Complainant

Respondent

Anonymised Parties

A Manager

A Charity

Representatives

FORSA Trade Union

D Shaffrey Solicitor

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-00004268-001

05/05/2016

The Complainant alleged that circumstances at work meant she had to leave the employment and was claiming constructive dismissal. Both sides made extensive submissions on both the substantive issues involved in the case and the legal issues involved as precedents.

The Complainant commenced employment with Respondents on the 8th of February 1993 and was dismissed on 7th January 2016. At the time of her dismissal the Complainant was head of Organisational Development and Learning. This submission and sets out the specific reasons for her decision to resign and claim constructive dismissal on the basis of a breakdown of mutual trust and confidence and a failure to address outstanding grievances.

The Complainant initiated a Dignity at Work complaint in June 2013, the complaint cited her line manager and the Chief Executive as Respondents (the complaint against the Chief Executive was not accepted as falling within the scope of the Dignity at Work investigation and therefore was not investigated, the Complainant does not contest the conclusion reached. The final report on the complaints issued in April 2015. The report into this complaint concludes that there was no evidence that the Complainant’s Line Manager had engaged in behaviour that met the definition of bullying and harassment. The report also concluded that the Complainant had valid grievances upheld in a number of specific areas.

It is not the intention of the Complainant to use these procedures under the Unfair Dismissals Act to seek to have that complaint reheard, nor to make any fresh allegations, however it would be necessary for the Complainant to reference the Independent Report for the purposes of highlighting where specific grievances were upheld.

The Independent Report complied over a considerable period of time in 2013 is extremely large and extends to many hundreds of pages of text. This submission contains quotations from that report which is available should the Adjudicator wish to inspect the same. The Statement of Claim makes clear that the specific grievances upheld by this report were as follows:

The manner in which she (The Complainant) was informed of the proposal to change her role to incorporate the duties of a CE Scheme Supervisor

The report states that her Managers handling of the information regarding this proposal was a breach of normal consultation with staff

The report also concluded that the Complainant had a valid grievance the proposed changes in that they were not consistent with her normal role and that she was entitled to resist such a proposal

The report also found that the Complainant had a valid grievance in relation to proposals made by her Line Manager to alter her job description without her agreement

The report states that the manner in which the Complainant leave arrangements were dealt with by her Line Manager was not in accordance with normal procedures and the handling of such matters was not in accordance with best practice

The report stated that the Complainant had a valid complaint regarding any threat of disciplinary action made against her by her Line Manager and that in this respect her Line Manager had overreacted.

Following publication of the report the Complainant engaged in correspondence with her employer seeking either a new assignment where she would not be reporting directly to the same Line Manager or alternatively to agree Terms of Settlement that she believed the employment relationship had broken down to the extent that it was no longer possible for her to continue to work for an employer who had effectively ignored the recommendations of an external report. The Respondent, prior to dismissal, at no point stated to the Complainant what exact steps would be taken to address her grievances and expected her to return to the same role with the same reporting structure as before.

As no satisfactory proposal on addressing the outstanding grievances was forthcoming from her employer the Complainant took the view that by their actions and omissions the Respondent had irrevocably broken the terms of her contract and concluded that she had no trust or confidence that she would be afforded fair or equitable treatment by them, as they had refused on several occasions to address the substance of the grievances as outlined within the external report.

Therefore on the 7th of January 2016 the Complainant resigned from her position with immediate effect and is now seeking redress under the Unfair Dismissals Acts in respect of the claim for constructive dismissal on the basis of the employer’s refusal to address legitimate grievances.

The Law on Constructive Dismissals

The first issue the Complainant notes is the requirement set out in the case of Western Excavating Ltd V Sharp (1978) that to succeed in a case of constructive dismissal the Complainant “must show that she exhausted the internal grievance process prior to lodging her claim with any external body”. This reasoning has also been consistently followed by the Employment Appeals Tribunal for instance in the case of Conway V Ulster Bank Ltd UD474/1981 where the EAT stated “in writing the letter of resignation, the appellant did not take the steps outlined in the grievance procedure. A 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”.

In this instance it is submitted that the Complainant has satisfied the test outlined in the case of Western Excavating Ltd v Sharp in that the complaint in relation to all of the matters contained within the Independent Report was raised with the the Respondent in 2013, in addition to completing those required steps within the procedure the Complainant engaged in correspondence and dialogue with her employer on the outcomes specifically the outstanding grievances highlighted in the report. Therefore we believe that the required duty to complete the internal grievance procedure has been complied with. In this instance the Complainant utilised the Dignity at Work Procedure to raise her grievance and it is submitted that use of this internal complaints procedure has equivalent status to the Respondent’s grievance procedure. It is therefore submitted that it would be unjust and prejudicial for her claim to fail on the basis that she utilised the Dignity at Work Procedure rather than the grievance procedure.

The reasoning for requiring Complainants to use the grievance process in a constructive dismissal claim exists for the purpose of ensuring that the employer is made aware of the nature of the problem and has every chance to address their concerns. This requirement was amply satisfied in this case and the Respondent cannot claim that they were not given exact details of the nature of the grievances which were upheld by the Independent report.

Section 1 (b) of the Unfair Dismissals Act states that constructive dismissal is “the termination by the employee of his contract of employment with his employer, where that prior notice of the termination 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 respect of the conduct of the Respondent in a constructive dismissal case the Complainant would highlight the ruling of the Supreme Court in Beber v Dunnes Stores (2009) LER6 where Finnegan J states that “the conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged effectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it”.

The Complainant will demonstrate that the conduct of her employer was indeed unreasonable and without proper cause, she will explain the effect on her over a considerable period of time, will outline the events which led her to the conclusion that the required mutual trust and confidence had broken down with the final event, or final straw, in a series of events being the refusal of her employer to acknowledge or address the outstanding grievances highlighted in the Independent Report produced.

Details of the Complaint and Investigation

The original complaint submitted by the Complainant to the the Respondent Services on 13th June 2003 it specifies the following areas where the Dignity at Work Policy in view of the Complainant had been breached ,those were continued isolation, non-communication, withholding of information, exclusion from promotional and redeployment opportunities at managerial level, hostility through sustained exclusion from the decision making process, inappropriate overruling of her role as Head of Department, reducing her position to routine tasks well below her skills and capabilities and changes in structures, and access to systems without prior discussion or explanation. The independent investigation commenced in April 2014 some 11 months after submission the original complaint in June 2013.

The overall findings of the Independent Report were that the complaint of bullying against the Complainant’s - Line Manager, was not upheld and was not well founded.

The executive summary makes clear that a considerable amount of material covering some six years was examined during the investigation. The Independent Investigator concluded that “following the most detailed scrutiny through the investigation and material provided to the investigation, the majority of incidents, events and behaviours complained of were found not to form the basis of a valid complaint”. This conclusion is not contested by the Complainant however The Complainant noted on publication of the report the Independent Investigator statement on page 1 that “aspects of the complaint are valid as grievances of a direct report.” The Executive summary highlights issues of concern put forward by the Complainant covering the years 2007 to 2009 and finds that there was no basis for a valid complaint against the Manager.

On page 2 of the Executive Summary in paragraph 7 the Independent Investigator states that “In January 2010 (The Manager) became the Line Manager of (The Complainant). This followed her removal from the SMT (Senior Management Team) by the CEO. (The Complainant) was absent for a lengthy period in 2010 and from the date of her return there begins a pattern of inadequate communication. It is found that the lack of real inter personal engagement, meetings, consultation and the provision of information around training, in particular around the matters discussed at the SMT, lie at the heart of the flawed relationship between these two employees and left a void in which a sense of grievance on the part of (The Complainant) developed.   The failure of (The Manager) to adequately manage the relationship with (The Complainant) is found to fall far short of the requirements of a management responsibility but is not found to be inappropriate behaviour which is defined as bullying”.

Paragraph 11 on page 3 of the executive summary contains the following statement from the Independent Investigator “Issues arose in 2012 which give rise to findings of inappropriate management by (The Manager) and legitimate grievances on the part of (The Complainant) where the manner in which the proposed transfer of CE work to (The Complainant) was communicated to her: the nature of that proposal: the proposal for redeployment as it is turned in particular the basis for that proposal.”

Paragraph 12 on page 2 of the Executive Summary states that “the handling of the leave issue by (The Manager) in 2013 gives rise to a legitimate grievance on behalf of (The Complainant). The alleged implication of (The Manager)’s behaviour in relation to this matter in terms of the potential consequences for (The Complainant) is not accepted.”

The Independent Investigator goes on to state in Paragraph 13 on Page 3 that “It is the overall conclusion of this investigation that the role of (The Complainant) in the Respondent altered quite significantly in the period under review for the reasons set out in the relevant section.   The effect of that alteration was a diminution of her role in training within the Respondent. However, the sense of grievance on the part of (The Complainant) that the diminution was solely or mainly as a consequence of the behaviour of (The Manager) or that he engaged in bullying behaviour was found to be misplaced and misdiagnosed reason for the change and diminution in her role in the Respondent. The diminution of her role was found to result from a number of factors but not exclusively or mainly the behaviour of (The Manager). The diminution of the role of the Department of Development and Learning is fundamentally an organisational issue allied to her removal from the SMT.”

The Independent Investigator concludes the executive summary on page 4 paragraph 17 in which she states that “The relationship between the two employees directly involved in this investigation can hardly be said to have improved as a consequence of this investigation/the future of that relationship and their respective roles in training into the future are matters for them and the the Respondent as an employer. It is recommended that this issue be addressed by the Director of Service, but is recognise that consultation may be required with the Board.”

The findings of the report are that the Complainant’s line manager had not bullied or harassed her, it is important to note that in bringing these proceedings the Complainant is not challenging that conclusion.

The conclusions of the report also highlight a number of serious and ongoing difficulties experienced by the Complainant during the course of her employment, which after care full examination, were upheld as valid grievances by the Independent Investigator. This is the evidence on which the Complainant is basing their claim of constructive dismissal.

The Findings of the Independent Report

The Sections of the report where grievances were upheld are set out below, the conclusions are set out in this submission and the full analysis in the relevant appendix.

Change in role of (The Complainant) – Removal from SMT

“Conclusion

This section does not contain any findings in relation to the behaviour of (The Manager) but rather an analysis of the change in the role of within the Respondent over the period under review. There is no doubt whatsoever that (The Complainant) is very aggrieved at the change in her role over the period 2007 onwards. This is regarded as a by-product of a range of factors none of which represent individually any finding of inappropriate behaviour or valid grievances against (The Manager).”

The analysis of this complaint confirms that no inappropriate behaviour took place in relation to the decision to remove the Complainant from the Senior Management Team. However the diminution of role and status is confirmed by the investigation in several ways including the following comments from the analysis:

“there was a series of changes in the period 2007 to 2012 which have fundamentally altered the role of the Complainant compared to the position she held in 2007 with the support of the then CEO. It is contended that those changes have brought about a decline and an erosion of the role of the Complainant within the organisation.”

This section is highly relevant when assessing the nature of the employment relationship. The Complainant had progressed her career to the level of Head of Department with a place on the Senior Management Team, her removal from the SMT was the start of the process, as the Complainant will explain, whereby her role, function and autonomy were consistently undermined.

Communications post change in reporting relationship.

Conclusion

“The form and extent of communications as conducted by (The Manager) with (The Complainant) following the change of reporting relationship (effectively September 2010) is regarded as inadequate and a significant contributor to the problems which developed for and with (The Complainant) and the the Respondent. The reliance on email and the absence of meetings and conversations denote a flawed and inadequately managed reporting relationship. This is deemed to be poor management rather than inappropriate behaviour as defined as bullying.

The distinction does not lessen the significance of the conclusion. (The Complainant) contributed to the situation by her own reliance on emails and by not seeking any conversation about the lack of engagement indicating that she was not particularly anxious to have interpersonal contact – however and to be clear, the responsibility for managing the communications and behaviour of (The Complainant) lay with (The Manager) and he is responsible for any shortcomings in this regard.”

This complaint related to the circumstances the Complainant found herself in after her removal from the SMT when in 2010 her reporting relationship changed, heretofore she had reported to the CEO and now she would report to the HR Manager directly.

The analysis of the complaint makes clear the net effect of problems with communication on the Complainant as follows:

“The overall analysis from this investigation is that there are three key organisational

factors as distinct from behavioural factors which led to (The Complainant) seeking

to exit the organisation after lengthy service and which led instead to a complaint of

bullying and this investigation:

removal of (The Complainant) from the SMT;

changes in the direction of training under the stewardship of the new CEO

and, the failure of (The Manager) to manage (The Complainant) from September

2010 in a manner that was inclusive, respectful or active.

Greater engagement in the role assigned to him by the Director of Services in terms of the reporting relationship which she delegated to him rather than to any other senior manager could have abated the difficulties experienced by (The Complainant) and the resentment she felt about Items 1 and 2 of these three strands.”

CE Supervisor Grievance

Conclusion

“(The Complainant) has a valid grievance regarding the manner in which she was informed of the proposal to extend her role in the CE Scheme in support of the merger with the CARI Scheme.

(The Manager)’s handling of the information to (The Complainant) and the

commitment of her time to a different role was in breach of normal and good

practice regarding consultation with his direct line report.

(The Complainant) has a valid complaint regarding aspects of the changes in

that they were not consistent with the role of the PDO and they are part of the

duties of a CE Supervisor and she was quite entitled to resist such a proposal.

The changes proposed if implemented would have resulted in her reporting to

a CE Supervisor and thus would have resulted in a diminution of her role as

an autonomous Head of Department in a manner outside of the scope of her

employment with the the Respondent.”

The genesis of this complaint was an attempt by the The Respondent to compel the Complainant to take on responsibility for the running of a CE Scheme. The investigation highlighted the fact that such duties were akin to that of the CE Supervisor role with some exceptions. The analysis and conclusions could not be clearer, there were deficits in the communication and consultation on this issue, this was a breach of normal and good practice, she was entitled to resist the proposal and had she accepted the role it would have diminished her role in a manner outside the scope of her employment.

The analysis contains the following comments:

“Based on the foregoing analysis it is indisputable that the proposal to convert part of the role of the department staff into direct involvement with a CE Scheme represented a fundamental shift in the role of that department, a reduction in the autonomy of the Head of Department, an alteration of the reporting relationship for aspects of its function, and was completely at variance with the job description of the Head of Department and the previous role of the staff of that department. The complaint by (The Complainant) that this proposed alteration represented a diminution of her role is accepted as being valid.”

This proposal was subsequently withdrawn when the Complainant’s trade union objected, however it then triggered a further proposal from the The Respondent to abolish the Complainant’s post as Head of Department and assign her into a role as a Training officer.

Proposed change in role profile – job description – redeployment

Conclusion

“(The Complainant) has a valid grievance in relation to the proposals made to alter her job description and to oblige her to work on a CE Scheme and also in relation to the purported rationale for the changes including her loss of autonomy and incorporation into the HR Department. The proposals and the manner in which they were proposed are outside of the scope of the redeployment arrangements as they apply in the public service under the relevant agreements.

As the proposal was withdrawn by (The Manager) following representation by her trade union this is not regarded as inappropriate behaviour on the part of (The Manager) such as is defined as bullying under the Dignity at Work Policy.”

The analysis of this valid grievance is striking. The Independent Investigator comments on the complaint as follows:

“As an industrial relations issue this episode is quite striking. An employee objects to being given a piece of work on the basis of the lack of consultation, the nature of the work and the workload and makes representations to her manager with her union to that effect. She raises concerns about her role and difficulties she is experiencing in her current role in the organisation. She will say that she had previously raised concerns about getting information from other departments relevant to her role as the manager of a department responsible for development and learning in the organisation.

In response she is landed with an entirely new job description, one which obliges her to take on the work which caused her to seek the meeting with the HR Manager in the first instance; her autonomy is eliminated; her title is changed to a role at least one grade below her own; she is given a very strict reporting relationship to the HR Manager and some terms of the proposal could be interpreted as obliging her to work on programmes such as the Code of Practice outside of her normal working hours, something she had also resisted when previously requested to do so.

If the response of the Respondent management to every situation where a member of staff comes forward and expresses opposition to new duties and concerns about their role is to deliver a new job description which fundamentally alters their role and positioning within the organisation from where it was previously under their terms of conditions of employment including their job description, the industrial relations scenario would have the potential to be one of constant conflict between individual employees and the management. (The Manager)’s actions in this matter are highly irregular in their response to the case made to him, in the considerable experience of this Investigator.”

The proposed new job description as Training Officer represented confirmation of the downwards trajectory of the Complainant’s status and employment prospects with the Respondent.   The analysis of this complaint concludes with the following statement:

“When her personnel record as provided to this investigation is examined the title Training Officer took (The Complainant) back at least ten years in the The Respondent Services and such a proposal was never going to be acceptable to her.”

Arrangements for notification of annual leave to (The Manager)/disciplinary issue

Conclusion

“The manner in which (The Manager) approached the issue of changing arrangements for the notification of annual leave by the Clerical Officer in the Department and the implied requirement to provide cover between the Department and HR was not in line with normal procedures in the handling of such matters where discussion with staff including consultation would be a reasonable expectation. (The Complainant) has a very valid complaint regarding the email informing her of potential disciplinary action (No. 765). This email from (The Manager) was an overreaction and (The Manager) never addressed the issues raised by (The Complainant) in her email (No. 760). There is a significant level of overreaction on the part of (The Complainant) in her characterisation of the implication of the email referring to disciplinary action – but nonetheless the principles of consultation regarding change and dialogue”

This complaint relates to the introduction of a new policy for the notification of annual leave, a policy the Complainant was not informed of and not consulted on. The Complainant was threatened with disciplinary action when she queried the rationale for this new policy and she was told that the HR Manger was escalating the matter to the level of the CEO. It should be noted that these events took place during the ongoing process of conflict between the Complainant and the Respondent Management in regard to changes to her Head of Department role.

The Independent Investigator also states that “any reasonable person would have found the behaviour of (The Manager) and the tone and content of his email regarding the change in arrangements unacceptable and the tone and content of his email in relation to disciplinary action deeply unpleasant would not be surprising.”

This had the effect of further undermining the Complainants trust and confidence in her employer, whilst any disciplinary action would not have, and could not have, amounted to gross misconduct, the threat of initiating the procedure was unwarranted, unwelcome and contributed to the deterioration in the employment relationship.

Approval/funding for Masters programme

Conclusion

“(The Complainant) has a legitimate grievance about not being informed that the

organisation was funding a Masters programme for a named member of staff and

being placed in a position of approving the invoice for the programme. The grievance

is not regarded as inappropriate behaviour as defined under the Dignity at Work

Policy related to bullying.”

This valid grievance demonstrates the extent to which the Complainants Head of Department role had been diminished in 2013, the essence of the grievance was that previously funding decisions would have been handled through the Department and through the Complainant, in 2013 the role was reduced to the extent that key funding decisions were taken without any reference being made to the Head of Development and Learning.

The Independent Investigator concludes her analysis as follows:

“The failures of (The Manager) in this matter display a careless disregard for the Complainants need and right to know about such matters from him and not from the member of staff involved.”

Summary of the findings of the investigation report

The report concludes that the events complained of did not constitute bullying and/or harassment and the Complainant accepts that determination. The report however identifies at least 6 areas in which valid grievances were upheld. The seriousness of the grievances ranges from the failure to inform the Complainant of funding decisions that should have been within her remit, to attempts to compel her to undertake the CE Scheme Supervisor role. When taken together and viewed as a series of events these incidents are of sufficient seriousness for the Complainant to expect a reasonable employer to take steps to address the findings.

Events after the report was published.

The report was sent to the parties on 1st April 2015. Both the Complainant and Respondent accepted the findings of the report. On 1st May 2015 and 19th May 2015 IMPACT wrote to the Chair of the Respondent Board requesting confirmation of exactly how the Respondent proposed to address the findings of the report.

On 21st May, the Chairperson of the Investigation Sub Committee wrote to the Complainant confirming that the Organisation accepted the findings of the report. The letters included as appendix 16. The letter confirms that the Dignity at Work complaints had not been upheld and then goes on to state that the Board had considered…and noted, “the areas where a valid grievance has been found; and where improvement in management style and communications is identified”. He concluded by stating that the Respondent was committed to “addressing the recommendations as set out.”

In order to discuss the outcome of the investigation a meeting then took place on 16th June between the Complainant, the IMPACT Official and the Chair of the Board. During this meeting it became apparent that the Chair had not read the report, he was aware that the Dignity at Work complaints had not been upheld but was not aware that any grievances had been upheld and he requested information on the same and any proposals for the future. The Complainant explained the changes to her role, job and function stating that she couldn’t accept the effective demotion to Training officer as proposed and was fearful of her employment prospects within the organisation. She very clearly stated that she did not have any mutual trust and confidence in her employer and wished to leave. The Chair stated that a severance payment was out of question due to the monies spent on the investigation and he couldn’t consider the same. He requested details of the nature of the Complainant’s concerns be sent in writing.  

On 10th August IMPACT wrote on behalf of the Complainant to the Chair outlining the findings of the report in relation to valid grievances and complaints made by the Complainant.

On 28th October (after some confusion over lost correspondence and a misdirected letter)  

The Chair wrote back to IMPACT. In this letter The Chair states that the majority of complaints raised by the Complainant in the course of the investigation were not upheld. He stated that a number of complaints had been disproved, that there were a number of inaccuracies made by the Complainant in the course of advancing her complaint in respect of dates, incomplete information and that a complaint in relation to another staff member were unrelated to her complaint against her line manager. The Chair goes on to quote from Section 3.7 of the report that the Complainant’s behaviour in respect of a specific complaint was “in itself bordering on malicious”. The Chair stated he did not accept that the grievances or complaints constituted breach of contract and stated that no payments would be made to the Complainant. He concludes by recommending that the Complainant engage with the Director of Services regarding a return to work.

This is a different message from that conveyed by the Committee Chair who had already acknowledged the shortfall in management style and communication then indicating that the organisation would address such matters.

The reference to the behaviour of the Complainant being in some way malicious is clearly linked to the attempts by (the Manager) and the new CEO have complaints against the Complainant upheld, both alleged that the Complainant was acted maliciously and veraciously in bringing her complaint forward.

Allegation of malicious or vindictive complaint

Conclusion

“The allegation or suggestion that the complaint made by (The Complainant) is

maliciously motivated or vindictive is not upheld primarily on the grounds that it is

accepted that (The Complainant) feels very strongly that she has been very badly

treated by the The Respondent in the form of certain named managers.

Management were aware of her intention to submit a complaint of bullying before

and not after they engaged in discussions about a severance payment which is also

a significant factor in this conclusion.

It is also accepted that since April/May 2013 there has never been any intention or

expression of an intention by (The Complainant) which would indicate that she is

looking for anything other than an outcome which will lead to a financial settlement.”

The Complainant had first suggested terms of severance in 2014 during discussions over changes to her job, role and function that included taking on the work of a CE Scheme supervisor and latterly a proposal to redeploy her to the role of Training Officer. She instructed her Union official to make enquiries as to if terms of severance could be agreed as an alternative to engaging in litigation as she did not feel she could remain in the employment of the Respondent. Management at the Respondent engaged with IMPACT and the Complainant on the possibility of a settlement but no figure could be agreed and the Complainant, who was already on sick leave at that stage, in recognition of her obligation to submit a complaint or grievance then sent in her formal complaint to the Respondent.

The basis of the complaints by the CEO and the Manager was, according to the findings of the report, that the Complainant had initiated the complaint in pursuit of a financial settlement, something the Complainant never denied, e.g. she always maintained that her preference would be to leave on agreed terms.

In rejecting both complaints the Investigator states that the effect of engaging in the negotiation with the Union “was to give the potential complaint some credibility and to suggest that there may have been an issue which management were concerned about.”

From the Complainant’s perspective it was disappointing to read The Chair reference this matter in his letter recommending she return to work. More concerning for the Complainant when reading the report itself, had been the knowledge that the two most senior Managers within the The Respondent Services had sought a finding that her complaint was malicious and vexatious, had those complaints been upheld Management would have been in a position to initiate disciplinary proceedings against the Complainant on the grounds of gross misconduct. This knowledge reinforced the view of the Complainant that she would not fare well if she returned to the same working environment where she had experienced so many problems.

During the period between August 2013 and the date of dismissal the Complainant availed of sick leave, firstly on a paid basis and on expiry of occupational sick pay, then on an unpaid basis. A letter sent to the Respondent from the Complainant’s GP in December 2013 stating that she is no longer able to cope with the ongoing stress at work.

An Occupational Health referral was made for the Complainant for a consultation of the 19th September 2013 and Dr X states that the Complainant was medically fit for work but had identified ongoing work related issues that she feels have contributed to her recent feelings of reduced wellbeing. Dr X recommends that such IR/HR issues be dealt with through appropriate HR channels prior to her returning to work.

A further letter from Dr Y was included dated 24th February 2014 in which he states that the Complainant would be fit to resume work if working at home is made available.

Representations were made by IMPACT on 2 occasions seeking firstly homeworking for the Complainant, and secondly an extension of paid sick leave as she was now, in 2014, off pay and in acute financial difficulty. Both requests were refused by the Respondent.

Resignation

Following receipt of the letter outlining the position of the Chair of the Board of the The Respondent dated 28th October 2015 there followed an exchange of correspondence between the Complainant and the Director of Service (CEO) . There was some confusion over the dates on which letters were sent to the parties and the Complainant does not attribute blame to the Respondent in that respect.

The Complainant wrote to the CEO requesting information as to how the Respondent would address the outstanding grievances.

On 28th August 2015 the Complainant wrote to the Respondent requesting an update on her return to work arrangements and information on how the valid grievances would be addressed.

On 23rd September 2015 the Respondent sent a letter to the Complainant stating that the valid grievances would be addressed in the normal course of service improvements, and that despite the changes to her role she could return to her job.

Further correspondence was exchanged in December 2015 and January 2016 culminating in a resignation letter sent to the Respondent on 7th January 2016, this letter states that the Complainant is resigning and intends to litigate for constructive dismissal given that the Respondent has refused to address her grievances. She also cites the intention of the Respondent to return her to her current post with the same line management arrangements. She states that she views these actions as a fundamental breach of contract and resigns.  

In response the CEO wrote to the Complainant on 3rd February stating that the complaints were fully investigated and that “a small number of grievances were identified”, the CEO also states that categoric assurances that the grievances would be addressed had been provided, this is contradicted by the earlier correspondence referred to above which clearly states that the grievances would be addressed as part of the “normal course of service improvements”.  

In a second latter also dated 3rd February the CEO also write to the Complainant stating that her line manger The HR Manager would be taking up a new post (National Head of HR) and that she would not be reporting to him if she returned to work.

On 15th February 2015 the Complainant wrote to the Respondent pointing out that the “small number of grievances” highlighted in the report were very serious matters meriting attention, stating that she had no faith that she would be treated fairly if she returned to work.

A final letter was sent by the CEO to the Respondent on 4th March which effectively acknowledges the resignation. In this letter a question is put to the Complainant as to why they did not appeal against the findings of the report if they were unhappy. It is submitted that this is flawed reasoning as the Complainant accepted the report in full, and made every attempt to have her employer address the findings. Therefore the issue of an appeal did not arise.

Conclusions

The investigation into complaints of bullying at work were not upheld. However the investigation uncovered a highly unsatisfactory employment relationship between the Complainant and The Respondent. Serious grievances in 6 areas were upheld. In such circumstances the Complainant was entitled to expect her employer to address those matters. It is clear that they refused to do. When she met the Chair of the Board it was apparent he had not even read the report and the findings were tersely dismissed by the Director of Services as amounting to a small number of grievances being upheld which (in a far from categoric manner) were to be addressed through the course of normal service improvements.

In respect the legal test, as to if, a constructive dismissal took place, as referenced above, it is submitted that the investigation into the complaints took many months and was exhaustive. The Complainant accepted the outcome of the investigation, that being that the bullying complaints were not upheld but that in 6 areas grievances and other complaints were upheld. She then engaged with the most senior person in the organisation that being the Chair of the Board in an attempt to have these grievances addressed, they were not addressed at any time following the publication of the report to the date of dismissal. It is submitted that in making her original complaints, participating in a lengthy investigation and then engaging with the Chair of the Board and the Director of Service she discharged her obligation to use the grievance process to highlight her concerns to her employer. At the time of dismissal her concerns had been set out in the report and in correspondence with senior staff and Board representatives.

In respect of her requirement and obligation to purposefully engage with the complaints or grievance process so as not to be seen to be “going through the motions”, the Complainant put considerable effort into the process, supplying perhaps too much detailed material in the hope that her complaint would be upheld. That was not the conduct of an employee merely “going through the motions” or not engaging with the process.

It should be noted that as far back as 2014 the Complainant had reached the conclusion that her role was being diminished to such an extent that she was concerned about her future and would have preferred to leave, she also experienced further difficulties with the relationship with her line manager that gave rise to the findings in the report.

Notwithstanding her view that the employment relationship had ceased to be meaningful or fair, she did not resign on publication of the report. The Complainant then sough clarity on how the findings of the report would be implemented and only resigned once it was clear, as confirmed by the Chair of the Board, and the Director of Services, that the grievances were not to be addressed in anything like a serious manner. The issue of lodging an appeal as suggested in the Respondent’s statement of defence simply does not arise, when the Chair or the Board refuses to act on the findings of the report, there was in effect no-where else for the Complainant to take her claim other than to the WRC.

A statement of loss was provided. The net effect of the dismissal on the Complainant’s wellbeing, financial security and career prospects have been severe.

Finally the Complainant is aware that in order for her claim to succeed she must show that the conduct of her employer is such that in effect no employee could, or should, be expected to put up with it.

The conduct of the Respondent is set out in detail in the Independent report. It is not open to the Respondent to contest the findings of that report as they accepted the report in full. Just as they were happy to accept that the complaints of bullying were not upheld, so they should have accepted that the grievances were upheld and that some of those complaints were serious in nature.

There is a series of events described in the report, taken together it is the submission of the Complainant that the grievances and the diminution of her role amount to a fundamental breach of the contract entitling her to resign. The Complainant believes that if any employee was asked to accept treatment such as that detailed above they would be entitled as the Independent Investigator says “to resist.” In particular we draw attention to the confirmation in the report that the Head of Department role was undermined and effectively abolished, the attempt to force her to accept the role of a CE Scheme Supervisor, the lack of consultation, the threat of disciplinary action, the ongoing attempt to down grade her job to Training Officer in breach of her contract, the side lining of her in respect to funding decisions and the manner in which the Respondent treated her over a considerable period of time.

Finally we stress that such conduct by an employer would be grounds for any employee to consider that mutual trust and confidence was entirely absent from the employment relationship and that the employer could not be trusted to treat them fairly. The attempt to obtain findings that her complaints were submitted vexatiously and maliciously also weighed on the mind of the Complainant, as the two individuals occupied the most senior positions on the staff within the service. Is it any wonder the Complainant had no confidence in her future employment prospects with the Respondent.

The Respondent refused to address the detail or substance of the grievance from 1st May 2015 when the report was published to the 7th January 2016 when she resigned. This refusal to effectively address the valid grievances is inexcusable, it is hard to envisage complaints being upheld against junior staff being effectively ignored in such a manner.

We submit it would be hard for any employee to present a more obvious and justifiable catalyst for resigning and litigating for constructive dismissal.

We therefore respectfully request that the Adjudicator find in favour of the Complainant.

               The Complainant herein argues that she was constructively dismissed on grounds of breach of mutual trust and confidence in that the Respondent failed to address legitimate grievances that she had against a number of her colleagues. The Respondent denies this and points to the considerable time and energy devoted to a bullying and harassment complaint raised by the Complainant pursuant to its Dignity at Work Policy. After the conclusion of that investigation and the furnishing of a lengthy report, the Complainants grievances were largely not upheld. A small number of issues were highlighted for change and this was to be addressed as part of the Complainant’s return to work. The Complainant never appealed the findings of the investigation and never returned to work. Her actions therein were unreasonable and she is disentitled from claiming constructive dismissal.

                At the time of her resignation, the Complainant was employed by the Respondent as the Head of the Department of Development and Learning. She commenced employment with the Respondent as a researcher in 1992 and moved through various grades from supervisor, training officer, Head of Training & Development to become the Head of Organisational Development & Learning. In 2007, The HR Manager joined as Head of Human Resources. He joined at a time of economic turmoil and was later involved in three major restructurings resulting in the deployment of many staff. When he joined, Ms. “NB” was Acting CEO of and the Complainant line manager. On 19th September 2013, the Complainant made a written complaint under the Dignity at Work Policy of the Respondent which in itself is a 3 page long document. However, it was accompanied by a 41 page long list of incidents between 2007 and September 2013. This complaint had 14 Appendices in relation to a variety of meetings and letters.

                The crux of the complaint was that by these various incidents in the 41 page list, and also NB had undermined and excluded the Complainant in her work, threatened her with disciplinary action in April 2013 and from that date, she had suffered heightened stress. She stated that having exhausted “preliminary procedures” for dealing with allegation of bullying and harassment in the Dignity at Work Policy of the Respondent, she was submitting a written complaint as provided for by the Safety Health & Welfare at Work Act, 2005 against the Respondent. She stated that at this point she had “reluctantly been forced to take sick leave” as she felt her health was at stake and she “had no other recourse.”

                By written reply dated 28th February 2014 amounting to a 60 page document accompanied by 41 Appendices, The HR Manager set out a defence of his actions and behaviour and sets down his perspective of his dealings with the Complainant. The HR Manager’s contribution was a 15 page letter followed by a 45 page “Comments on Time line.” In summary, he set out how he was involved in restructuring the company and that this involved a restructuring of the Complainant’s role. He defended his actions and pointed out where the record and Minutes of Meetings did not support the contentions being put forward by the Complainant. He pointed out that in May 2013 in a meeting with her TU representative, Mr. Andy Pike, he was told that the Complainant was considering making a bullying allegation against The HR Manager and The CEO if she did not receive €80,000 as a redundancy offer. At this point, a settlement offer was made of approximately €40,000 which amounted to almost 12 month salary. This offer was generated in line with public sector rules in respect of voluntary redundancy in force at the time. If the Complainant was full time her salary would have been €61,417 but she was part time on .69 of a full post and her annual salary was €43,743.09 inclusive of an allowance of €2,375. This offer was rejected and the said bullying complaint subsequently followed. The HR Manager was on annual leave from 5th July until 1st August 2013 and the Complainant was on annual leave from 29th July until 13th August 2013 and thereafter moved directly to Paid Sick Leave citing workplace stress (and never in fact returned to work). The HR Manager made the point that by letter from Mr. Pike dated 2nd July 2013, mediation was explicitly declined and was also later declined and the first mention of bullying notwithstanding a claim going back to 2007 was in the conversation between The HR Manager and Mr. Pike when redundancy was sought.

                The CEO also set out her defence to the allegations against her in a 4 page letter dated 28th February 2014 accompanied by a 9 page document entitled “Responses to Main Allegations” and a 9 page document entitled “Responses to Incidents.” It is quite clear that The CEO like The HR Manager took the view that operational changes were not personally driven but driven by the needs of the Company and the cost reductions undertaken by the Respondent. Further, she commented on her interactions with the Complainant throughout the various changes that were proposed in her role throughout 2012 and 2013

Bullying Report – 27th February 2015

             When the allegation/complaint of bullying was received by the Respondent,   a sub committee of the Board was appointed and a Terms of Reference was drawn up, for an investigation pursuant to the Dignity at Work Policy of the Respondent. A comprehensive and very detailed investigation took place and a Final Report of the investigators was delivered, dated 27th February 2015. The investigators followed a clear methodology, extended fair procedures to all in the investigation and made reasoned conclusions. They interviewed the Complainant on 4 occasions in late April and May of 2014 and 3 further times in September 2014. They interviewed The HR Manager 5 times in June 2014 and 2 further times in October 2014. Many other relevant witnesses were interviewed.

                Describing the issues and events as “unusual and particularly complex,” the investigators ultimately concluded that much of the allegations amounted a broad sweep against The HR Manager but in fact were allegations against others for which The HR Manager was being held accountable. That link, when found was deemed “flawed and unreasonable.” The earlier events of 2007 were discounted as not amounting to bullying and indeed not amounting to a “valid complaint of inappropriate behaviour.” It found nothing untoward in 2008 and 2009. In January 2010, The HR Manager became the Complainant’s line manager following her removal from the Senior Management Team (SMT) by The CEO. the Complainant was absent for a lengthy period in 2010 and thereafter there was “a pattern of inadequate communication.” The investigators held that “the lack of real interpersonal engagement, meetings, consultation and the provision of information around training, in particular around the matters discussed in the SMT, lie at the heart of the flawed relationship between these two employees and left a void in which a sense of grievance on the part of the Complainant developed. The failure of The HR Manager to adequately manage the reporting relationship with the Complainant is found to fall short of the requirements of such a management responsibility but it is not found to be inappropriate behaviour which is defined as bullying.” The investigators found that after she was no longer a member of the SMT, the Complainant in her emails to The HR Manager (her almost exclusive and preferred means of communication) adopted a “tone of censor and criticism of managers and in particular members of the SMT.” No issues in relation to 2010 and 2011 were seen as justifying allegations of bullying. Issues in 2012 gave rise to findings of inappropriate management by The HR Manager and legitimate grievances on the part of the Complainant were “the manner in which the proposed transfer of CE work to [her] was communicated to her; the nature of that proposal, the proposal for redeployment [and] … the basis for that proposal.” Also, it was found that the handling of the leave issue by The HR Manager in 2013 gave rise to a legitimate grievance on the part of the Complainant though the alleged implication of The HR Manager’s behaviour in relation to this matter in terms of the potential consequences for the Complainant was not accepted. The overall conclusion was that the Complainant’s role in the Respondent altered significantly and the effect was a diminution of her role in training. Her sense of grievance that this diminution of her role was “solely or mainly as a consequence of the behaviour of The HR Manager or that he engaged in bullying behaviour” was found to be “misplaced and misdiagnosed reasoning for the change and diminution of her role.” Rather, the diminution of her role was from a number of factors “including but not exclusively or mainly the behaviour of The HR Manager.” It was “fundamentally an organisational issue allied to her removal from the SMT.” Ultimately while the investigators were prepared to hold that the validity of aspects of the complaint were “grievances,” they held that the complaint of bullying was not well founded.

                the Complainant never returned to work after the delivery of the Bullying & Harassment Report nor did she appeal its findings. Subsequent to the report issuing there was significant engagement with the Complainant and her Union Representative with a view to facilitating her return to work. the Complainant received categorical assurances from both the Chairman of the Board of Directors and Director of Services that her issues would be addressed as part of her return to work and further that the Respondent was satisfied that every reasonable effort had been made by them to facilitate her return to work. It was reiterated that her job was still open for her to return to work and the Respondent would do everything to assist her in that regard.

                There were a number of engagements (meeting 16th June 2015 and subsequent correspondence set out below) to consider the outcome of the report and the subsequent return to work. A summary sequence of events is set out below:

                Meeting between Chairman of the Board (The Chariperson) , the Complainant and Andy Pike (hereafter “AP”) of IMPACT on 16th June 2015.

                At this meeting, IMPACT on behalf of the Complainant queried the view of the Respondent on the report.the Respondent confirmed its understanding that the investigation had vindicated The HR Manager & The CEO. IMPACT pointed to grievances arising from the report and asked how the Respondent planned to deal with these. The Chariperson said that the Complainant had made very serious accusations against two of the most senior people in the organisation, the matter had gone to a professional (JH) in the area who carried out a comprehensive review, and found that the claims were not valid. He stated that the Complainant should go back to work. the Complainant said this would be very difficult as she had lost confidence in the Respondent. AP said they may have to go to court and would use the report as part of their case.The Chariperson said the Respondent would be using the report as part of its defence.As Chairman, The Chariperson stated he had no idea of what the outcome might be but he was very glad to see that the Report concluded that the bullying and harassment claims could not be upheld. AP said IMPACT would write setting out the areas upon which they would be taking a claim and asked if the Respondent could consider ‘a new role’ for the Complainant.The Chariperson said we would but this would not be a matter for him as Chairman, the Complainant would have to have the skills required and a job would have to be available.AP mentioned settlement but The Chariperson said he could not ignore all that has been said and the wrong accusations against The HR Manager and The CEO.

                Letter of 10th August 2015 from Andy Pike to The Chariperson (resent 25th September as not received by Respondent ).

Mr Pike wrote to the Respondent outlining that while no complaints against The HR Manager had been upheld there were a number of grievances including:

Not informing the Complainant about funding for the Masters programme.

The manner in which the Complainant was informed of the proposal to extend her role in the CE scheme and that in the view of the investigator, the Complainant had a valid complaint regarding aspects of the changes.

Proposal to alter her job description (Note that this proposal was rescinded).

Changing arrangements for annual leave.

IMPACT requested the Respondent to put forward proposal and stated its view that the Complainant was entitled to view her contract as having been breached due to behaviour over the period of time examined in the investigation.

                Letter of 31st August 2015 from the Complainant to the CEO

                the Complainantrequested update as to how grievances were to be addressed and proposed an outline of positions available to her and put forward a proposal around loss of earnings.

               The CEO correspondence to the Complainant on the 23rd September 2015

                In this correspondence, The CEOconfirmed/acknowledged that:

Specific areas of valid grievance had been identified

That the grievances would be addressed in the normal course of service improvements.

Confirmation that the Complainant job remained open

the Complainant was requested to engage in the process for returning to work.

Confirmed that the Complainant availed of the sick pay scheme and therefor no loss of income arises.

                The Chair person correspondence of the 28th October 2015 to Mr Andy Pike (IMPACT)

In this correspondence, The Charipersonconfirmed/acknowledged that:

In the overwhelming majority of issues raised including incidents and events cited as inappropriate behaviour by the Complainant, these were not accepted as valid in terms of grievances of bullying behaviour by the HR Manager.

The complaint document contained a significant number of complaints which have been disproved in this investigation

Under section 3.7 of the Report, the Complainant’s behaviour was regarded as inappropriate and was ‘itself bordering on malicious’

He was confident that the management of the organisation addressing those areas where improvement and enhancement of procedures are required in the normal course of business improvement.

He did not accept that valid grievances constituted a breach of the Complainant’s contract.

He recommended that the Complainant engage with the Director of Services in order to progress the process of her return to work.

                Further correspondence between the parties

                Andy Pike in correspondence to the Chairperson dated 23rd October 2015 requested proposals to resolve the situation. Ms N wrote to the Complainant on the 10th December 2015, requesting a response to the letter of the 23rd September 2015. the Complainant responded to The CEO on the 7th January 2016 arguing that she had not received a plan on how the grievances were to be dealt with, that she was expected to report to The HR Manager and argued that this represented a fundamental breach of contract.

                By letter dated 3rd February 2016, The CEO confirmed that she had provided categorical assurances that the grievances raised by the Complainant would be addressed as part of a return to work, that the job was still open to her and that the Respondent would do everything to assist in the return to work.

                By separate correspondence on the 3rd February 2016, it was confirmed that The HR Manager would be taking up a separate role in the Respondent and that the Complainant would no longer be reporting to him. the Complainant was also advised that The HR Manager, who had been her Line Manager and in respect of whom she has made the complaint of bullying behaviour, had taken up a new post within the Respondent for reasons completely unrelated to her complaint and, on that basis, she would no longer be reporting directly to him. It was set out clearly that it was hoped this information may be of help in terms of her considering her return to work as this had been raised specifically as a concern by the Complainant in her correspondence of the 7th January, 2016.

                As stated herein, by letter dated the 10th December, 2015 Ms X had written to the Complainant requesting a response to Ms X’s correspondence of the 23rd September, 2015. the Complainant wrote on the 17th December 2015 to Ms X stating that she would respond in due course. the Complainant responded on 15th February 2016 to Ms X making a number of complaints, to include the following:-

Complained with regard to the delay in the investigation process.

Complained that although the Investigation Report did not uphold the bullying complaint, that pertinent sub-sections of the relevant legislation were not taken into account in reaching conclusions regarding the impact upon her.

Complained that the “small number of grievances” referenced in Ms X’s letter of 3rd February 2016 were very serious matters and appeared to be “trivialised by you and The Chairperson”.

Complained about the manner in which the Chairperson approached her at a meeting in June 2015.

Complained that Ms X’s letter attempted to be belittle the serious grievances, some of which were sanctioned by Ms X.

Complained that The HR Manager’s new position did not remove his influence over her and her career.

Complained that no action was taken against The HR Manager.

Advised that she would be making a claim for constructive dismissal.

                A response was sent to the Complainant on 4th March 2016 by Ms X which set out clearly the following:

It was accepted that the Complainant found the process difficult but that the Respondent was obliged to carry out a proper and fair investigation into the complaints that she had brought. Unfortunately with regard to any delay, there were certainly delays but the blame for such delays could not be solely laid at the door of the Respondent. At certain points in the investigation, both the Complainant and her representatives contributed to a certain amount of these delays, which unfortunately sometimes could not be avoided.

With regard to her new allegation that sub-sections of the relevant legislation were not taken into account when reaching conclusions regarding the impact upon her, the Complainant was asked as to why she did not raise this as an issue as part of the appeal process that was available to her(which she elected not to invoke)

The fact that it was acknowledged that a small number of grievances were upheld did not, in any way, diminish the issues other than to say that the Complainant had the Respondent’s categorical assurances that these issues would be addressed as part of her return to work.

It was made clear, as it had been done on a number of occasions that the Respondent wanted to do everything they could to assist her in her return to work in making every reasonable effort to facilitate that return.

With regard to the Complainant’s comments as to The HR Manager, it was reiterated the complaint of bullying was not upheld and she was merely being informed that The HR Manager would no longer be her direct reporting manager due to the fact he had taken up a new role and that the Respondent hoped that this information would facilitate her early return.

It was made clear it was regrettable that she had taken the view that she was not in a position to return to her role but they wished to reiterate they did not believe the claim for constructive dismissal was warranted.

At that point, she had reaffirmed her position on a number of occasions and, on that basis, it was with great regret they would arrange to send her a P45.

                In summary, in the period after the investigation in to the Complainant’s Bullying & Harassment complaint, the Respondent actively engaged with the Complainant to facilitate her return to work offering categorical assurances that any outstanding matters from the Report would be addressed as part of her return to work. It was also confirmed that her position remained open to her and while the Complainant requested an alternative position, there was none available. the Respondent sought to further reassure the Complainant that she would no longer be reporting to the HR Manager which had been specifically raised by the Complainant as her concern in correspondence in January 2016.

                It was the belief of the Respondent that the appropriate manner to address the Complainant concerns arising from the Report was to meet and discuss same as part of a structured return to work and to then work through a process to address the outstanding items. Management and the Chair provided assurances that the outstanding items would be addressed and requested the Complainant to engage with a process of return to work on a number of occasions. The Respondent did not believe that it would be appropriate to commence a chain of correspondence in relation to resolving grievances but rather same would require discussion to resolve any outstanding items.

LEGAL ISSUE

                The legal issue at stake in the proceedings herein is whether the Complainant was entitled to resign from her employment and claim constructive dismissal pursuant to the Unfair Dismissals Act, 1977.

                THE LAW

                Constructive Dismissal

                An employee who asserts that she was entitled to constructively dismiss herself faces a high bar before the WRC and/or other adjudication body. Claims for constructive dismissals are generally based upon two tests: (i) the contract test and (ii) the reasonableness test. The contract test entitles an employee to terminate her contract of employment only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract of employment or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. In any case, the adjudication body has to decide whether the employer’s conduct undermined the relationship of trust and confidence between the parties in such a way as to go to the root of the contract. The contract test was summarised in the English case of Western Excavating (ECC) Ltd v Sharpe (1978) ICR 121 which stated, inter alia:

“…. 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”.

                In the case of Brady v Newman UD 330/1979 the Tribunal stated that “an employer is entitled to expect his employee to behave in a manner which will preserve his employer’s reasonable trust and confidence in him.”

                The “reasonableness” test asks whether an employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to tolerate it any longer and justifies the employee leaving.

                The case of O’Leary v Crane Hire Ltd (1979), illustrates the importance of the particular circumstances in determining whether or not an employee’s resignation is reasonable. There, the Court held that the verbal communications between the employee and his employer (who was also the employee’s brother) were not such as to make it reasonable for the employee to conclude that it was impossible for him to remain in his employment. In Cosgrave v Kavanagh Meat Products Ltd (1988) UD 6/88, the Tribunal accepted that the claimant had been placed under considerable pressure in terms of the work-load requested of him by the respondent company both during and outside normal working hours and during holiday periods. However, the Tribunal found that there was no evidence to suggest that the claimant had objected seriously, or refused to work overtime without pay, or refused to work during his holiday periods. In this case, the Tribunal unanimously found that the claimant had failed to discharge the onus of proving that he was entitled to terminate the contract of employment without notice by reason of the respondent company’s conduct. This case highlights that to bring a successful claim for constructive dismissal it is not only imperative that the actions of the employer are unreasonable – but more importantly, that the actions of the employee are reasonable.

                In Wetherall (Bond St. W1) v. Lynn (E.A.T.), Bristow J. stated that:

“Entitlement to terminate a contract by reason of the conduct of the employer is a perfectly familiar concept of the law of contract. Like much else it is easy to formulate but can be difficult to apply…The law of contract for this purpose is that where an employer so conducts himself as to show that he does not intend to be bound by the contract of employment the employee is entitled, at his option, either to treat the contract as at an end, and cease performing his part…The question of what is reasonable in the circumstances having regard to equity which has to be considered in cases of unfair dismissal, applies equally to the facts…It is the conduct of the employer which you must look at…But it is not the epithets which his conduct attracts, but whether you are entitled to treat your contract as at an end, and whether if you exercise your option to do so you have been ‘constructively dismissed.”

                In Olivia Barry –v- Quinn Insurance (UD1775/2010), http://www.workplacerelations.ie/en/EAT_Import/2012/11/d2c77e06-181c-43ba-b696-31113460aad5.pdf, the EAT dealt with an employee who raised a bullying and harassment complaint which was investigated but ultimately not upheld. She later resigned. The EAT stated:“Having carefully considered the totality of the evidence adduced the Tribunal could not find any substantial grounds that a dismissal took place in this case. The claimant did not produce sufficient and adequate evidence that the respondent dismissed her even in a constructive fashion. The Claimant did not act reasonably in resigning. She did not appeal the outcome of [the] company's decision in relation to her complaint of bullying and harassment. The Tribunal notes that KOC's manner and that certain strong language was used, which is unacceptable, but this in itself was not sufficient reason for the claimant to resign. Except in very limited situations an employee must exhaust all avenues for dealing with his/her grievances before resigning. Therefore, the Claimant’s claim under the Unfair Dismissals Acts, 1977 to 2007 fails.

                Unlike all other dismissals, where an employee claims that they have been constructively dismissed the onus/burden of proof is placed upon her to prove that their resignation was justified. In effect, she is required to prove that she has exhausted all other avenues of resolution before she resigned from her position. This generally requires her to bring her grievance to the attention of her employer, follow all the employer’s grievance procedures and industrial relations procedures, as outlined in her contract or the employee handbook and any appeals therefrom. Only where these procedures have not achieved an appropriate outcome or where the employer has refused to comply with or engage in these procedures, then should an employee consider resigning from her position. A failure to invoke these procedures or follow them through to their natural end will leave the Court or Tribunal with no option but to reject a claim of constructive dismissal.

                In Betty Clifford v Maritrade Ltd (2000) UD27/2000, MN58/2000, the claimant argued constructive dismissal arising from an incident between her and her manager, in which he questioned her regarding an allegation of undercharging customers. The claimant believed that the tone of the meeting and the nature of the questions she was asked undermined her good name and reputation. Following this incident, the claimant told the owner of the business that she could not go back to work unless she received an apology from her manager. Subsequent to this, a meeting was scheduled with her and the owner of the business and at this meeting she was informed that her integrity had not been doubted and that as the manager was acting in accordance with his duty to investigate this incident, that it was not appropriate for him to issue an apology. She was invited back to work, but declined because she stated that “she could no longer work with the manager”. In relation to the claim for constructive dismissal the Employment Appeals Tribunal stated that it accepted her evidence, but added that the next reasonable step was to invoke the grievance procedure. Furthermore, as the claimant was a union member and a shop steward, she should have been aware of the procedures as set out in the company/union agreement. On this basis her claim was dismissed.

                Acquiescence in employment after a breach of contract and/or alleged unreasonableness will generally disentitle an employee from claiming constructive dismissal. In Jeffrey v Laurence Scott & Electromotors Ltd (1977) IRLR 466, the failure of the claimant to sue for constructive dismissal until 3.5 months after the employer breached his employment contract demonstrated acquiescence to his employer’s actions and nullified his claim for constructive dismissal.

APPLICATION OF LAW TO THE FACTS HEREIN

                The approach of the WRC in all constructive dismissal cases is to put the employee on proof that she was entitled to resign from her employment because of a breach in a fundamental term of the contract of employment and/or because her work conditions became so intolerable and/or unreasonable that she had no option but to resign. In other words, an employee bears a burden of proof to show that there was in fact a situation whereby she had no option but to offer her ‘resignation.’

                It is respectfully submitted that arising out of the evidence, the obvious conclusion is that it was the Claimant who acted unreasonably in terminating her employment. The Complainant was an employee who was critical of management as changes occurred within the organisation. She did not constructively engage with the Company to address her issues after the Bullying & Harassment Report was published. The Respondent went to great effort to carry out a thorough and comprehensive investigation which set a path forward for the Complainant to remain in the Company. While there may have been some minor communication issues (taking the whole and/or global complaint in to consideration), these could have been addressed moving forward as recommended by the investigators. The Complainant did not allow for that to occur as she resigned and commenced unfair dismissal proceedings.

                It is respectfully submitted that at all times, the Respondent acted in a fair and reasonable manner towards the Complainant. In particular:

                The Respondent dealt with the Complainant’s complaints through a fair and impartial process,

the Complainant was represented at all times by her Union representative, Mr Andy Pike, both within the process and subsequent to the process.

the Complainant was offered a right of appeal which she choose not to invoke.  

the Respondent engaged with the Complainant and her representative subsequent to the investigation report issuing in February 2015 with a view to attempting to facilitate her return to work.

the Complainant’s position remained open and that was the position that was available to her.

The person against whom the Complainant had lodged the majority of her complaints, being the HR Manager, was no longer her line manager for reasons unrelated to the Complainant complaint. the Complainant, however, refused to engage in a return to work process.

the Complainant and/her representative made demands in circumstances where these demands could not be accommodated, to include essentially creating a new role for her. It is the position of the Respondent that the Complainant unilaterally and prematurely terminated her employment without any reasonable grounds for doing so.

                Moreover, as appears from the most recent submission of IMPACT on behalf of the Complainant (as set out in the conclusions), as far back as 2014, the Complainant had reached the conclusion that “her role was diminished to such an extent that she was concerned about the future and would have preferred to leave, she also experienced further difficulties with the relationship with her line manager that gave rise to the findings in the report.” This would suggest that the Complainant wanted to leave as far back as 2014. This was further reinforced in a meeting with the Chairman of the Board of the Respondent, in June 2015 following publication of the report when the Chairman indicated that the Complainant should return to work wherein the Complainant said this would be very difficult as she had lost confidence in the Respondent and Mr Pike mentioned a settlement.   It would appear and the question notably arises as to whether the Complainant ever intended to meaningfully engage with a return to work process given that she in fact wanted to leave as far back as 2014. In light of the way events materialised thereafter, it is respectfully submitted that the irrefutable conclusion is that she never intended to return to work and was attempting to secure a settlement agreement from her employer.

                the Complainant raised the concern of returning to a reporting relationship to The HR Manager and raised the issue that she was resigning because specific steps were not set out to deal with the grievances and to deal with the substance of her complaints. However, she was aware that the reporting relationship was no longer in to The HR Manager and that the Respondent had committed to meeting with her on her return to address her issues. However, the Complainant never engaged with this process.

                the Complainant, in her recent submission attempts to move away from her evidence in her original submission by setting out what she perceived as wrong treatment in relation to the diminution of her role and also the fact that an allegation was made that her grievances were vexatious or malicious.   These items were dealt with as part of the Report and it is respectfully submitted that this is now wrongly being set out as a rationale for reaching the conclusion that her employment relationship was at an end.

                In line with company procedures, it is and would be quite normal for a staff member to engage in a return to work process and that her line manager would meet the staff member to discuss return to work, organisational changes during any period of illness and agree a return to work process.   Ms X requested on a number of occasions that the Complainant would engage with such a process and unfortunately the Complainant declined to do so. It is respectfully submitted that no claim for constructive dismissal arises on the facts of the case herein.

                Actual Financial Losses

                Further information will be required in relation to whether or not the Complainant has “actual financial losses” since the date of her dismissal. The Respondent awaits proof of actual financial losses in this case, notwithstanding that any circumstances of constructive dismissal is denied.

                It is respectfully submitted that the Respondent conducted a careful and thorough investigation in this case in to allegations which ultimately were in not mainly supported by the evidence. Afterwards, the Respondent engaged with the Complainant to secure her return to work and to deal with the few remaining issues deemed valid. The Respondent acted reasonably at all times and it was rather the Complainant who acted unreasonably.

                It is respectfully submitted that the Claimant’s dismissal was of her own choosing and does not amount to constructive dismissal in fact and/or in law.  

The Complainants evidence is that her role was changing, albeit the company reversed this proposal, that she was not being communicated with properly, although she seems to have chosen email as the preferred form of communication, that she was not being involved in decisions in her role but only sighted one example of this and that she had difficulties with her Manager but was told he was being promoted and she would not report to him. Also, her grievances seem to have been linked to a period of time over a number of years, she did not resume work once the bullying report was provided to the company, she seems to have sought redundancy (but on her terms) and did not commence or exhaust the internal grievance procedure on the basis she had submitted a Dignity at work complaint. However, on the Complainants side her role was definitely reducing and being limited, her working relationship seems to have deteriorated with her Manager over time and she was vindicated, to some degree, in her grievances but not to the extent that made them impossible to continue working. Her salary was never reduced by the Respondent and they did commence and pay for an extensive independent investigation into her issues.

It is the combined effect of all of the above issues that will determine if this claim is well founded or not and while some may have much more relevance than others they all must be taken into account in making and determination on whether the Complainant had grounds for leaving her employment on a constructive dismissal basis

It is my conclusion that the Claimant was aggrieved at her new role/reporting relationship, felt the organisation was not dealing with her issues, had disagreements with her Manager and felt her future was going to be limited with the Respondent. But none of these individually were sufficient to justify her leaving her post on grounds to justify substantial grounds to terminate her employment. Nor could she sustain an argument that her employer was acting so unreasonably that she had to leave. The Complainant also argued that she had no need to commence the grievance procedure but this is a basic requirement in advancing a claim for constructive dismissal, especially as the issues had gone on over a significant number of years as it had in this case. The Complainant may also have had an agenda in wanting to terminate her employment and this cannot be ignored in the circumstances. Overall I find that the Claimants claim for Unfair Dismissal succeeds but only on limited grounds as she also had a significant contributory involvement in the circumstances leading up to her termination. She also was not persuasive with regard to her efforts to find a new post and the fact that she was offered her job by the Respondent (after she resigned) with the person whom she appeared to have had the greatest conflict with would no longer be her boss are contributory factors in reducing her award. I find that the Complainant was unfairly dismissed and award her 20,000 Euros compensation.

Unfair dismissal.