Complainant

Respondent

Anonymised Parties

Accountant’s Assistant

Accounting Firm

Act

Complaint Reference No.

Date of Receipt

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

CA-00012888-001

31/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012888-002

31/07/2017

The Complainant commenced her employment with the Respondent as a Bookkeeper/Accountant’s Assistant on 15th September 2006. She tendered her resignation in writing on 27th July 2017. She was paid €2625.30 a month and worked approximately 36 hours a week. The Complainant asserts that she was constructively dismissed and submits this claim pursuant to the Unfair Dismissals Act, 1977. She also claims that her contract did not reflect the actual role/ position she held within the Respondent company.

The Respondent denies the claims.

The Complainant submits that she worked for the Respondent for almost 11 years, until she was forced to resign in July 2017. She was employed as a Bookkeeper/ Accountant’s Assistant but a few weeks after she started she was required to carry out tasks that were the role of the accountant. She submits that, despite not being given any training to do these accountancy tasks and not getting any acknowledgement for doing them, the Complainant always completed the tasks to the best of her ability. Although, at times, the Complainant was stressed by her work and the work environment she always did her best and during the first ten years the Respondent never raised any issues with the Complainant’s performance. On 3rd March 2016 an incident occurred between the Complainant and the Office Manager, Ms C. Ms C demanded, in an aggressive tone, that the Complainant complete a task for her that was not part of the Complainant’s role. Although the Complainant had completed the task for her previously on other occasions, the Complainant explained to Ms C that she could not do the task for her that day as she was extremely busy with her own work. Ms C escalated the matter to the Director of the Respondent, Mr. G. Mr. G spoke with the Complainant. Having heard her explanation, he said it was fine. Ms C went back to Mr. G office and the Complainant overheard raised voices. She got the impression that Ms C was not happy that Mr. G had not forced the Complainant to do the task. Shortly after, Ms C left the building. Mr. G told the Complainant that he would speak to both of them on the next day. The Complainant was pleased about this as she felt the meeting would be an opportunity to address the fact that this was regular behaviour by Ms C for years. The meeting did not happen despite the Complainant emailing Mr. G on the following Tuesday. The Complainant made a formal complaint about Ms C on 14th March 2016. Several meetings were held later between Mr. G, the Complainant and Ms C. Mr. G told them that they should communicate more. However, nothing really changed and the Complainant got on with her work as best as she could. The Complainant submits that in mid July 2016, Mr. G approached her and mentioned in passing that he was not happy with the quality of her work. He pointed out to the Complainant some errors that she had made back in March 2016. This was the first time the Complainant had heard of the Respondent having any issues with her performance and thought it coincidental that the errors he referred to occurred in March 2016, the same month in which the Compliant had made a complaint about the Office Manager. On 5th August 2016 the Complainant was handed a formal letter by Mr. G in which he raised several issues about her and her performance. The Complainant was shocked and upset. Mr. G requested a meeting with the Complainant on 9th August 2016. The Complainant responded to the letter in detail by email on 8th August 2016. The Respondent had never raised these issues before and the fact that Mr. G chose to raise them with her in a formal letter, and not a discussion, after all her years of service left the Complainant feeling hurt and insulted. The meeting was rescheduled by Mr. G to 12th August. The Complainant was shocked, upset and surprised that after ten years with the company the Respondent was only finding fault with her work now and told her that the accounts area did not suit her as a career. She felt humiliated and useless, she now doubted her own abilities and her self-confidence was destroyed. Mr. G called the Complainant to three further meetings, on 15th, 16th and 19th August 2016. She was not offered any representation at these meetings. The Complainant submits that at the last meeting Mr. G shouted at her and she left his office deeply upset, terrified and humiliated. Mr. G asked her to come back to his office but the Complainant felt too afraid to do so and refused unless she had a witness present. Mr. G never considered the Complainant’s request. The Complainant was shaking with stress for at least half an hour and found it difficult to calm down. As a result, her mental health suffered, she was not able to sleep and had severe headaches. She was advised by her doctor to take sick leave due to her anxiety and continued to submit medical certificates for the period from 20th August 2016 until the date of her resignation in July 2017. The Complainant believes that Mr. G treatment of her was a direct result of the formal complaint she made about Ms C. She sought the advice of HR consultants, who wrote to the Respondent on 5th September 2016. A meeting was arranged between the Consultants and the Respondent on 13th October 2016. It was agreed at the meeting that the Complainant wished to make a formal complaint about Mr. G. This was to be sent in writing to the Respondent and, once received, the Respondent would carry out an independent investigation. Subsequently, an independent investigator, Mr. H conducted his investigation into the Complainant’s complaint of bullying and harassment against Mr. G over a prolonged period. It involved meetings with the Complainant and Mr. G along with several witness statements. The investigation concluded on 25th July 2017. The Complainant was devastated and disappointed that the findings of the Report did not go in her favour. Whilst the Report did not uphold the Complainant’s claim of bullying and harassment, it did find faults with several of the Respondent’s work methods. At this stage, all trust had broken down between the Complainant and the Respondent. There was no way the Complainant could now return to the workplace and to safeguard her health she had no option but to resign.

The Complainant relies of Schonfield v West Wood Club Clontarf Ltd. (UD 1013/2013), Beglan v Scanomat Ireland Ltd. (UD 688/2012), Glica v The Bagel Bar Franchise Co Ltd. (UD 1217/2013), Allen v Independent Newspapers (Ireland) Limited 2002, Gallery v Blarney Woollen Mills Ltd. (UD 265/1989), Porter v Atlantic Homecare Ltd. (UD 971/2005)

The Respondent submits that they, at all times, behaved reasonably and expeditiously when dealing with the Complainant’s complaints. The Respondent received an initial complaint from the Complainant’s representative dated 5th September. The Respondent’s representative contacted the Complainant’s representative on 15th September and a meeting was arranged on 13th October 2016. At the meeting, it was agreed that the Complainant would submit a formal detailed complaint and on receipt of same an investigation would be completed. It was agreed that the Respondent would nominate three investigators but final selection of the investigator would be made by the Complainant and her representative. This was finalised on 19th October 2016. Following initial discussions between the Complainant, her representative and the Investigator, the investigation was paused and a number of “without prejudice” discussions took place between 22nd and 29th November and 6th and 14th December 2016 but a resolution could not be reached. Mr. H proceeded with his investigation and it was completed on 25th July 2017 when a Report was issued. The recommendation of the Report stated as follows: “As the finding is that the complaint is not upheld it is not recommended that the disciplinary procedure is used. It is recommended that both parties are offered mediation to resolve issued contained herein.” The Complainant resigned of 27th July 2017. On 4th August, 2017 Mr. G wrote to the Complainant confirming that the Respondent “were disappointed to note that you have taken the decision to resign as we had been willing to implement the recommendations of [Mr.H’s] report”. The Respondent submits that the Complainant:

·         Made no attempt to participate in mediations after the findings of the investigation were issued;

·         Made no attempt to engage with the Respondent after the findings of the Report were issued;

·         Made no attempt to appeal the decision of the Investigator which was available to her under the Respondent’s bullying and harassment policy as defined in the Employee Handbook;

·         Made no attempt to submit a grievance after the findings of the investigation were issued, which was available to her under the Respondent’s grievance policy as defined in the Employee Handbook.

The Respondent confirmed in their letter to the Complainant dated 4th August 2017 that they “had been willing to implement the recommendations of [Mr. H’s] report”. The Respondent are of the opinion that they at all times dealt with the Complainant reasonably and fairly and the Complainant failed to exhaust all avenues available to her prior to her resignation and therefore her claim of constructive dismissal must fail. The Respondent submits that their conduct did not amount to behaviour which undermined the relation of trust and confidence between the parties in such way as to go to the root of the contract. It is the Respondent’s opinion that their conduct / behaviour did not breach the contract test and reasonableness test.

The Respondent relies on Berber v Dunnes Stores Ltd., Western Excavating Ltd. v Sharpe, O’Gorman v Glen Tyre Company Ltd., Barry v Quinn Insurance Ltd.

S.8 of the Unfair Dismissal Act, 1977, as amended provides for making complaints regarding unfair dismissal in contravention of S.6 of that Act. For a claim of constructive dismissal to be properly brought under the Act, the Complainant must satisfy the definition in Section 1(1)(b) of the Act, which defines “constructive dismissal” as “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

The burden of proof in constructive dismissal lies with the Complainant. In Allen v Independent Newspapers (Ireland) Ltd. 2002 ELR 84) it was held that the onus is on the Complainant to prove his case and the test for the Complainant is whether it was reasonable for him to terminate his contract.

As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”  In Harrison v National Engineering and Electrical Trade Union UD 406/1987 the Tribunal held that failure to pay wages was a fundamental breach of contract. In Byrne v RHM Foods (Ireland) Ltd UD 69/1979 it was determined that “the total isolation of the Complainant amounted to an undermining of the relationship of confidence and trust between the responded and the Complainant, such as to go to the root of the contract”.

The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.” According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.” Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

The Complainant must have acted reasonably in tendering her resignation. Ryan in “Redmond on Dismissal Law” (2017) argues that ‘there is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignation. Where grievance procedures exist they should be followed: Conway v Ulster Bank Ltd. In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.[1] The EAT has made it clear in a series of decisions, and followed by the Adjudication Service that the use of company procedures to address a grievance is a necessity. For example, in Patricia Barry-Relph v HSE t/a HSE North West (UD980/2014) it was held that peremptory resignation without reference to the company procedures is fatal:

“…the Tribunal finds that the claimant did not give her employer an opportunity to deal with her complaints. The Tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she had failed to exhaust any of the several avenues open to her.”

In Tierney v DER Ireland Ltd. UD866/1999 EAT stated “Central to this is that she shows that she has pursued to a reasonable extent all avenues of appeal without a satisfactory or reasonable outcome having been achieved”.Similarly, the EAT case John Travers v MBNA Ireland Ltd. UD720/2006 stated “…the Complainant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the Complainant’s case… In constructive dismissal cases, it is incumbent for a Complainant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”. In Keane v Western Health Board UD 940/1988 it was held that a knowledge that a grievance procedure exists is germane.

In the case before me the Complainant claims that she had to leave her employment due to the behaviour of her employer. There are two main matters the Complainant refers to:

1.       Complaint in respect of Ms C in March 2016

2.       Bullying and harassment complaint against Mr. G in September 2016

It was confirmed by the parties at the hearing that at the time of the first incident in March 2016 there were no Disciplinary and Grievance Procedures in place. However, these were issued to the Complainant on 22nd March 2016 and again in July.

I note that there was no performance review system in place. The Complainant had not previously been informed that anything had been wrong with her performance. The Complainant alleges that Mr. G behaviour toward her became negative once she had complained about Ms C.

I am of the view that the initial response of the Respondent to the Complainant’s grievances fell short of best practice. Despite a formal complaint in respect of Ms C it appears that the Respondent applied a very informal method of dealing with the conflict. There were no grievance policies and procedures in place at the time. There is also a dispute about the resolution of the conflict. Both parties agreed that a number of meetings were held with a view to resolving the matter. The Respondent submits that it was agreed that the two employees at the centre of the argument would communicate more often with each other. The notes of an interview with Ms C conducted by Mr. H, which were included in his Report show that Ms C thought “…it was all resolved. I was spoken to, she was and we both agreed it was resolved… in front of B and Mr. G…there was no ambiguity about the resolutions…we both agreed it was resolved…even laughed about it when we left”. The Complainant submits that the matter had never been resolved. The resolution of the conflict, or lack of it, does not seem to be appropriate taking the weight of the grievance reported by the Complainant. I note that the Respondent rectified the matter of the lack of procedures in place and the Complainant was issued with Employee Handbook on 22nd March 2016. I note that, as unhappy as the Complainant was with the outcome of the proceedings she did not pursue the matter.

There is a considerable divergence between the Complainant’s and the Respondent’s respective account of the meetings on 12th, 15th, 16th and 19th of August 2016. The Respondent claims that, as there was no formal performance management system in place, these were arranged to address the Complainant’s performance shortcomings. The Complainant, on the other hand argues that it was a consequence of her making initial complain in respect of Ms C. She claims that Mr. G’s tone was “unpleasant”, he shouted at her and left her upset, terrified, humiliated and shaking with stress.

I note that the HR Consultant submitted a bullying and harassment complaint against Mr. G on behalf of the Complainant on 5th September 2016. As the complaint related to a Director of the Respondent a decision was made to appoint an independent person to investigate the matter. Taking the circumstance, this was appropriate in my opinion. It was agreed between the parties that the Respondent would provide three names of independent experts. The final decision as to the choice of the investigator was left to the Complainant and her representative. Their preferred choice was Mr. H, an organisational psychologist, conflict resolution specialist and expert in mediation, psychology and coaching. The investigation was comprehensive and covered by the Terms of Reference. The Complainant was interviewed in the presence of her representative. A record of all interviews was created and signed off once the content was agreed. Copies of notes were provided to the parties. The Report of the investigation issued on the 25th July 2017. Mr. H did not uphold the allegations of bullying. However, he made a number of observations and recommended that both parties are offered mediation to resolved issues outlined in the Report.

I am satisfied that the Complainant was issued with the Employee Handbook, which included Grievance, Disciplinary and Bullying & Harassment policies in March 2016, July 2017 and subsequently a copy was forwarded to her representative, HR Consultant on 18th October 2016. I am satisfied that, despite some shortcomings at the initial stage of the grievance process in terms of conflict with Ms C, the Respondent sought an assistance of an independent expert to ensure correct and impartial proceedings in relation to the bullying and harassment complaint. I note that the Complainant agreed to proceed with the proposed process and she and her representative nominated their chosen person, Mr. H to conduct the investigation. I note that the Respondent’s Bullying & Harassment Policy provides for appeal of the outcome of an investigation. The Complainant did not appeal the outcome of the investigation.

However, having committed to proceed with an independent investigation and having herself nominated the investigator the Complainant seems not to have accepted his findings. The Complainant has not exhausted all internal procedures in respect of her grievance and resigned her position.

On the basis of the written and oral submissions of the parties, and all the evidence adduced at the adjudication hearing, I find this complaint to be not well-founded and accordingly, the complaint fails.

The Complainant submits that she commenced her employment with the Respondent on 15th September 2006 as a Book-keeper / Accountant’s Assistant. However, as early as a few weeks after she started, the Complainant was required to carry out many tasks that were the role of an accountant such as income tax cases, preparing financial statements, audit working papers etc. As time progressed, the Complainant was asked to do more and more tasks which really were more akin to an Accountant’s duties. This included the management of company accounts, managing company’s office deadlines and company formation. The Complainant holds a Diploma in Accountancy, Finance and Book-keeping and she felt capable of doing the tasks she was set.

The Respondent submits that they provided the Complainant with a Statement of Terms and Conditions of Employment in 2006. This document was signed by the Complainant on the 15th September 2006. Copy was presented.

The Complainant’s own submission to the WRC confirms that she received a contract of employment from the Respondent.

The Complainant’s representative confirms in his letter to the Respondent dated 15th September 2017 that the Complainant was employed as a Bookkeeper / Accounts Assistant from 15th September 2006 to 27th July 2017.

The Respondent are of the opinion that they provided the Complainant with a contract of employment in compliance with the terms of the Terms of Information Act and therefore her claim of breach of the Terms of Information Act must fail.

This complaint has been referred under Section 7 of the Terms of Employment (Information) Act, 1994 and the Complainant has alleged a contravention of Section 3 of the Act.

The key facts in relation to this complaint were not in dispute between the parties. The Parties agreed that the Complainant was provided with and signed a written statement of her terms and conditions of employment on 15th September 2006. The Complainant does not dispute the fact that she did receive the statement. However, she claims that the job title / description as per the statement did not reflect her actual position within the company.

Section 3(1) of the Terms of Employment (Information) Act 1994 requires that “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars …… “.

It was not in dispute that the Complainant commenced employment with the Respondent on 15th September 2006 and received and signed the “Contract of Employment” on that day. I note that the Contracts states the following: “Job title and description The Employee’s job title is: Book-keeper / Accountant’s assistant The Employee’s main task is the preparation of books, ledgers, statutory tax returns and reconciliations.” The Complainant argues that she was required to carry out tasks which were the role of an Accountant. I note that for over ten years the Complainant completed the additional tasks to the best of her ability as she felt capable of doing so. From the Complainant’s submission it appears that she did not voice her dissatisfaction in respect of tasks allocation until the meeting on the 19th August 2016 when she queried the responsibilities of the Office Manager and assisting staff such as herself. I am satisfied that at that stage the Complainant considered herself one of the “assisting staff”. In fact, in her detailed letter of 8th August 2017 she states clearly “I am well aware of my duties…”

I am satisfied from the evidence available to me that a written statement of terms of employment was provided to the Complainant. I find that the Complainant was asked to perform tasks outside her job title / description. Although, she would have been asked to perform tasks which were not part of her job description I am satisfied that the Complainant did, in fact consider herself a Bookkeeper/ Accountant’s Assistant. While the Contract of Employment was not updated to list the additional tasks, which would be the appropriate course of action, I do not find that the extent of this issue amounts to a breach of the Act. I find that the complaint made pursuant to the Terms of Employment (Information) Act is not well founded.

For the reasons set out above, I find that the complaint made pursuant to the Terms of Employment (Information) Act is not well founded.

Constructive dismissal, Terms of employment, bullying and harassment