Complainant

Respondent

Anonymised Parties

A Financial Manager

A Utility Company

Representatives

Ms Susan Jones B.L., instructed by Jones Magee Solicitors

Conor O'Gorman IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00018103-001

22/03/2018

The complainant filed her complaint on 22 March 2018, and the Director General delegated it to me for investigation and decision on 12 June 2018. I subsequently held a hearing with both parties on 18 July 2018. At the hearing, I requested additional brief submissions on legal points from the representatives of the parties, which were received on 21 August 2018 from the complainant’s representative and on 13 September 2018 from the respondent’s representative. The correspondence with the parties concluded on that date.

In her brief written submission prior to hearing, the complainant stated that the respondent told her at various points that her job was no longer in existence; that she would be demoted and receive a pay cut; and finally, that she would be demoted without a pay cut. The complainant also stated that she was undermined in front of colleagues and excluded from training and meetings, and that her position was discussed in her absence by her superiors. The complainant states that these events caused her serious stress and worry to the point where she suffered ill health and was unfit for work. She states that the respondent failed to address these concerns adequately and that as a result, she had no alternative but to resign from her position.   The complainant’s claim is for constructive unfair dismissal.  She argues the reasonableness test for constructive unfair dismissal.

In her oral evidence, the complainant stated that she commenced work for the respondent in 2011, and loved her job. She particularly enjoyed developing business systems.   The complainant attracted no discipline or complaints and was praised for her work.  

In January 2017, Mr A. was appointed as the complainant’s manager. Mr A. had a brother, a nephew, and a brother-in-law who were all employed by the respondent. He was the brother of the manager who had previously praised her. Initially, the complainant worked well with Mr A.     However, by 13 January, Mr A. told the complainant that whilst her job was safe, other jobs were at risk.   On 25 January, he told the complainant to accept either redundancy or a lesser position within the organisation.   On 3 February, Mr A. told a full room of the complainant’s colleagues that the complainant was no longer a manager. The complainant was subsequently left out of managerial meetings. According to the complainant, Mr A. veered in their personal meetings between assuring the complainant that her job was safe, and indicating that it was not safe.   He also asked her to help him with his personal projects, and confirmed that this would be a PA role.

The complainant stated that she did not alert the respondent’s HR department about these developments because, in her words, her “judgement was clouded” from the conflicting messages she received. The complainant decided to seek outside legal advice after seeking guidance from the Citizens Information Service. By late March, the complainant had started to suffer from panic attacks and attended her doctor. She received no less than three phone calls from Mr A. during this visit.

Her subsequent absence on sick leave allowed the complainant to gather her thoughts and step back from her situation. She then contacted HR and met with the respondent’s HR manager off-site in a café.     HR categorically denied to the complainant that she was at risk of either redundancy or other job loss. In terms of professional options for the complainant, it was confirmed to her that she would have to continue with both Mr A. and his brother. The HR manager also advised her to raise a grievance, which she did on 11 April.   The complainant then remained absent on sick leave until December and, apart from what was required for the investigation of her grievance, did not hear anything further from the respondent, including inquiries about her well-being.

The complainant received the outcome of her grievance on 4 August: It was partly upheld. However, the complainant noted in her evidence that her witnesses were not questioned by the investigators, and that she was still without an answer as to why Mr A. acted the way he did. Only Mr A. and his brother were questioned in the course of the investigation.   The complainant felt that this approach had probably led to biased answers and therefore appealed the outcome of her grievance.

The complainant eventually received an apology from the respondent, but she stated that she felt isolated and “shelved” by the company. The complainant resigned from the respondent’s employment on 22 February 2018. She confirmed at the hearing that she continued to receive treatment for the medical problems which arose from the events.

In cross-examination, the complainant confirmed that it was not the threat of job loss which was central to her resignation, but rather the fact that despite the fact that she felt manipulated by Mr A. and had lost all trust in him, she was not offered an alternative role away from him and would have had to work with him again. He would also have been the manager responsible for facilitating her return to work.  She also stated that she had lost trust in the respondent as a result of the totality of her experiences. She felt that she would be forced to return to a “biased environment”.

In terms of mitigating her loss, the complainant stated that she had started a new job prior to hearing, and that she had been in receipt of illness benefit until then.

In the additional legal submission which I requested, counsel for the complainant argued that both the contract test and the reasonableness test for constructive unfair dismissal were satisfied: the contract test, because the employer breached the implied contract term of mutual trust between employer and employee in the employment relationship, and the reasonableness test, because in the complainant’s view, the employer did not resolve her grievances in any meaningful way and the time taken to deal with her grievance was excessively drawn out and delayed. The complainant maintains that sending her back to work for Mr A. amounted to penalisation whilst Mr A. was permitted to remain unsanctioned in his role.

Cases cited by Ms Jones in support of her arguments included Fitzsimons v. Mount Carmel Hospital, UD 855/2007, Allen v. Independent Newspapers Ltd [2002], ELR 84, and Riehm v. Dublin Society for the Prevention of Cruelty to Animals [2004] ELR 205.   Ms Jones further cites Cox, Corbett and Ryan, “Employment Law in Ireland”, that “a failure to deal with bullying is the simple most prevalent contributory factor in cases where bullying has been found to generate a constructive dismissal situation”.   It remains the complainant’s case that Mr A. bullied her.

Counsel also cited Berber v. Dunnes Stores [2009] IESC 10, and the case heavily referenced in that decision, London Borough of Waltham Forest v. Folu Omilaju [2004] EWCA Civ 1493, in support of her argument of breach of contract.

In its written submission, the respondent stated that the complainant does not meet the probative burden of constructive unfair dismissal. It confirms that the complainant was highly regarded within the respondent organisation for her ability and dedication.   The respondent accepts in its submission that only Mr A. and his brother were interviewed in the course of the investigation. It also contains details on the outcome of the investigation.  The complainant’s complaint of bullying by Mr A. was not upheld. In terms of the complainant’s wish not to work with either Mr A. or his brother any longer, she was invited to apply for other roles in the organisation and was assured that her application would receive priority. It was pointed out to the complainant, however, that success in such an internal application was down to the decision of the hiring manager.

The respondent also confirmed that on appeal, the complainant’s complaint of bullying was again not upheld.   The respondent states that one of its HR managers did contact the complainant during her sick leave to see how she could be assisted. A company contact was also appointed to keep in touch with the complainant and she was advised of this by letter. A welfare meeting was proposed to the complainant to take place on 23 February, but the complainant resigned the day before.

In terms of legal argument, the respondent notes that the contract test for constructive unfair dismissal does not apply in the within case. In terms of the reasonableness test, i.e. whether the respondent conducted itself so unreasonably that the complainant had no option but to resign, it is the respondent’s position that given that her grievance was investigated and partly upheld and that the respondent engaged with the complainant on all matters she raised, either formally or informally, and that various professional options remained open to her until the date of her resignation, it conducted itself reasonably under the circumstances.   The respondent cites a number of decisions from the Employment Appeals Tribunal in support of this position, most notably Conway v. Ulster Bank, UD474/1981.

The respondent did not call any witnesses at the hearing of the complaint.

In a case like the one within, where the alleged breach of contract is one of the implied contractual term of trust and confidence, the two tests for constructive dismissal are rather like describing related unlawful conduct on a gradient: unreasonable behaviour is bound to lead to loss of trust and confidence eventually, and no worker would lose trust in an employer which comported itself perfectly reasonably at all times.   The contract test then becomes something of a higher probative hurdle to clear on the same evidentiary pathway, and simply for the purpose of making a finding, I could probably limit myself to examine the respondent’s alleged unreasonableness. However, in my view, the justice of the case demands otherwise.

To draw a preliminary distinction to the facts in Berber v. Dunnes Stores, I am satisfied that unlike the plaintiff in that case, the complainant comported herself reasonably at all times until the time of her resignation from the respondent’s employment. There is no such factual matrix in this case as the one which saw Mr Berber unsuccessful in the Supreme Court.

The complainant also did employ the respondent’s grievance procedure, which makes the cases cited by the respondent, Conway v. Ulster Bank, UD474/1981, and Cedarglade Ltd (formerly Pineglade Ltd. v. Tina Hliban UUD1843, irrelevant in the within context.  I am satisfied that first raising a formal grievance, and then appealing it within the prescribed structures, does amount to a “substantial utilisation” of the respondent’s grievance procedure by the complainant.

The complainant resigned her employment after her grievance appeal was unsuccessful. At the time, she was on anti-depressant medication, felt frustrated in her search for answer from the respondent as to Mr A.s actions, and in her own words, felt “shelved” by the organisation.     She felt that the respondent’s processes had failed her. She also stated that she felt the respondent was just “going through the motions” in terms of her appeal. The complainant continued to receive medical treatment at the time of the hearing of the within complaint.

The complainant’s unsuccessful grievance appeal was therefore the “last straw” which led to her resignation. Of course, an unsuccessful outcome of a grievance appeal is by itself not unreasonable or a breach of trust. However, the Supreme Court in Berber v. Dunnes Stores adopted the jurisprudence of Dyson LJ in London Borough of Waltham Forest v. Folu Omilaju, where Dyson LJ stated as follows about “last straw” situations:

“20. I see no need to characterise the final straw as “unreasonable” or “blameworthy” conduct.   It may be trued that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence.”

I am satisfied that the outcome of the complainant’s appeal satisfies the test set out above, based on what she had experienced in connection with her grievance before.   I find that in many aspects the conduct of the respondent has been poor, especially regarding its lack of pro-active communications with the complainant during her sick absence and the fact, which I accept, that it was left to the complainant to continue to press for answers in her case. What satisfies me that a breach of the implied contractual term of trust and confidence has occurred in the within case, however, is the combined effect of the following two facts:

The respondent only investigated Mr A. and his brother in response to the complainant’s initial grievance, and none of the other witnesses listed by the complainant and

The respondent did not assure the complainant of a viable career path away from these two men in their response. Whilst the complainant was assured that any application of hers for another position in the respondent organisation would receive priority, she was still forced to apply for whatever job opening occurred.

In other words, the complainant could not be certain that upon her return to work, she would not be at the mercy of the two brothers who were both managers and above her in the respondent’s organisational hierarchy. In reality, the first step, to interview a sufficient number of witnesses, ought to have been followed as a matter of course, and in observation of the complainant’s entitlement to natural justice and fair procedures.   The complainant was right to express her concern, in the course of her evidence, that Mr A and his brother would simply back each other up, and this justified concern was never allayed.     I am also satisfied that the respondent organisation was large enough to identify a viable career path away from the brothers and assure the complainant that she would be so accommodated.

In general terms, employers cannot and should not prevent family relations among their staff, even when they are not family-run businesses to begin with.   Being related to someone inside a business should not ruin someone’s chances of being hired for a particular role, nor should people lose their livelihoods because they meet on the job and then marry or form a civil partnership. But conversely, it seems to me to be a rather elementary aspect of the implied contractual term of trust and confidence that employees must able to trust that not being kin to someone else in the organisation, especially someone in a position of power over them, will not place them at a disadvantage and that family relations will have no bearing on the fair and equitable treatment of all workers. I am satisfied that the respondent, in its handling of the complainant’s grievance as described above, did violate this rather fundamental principle and is therefore indeed in breach of its contractual obligation to foster a sense of trust and confidence in the complainant.  

It was therefore reasonable for the complainant to resign her employment within the definition of S. 1(b) of the Unfair Dismissal Acts and in line with the jurisprudence in Allen v. Independent Newspapers Ltd 2002], ELR 84, and I am satisfied that her resignation amounts to a constructive unfair dismissal within the meaning of the Acts and that this has not been rebutted.

The complainant seeks compensation, which, in light of the findings which I have just made, is indeed the appropriate remedy.   As I already noted, I am satisfied that the complainant acted reasonably throughout and did not in any way contribute to her dismissal. I am further satisfied that the complainant’s lengthy sick absence, and loss of income thus incurred, is directly attributable to the experience which ultimately led to her dismissal. The complainant submitted that this financial loss amounts to €15,897.89, which was not challenged by the respondent. I also note that despite being in poor health from her experiences with the respondent, she succeeded in obtaining new employment in June 2018. However, her current role in another organisation pays €122 less per year than her work for the respondent.

I am therefore satisfied that the complainant is entitled to be compensated for her financial loss.   In light of the complainant’s blamelessness in the events which led to her dismissal, the serious and long-term impact on her health and well-being which arose from these, and the fact that I have found the respondent to have been in breach of its contractual obligations vis-à-vis the complainant rather than “merely” behaving unreasonably, I consider it just and equitable in all the circumstances and pursuant to the provisions of S. 7(1)(c)(ii) of the Unfair Dismissals Acts, to award the complainant compensation in the sum of €35,000, which is equivalent to one year’s remuneration.

For the reasons outlined in detail above, I find that the complainant was unfairly dismissed from her employment with the respondent contrary to Section 6 of the Unfair Dismissals Acts 1977 to 2015.   I therefore order, pursuant to the provisions of Section 7 of the Unfair Dismissals Acts 1977 to 2015, that the respondent pay the complainant €35,000, subject to lawful deductions, in compensation for her dismissal. The reasons for this award and how it connects to the complainant’s loss, are outlined in the preceding section.

Constructive unfair dismissal – contract test – reasonableness test – part of implied term of trust and confidence that family relationships do not disadvantage unrelated employees - Berber v. Dunnes Stores [2009] IESC 10 - London Borough of Waltham Forest v. Folu Omilaju [2004] EWCA Civ 1493 - Allen v. Independent Newspapers Ltd [2002], ELR 84 - Riehm v. Dublin Society for the Prevention of Cruelty to Animals [2004] ELR 205 - Conway v. Ulster Bank, UD474/1981 - Cedarglade Ltd (formerly Pineglade Ltd. v. Tina Hliban UUD1843.