do that for other employees he had fallen out with. She said that eventually received payment on 30^th March 2016 (i.e. 3 days late).

The Complainant said that under the Unfair Dismissals Act the onus is on her to establish that the Respondent’s conduct amounted to a breach of her contract of employment such that it warranted her resignation or the Respondent’s conduct showed that the Respondent no longer intended to be bound by the terms of the Contract of Employment, or that the Respondent had acted unreasonably towards her during the course of her employment with them.

The Complainant submitted that the MD’s behaviour towards the Complainant was completely unreasonable and that his conduct showed that he no longer intended to be bound by the terms of the contract of employment with her and his breach was so serious it justified her resignation from her job.

It was submitted that the only option available to the Complainant was for her to resign from her job in the face of the unreasonable behaviour of the Managing Director.   The Complainant said she tried to find an alternative to resigning, but as the person treating completely unreasonably was the Managing Director there was no alternative available to her.

The Complainant said that the Employment Appeals Tribunal (EAT) restated the law on constructive dismissal in the case of Darren Young [UD 988/2012].   The Complainant said that in that case that Complainant resigned from his job and he pursued a complaint of constructive decision.   The Complainant said that in this decision that Complainant was awarded €17,500 by way of compensation as the EAT was satisfied he was justified in resigning from his job due to the behaviour of his employer.   The Complainant submitted that she was the victim of unreasonable behaviour by the Managing Director of the Respondent Company and that she had no alternative but to resign from her job as there was nobody within the Respondent Company she could approach and ask to intervene as the person bullying and harassing was the Managing Director.

The Complainant submitted and went through a series of emails as follows ( B.. is the Complainant):

8^th December 2015 from the MD to all employees which states:

“ B…..is a along with a picture of large hand with a pointing accusatory finger over which is in very large bold type “HYPOCRITE”          …..

21^ST December 2015 to the Complainant from the MD states:

“Fantastic job B… “ The Complainant said this was a sarcastic ‘dig’ aimed at her.

21^st December 2015 from a named employee to the MD and another named employee about the Complainant which states:

“I’m not even in today and I’’ll second that.   A great job.   And she keeps a good eye on the back door of the cottage”

The MD replies to this one minute later as follows:

“Basically she doubles as a bouncer”

Also on 21^st December 2015 from the MD to the Complainant which states:

“You are doing a fantastic job - €1,000”

22d December 2015 from the MD to the Complainant and another employee, which states:

“Fantastic”

4^th January 2016 from the MD to the Complainant, which states:

“Your doing a fantastic job!”

On 5^th January 2016 at 18.00c from the MD to the Complainant, which states:

“I was ringing you at 17.57, but you were gone (i.e. 3 minutes before finishing time) and “Talk to me on personal freight in the morning please.”

On 6^th January 2016 at 10.31 to the Complainant from the MD, which states:

“Fantastic and “http://www.timeand date.com/worldclock/- this matches mine perfectly and is the actual time if you want to update your clock”

The Complainant submitted that these emails are, along with the MD’s other treatment of her, sarcastic, offensive comments designed to undermine and humiliate her and had the effect of bullying and harassing her.

The Complainant also submitted photographs to demonstrate and support her submissions in relation to what happened with her work computer(s).

The Complainant gave direct evidence, which supported her submissions.

The Complainant initially submitted that she never received a written contract or a written statement of the particulars of her terms and conditions of employment, however upon being presented by the Respondent at the Hearing a copy of a “STATEMENT OF MAIN TERMS OF EMPLOYMENT” dated 26^th January 2015, the date she commenced employment with the Respondent, she accepted that it was her signature on that document and she then while stating that she “did not remember signing or receiving it” accepted that she did in fact receive it and sign it.   However, she continued to insist that she did not receive the Employee Handbook or the excerpt from the document submitted by the Respondent to the Hearing.

The Complainant continued to insist that she had not ever been made aware of any grievance procedure within the employment.   She also said there was no HR Department in the Respondent Company.   The Complainant continued to assert that the MD was the sole owner or proprietor of the Respondent and that accordingly there was no one in the Respondent Company at the same level or higher than him or who did not report to him that she could make a complaint about him to.   However, when questioned by the Respondent she agreed that she was aware that the MD’s brother was also a Director in the Respondent Company.   The Complainant then said that she did not consider it to be appropriate or of any value to make a complaint to the MD’s brother and fellow director about the MD.

In response to questions as to whether or not she had ever remonstrated with the Respondent about his treatment or her or his behaviour towards her, the Complainant said that she did on one occasion while talking to him on the telephone say to him that he had ‘gone too far’.   However, she accepted that she never said to the MD (or anyone else in the Respondent Company) that she felt bullied and/or harassed by the MD or that she felt that due to his treatment of her she would have to leave the employment of the Respondent.   The Complainant said that she believed there was no point in trying to make a complaint to the MD as he would not listen to her and would shout her down in any exchange him and she further believed that there was no one in the Respondent Company who could/would be in a position to correct the MD.  

The Complainant said that she was considering resigning for a couple of months before she did because of the treatment of her by the MD and that she was applying for other jobs and she said that she was taking advice from family and friends.

The Complainant said that because of her treatment by the MD she was feeling unwell and that she attended with her GP due to being continually anxious, nervous and feeling stressed.   She said she was placed on medication by her GP.   She said that after she left the Respondent’s employment her condition greatly improved.

The Complainant gave evidence of her efforts to secure alternative employment and mitigate her losses.

The Complainant sought a finding and decision that she had been unfairly dismissed by the Respondent.

Summary of Respondent’s Case:

The Respondent said that they refute and reject the complaints made by the Complainant against them.

The Respondent said that the Complainant was employed by them in their Accounts Department from 26^th January 2016, she resigned her job with them in March 2016 and she worked her notice period with her employment with them ending on 15^th March 2016.

The Respondent said the Complainant is alleging that she has been constructively dismissed and that they refute and reject this allegation.

The Respondent said that on the date she commenced employment with them she was provided with, and signed extensive contractual documentation (copy submitted to the hearing).

The Respondent said that in January 2016, the Complainant requested a pay increase.   They said that following enquires they decided that the Complainant’s rate of pay was in excess of her colleagues, and that in light of that they would not be acceding to the request.   They said that in refusing the pay increase they stated they would be willing to review that position again the following year.

The Respondent said that on 8^th March 2016, the Complainant notified them of her intention to resign her job with them following the expiry of her notice period.   They said that Complainant subsequently terminated her employment with them on 15^th March 2016 by reason of resignation.

The Respondent said that they subsequently discovered that the Complainant had applied for another/different job on 7^th March 2016.

The Respondent said that on 19^th April 2016, the Complainant’s Representative wrote to them, in which correspondence they alleged that:

“……during the course of our client’s employment she was subjected to a campaign of bullying and harassment by you and as s result was left with no alternative but to resign her position,”

The Respondent said that the correspondence contained no further elaboration on what constituted this alleged bullying and harassment.

On 21^st April 2016, the Respondent replied to the Complainant’s Representative in which they stated:

“I am not aware of any issue such as alleged in your letter and (the Complainant) did not raise any issue through the Company bullying procedure during her employment.”

The Respondent said it should be noted that the Company Handbook contains extensive grievance and inter-personal procedure.   They said that pages 69 to 71 sets out an extensive informal and formal procedure in respect of complaints of bullying.   The said Section 3 of the Formal Policy provides that:

“The Investigation will be carried out by a designated member of the management team or, if necessary, in the case of any possible conflict of interest, an agreed external third party.”

The Respondent said that following the above correspondence between the parties the Complainant lodged the instant complaints with the Workplace Relations Commission (WRC).

The Respondent said that the alleged dismissal is in dispute and the Complainant is alleging that she was constructively dismissed.   The Respondent said that the Unfair Dismissals Acts define constructive dismissal as:

“The termination by the employee of her/his contract of employment with her/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 would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer.”

The Respondent submitted that the burden of proof now shifts to the Complainant to set out their case.   The Respondent referred to the decision of Employee -v- Employer [UD1146/2011] in which the EAT found that:

“This was a case of constructive dismissal and in such cases a high level of proof is needed to justify the claimant involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary.

There are two tests in the statutory definition either or both of which may be invoked by an employee.

1. Contract Test: i.e. If an employee argues the entitlement to terminate the contract because of a fundamental breach of contract on the part of the employer.   The breach of contract being alleged must be either a sufficient breach going to the root of the contract or one that shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.

2. Reasonableness Test: That the conduct of the employer is such that it was reasonable for her/him to resign

The absence of a written contract of employment and grievance procedure does not entitle an employee to terminate their employment.   That doesn’t mean in itself that there was a breach of contract.”  

The Respondent said that in the EAT decision in Higgins -v- Donnelly Mirrors Ltd [UD 104/1979] that Complainant’s claim for constructive dismissal was rejected as she had failed to discharge the heavy onus of proof she bore.

The Respondent said that in the case of Conway -v- Ulster Bank Limited [UD 474/1981] the EAT found that that Complainant had not acted reasonably in resigning without having first “substantially utilised the grievance procedure to attempt to remedy her complaints.”

The Respondent said that they had/have a Grievance Procedure of which the Complainant was aware and she did not exhaust before resigning.

The Respondent said in the case of Forge -v Murco Petroleum Ltd the English EAT considered that where a contract of employment makes no reference whatsoever to a pay increase, it is impossible to say there is an implied term in the contract that there will always be a pay rise.

The Respondent said that in their decision in Ian Flaherty -v- College Freight Limited [2009] 6 JIEC 2901 the EAT in rejecting the claim stated that they “accepted that there was a less than harmonious working relationship between the claimant and DM but did not accept that the level of that relationship was such that the claimant could show the conduct of the respondent was so unreasonable so as to justify a claim of constructive dismissal.”

The Respondent said that the Complainant has not complained of any breach of contract or conduct on the part of the Respondent that would allow her to reasonably consider that her contract as terminated.   The Respondent said that notwithstanding this, the Complainant clearly did not engage with or exhaust their internal Grievance Procedures.

The Respondent said that at the date of the lodgement of the complaints in the instant case they were at a complete loss as to the exact nature of the alleged bullying and harassment.

The Respondent said there was no mention of bullying and harassment or any other complaint in the Complainant’s letter of resignation, they said that letter signed by her and dated 8^th March 2016, was a one sentence letter that simply stated:

“I wish to formally hand in my weeks’ notice from today and will be ceasing my employment with (the Respondent) on Tuesday 15^th.”

The Respondent submitted a copy of a written Statement of Main Terms of Employment dated the start date of the Complainant’s employment 26^th January 2015 and signed by the Complainant and on behalf of the Respondent, which they said was handed to her by the HR Officer.   Upon examining this document the Complainant accepted that it was her signature on the document and that she now accepted that she did in fact receive it and sign it.

The Respondent also submitted other documentation that they submitted was provided to the Complainant, including Induction Training Pack, Employee Handbook and Health and Safety Training and many of these documents were signed for by the Complainant.

Witness No. 1:   The Managing Director (MD) gave direct evidence.   He said that he was the Managing Director in the Company and his brother was also a Director in the Company and he said this was well known to all employees.   He said he played an active ‘hands-on’ role in the day-to-day running of the Company.

The Witness said that the Complainant approached him indirectly through a third party known to both of them for a job and she made it known that she wanted to be paid €30,000 per annum.     The Witness said that he interviewed the Complainant along with another manager.   The Witness said that they decided to offer the Complainant a job, which offer she accepted.

The Witness said that relations between him and the Complainant were good.   He said that circa 14 persons worked in the office.

In relation to the emails he said much of this arose following a discussion the Complainant had with him at the Christmas Party in which he said she complained about them (the Company and the employees) not supporting her in her role in the local Drama Society and she also said that if the MD praised the employees more for good work rather than criticising them when things go wrong he might get more work out of them. He said that he, and other employees believed that in view of her own comments and behaviour this was quite hypocritical of her.

The Witness went through each of the emails and explained the context of each and responded to each.   He said that they were responding to the Complainant’s statements and it was intended to be jocose, he further said that at no stage did the Complainant complain about them, the content of them or ask that they cease.   The Witness said that he and the others involved in this considered it to be ‘banter’ and the Complainant had not indicated that she took it otherwise.   The Witness said that if she had it would have been ceased.

The Witness insisted repeatedly that he did not use foul language and also insisted that he would never use foul language to females.  

The Witness in answer to many of the questions posed, including from the Complainant’s Representative, said that he ‘did not remember’ some or much of the alleged exchanges with the Complainant and it was pointed out by the Complainant’s Representative that this was not the same as saying they did not happen.

In response to questions the Witness said on reflection, in hindsight and in context he now accepted it was an inappropriate way to communicate with the Complainant.

The Witness said that the Employee Handbook was provided to all employees and he said that in the case of the Complainant it was provided to her by the HR Officer.

In response to questions about his final telephone discussion with the Complainant, the MD confirmed that he did not, when she said she was giving him her notice, ask her why she was leaving the employment or ask or suggest she should reconsider before taking such a step.   He also confirmed that he did not speak to the Complainant at all in the last week of her employment with them; he said that he asked the HR Officer to speak to her, but he was told she did not change her mind.

Witness No. 2:   The Witness said that she was/is the Compliance Officer and the HR Officer in the Respondent Company.   She said that she had previously performed some of the work undertaken by the Complainant including wages.   She said she dealt with Application Forms for Annual Leave from employees.

The Witness said that it was her who handed the Complainant her “Statement of Main Terms of Employment” on the date the Complainant commenced employment with the Respondent, on 26^th January 2015.   She said that the Complainant signed the document in front of her.   The Witness said that she handed the Complainant a copy of the Employee Handbook at the same time.

The Witness said that she consulted regularly with PBS in relation to updating documents etc and would make the updated documents available to all employees.   In relation to the single page document with a summary of Complainant Procedure the Witness said that she had sent this out on 8^th December 2015, to employees by email.   The Complainant disputed that this had ever happened and pointed out that a copy of the cover email was not enclosed and sought that one should be produced if it existed.   I can confirm that I have been provided with a copy of the cover email, which confirms it was sent on 8^th December 2015 at 15.52 to all staff from the HR Officer / Compliance Officer and that the subject is stated as “Complaint Procedure” and it states:

“Hi All,

Please find attached a copy of our companies internal complaints procedure, any queries do not hesitate to contact me.

Regards”

The HR Officer/Compliance Officer’s name is on the bottom of it.

The Witness in response to questions said that the MD never swore at her in her very many interactions with him.

The Witness said that following the exchange between the Complainant on 10^th March the MD asked her, as HR Officer, to speak with the Complainant and ascertain what the position was and if she was serious about resigning.  

The Witness said that she then spoke with the Complainant, who she said was distressed.   She said that she asked the Complainant if she was sure about wanting to leave the employment.   She said that she then said to the Complainant settle yourself down and come back to me.   The Witness said the Complainant asked her what do you need in writing.  

The Witness said that the following day the Complainant handed her the resignation letter and told her there was no change and she was resigning.

In response to questions the Witness said that if she had a complaint of this nature made to her she would consult with PBS about how to proceed (she had not had such a complaint made) and she would also consult with the Company Handbook, which she pointed out provided for external third party investigation in certain cases.

In response to further questions the Witness confirmed that she did not in her discussions with the Complainant direct her to the Company Grievance Procedure.

Witness No. 3:   The Witness said that she was employed by the Respondent and she works as an Accounts Person.   She said that she worked with the Complainant in the same office as her.   She said that she had a good relationship with the Complainant.

The Witness said she was not aware of a problem between the MD and the Complainant.  

The Witness said that she had heard one of the telephone conversation between the Complainant and the MD.   She said that afterwards the Complainant told “He’s (the MD) had a go at me”.   She said they had a full and frank discussion.

The Witness said that in relation to the discussion between the Complainant and the MD about the ESB, she was not there for that and that she sorted it out when she returned.

In relation to the incident with the traffic warden, she said following a short telephone discussion between the MD and the Complainant, the Complainant grabbed her car keys and rushed out of the office.   She said that on her return to the office the Complainant said “What was that all about, there was no warden” and further said “the joke was on me”.

In relation to the allegation that the MD on 24^th February 2016 came into their Office and roared; “Are you waiting on us to get rid of these boxes for you, get them out of here now” the Witness said that this never happened, she said a call was placed to get rid of the boxes.

The Witness said she did not recall one of the new chairs removed from their Office coming back to her and she said there was no shouting, by the MD or anyone else involved in these two matters.

The Witness said that she was not aware of any problem between the MD and the Complainant until the incident about the two drivers and during which the Complainant tendered her resignation.   The Witness said that she said to the Complainant think about it again and don’t just leave.   She said the Complainant responded saying; “No I was leaving anyway”.   The Witness said that she said to the Complainant to leave it till the next day and talk to the MD and she also said he is a very fair person.

The Respondent said that based on the facts and circumstances of the case it was clear the Complainant had not been constructively dismissed by them and that accordingly they sought a finding and decision under the Unfair Dismissals Acts that the Complainant had not been constructively dismissed and that the complaint under the 1977 Act is not well founded and is rejected.

Findings, Conclusions and Decision:

Section 80 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act

Section 8 of the Unfair Dismissals Acts 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.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I have no doubt that the Complainant believed, and had good reason to believe, that she was being treated inappropriately or even being bullied and/or harassed by the Managing Director (MD).   However, what I have to decide is was she constructively dismissed by the Respondent from her employment with them.

Both parties accept that it is incumbent on an employee contemplating taking a case for constructive dismissal to fully avail of and full exhaust any available (grievance) procedures available to them before resigning their job and taking a case for constructive dismissal and that failure to so do can and usually is fatal to any claim for constructive dismissal.

In considering this in the instant case I note the following:

The Complainant initially stated that she never received a written statement of her terms and conditions of employment and also stated repeatedly that she was not made aware of any Grievance Procedure within the employment.   She further asserted and continued to assert throughout the Hearing that a one page document summarising the Complaints Procedure was circulated in December 2015 and she challenged the Respondent to provide the covering email that they stated accompanied this document, which they duly did.

At the Hearing when the Respondent produced a copy of a written Statement of the Main Terms of Employment signed by the Complainant and on behalf of the Respondent and dated the day the Complainant commenced employment with the Respondent, 26^th January 2016, they Complainant accepted that it was her signature on the document and that she had been provided with it.   I find it very difficult to understand how an employee would forget signing document on the date they commenced employment, especially as in this case she was only employed for 13 months (and not for 13 years) and also that she states incidents occurred within a few months that caused her to consider she was being bullied and harassed which it is to be assumed would cause an employee to examine any and all documents to ascertain how to deal with this matter.

We have been provided with proof that the second one page document summarising the Complaints Procedure in the Company were circulated to all staff on 8^th December 2015.   I note that at this stage the Complainant had reached the conclusion that she had a grievance that she was being bullied and harassed by the MD and it is to be expected that she would immediately use this information to submit a grievance or complaint of her concerns and it should be noted that this document specifically states the name of the HR person to whom she should submit any complaint or indeed seek information from, I note this is just 3 months before she tendered her resignation.

I note with concern that the Complainant was adamant about both of these issues until confronted with irrefutable evidence to the contrary. Considering the fundamental matters involved this must raise serious questions as to whether any of the evidence of the Complainant can be relied upon in these matters.  

However, of even more significance is that this demonstrates conclusively that the Complainant was fully aware of a comprehensive Grievance and Complaints Procedure available to her, which include who to approach and contains a detailed procedure for dealing with any complaints of bullying and harassment and includes a provision that where appropriate an investigation may be by an external third party, but chose, for whatever reason not to use or avail of these procedures.

I further note that the Complainant also initially stated that there was no one at the same level as the MD in the Company to whom she could make a complaint to.   However, when questioned she accepted that she was aware that there was another Director of the Company, the brother of the MD, and she then said that she did not consider it to be of any value to make a complaint to the MD’s brother.   However apart from this being entirely different from no one to whom she could make a complaint to it is to prejudge the potential outcome to any complaint to the other Director, the Complainant could not possibly be aware of the outcome of any complaint to the other Director and this is particularly so in circumstances where she did not even approach or speak to that Director.

I note the Complainant in her submissions states that she tried to find an alternative to resigning.   Plainly that is not so, indeed the reverse is the case.   The Complainant made no effort whatsoever to deal with the matter internally within the employment despite a number of such avenues being open to her, which she was fully aware of.

Not alone did the Complainant not avail of or invoke any of the procedures available to her to deal with her complaints she did not even say to any employee within the Company that she believed she was being bullied and harassed by the MD and that she could not take any more of his behaviour.

I also note that even in her letter of resignation the Complainant did not make the Respondent aware of her grievances with only one sentence in which she simply stated: “I wish to formally hand in my notice from today and will be ceasing my employment with (the Respondent) on Tuesday 15^th.”

The fact is the Complainant afforded the Respondent no opportunity whatsoever to deal with her grievance complaints before she tendered her resignation and they only became aware of the existence of such grievances when, on 19^th April 2017, some 5 weeks after the employment had ended they were informed in a letter from the Complainant’s Solicitor that she considered that she “was subjected to a campaign of bullying and harassment by you….”   It should be noted that this was the entire extent of the information provided to the Respondent and no details of the alleged bullying and harassment were provided until 2 days before the Hearing.

Accordingly, the Respondent was not afforded any opportunity whatsoever to deal with any grievances the Complainant had during the course of her employment with them, or indeed at the time of the termination of her employment.

I have carefully read the Determination of the Employment Appeals Tribunal (EAT) in the case of Darren Young -v- Bioshell Teoranta UD988/2012 submitted by the Complainant in support of their position.   I note that that case Is not at all comparable to the instant one.   In that case (as stated in the Determination of the EAT) that Complainant had made complaint to one of the joint owners of that Respondent Company.   In the instant case the Complainant (as covered above) signally failed, neglected or refused to do just that despite this option being open to her.   That case is in fact the direct opposite to the instant one and is of no value in assessing the instant one, save to show what could and should have been done in the instant one.   The Complainant’s submissions in that respect are entirely rejected by me.

Based on the foregoing findings I must find, declare and decide that the Complainant has failed to discharge the burden of proof necessary to demonstrate that she has been constructively dismissed.

I declare that the Complainant was not unfairly dismissed by the Respondent, either constructively or otherwise and declare that the complaint under Section 8 of the Unfair Dismissals Act is not well founded; it is rejected and is not upheld.

Dated: 23/11/2017

Workplace Relations Commission Adjudication Officer: Seán Reilly

Key Words: Constructive Dismissal.