ADJ-00011101

Complainant

Respondent

Anonymised Parties

A Cleaner

A Cleaning Company

Representatives

Barnaba Dorda SIPTU

Sheila Treacy IBEC

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-00014815-001

06/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00014815-004

06/10/2017

The complainant was employed by the respondent as a cleaner from 25th of May 2008 to the 14th of April 2017. She was paid €9.75 per hour and she worked 15 hours per week.

She is claiming that she was constructively dismissed by the respondent contrary to the Unfair Dismissal Act 1977 as amended and Industrial Relations Act 1969 as amended.

The complainant stated that complaints that she raised about inappropriate behaviour by her supervisor were not fairly or adequately addressed by the respondent.

The union submitted that the complainant experienced a total breakdown in procedures in relation to the issues she raised regarding her treatment on the site and unreasonable delays in addressing her concerns and she had no option but to leave the employment and claim constructive dismissal.

The complainant was employed as a cleaner and she worked on a particular site. She and her work colleagues raised a number of informal complaints against her supervisor regarding her behaviour towards lower grade employees.

On 18th of March 2014 the complainant had an accident at work. A toilet paper console fell on her head. She suffered minor injuries and her glasses were broken. She reported the incident to her supervisor. However, the accident was not recorded in the company accident report book. The complainant suffered from dizziness, headache afterwards. On 27th of March 2014, she contacted regional Manager and complained about the accident. She was informed that they had not been aware of the incident and invited her to a meeting to discuss it.

On 10th of April, the complainant met the regional manager. At the meeting she complained again about the inappropriate and humiliating behaviour of the supervisor towards her and other staff

On 15th of April, the complainant went on sick leave due to the behaviour of her supervisor.   She alleged that she had been bullied and harassed and that she wished to make a formal complaint. She was diagnosed with occupational stress disorder and remained on sick leave. The respondent initiated the investigation and furnished the complainant with the grievance procedure.

An investigation meeting was held on 17th of April 2014. The complainant outlined the issues she had with her supervisor including being shouted at, not respected, the monitoring of employees on the CCTV including the complainant, threatening employees including the complainant with dismissal if they didn’t follow her instructions and requesting employees to clean floors on their hands and knees.

The respondent agreed to send her the minutes of the investigation meeting to confirm the content but that did not happen. The complainant sent an email to the employer enquiring about the progress of the investigation. She was informed that investigation had been suspended due to her sick leave. She requested that the investigation should continue. The respondent forwarded the minutes from the investigation meeting to the complainant on the 11th of June 2014 and requested a response within 7 days. The complainant provided her response on the 18th of June 2014.

The respondent referred the complainant to the Employee Assistance Programme and assured her that the complaint was being taken very seriously.

Between August 2014 and June 2015, the complainant sought updates on the investigation on numerous occasions but she received no response. On 11th of June 2015, the complainant’s union contacted the respondent seeking an update on the investigation. In response the respondent outlined the investigation to date and stated that they decided to refrain from providing the complainant with the investigation documents gathered to date to avoid causing her additional stress. She again requested the documents and when the respondent failed to respond she referred the matter to the WRC.

A hearing of the grievance took place on 25th of November 2015. The respondent argued that the final outcome was not issued because the complainant failed to attend the company doctor to ascertain whether she was fit to participate in the process. It was submitted by the complainant’s union that she was invited to attend the company doctor on three occasions but on each occasion the respondent failed to provide an independent translator and failed to reply to a request for a translator be provided.

The Adjudicator recommended that the complainant should be assessed by the company medical personnel to determine her ability to continue with the investigation and that once this has been completed it was recommended that the employer should then issue the final report to the claimant and her representative.

The complainant attended the company doctor who found her unfit to engage with her employer in relation to work related matters at that time. The complainant did not agree with the company’s doctor assessment and requested to be provided with the outcome on the 5th of May 2016 but the respondent refused to do so.

The complainant arranged appointments with two other doctors who assessed her health. They did not find her fit to work but they found her fit to engage with the respondent about her grievance. She submitted both documents to the respondent in July 2016 but there was no reply.

On 11th of August 2016, the union contacted the respondent and requested that the complainant be furnished with the outcome from her grievance but there was no reply. On 25th of November 2016, the complainant again wrote to the employer complaining about the length of the whole process and requested that the independent investigator is appointed to investigate her complaint. There was no reply.

By letter dated the 24th of March 2017, the respondent informed the complainant that on 31st of March 2017 she would be transferred to another company under the TUPE legislation.

A consultation meeting with the complainant took place 6th of April 2017. At that meeting the complainant learned that the outcome of her grievance was sent to her around 24th of November 2016. The complainant said that she had not received it. A copy was then provided to her union.

The complainant said that she was shocked and upset about the fact that the outcome of the investigation was available since November and she was not informed. She decided not to appeal the outcome. She said that because of the actions of the respondent she lost trust and confidence in them and she decided to terminate her employment on 14th of April 2017.   She said that she resigned from the employment because the respondent ignored her and did not respond to her emails looking for an update on the investigation. Furthermore, the respondent failed to inform her in a timely manner that the company had lost the cleaning contract and that she was being transferred to another employment. She also stated that she was not satisfied with the outcome of the investigation and that she had to leave the job.

Her union submitted that there was a total breakdown and disregard for the company’s grievance procedures by the respondent. The complainant experienced an extreme and persistent failure in responding to her serious concerns over a long period of time. This amounted to a failure of the duty of care towards her by her employer and as a result she lost trust and confidence in her employer.

It was submitted the caselaw in Murray v Rockabill Shellfish Ltd [2012] ELR 331 is applicable, the Employment Appeals Tribunal held: “The Tribunal must consider whether because of the employer’s conduct the claimant was entitled to terminate his contract or it was reasonable for him to do so. An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract”

In the case Brady v Newman UD330/1979 the Tribunal stated that “…an employer is entitled to expect his employee to behave in a manner which would preserve his employer’s reasonable trust and confidence in him so also must the employer behave”.

The complainant, a cleaning operative, commenced employment with another company 28 May 2008 and joined the respondent company on a transfer in January 2012. She was contracted to work 15 hours per week and she received a full induction and company handbook.

The complainant by email of 14 April 2014, raised a grievance to the HR department alleging inappropriate behaviour towards her by her immediate supervisor. The HR team responded on the same day and, in accordance with the Company’s Grievance Policy, the complainant was invited to attend an investigatory meeting on 17 April 2014.

The complainant was on certified sick leave and following receipt of the medical certificate, the respondent decided to meet with her initially to understand her grievance and then to gather the rest of the investigation material pending her being fit to participate in an investigation.

In line with the company’s procedure, the notes taken from the investigatory meetings were sent to the complainant who made a number of additions to the minutes by email of 18 June 2014. These additions amounted to new allegations against her supervisor and the complainant was informed that these new allegations would also be investigated.   She was also offered the services of the EAP. The respondent then conducted further investigations into the new matters raised.

The respondent received a letter from the complainant’s representatives in June 2015 querying whether a decision had been made in relation to the investigation.

The respondent responded to these queries by letter of 29 June 2015 explaining that due to the work-related nature of the complainant’s illness, they had refrained from providing her with the documents gathered during the investigation to avoid causing her additional stress. It was submitted that this was particularly important because the complainant remained on sick leave. The complainant was given an opportunity to respond to any of the witness meeting notes with the assistance of her representative.

The respondent submitted that in order to ascertain whether the complainant was fit to continue with the investigatory process and to ensure that the relevant support would be provided to her, she was asked to attend the company doctor on 6 July 2015. The complainant refused to be seen by the doctor alleging that it was due to the cleanliness of the clinic.   The complainant then wrote to the respondent on 10 July 2015 to outline her disappointment in the grievance process but she made no reference to the medical assessment. Two further appointments were made for her to attend the company doctor and on both occasions the complainant refused to be seen.

The complainant’s union referred the issue to the WRC by way of letter dated 29 August 2015.   The complainant remained on sick leave and the respondent believed she remained unfit to engage with the process. An adjudication hearing took place on 25 November 2015 under the IR Act. Following receipt of the decision of the adjudication officer on 10 February 2016, the complainant was referred to the company doctor and she was initially deemed unfit to engage with the process. The union wrote to the respondent several months later and insisted that the report should be forwarded to the complainant

The respondent submitted that a copy of the investigation report was sent to the complainant’s address in November 2016 and an opportunity to appeal was given to her but no response was received from her. The complainant’s representative contacted the company several months later to request a copy of the report. In response the respondent explained that the complainant had already been furnished with the report. They sent another copy to the union and allowed the complainant until 20 April 2017 to appeal the decision and she did not do so.

The respondent subsequently lost a service contract thus creating a TUPE situation which was to take effect on 21 April 2017. They wrote to the complainant to explain the TUPE process and allow her an opportunity to engage in a consultation and arranged a meeting with her and her representative in early April 2017.

The Complainant wrote to the respondent on 14 April 2017 alleging that they had breached her terms and conditions of employment and resigned from her position. In a response email on the same day, the respondent asked her to reconsider her decision to resign informing her that they were not aware of any such breach of her conditions of employment and that no grievance had been raised in relation to same. She was also reminded of her right to appeal the outcome of the original grievance. The complainant wrote to the Company on 19 April 2017 saying that her decision to resign was final.

Legal arguments

The respondent’s legal representative submitted that the complainant has alleged that she was constructively dismissed from her employment but the respondent refutes this claim in its entirety. She resigned from her employment on 14 April 2017, without exhausting the internal mechanisms with regards to an appeal and without utilising the grievance procedure for any subsequent complaints.

The burden of proof lies with the complainant to demonstrate that she has acted reasonably and exhausted all internal procedures and to demonstrate that the actions of the employer were so unreasonable that she was left with no option but to resign. The burden is outlined in the Employment Appeals Tribunal case of McCormack v Dunnes Stores, UD 1421/2008 which states as follows:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

This was reiterated in Employee v Employer, UD 2387/2011:

“The onus of proof in a constructive dismissal case rests with the Claimant, who must prove the behaviour of the employer justified his action in resigning. The burden is onerous.”

Section 1 of the Unfair Dismissals Act 1977 (as amended) defines dismissal in relation to an employee as, inter alia:

“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”

In light of this definition, and established principles adopted by the Courts, there is a burden on the complainant to demonstrate that she was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer; or that they had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for her to resign.

It is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. It is the respondent’s position that neither criterion have been met.

In relation to the contract test, the respondent submitted that at all times it operated within the terms of the contract of employment between the parties and no contractual violation occurred. The respondent made available to its employees and encouraged the use of the company policies and procedures contained within the handbook. The complainant was welcome to address any alleged concerns regarding terms and conditions through the grievance procedure. It is of note that the grievance procedure was never invoked by the complainant regarding terms and conditions.

In respect to reasonableness test, it is the respondent’s position that it acted reasonably and fairly at all times in accordance with its policies, best practice, and appropriate conduct.

The complainant grievance raised in April 2014 was thoroughly investigated. The complainant had commenced a period of sick leave due to stress and it was reasonable for the respondent to decide, due to medical concerns, to withhold the issuance of the investigation report until such a time that she was fit to resume engagement with the process.

The adjudication officer’s recommendation of 10 February 2016, reaffirmed the opinion and recommended that the complainant should be assessed by a medical practitioner before recommencing engagement with the grievance process, and the respondent duly organised a medical assessment to ascertain the complainant’s fitness to engage with the process.

The investigation report was sent directly to the complainant on her insistence in November 2016 and she was given 5 days to appeal. Another copy of the report was provided to the complainant’s union in April 2017 when she claimed she did not get the original copy and again she was given an opportunity to appeal. Furthermore, upon the complainant’s resignation, the respondent asked her to reconsider her decision on three occasions and she refused.

In considering the reasonableness of the conduct of the employee, it was submitted that the complainant did not exhaust the company’s grievance procedures before resigning and therefore it is the respondent’s position that her resignation was thus unreasonable. It has been the clear position of the Employment Appeals Tribunal that employees have an obligation to utilise and exhaust internal grievance procedures before taking such a drastic step as to resign their employments as set out in the decision in Conway v Ulster Bank, UD474/1981

It was submitted that the complainant has not acted reasonably in asserting she has been constructively dismissed as she has not previously “substantially utilised the grievance procedure to attempt to remedy her complaints” (Conway v Ulster Bank) in respect her allegations.     The complainant unreasonably refused to engage with several medical appointments with the company doctor and these actions by the Complainant only served to delay and disrupt the investigation process.

It was submitted that the complainant has failed to establish that it was reasonable for her to resign in the circumstances. Therefore, she has failed to establish that she was constructively dismissed.

The matter I must consider is whether the complainant was constructively dismissed as she resigned from the employment. Section 1(b) of the Unfair Dismissals Act 1977 as amended defines dismissal as:

“dismissal”, in relation to an employee, means—

(b) 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 matter I must consider is whether there was a fundamental breach of the complainant’s contract of employment which would have entitled her to resign in the circumstances. The burden of proof is on the complainant and I was referred to the EAT decision in McCormack v Dunnes Stores UD 1421/2008 as follows:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The following passage from the EAT decision in Employee v Employer, UD 2387/2011 is also relevant:

“The onus of proof in a constructive dismissal case rests with the Claimant, who must prove the behaviour of the employer justified his action in resigning. The burden is onerous.”

In relation to a breach of the contract of employment the Supreme Court judgment in Berber v Dunnes Stores Limited [2009] IESC 10 is the relevant authority. The Supreme Court held that the test for whether the conduct had breached the implied term of mutual trust and confidence in a contract of employment is an objective one. Finnegan J. held:

“1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at.” The Labour Court in the case of Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, endorsed the legal test in respect of constructive dismissal as set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests.   The ‘contract test’ is set out as follows: “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 other performance.”

The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.” According to the Supreme Court in Berber cited above, “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly to determine if it is such that the employee cannot be expected to put up with it.”

Therefore, this definition places the burden of proof on the employee to show that her resignation was justified in all the circumstances.  

I note that the complainant raised grievances with the respondent in relation to the conduct of her supervisor on the 15th of April 2014 and this matter was concluded in November 2016 but she did not receive the final report until 6th of April 2017 and her complaint was not upheld. The complainant was notified by letter dated 17th of March and again at a meeting on 6th of April 2017, that she was being transferred under TUPE to different employer. Following this meeting the complainant resigned because there was a fundamental breach of her contract of employment and a breach of trust and confidence. The complainant said in evidence that she resigned because the respondent ignored her, didn’t respond to her emails, they did not follow the grievance procedure, they delayed in investigation her complaints and time limits under the grievance procedures were not adhered to. Furthermore, the respondent did not inform her that the company had lost he contract and only informed her about the TUPE transfer at the last minute. The respondent requested her to reconsider the resignation on several occasions but she did not do so.

The respondent rejects the complainant’s contention that there was a fundamental breach of the complainant’s contract of employment.   The grievance raised by the complainant was thoroughly investigated and a report issued to her which she did not appeal. The complainant was on sick leave during the investigation and the company wanted to ensure she was medically fit to engage with the process. Medical appointments were organised for the complainant with the company doctor which the complainant failed to take part in. It was submitted that the respondent actively engaged with the complainant throughout the period and the report was issued to her as soon as she was declared medically fit to receive it. The complainant resigned after a meeting to inform her about the transfer of her employment under TUPE.   She was asked to reconsider her position on 3 separate occasions but she refused to do so. It was submitted that she failed to exhaust the internal grievance procedures before resigning. I was asked to apply the reasoning in the EAT decision in Conway v Ulster Bank UD474/1981.

I note that there was a 3-year delay in completing the investigation into the grievance referred by the complainant against her supervisor, but I am satisfied that it was reasonable for the employer to ensure that the complainant was medically fit before finalising the report. I note that the matter of the delay and issues around the complainant’s medical fitness was the subject of a recommendation by an adjudicator as outlined above, the recommendation was not appealed. I am also satisfied that the reasons for the delay cannot be attributed solely to the respondent as I note the complainant failed to attend/ participate in some medical appointments arranged by the respondent. Likewise, I note the complainant received the investigation report on the 6th of April 2017, at a meeting arranged to inform her about TUPE. The outcome of the investigation was not favourable to the complainant and I believe it is significant that she submitted her resignation following that meeting. She has presented no evidence that anything untoward happened at that meeting other than being informed about her transfer to another company and learning that the respondent had issued the investigation report to her in November.   I note the respondent said that the report was sent to the complainant in November 2016, but she did not respond or avail of the appeal, but the complainant said that she did not receive it.   There is no evidence that the respondent did not send the report to her in November. Therefore, I cannot accept the complainant’s contention that this constituted a breach of trust and confidence.

I am satisfied that the respondent made every effort to dissuade the complainant from resigning and encouraged her to appeal. In the circumstances, I cannot accept that the respondent was guilty of conduct which “is a significant breach going to the root of the contract of employment” applying the test in Paris Bakery cited above. The conduct of the respondent certainly did not meet the standards implicit in a “last straw” incident as set out in Berber above. The evidence tendered by the complainant is not sufficient to support a complaint of constructive dismissal. In Berber cited above the Supreme Court test for constructive dismissal said that “the conduct of the employer must be unreasonable.” I find that no evidence has been presented by the complainant to support the contention that the respondent’s conduct was unreasonable. The complainant did not exhaust the grievance procedure as she failed to appeal the outcome of the investigation. In applying the test in Conway v Ulster Bank concerning a constructive dismissal, it is clear that there is an obligation to exhaust the internal grievance procedures “to remedy her complaints” before resigning     For all the above reasons, I find that the complainant has failed to meet the threshold to establish a complaint of constructive dismissal in accordance with Section 1(b) of the UD Act and as set out in the caselaw cited above. Therefore, the complaint of constructive dismissal fails.

I find that the complainant has failed to establish that she was constructively dismissed

The workers case is that the employer failed to properly investigate her bullying complaint in line with procedures and to provide her with a safe work environment.

The worker raised complaints about her supervisor regarding her behaviour towards her and lower grade employees. On the 18th of March 2014, she had an accident at work when a toilet console fell on her head. Her glasses were broken and she also suffered dizziness and headaches and as a result went out on sick leave. She referred a grievance against her supervisor.

She submitted that the company grievance policy states that any grievance will be dealt within a reasonable time frame. However, the employer failed to deal with the complaints under the grievance procedures within a reasonable time frame and denied the worker fair procedures. The employer commenced the investigation in April 2014 and the worker only received the outcome in April 2017 and during that time the employer offered various excuses for not completing the investigation and failed on numerous occasions to answer correspondence from the worker. On a number of occasions there was a breakdown of communication from employer to employee. There was a lack of information that investigation was suspended in 2014 and in 2015, or no reply to the representative’s correspondence in 2015, 2016 and 2017.

Furthermore, the employer claimed that they issued the worker with the outcome of her grievance via ordinary post on the 24th of November 2016 but could not offer any proof that the report actually issued on that day.

On 6th of April 2017 the employer claimed that the outcome was issued to the worker around 24th of November 2016. We wish to note that usually the communication to our member was sent via email and by post. This time the employer claimed that it was done by a regular post but could not provide any evidence to substantiate it.

The union also wishes to note that there were no terms of reference in relation to the member’s grievance.

They are concerned that the investigation was not carried out properly (apart from the delays, i.e. some of the witnesses were questioned via phone call with an assistance of another employee who was translating the whole interview)

The overall breakdown of procedures, lack of proper communication resulted in loss of trust by the complainant in the respondent. Finally, the fact that the employer insisted that the outcome was sent to our member on/around 24th of November 2016, resulted in the worker losing trust and confidence in her employer resulting in her leaving the employment.

The employer refutes that the workers grievance that her complaint was not investigated in line with their procedures. The worker’s grievance was immediately addressed upon receipt by the company’s HR team and the investigatory process was instigated in line with company policy. Once the investigation began, the worker and all other relevant witnesses were interviewed during the investigatory process and she was furnished with a copy of her meeting notes to review. When she raised new allegations in her response, these were duly investigated also.

Since the worker remained out on sick leave (she continued to provide monthly medical certificates), and as per it its duty of care towards her, the Company decided to refrain from furnishing her with the final investigatory documents until she was fit to proceed, in case these further aggravated the worker’s illness. This decision has been accepted as per the adjudication officer’s decision of 10 February 2016.

The claim before the adjudicator is that the employer ‘failed to investigate in line with procedure’. The indicative timelines within the Grievance Procedures state that the company should ‘respond to the individual in writing within a reasonable timeframe…’. The company argue that given the situation regarding the worker’s health, that they have always acted reasonably in awaiting medical permission to conclude the investigation and the worker’s actions in relation to cooperating with the process must be taken into account in explaining any delay. The investigation report was duly furnished after the conclusion of the adjudication hearing and once the worker was deemed fit to engage and a right to appeal was given.

Alleged failure to provide a safe work environment

It is the position of the employer that the worker has always been provided with a safe work environment. The employer prides itself on its ‘Work Safe Home Safe!’ Policy, has a separate Health and Safety Handbook and its Company Handbook also contains a Whistle Blowing policy.

As the worker references in her claim, she has been provided with the company disciplinary and grievance procedures as well as the company bullying and harassment policies. These policies clearly outline the steps to be taken if an employee feels that their right to a safe work environment is being infringed on. The worker had also received the company EAP programme details as part of this investigation process.

The worker had never previously made a complaint, informal or formal, through these procedures and when she made her first complaint it was immediately looked into by the Company’s HR team. The employer immediately acted on its duty of care towards the worker.

The company provides a safe work environment for all of its employees and refutes this claim in its entirety.

In light of the forgoing arguments, the employer respectfully requests that the Adjudicator finds in favour of the company and that the worker’s claims under the Unfair Dismissals Act 1977-2015 and Industrial Relations Act 1969 fail.

I note that a complaint was made by the worker under the Industrial Relations Act 1969 to the WRC in relation to delays in the conduct of the investigation, the issuing of the findings and issues concerning health and safety in the workplace. The adjudication officer issued recommendation no r-159127-ir-15/MMG on the 10th of February 2016 and it was not appealed. Therefore, the complaints about delays in issuing of the investigation report I have to consider are the issues which arose following the issuing of the recommendation.

I note the worker was referred to the company’s doctor per the recommendation of the Adjudicator to assess her ability to continue with the investigation and she was deemed her medically unfit. The worker then provided her own medical reports to say she was medically fit to participate in the investigation.  

The company completed the investigation and issued the report to the worker on the 25 of November but she did not receive it. He union got the report from the employer on the 6th of April 2017. Her complaint was not upheld.   The worker is dissatisfied with the conduct and outcome of the investigation and stating that witnesses were not interviewed and there were no terms of reference. The employer did not respond to emails or letters from the worker or her union nor could they substantiate their claim that the report issued to the worker in November 2016. In addition, she said that there were health and safety issues in the employment and the employer failed to discharge his duty of care towards her and for these reasons she lost trust and confidence in the employer and she had no option but to resign.

It would appear that the complaints referred about health and safety were part of the complaints referred under the grievance procedure. These complaints were investigated by the employer and a report was issued which did not uphold the complaints. In considering the issues raised by the worker in relation to the investigation, I note that in an industrial relations case, Bord Gais Eireann and a Worker AD1377, the Labour Court stated:

“It is not the function of the Court to form a view on the merits of complaints giving rise to these investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedure used by the company conformed to the generally accepted standards of fairness and objectivity that would normally be used in cases such as these."  

The worker did not avail of the opportunity to appeal the outcome. It is not my function to form any view on the merits of complaints referred and investigated by the company’s investigator. There is no indication that the employer failed to follow “generally accepted standards of fairness and objectivity” in conducting the investigation.

As regards delays in completing the investigation, I note that there was conflicting medical evidence about the workers fitness to participate in the investigation and this contributed to further delays in completing the report following the issuing of the adjudicators recommendation.

However, I am of the opinion that the employer could have been more proactive in communicating with the worker and her union representative. The employer failed to keep either the worker or her union up to date on the progress and there was a lack of responses by the employer to some letters from them.   I am of the view there is some merit in this part of the complaint.

In order to resolve this issue between the parties, I recommend that the employer pay the worker €500 compensation.

Unfair Dismissal Acts, constructive dismissal, conduct not unreasonable, Industrial Relations Act, 1969, delay completing investigation.