ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00006495

Parties: 

Complaint:

Date of Adjudication Hearing:  24th May 2007 and 20th March 2018

Workplace Relations Commission Adjudication Officer:  Seán Reilly

Procedure:

In accordance with Section 80 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissal Act 1977 andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed by the Respondent from 8th June 2014 to 17th May 2016 and her weekly rate of pay was €420.00c.

The Complainant was submitting that she had been constructively dismissed by the Respondent and the Respondent was denying the complaint.

Preliminary Issue:                                                                                                              

A preliminary issue arose in relation to the time limits for the presentation of complaints in accordance with the provisions of the Workplace Relations Act 2015.        

The Complainant’s employment with the Respondent was terminated (by the Complainant) on 17th May 2016.    The complaint was presented to the WRC on 30th November 2016 and this is outside the normal 6-month time limit for the presentation of complaints.

Summary of Complainant’s Position on Preliminary Issue:                                                                          

The Complainant initially said that the complaint was not outside the 6-month time limit for the presentation of complaints.   The Complainant said the date of termination stated on the Complaint Form of 23rd May 2016 submitted by her Solicitor on her behalf was only for indicative purposes only (although that is not what the Form states).    The Complainant said that the Solicitor’s letter confirming the termination of the employment was received on 23rd May and that the Complainant was then entitled to one weeks’ notice, which would bring the dismissal date as 30th May 2016.    When it was pointed out that there could not be an obligation on the Employer to provide notice in a constructive dismissal case, where by its nature the Complaint was resigning / terminating her own employment, the Complainant’s Representative accepted that this was the case.

The Complainant then submitted that she should not be penalised for the failure by her Solicitor to submit the complaint within the 6-month time limit and submitted that this constituted “reasonable cause” that justified extending the normal 6-month time limit for the presentation of complaints.

Summary of Respondent’s Position on Preliminary Issue:                    

The Respondent submitted that the Complainant’s complaint by the provisions of the Workplace Relations Act 2015 and in particular Section 41 of that Act was outside the mandatory time limit for presentation of complaints

The Respondent said that the Complainant was alleging that she was constructively dismissed by the Respondent.   The Complainant left work on 17th May 2016 and she said she was not coming back. The Respondent said that by letter dated 20th May 2016 the Complainant’s Solicitor wrote to the Respondent in which it is stated “Our Client regards herself as being constructively dismissed”.   The Respondent said the letter goes on to state that the Complainant has instructed them to take an action for unfair dismissal and they will be completing the Application Form in that regard.

The Respondent said that on 21st May 2016, the Complainant texted a named director of the Respondent in which she stated: “Hi (name), I did say the day I left (the Respondent) that I would not be back.   I seen this was not documented in what was posted out to me.  I am just verifying again I will not be back.   From now on communication goes directly to my Solicitor, who will be in contact.”

On 25th May 2016, the Complainant emailed the Receptionist of the Respondent for her P45.

On 26th May 2016, the Respondent Manager wrote to the Complainant acknowledging her resignation and issued her P45, as requested, which clearly stated the date of cessation of employment as 26th May 2016.

On 27th May 2016, the Complainant’s mother attended at the Respondent premises returning keys and repeating that the Complainant had told them she would not be returning when she left.

The Respondent said that thereafter nothing happened until the Complainant’s Complaint Form was received by the WRC on 30th November 2016.   The Respondent said that the Complaint Form identifies the date notice received as 23rd May 2016 and the date the employment ended as 30th May 2016.

The Respondent said that on 2nd December 2016, the WRC wrote to the Complainant’s Solicitor highlighting that they were outside the statutory time limits.

The Respondent said that on 15th December 2016, the Respondent replied to the WRC stating that the submitted date of 30th May 2016 was only for illustrative purposes and it is not a definitive date.

The Respondent said that the relevant date for the purpose of determining whether the matter is statue barred is the date of the date of the accrual of the action and not the date of knowledge.   They said that in the case of Whelehan  -v-  HSE the Labour Court stated:  “A time-limit of the type is analogous to a limitation periods run from the time a cause of action accrues and not from the date of knowledge of the material facts grounding the cause of action unless there is an express statutory provisions to the contrary.”

The Respondent said that clearly the date of dismissal was 17th May 2016, when the Complainant left her employment stating that she would not be returning.   They said the Complainant’s Solicitor letter to the Respondent dated 20th May 2016 clearly accepts 17th May 2016 as the date of termination of employment.

The Respondent said that even the Complainant claims it is the date of knowledge then that would be 20th May 2016, when her Solicitor wrote to the Respondent stating she regards herself as constructively dismissed and that she would be filling in the requisite Application Form and they said that this would still not put the Complainant within the necessary time frame and her complaint would still be statue barred.

The Respondent said that on no interpretation of the facts can the Complainant argue that she was dismissed on, or after 30th May 2016 and they said it is unclear why/how the Complainant cannot identify the date her employment with the Respondent terminated.

The Respondent quoted Section 41(8) of the Workplace Relations Act 2015 in support of their position and they said that accordingly the Adjudication Officer can only entertain a complaint that is outside of the 6-month time limit if the Adjudication Officer is satisfied the failure to present the complaint was due to “reasonable cause”.    The Respondent said that thus far no cause, reasonable or otherwise, has been put forward by the Complainant.  

The Respondent said that the onus is on the Complainant to establish that “reasonable cause” has been shown, and the Complainant must show that the “reasonable cause” prevented or inhibited the timely presentation of the complaint and they said that finally the Adjudication Officer mist determine that the “reasonable cause” affords a justifiable excuse for the delay.

The Respondent referred to the cases of Carroll  -v-  Skanska and Civil and Public Service Union  --v-  Minister for Finance and also O’Donnell  -v-  Dun Laoghaire Corporation and IMPACT  -v-  Department of Finance  in support of their position.

Brief Summary of Complainant’s Case on Substantitive Issue:

The Complainant said that she was constructively dismissed by the Respondent and she was left with no alternative but to resign her job with the Respondent, due to the actions and lack of actions of the Respondent.

The Complainant said that she has been the subject of a campaign of harassment and bullying at the hands of the employees and directors of the Respondent.

The Complainant said that she was hired by the Respondent initially on the following terms and conditions of employment:

Ø  Start Date:  8th June 2014

Ø  €390.00c nett pay per week

Ø  Working hours; between 6.30am and 2.30pm / 2.00pm and 10.30pm

Ø  Working week – 40 hours over 7 days

Ø  Annual Leave – 20 days per year

Ø  Job Title – Duty Manager and Swim Co-Ordinator

The Complainant said that she was informed when the job was offered to her that she would be given sufficient training in the roles of Duty Manager and Swim Co-Ordinator.

The Complainant said that from the very beginning of her employment with the Respondent, the named Manager set about a campaign of bullying and harassment against the Complainant.   She said that due to the Manager’s treatment of her, she was left feeling inadequate and excluded at all times.   The Complainant said that she was conscious of her lack of training and on 5th August 2014, she spoke to the Manager to explain to her how she was feeling about her position and to ascertain when she would receive her formal training.   She said she was informed by the Manager that there was a manual available downstairs and she was asked by the Manager the question:  “You can read, can’t you?”.   

The Complainant said that the harassment took the form of the Manager making remarks to her such as “Do it the way P.. was doing it.   What was wrong with how P… did it.”   The Complainant said that she had replaced P.  

The Complainant said that she read the manual as instructed by the Manager.

The Complainant said that when she was presented with a new task, the Manager would tell her to refer to the manual.   She said this occurred when she was asked to prepare swim teacher rosters.   She said that on one occasion when she presented her work to the Manager, the Manager in a verbal attack shouted at her “What is this.  Don’t waste my time.  Go back and do it properly” and she said the Manager threw the sheets back at her.   The Complainant said she was humiliated in front of other named employees.

The Complainant said that almost on a daily basis, the Complainant engaged in demeaning verbal attacks on her.  She said that just one example was that on Saturday 23rd August 2014, the Manager told her that she was “incompetent of doing your job, I am now having to come in on Saturday and hold your hand and show you how to do your job.”   The Complainant was apologetic to the Manager due to the fact she came in on the Saturday and she explained to her she had asked for help over the last month and that she had not completed swim co-ordinating previously.   The Complainant requested guidance from the Manager to which the Manager replied: “Do you have to be spoon-fed?   You have always been spoon-fed.”

The Complainant said the harassment resulted in her working 6 weekends in a row when it is usually one in three weekends that are worked by a Duty Manager.

The Complainant said on one occasion, when she had her hair done, she was physically assaulted by the Manager.   She said the other employees complemented her, while the Manager came out of her office, came up behind the Complainant and pulled her hair, jerking her head back and stating in a mocking tone; “Ya it’s lovely”.       

The Complainant said that the Manager regularly called her to present her work.    On one occasion while in the presence of a named employee, the Manager engaged in an attack of the Complainant’s work while marking corrections with a red pen.   The Complainant began to take work home and going through it over and over to ensure there was nothing to cause the Manager to act in an aggressive way towards her. 

The Complainant said the harassment also took the form of the Manager making remarks about the Complainant’s appearance, asking her:  “Had you work done on yourself.   Did you get work done on your face, your nose or something.”

The Complainant said the harassment became worse in or around the beginning of August 2015, when the Manager accused the Complainant of causing trouble amongst the employees and that there were complaints about her Aqua Class.   The Complainant said the Manager stated to her that people did not like her as she had no personality.   The Complainant said that these remarks made her extremely upset, she said that she became lightheaded and her chest became tight and she collapsed.   The Complainant attended with her GP who prescribed her medication for stress as a result of her workplace environment.

The Complainant said that after this particular incident of harassment she brought her grievances to the attention of a named Director.   

She said a Meeting was arranged at a named location with two named directors.   She said she informed the two directors of the harassment and bullying being inflicted on her by the Manager.    She further informed them about a client of the Leisure Centre who had sent her a letter at work and who was spying on her while at work.    The Complainant said she had shown the letter to the Manager and her response was; “Why did you come up here, to boast, don’t tell me you are up here because you are scared?  You just love the attention.”   The Complainant said this is an example of the lack of empathy that the Manager showed to her.   The Complainant said such was the seriousness of the matter, she reported it to An Garda Siochhana.   The Complainant said that in the course of this Meeting one of the directors put it to her that if the Manager was so bad to her at work, why did she let her brother work there.

The Complainant said a follow-up meeting took place with the directors at which she was informed that the Manager denied all the allegations of bullying and harassment.   At this Meeting the Complainant was asked by the two directors, what exactly did she want.  She informed them that she wanted to be able to go to work, do her job, go home, and not dread going to work the next day.    The Complainant said that she was off work, without pay for 5 weeks waiting for the matter to be sorted out.  She said that when she returned to work after 3 days, the Manager started to harass her and bully her again.   The Complainant contacted the named Director and again, the Manager denied any wrongdoing.   When the Complainant returned to work the following day she met the named Director and he asked her how she was.   She stated to him that she was not good as matters had not been sorted out with the Manager and that she (the Complainant) may have to leave her job.   She said the Director said that was alright, that he was sorry about it and he walked away.

The Complainant said she developed severe allergies causing itching and sores on her body.    Her Doctor advised was that she should not do a lifeguard course until the sores were healed.   She said this caused further harassment from the Manager, who, she said, repeatedly insisted that the Complainant complete the Course.   The Complainant said she was, at all times, carrying out her other work duties.

The Complainant said that another example of harassment took place when a large school group with young children who could not swim and a special needs child were at the pool.     The Complainant was helping two inexperienced employees and her focus was on the special needs child.   She telephoned the Manager for assistance, to which the Manager replied; “Are you incapable of doing your job?   She said the Manager did not come to help.   The Complainant said she had commenced work at 6.30am and by 1.30pm she had no break.   She said that she was on the deck all morning between the life guarding and teaching.   She said she called the Manager again as she needed to use the toilet.   She said that at that time all the employees had gone on their breaks and she was left on deck for a further 45 minutes after calling the Manager.    She said the Manager arrived downstairs at the same time she was due off deck.    The Complainant said that she informed the Manager that she (the Manager) had neglected her (the Complainant’s) basic needs, let alone left her with a massive health and safety issue to deal with.   

The Complainant said that the following day the Manager informed her that she was holding a Disciplinary Meeting due the Complainant’s attitude towards her the previous day.

The Complainant said that she attended the Meeting along with her brother (also an employee at the time)    Another employee took minutes of the meeting.    The Complainant said that she informed the Meting of her issues with the Manager.   She said that no action was taken following the Meeting.    She said that following the Meeting the Manager confirmed to her that it was not a Disciplinary Meeting.

The Complainant said the following day a named Director and the Manager were in the Office upstairs.    She said that later the Manager said to her “We will get you M…., we will get you.”.       The Complainant said she telephoned the named Director to understand what the Manager meant by this comment, to which he replied that he did not know.   The Complainant said the following day the named Director informed that she was to go to a named Medical Centre for a medical examination.   Following receipt of the Doctor’s letter by the Respondent, the Manager handed it to the Complainant stating;  “There is your Doctor’s letter, nice try, we are doing a risk assessment on you, you are not out of the hot water yet” and then she laughed at the Complainant.   The Complainant said that the Manager worked within full earshot of the Company’s directors.

The Complainant said that the following morning she was informed by another named Duty Manager, that she was not allowed to partake in lifeguarding although this was part of her duties.   She said that when the Manager arrived at work she asked her why she had been taken off her duties and she said the Manager replied;  “You were not able to do them”.   She said that she became upset and that the Manager said “Are you going to keep crying, you’re good at that, It’s not my fault you’re incompetent at your job.”   The Complainant said that these demeaning remarks were witnessed by a named employee.    The Complainant said that later that morning she received a called from a second named Director who informed her that a Risk Assessment Meeting was organised for her for 1.00pm at a named location, she said that  this was the first she knew about such a meeting.   She said she informed the named Director that she got no support from the manager or any of the directors and that Risk Assessment was a way of forcing her out.   The Complainant said it was clear that these meetings were entirely contrived at the behest of the Respondent to remove her from her job.

The Complainant submitted that it is impossible for her to return to work for the Respondent given the level of bullying and harassment she suffered at her workplace.    She further submitted that the Respondent by not carrying out a full investigation of the circumstances surrounding the complaints made by her did not adhere to their own Grievance Procedures.   The Complainant submitted that on that basis there is no doubt that she has been constructively dismissed and she said that is was on that basis that she submits a claim for unfair dismissal.

The Complainant submitted that she had been constructively dismissed and she sought a finding and decision to that effect.

The Complainant gave direct evidence and answered questions   Her evidence support the written submissions made by her/on her behalf.   The Complainant gave evidence of her experience in the Leisure Centre Sector.  

She referred to her interview for the Job with the Respondent, and confirmed that the Manager against whom she made her complaints of bullying and harassment was on the Interview Panel that gave her the job.    

She said that she was told that she would be put in charge of swimming.  She said that she was quite new to swimming instruction and she was told by the Respondent that she would be provided with training in that respect.     She said that when she asked the Manager about this she was told to look at the Manual.   She said that she was never provided with the training despite repeated requests from the Manager for this training.

She said that the Manager took against her from the start and she insisted that she was bullied and harassed by the Manager right from the start of her employment and that the Manager was fully supported and even fully defended by the Respondent and it’s directors when she complained about this to them.   She said that she was made to feel stupid by the Manager.   She said that the Manager’s tone towards her was bullying and harassing.

Initially the Complainant said that she could not recall having received a written copy of her Terms and Conditions of Employment.   However, following the Respondent presenting its booklet of papers and within it contained a copy of her written Statement of Terms of Conditions of Employment signed and dated 13.06.14 by her, she accepted that she had in fact received this statement and she further accepted that she had received a copy of the Employee Handbook.  

The Complainant’s Representative said the Complainant had continually informed her employer of her issues and her treatment and the bullying and harassment she suffered and they had failed to properly investigate or protect the Complainant from this bullying and harassment.   The Representative said that such was the treatment she was subject to her workplace was an unsafe place to work and she was entitled to consider herself constructively dismissed.

The Complainant submitted that the procedures used by the Respondent in their ‘investigation’ was deeply flawed and did not respect her rights and she pointed out that they never even spoke to any nominated witnesses.

In response to questions as to whether she had ever made a Formal Written Complaint about the alleged bullying and harassment, the Complainant confirmed that she had not.    However she insisted that she had made complaints to the directors of the Respondent of bullying and harassment and that the Respondent was fully aware of her treatment and her complaints and had done nothing about it.

The Complainant’s Representative was asked about the letter from the Respondent undated, but agreed by both parties as being of 24th June 2016, in which the Respondent stated that the Complainant had not taken advantage of the internal grievance procedure that is available to all employees.    They further asked for the Complainant to re-consider her decision and to engage with them through and they offered to arrange for an independent investigation of any issues raised to be dealt with as expeditiously as possible.   The Complainant’s Representative confirmed that they and the Complainant did not consider or explore this offer from the Respondent, they said that in view of what had already happened they saw no merit in the offer and believed what had already happened could not be undone and that the Complainant no longer had any confidence in the Respondent to conduct a fair investigation and had lost all confidence in them due to the way they had failed to deal with bullying and harassment treatment in the employment and her complaints in relation to same.

Brief Summary of Respondent’s Case on the Substantive Issue:

The Respondent was denying that the Complainant had been constructively dismissed by them.

The Respondent said that Complainant does not have an arguable case, good or otherwise, on its merits.   They said that this is highlighted by the lack of clarity concerning the date of dismissal.

They said that further the Complainant failed to engage in the internal processes, including an Independent Investigation.   They said there is a strong onus on the Complainant to show that she used all internal mechanisms available to her to deal with any complaints or issues that she had and  said this she did not occur in the instant case and thus the Complainant does not have a strong case.

The Respondent said that it is clear from the letter of the Complainant’s Solicitor dated 20th May 2016 that she had instantaneously formed the intention to bring a complaint under the 1977 Act.

The Respondent said that the Complainant commended working for them on 8th June 2014 in the role of Deputy Manager and Swim Co-ordinator.   She continued in that role until 17th May 2016, when she walked out of her workplace and never returned. 

The Respondent said that on 25th January 2016, the Complainant had an allergic reaction while doing training for her Lifeguard Certificate in the Respondent’s swimming pool.   She remained off work until 27th January 2016.

On 22nd March 2016, the Complainant informed the named Manager of the Respondent that she was having ongoing treatment for her reaction including UV treatment to prevent scarring.   Her GP had taken a swab to determine what she was allergic to.

On 23rd March 2016, the Complainant informed the Manager by text that her GP had advised her to leave/cease lifeguard training for a few weeks until her reaction had cleared up, she further informed the Manager that she had a Report from her GP for the Respondent.  

On 11th April 2016, the Manager informed the Complainant that she should avoid lifeguarding until she had completed her Certificate and instead she should teach swim lessons.

The Respondent said that on 14th April 2016, at a discussion about the enrolment of National Schools and debtors lists the Complainant got really angry with the Manager and shouted and yelled at her.   The Respondent said that on 14th April 2016 they informed the Complainant that they would have a Counselling Meeting about the incident on 14th April.

The Respondent said that the Counselling Meeting took place on 19th April 2016 and the Complainant was accompanied by her named brother (also an employee of the Respondent at that time).   At this Meeting the Complainant informed that the skin reaction to chlorine was very bad, that she cannot go back in the pool and that her GP refuses to clear her for lifeguarding training.   The Complainant also raised the issue of anaphylactic shock.   The Respondent said the Manager informed the Complainant that if she yells at her again, disciplinary action will be taken.

The Respondent said on 20th April 2016, the Complainant gave them a letter from her GP, dated 14th April 2016, which states:

“ (the Complainant) has a history of skin reaction when in contact with chlorinated water, she has been advised to avoid contact with chlorine treated water for the foreseeable future.”

The Respondent said that on 20th April 2016, the Complainant contacted a named Director of the Respondent about the Manager, making a complaint, this director met with the Complainant.       He met with her again on 25th April 2015 and he informed her that she would be required to attend a medical appointment with the Respondents’ Doctor on 3rd May 2016.   The Respondent said that the Complainant had no difficulty with this.   The Director further informed the Complainant that he had investigated her allegations against the Manager and that the Manager had totally refuted them

The Respondent said that on 9th May 2016, their named Doctor provided a Report to them regarding the Complainant.   In the Doctor’s opinion the Complainant was not fit to carry out all working duties.   The Doctor advised against direct contact with the pool water until the Complainant was seen by a Specialist and suggested restricting her work away from direct pool water contact, citing the example of office based work.    The Respondent said that on 11th May 2016, the Complainant received a copy of the Doctor’s Report and she was also informed that a risk assessment would take place in the coming days.

The Manager met with the Respondent’s HR Consultant and a named director to discuss the Risk Assessment for the Complainant.   The named Director was to seek clarification from their GP about the risk of anaphylactic shock.   They also discussed the allegations of bullying and harassment and they noted these should be put in writing and be dealt with through the Grievance Procedure.

On 16th May 2016, the named director contacted the Manager about the significant risk of anaphylactic shock for the Complainant.   As a result the Manager attended at the pool to adjust    the break sheet to ensure the Complainant was not near chlorinated water.

The Respondent said that on 17th May 2016, the Complainant took great umbrage that the break sheet had been changed.   She questioned why the Manager was not letting her do her job.   The Manager explained that the Complainant could not be near chlorinated water due to the letter from her own Doctor.   The Complainant stated; “Your doctor cleared me.”   The Complainant then stated she would leave the matter in the hands of her solicitors.    The Manager explained they would see how the Risk Assessment went.   The Complainant responded “You do that on things, not people.”.    The Manager asked the Complainant to lower her voice and  advised her that if she had any issues to use the Grievance Procedure.   The Complainant replied that she was “going to walk right now.”    The Respondent said when the Manager returned to the Office the Complainant was crying.  The Manager told her not to get upset that she was sure she had other work to do ‘off deck’.    The Respondent said that the Complainant later walked out of work and she did not attend at the scheduled Risk Assessment Meeting.

The Respondent rescheduled the Risk Assessment Meeting to 18th May 2016.   A message was left on the Complainant’s telephone informing her of the new time and enquiring why she was not at work.   A further Risk Assessment was rescheduled for 20th May 2016 and the Complainant was informed of this by letter.    On 19th May 2016, the Respondent wrote to the Complainant enquiring why she had not attended at work or contacted the Respondent.

The Respondent said that on 20th May 2016, the Complainant’s Solicitor wrote to the Respondent informing that she was taking an unfair dismissal case against the Respondent.   On this same date the Manager also requested a chemical analysis of the water at the Respondent’s premises.  

On 21st May 206, the Complainant texted the Manager that she would not be back to work, that she had said that on the day she left; she further said that all future communications was to go through her Solicitor.

On 26th May 2016, the Respondent sent a letter to the Complainant, acknowledging her decision to resign and said that once she returned her keys they would provide her P45.    The Complainant’s P45 issued on the same day.

The Respondent said that on 27th May 2016, the Complainant’s Mother returned the keys and she stated that all future dealings should go through her solicitors.

The Respondent wrote to the Complainant asking her to reconsider her decision to resign.   They pointed out that the internal Grievance Procedures had not been used.   They offered to arrange an independent investigation of any issues raised by the Complainant.   They said that this letter and offer was never responded to.

The Respondent submitted that the Complainant was not constructively dismissed.    They said she chose to terminate her employment.   The Respondent said that the burden of proof rests on the Complainant to show that there was a dismissal and they said that in the instant case the Complainant cannot prove this.   They said there were no words spoken that would imply, either subjectively or objectively, that the Complainant was dismissed.  The Respondent said that the Complainant must show that her resignation was not voluntary and they said her resignation was entirely voluntary.

The Respondent said there is a mandatory obligation on the Complainant to exhaust all internal grievance procedures before she can claim constructive dismissal.    They said that she must have used all rights of appeal within the procedure and that in this case the Complainant cannot prove this.   The Respondent said the Complainant never used the Second Stage of the Grievance Procedure, lodging a Written Complaint.   The Respondent said that further she failed to engage in the Independent Investigation offered by the Respondent.

The Respondent said that there are two tests for constructive dismissal; the Contract Test and the Reasonableness Test and the Respondent submitted that neither of these are proven in this case.

The Respondent quoted from the description of the Contract Test in the case of Western Excavating (ECC0  -v-  Sharp [1977} EWCA Civ J114-6 in support of their position.

The Respondent said they were not guilty of any fundamental breaches of the contract of employment.   They said that at all times they acted in the best interest of the Complainant’s health and safety.

The Respondent said that the Complainant has not pointed to any breaches of her written contract.

The Respondent said that the Reasonableness Test is whether or not the conduct of the employer is so unreasonable that it entitles the employee to treat the contract as being at an end and justifying the involuntary resignation of the employee.   The Respondent said the Labour Court in that respect have stated in A Worker  -v-  An Employer (2005) 33 ED 02/57:

“This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer.”

The Respondent said that given the seriousness of the risk of anaphylactic shock to the Complainant their own action were entirely reasonable and that they at all stages were acting to protect the Complainant.  

The Respondent said that that the situation in the instant case is comparable to that of Farrell  -v-  Heatons [2002] 8 JIEC 2901 as the Complainant was walking out of work after an argument, the manager advised her to use the Grievance Procedure and she did not.   The Employment Appeals Tribunal [EAT]  found that leaving without using the grievance procedure is not reasonable, walking out must be the last resort.  

The Respondent said that in O’Regan  -v-  Ascom-Rohcom Ltd. [2004] 2 JIEC 2502 there was a conflict of personalities.   Despite a meeting being held nothing changed.   The EAT found the Complainant had failed to discharge the onus on her to show that she was entitled to terminate her contract of employment.   It was submitted that there was a similar failure in this case.

The Respondent submitted and went through copies of detailed notes with dates and details of what  they said was every discussion, encounter or interaction between the Manager and the Complainant.    These notes covered the period from 22nd August 2015 to 18th May 2016 and there were 36 such notes over that period.   In response to questions it was submitted that the Manager kept similar notes in relation to all 33 employees of the Respondent.

A number of witnesses gave evidence on behalf of the Respondent.

Witness 1:    The Manager gave evidence on behalf of the Respondent and her evidence fully supported the Respondent’s submissions.

The Witness responded to questions about the detailed notes she made in relation to interactions with the Complainant in the period and submitted to the Hearing.   She said, and insisted, that she kept such notes in relation to all 33 employees and this was always her practice.   She said that it did not take up an inordinate amount of her time.   She said that it would not take any more than a few minutes to make or create such a record.   She denied that she kept these notes because of the (problems in her} relationship with the Complainant.   She also denied that the notes were taken/made because she was preparing a defence against any bullying and harassment or other complaint against her by the Complainant.

The Witness denied each of the complaints made against her by the Complainant and responded to each of them.   She denied that she had ever bullied and/or harassed the Complainant and treated her inappropriately, she said that she had sought to support her at all times.

Witness No. 2:   The Witness said that he was a Duty Manager with the Respondent for 9 years and that he had previously done the same job elsewhere for 10 years.

He said that the Manager handed him the letter in relation to the Risk Assessment for the Complainant.

The Witness said that a named Director asked him, after the Complainant had made her complaint, would the Manager pull someone’s hair.   He said he responded that he did not think that she would.   However, he acknowledged that he was not present when that incident was alleged to have happened and accordingly could not say if it had or had not.

The Witness said he knew the Manager well and that he got on well with her.

The Witness said the Complainant told him about the stalking.

The Witness said he saw the Complainant the day she walked out of the employment with the Respondent and he said she was clearly upset.  

The Witness said that the Complainant got on well with him and other employees.

The Witness said the Complainant did in fact tell him of a problem she had in the employment.

The Witness said that he was not aware that the Manager took notes of every encounter she had with all employees.

Witness 3:  The Witness is one of 7 directors of the Respondent.   The Witness gave a background of her experience in the sector and to her history on the Board of the Respondent.

The Witness said that the Complainant complained verbally to another board member in September 2015, who emailed the other directors about this verbal complaint and it was agreed that she (the Witness) would meet with the Complainant to discuss her complaints and that Meeting took place on 25th September.   The Witness said that at that Meeting the Complainant made 13 complaints, including that no training was provided to her by the Manager, that she was getting ‘mixed messages’ from the Manager and she said the Complainant also complained about the Manager pulling her hair.

The Witness said that the Complainant did not state that she was bullied and/or harassed.

The Witness agreed that she did say to the Complainant, why if the Manager is treating you so badly did you bring your brother in to work in the Leisure Centre.

The Witness said that she and the other director then met with the Manager, who vehemently denied the allegations.

The Witness agreed that two witness were named by the Complainant, Witness 2 above and another named employee.  The Witness said they spoke with the Duty Manager (Witness 2 above) about the question of the stalker and the alleged hair pulling and he gave them the same response he gave at the Hearing.   The Witness confirmed that they did not speak to the other named person.

The Witness said that she and her colleague director met again with the Complainant.   She said this Meeting was perfectly amicable.   She said they told her that the Manager had denied the allegations and told her what the Manager had said in response.   The Witness said the Complainant disagreed with all of the Manager’s responses to her complaints.   She said that the Complainant was asked what she was seeking and the Complainant said she wanted to be able to go working without being treated badly and without worrying about the way she may be treated.  

The Witness said that the Complainant raised the issue about her loss of pay while she was off work and stated that she was not entitled to any Social Welfare payment (Illness’ Benefit).   The directors responded that they did not have a sick pay scheme and could not afford to pay her wages.   They asked her if she would be satisfied if they could pay her the equivalent of Illness Benefit payment and she said that she would.   The two directors undertook to speak with the other directors to see if this could be done and in fact the Complainant was paid by them the equivalent of Social Welfare payments.

Findings and Decision:

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

Section 8 of the Unfair Dismissals Acts 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with Section 7 of the 1977 Act.

Preliminary Issue:                                                                                                                                 . I have carefully considered the submissions and the evidence in relation to the preliminary issue of time limits for the presentation of complaints.

Section 41(6) of the Workplace Relations Act 2015 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under the section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Subsection (8) of the same Section of the 2015 Act provides:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

(These provisions are similar to those that (previously) applied under the Unfair Dismissals Acts.)

In relation to the question of the date of the termination of the employment of the Complainant from the Respondent I note the following:

On 17th May 2016, the Complainant walked out of her place of work informing the Respondent that she would not be returning.   At all stages throughout the two days of the hearing of the case the Complainant in her direct evidence confirmed that she had terminated her employment with the Respondent on that date, 17th May 2016 and she stated that it was a considered decision in view of what she alleged had happened prior to that day.   On 21st May 2016 (4 days later), the Complainant texted a named Director of the Respondent in which she stated:  “I did say the day I left that I would not be back.  I seen this was not documented in what was posted out to me.  I am just verifying again that I will not be back.   From now on communication goes directly to my Solicitor, who will be in contact.”   This letter is confirming in unambiguous terms 4 days later, and following consultation with her legal advisor, that the Complainant had resigned her job with the Respondent on 17th May 2017 and again this is plainly a considered position following consultation with her legal advisor.

On 25th May 2016 the Complainant emailed the Respondent seeking her P45, again this was plainly a considered communication and again confirms that the Complainant had resigned her job with the Respondent.

The Complainant was sent her P45 on 26th May 2016, which she accepted, again confirming the termination of her employment with the Respondent had taken place.

On 27th May 2016, the Complainant’s Mother attended at the Respondent’s premises returning keys in the Complainant’s possession and she again confirmed that the Complainant had terminated her employment with the Respondent.

By letter dated 20 May 2016, but received by the Respondent on 10th June 2016, the Complainant’s Solicitor wrote to the Respondent in which they confirmed that the Complainant regarded herself as being constructively dismissed and clearly accepts that this alleged constructive dismissal occurred on 17th May 2016.

Based on the foregoing I find and declare that the date of the Complainant’s resignation of her employment from the Respondent was 17th May 2016 and as the complaint was received on 30th November 2016 it was outside the time limit contained in Section 41(6) of the Workplace Relations Act 2015 quoted above.

I must now consider if I “am satisfied that the failure to present the complaint or dispute within that  (6 month) period was due to reasonable cause” in accordance with the provisions of Section 41(8) of the Workplace Relations Act 2015.

The Labour Court considered in some detail the question of what constituted reasonable cause that justified granting an extension of the normal 6-month period for the presentation of complaints in the case of Tom Carroll  -v-  Cementation Skanska (formerly Kvaerner Cementation) Limited and the Court set the following test in considering if an extension of time should be granted for reasonable cause stated:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay.   The explanation must be reasonable, it must make sense, be agreeable to reason and not be irrational or absurd.   In the context in which the expression reasonable cause appears in the statue it suggests an objective standard, but it must be applied to the facts and the circumstances known to the claimant at the material time.   The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon.   Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account.   A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.    Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.   Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

The Labour Court considered this matter further in the case of Singh  -v-  Singh & Singh [Determination No.  DWT0544].   That case has some similarities with one of the submissions for an extension submitted on behalf of the Complainant in that there was a failure by their Representative (in that case a Trade Union) to present the complaints within the six-month time limits.   In that determination the Labour Court stated:   “the claimants did seek advice from a Trade Union within  six months of the termination of their employment.   They were entitled to believe that their complaints would be properly processed and that nothing more was required of them.  

The Court further stated: “it would not be reasonable to fix the claimants with the responsibility for what subsequently occurred.”

In the instant case the Complainant’s Solicitor wrote to the Respondent by letter dated 20 May 2016, but which was received by the Respondent on 10th June 2016 in which was stated inter alia:   “Our client instructs us to take an action for Unfair Dismissal…”    and further  “Our client will be completing the Application Form for Unfair Dismissal…”   Based on this the Complainant, as in the above quoted case, was entitled to believe that her complaints would be properly processed.

I note that the length of delay in the instant case was relatively short, at just 13 days and accordingly as stated by the Labour Court in Cementation Skanska only a slight explanation is required.   

Based on the foregoing I am satisfied that in the circumstances identified reasonable cause has been shown that both explains and excuses the delay.  I am further satisfied that there are not countervailing factors such as prejudice to the Respondent arising from the delay, that would make it unjust or oppressive to extend the time and allow this complaint to be adjudicated upon on its merits.

Accordingly, I have decided that the time limit for the bringing of the instant complaint be extended by a further period of two months and that hence the complaint under the Unfair Dismissals Act 1977 is deemed to be in time and may be fully heard and adjudicated upon by me.

Substantitive Issue:                                                                                                         .   I have carefully considered the evidence and the submissions made and I have concluded as follow in relation to the complaint for constructive dismissal taken under the Unfair Dismissals Act 1977.

It is very well established, both by numerous determinations of the Employment Appeals Tribunal (EAT) and otherwise that there is an obligation on an employee to exhaust all internal grievance procedures available to her/him before any question of constructive dismissal claim can arise and failure to do so can and usually is fatal to any claim for constructive dismissal.

In this respect I note the following:

Initially the Complainant said that she could not recall having received a written statement of the Particulars of her Terms and Conditions of Employment.   However following the Respondent presenting their booklet of papers that included a copy of that document that was signed and dated 13:06:14 by her, the Complainant accepted that she did indeed receive that document.

It is not in dispute that the Complainant received a copy the Respondent’s Employee Handbook and indeed she submitted a copy of this document with her written submissions.  This document includes the Grievance Policy and Procedures within the Employment and it is clear, as they submitted it, that it must have been known to the Complainant and her Representative.

This document provides at Stage 2 of the procedure as follows:

“Stage 2 -  Formal Grievance Procedure.                                                                                                          .   If having raised the matter informally with the Supervisor/Manager, the matter is still unresolved to the individual’s satisfaction she/he may seek to raise it through the formal grievance procedure.   This should be done by putting the details of the grievance in writing to the next level of Line Management.”

The Complainant confirmed to the Hearing that she had never made a formal written complainant of bullying and harassment.

The Complainant failed to utilise Stage 2 of the Grievance Procedure and indeed Stage 3 of the Procedure (an appeal of Stage 3) and accordingly despite being aware of this process and procedure she plainly failed to exhaust the internal procedure available to her to resolve any issue she had.

In addition I note this procedure assumes even more importance in the case of complaints of bullying and harassment as in such cases the employer must remain neutral between the two parties involved the complainant and the alleged harasser and they must protect all of both parties rights.    The Industrial Relations Act, Code of Practice Detailing Procedures for Addressing Bullying in the Workplace Order 2002 SI 17, provides in that respect:

“Formal Procedure                                                                                                                                                 . If an informal approach is inappropriate or if after the informal stage, the bullying persists, the following formal procedures should be invoked—

(a)    The Complainant should make a formal complaint in writing to her/his immediate supervisor, or if preferred any member of management.   The complaint should be confined to precise details of actual incidents of bullying.

(b)    The alleged perpetrator(s) should be notified in writing that an allegation of bullying has been made against them.   They should be given a copy of the complainant’s statement and advised that they shall be afforded a fair opportunity to respond to the allegations.

(c)     The complaint should be subject to initial examination by a designated member of management, who can be considered impartial, with a view to determining an appropriate course of action.    ………”

This is necessary to ensure that both parties are protected and afforded a fair process and it would be difficult or even inappropriate for an employer to conduct an formal investigation without respecting these minimum requirement.    It was not possible to do this in the instant case as the Complainant failed, neglected and/or declined to make a formal written complaint.

I also note that by letter, undated, but agreed by the parties as having been received on 24th June 2016, the Respondent wrote to the Complainant’s Solicitor as follows (names are omitted):

“ Dear …. (named solicitor)

I refer to your recent letter and to your client and our employee (the Complainant).   While we note the contents of the letters, we would point out (the Complainant) has not taken advantage of the internal grievance procedures which are available to all staff.

I would now invite (the Complainant) to re-consider her decision to resign her position and to engage with us in the internal grievance procedure.    I can assure (the Complainant) that the company takes the concerns of staff very seriously and will arrange for an independent investigation of any issues raised, to be conducted as expeditiously as possible.” 

It should be noted that what is being offered to the Complainant and her Representative is an independent investigation.   The Complainant and her Representative have confirmed that they did not consider or explore this offer from the Respondent.   If the Complainant and/or her Representative had any concerns or reservations about this offer it was open to them to express and seek to overcome them and it was open to them, as would be normal practice, to seek consultation on who the investigator(s) would be, to have agreed terms of reference and an agreed timescale for the conduct of any investigation. However they never even responded to this offer.    This was yet another procedure and an independent one open to the Complainant but it was not even seriously considered much less utilised.

It is quite clear that the Complainant:

1. Did not make a formal written complaint of bullying and harassment that would have enabled the Respondent to conduct a formal investigation of any bullying and harassment complaint that she had
2. Did not available of internal procedures available to her (including an independent investigation) to resolve her issues/complaints despite she and her Representative being aware of these procedures.

The Complainant did not afford the Respondent the proper or full opportunity to deal with any issues she had and, as found by the EAT in many cases, this was not reasonable.

Based on the foregoing findings, I declare that the Complainant has failed to discharge the burden or onus on her to demonstrate that she was constructively dismissed.

The Complainant was not unfairly dismissed by the Respondent, I declare that the complaint under the Unfair Dismissals Act is not well founded; it is rejected and is not upheld.

Dated:   14th August 2018

Workplace Relations Commission Adjudication Officer:  Seán Reilly.

Key Words:  Constructive Dismissal