Complainant

Respondent

Anonymised Parties

A Senior Manager

A Regulatory Body

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00013769-001

05/09/2017

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

CA-00013769-002

05/09/2017

The complainant had been employed by the respondent since 2001 as its Deputy CEO on a salary of approximately €82,000 until she left on secondment in August 2014.

She claims constructive unfair dismissal, a breach of the Terms of Employment (Information Act and raises issues under the Industrial Relations Act.

Issues arose between the complainant and her employer in 2014 and she raised these orally initially and on being invited to put them in writing she did so on June 27th 2014.

The CEO responded with the consent of the then President on August 8th but dismissed the complaints without any investigation. The complainant says the letter was further evidence of the systemic bullying in the organisation. The complainant says the President had no authority to give his consent to that letter; as it should have been brought to the Board for its consideration.

She left on secondment on August 16th. The secondment did not suit her for personal reasons and was something of a step back in career terms. The initial term of secondment which was to be for one year was extended by a further two years.

She again wrote, this time direct to the then President on November 19th and while he acknowledged this and said he was taking advice she did not get a substantive response until February 23rd, 2015. This stood over the CEO’s response of the previous August.

He did not propose any investigation or other response to the issues she had raised and which, she says, necessitated her leaving the organisation on secondment. She should have been offered an investigation or other response to her grievances.

The complainant became aware that the Board of the respondent had not been made aware of her complaint later.

The Organisation Review was going on between March and November 2015 and she was invited by a former President to engage with it in September 2015

in February 2016, she got a phone call from the organisation’s new President requesting her return to work sooner than provided for in the secondment arrangement.

The complainant made a contemporaneous note of the call which records her asking whether the President was aware of the reasons she had left the respondent on secondment in 2014. She outlined the difficult relationship with the CEO and her attempts to have the matter processed.

The President was not aware of these matters but they agreed to meet and this took place on February 8th 2016, and there was a second meeting on February 15th.

Following this she was invited to attend the Board on March 1st 2016 and says she sought an investigation into the handling of her initial complaint, greater staff support and she also mentioned that other staff in the organisation had similar concerns.

She attended a meeting on March 11th to discuss an Organisational Review carried out by independent consultants. She was given a full copy of the report. She had an interest in this process because her post was referred to in it. The report was also critical of the senior management team in the organisation.

She proposed a basis for her return to work which would include an acknowledgement that her complaint of June 2014 had not been properly dealt with and an apology.

She made a number of other requests related to the costs she had incurred in respect of health and legal costs, costs of travel and of her time to the seconded post.

She also sought the option of giving her seconded employer three months’ notice of her departure and sought two months paid leave of absence before returning to the respondent.

The President, having consulted the Board offered to respond positively to all proposals, including the legal and medical costs except those related to travel and time related costs.

In due course, on April 4th she telephoned the President rejecting the proposal and a further meeting was arranged for April 8th. This did not make any further progress.

There was further correspondence between May and August regarding information in the respondent Annual Report and other matters, but despite her complaint these were not rectified.

Some time later she became aware that the respondent had published recommendations from the Organisational Review and she eventually did in February which impacted adversely on her position, including the proposal that she would return on a ‘red circled’ basis to a position which carries a lower grade than the one she left.

The complainant regarded this as a form of disciplinary sanction.

She has made numerous attempts to engage with the respondent and she rejects the contention in a letter from the respondent‘s solicitors on August 17th 2016 that she failed to engage with the process.

The respondent notes that the complainant held the position of Director of Registry from April 17th 2014.

It accepts that an extension of the original secondment was agreed giving rise to a return date in August 2017.

However, on May 17th 2017 the respondent wrote to the complainant asking her to confirm if she had been given notice of the expiry of the secondment arrangement and the seconding organisation confirmed requested the respondent to agree to formally transfer the complainant to its service on a permanent basis.

On May 24th, the complainant wrote to the respondent saying, pending the decision to be made, she was confirming her return to the respondent.

The respondent replied stating that her return would be to the post of ‘Director of Registration’, but that grade being at a lower level than the complainant’s post at the time she left she would retain her salary on a personal basis.

On July 4th, the complainant wrote to the respondent confirming her intention to transfer out of the organisation with effect from July 28th and this duly happened. She did not resign and she was not dismissed. Her employment with the respondent terminated as a result of a voluntary transfer and on the same terms and conditions of employment she enjoyed with the respondent.

In respect of the contribution of the events between 2011 and 2014 to the complainant’s decision to seek her first secondment, and alleged bullying and harassment by the then CEO, the complainant’s claims about the 2014 period are not supported by the facts.

Her letter of complaint was only copied to the President for information, and subsequently he is accused of inaction. The letter also clearly indicated that she did not wish any further action to be taken on the complaints; as evidenced by the phrase ‘I do not wish to engage in any further discussion on the matter’.

Further, in November 2014 she made it clear to the President that she did not want the contents of her correspondence to him shared with the Board. The following February he invited her to attempt to resolve issues with the CEO amicably, or failing that to avail of the grievance machinery.

She did not do so.

In any case, even if this were not the case events which happened in 2014 will rarely be sufficient to ground a case of constructive dismissal over three years later.

In January 2016, a newly elected President approached the complainant to ascertain her interest in returning earlier than provided for in the secondment arrangement, at which point the complainant again raised the 2014 issues.

It was this which led to the President convening a special meeting of the Board to hear the complainant’s grievances. Neither of the individuals who featured in the 2014 complaint were still actively involved with the Board; the then President was out of office and the CEO had retired.

In the meantime, an Organisational Review had been completed and the contents of this were made available to the complainant before she met the Board on March 1st, followed by a second meeting on the 11th.

Proposals were put to the complainant on April 8th as a goodwill gesture which the complainant responded to positively; giving a strong indication of her willingness to return but also seeking financial compensation for her ‘significant financial loss’.

The Board wrote again on June 9th saying it wished to work out the difficulties to ensure a ‘seamless’ return to work.

Further attempts to resolve the matter in January and February 2017 were not successful and concluded at the end of March.

There has been no lack of effort on the part of the respondent to address and seek to resolve the issues raised by the complainant. This is in spite of the fact that she has never lodged a grievance.

Her initial departure on secondment was at her request, and even if there were factors in the respondent workplace which contributed to that (which is denied by the respondent) that is not sufficiently proximate to the termination of the complainant’s employment to ground her case of constructive dismissal.

Events which happened in 2014 are not sufficient to ground a case of constructive dismissal three years later.

The alleged change in the nature of her post was not a demotion in any way and neither was it a disciplinary act. Also, it was not the reason she left which was the offer she had from the seconding organisation.

There were to be structural changes in the organisation and the terms of her secondment agreement provided for her return to a post other than the exact one she left.

That agreement stated that she would ‘normally return’ to her ‘substantive post within the [respondent] and ‘where the substantive post is no longer available [she] would be assigned to the next fillable vacancy t arise within the grade [she] formerly held.

This is what she was offered, but it was not acceptable to her.

While it is possible to see a thread running through all of the events in the narratives provided by the parties, and this is notably the position of the complainant, it may be helpful to break them into a number of modules.

The first is the period between June 2014 and August 2014.

To this can be added the correspondence initiated by the complainant with the then President on October 29th to which she eventually got a reply on February 23rd 2015.

But the key episodes are the complainant’s letter of complaint on June 27th, the reply of the CEO on August 8th and the departure of the complainant on secondment on August 16th.

The complainant says that her decision to raise this issue, initially on June 24th, followed what she described as ‘some difficult years’ between 2011 and her eventual complaint.

Ultimately, the most important question here will be what bearing this had on the complainant’s decision to leave in 2016. Is there a connection between this, (or even starting with this) and her eventual termination in the employment of the respondent? Did it even have a bearing on the 2014 decision to seek a secondment.

The respondent says there is insufficient proximity of time between the two events to create a causal link.

The respondent also says that the complainant failed to make what might be described as a recognisable complaint on which it could act.

The complainant’s description of the reasons leading to her secondment in her submission above is somewhat at odds with what she writes in her letter to the CEO on June 27th or at best, extremely ambiguous.

In the course of it she thanks the CEO for ‘the immediate support you offered to me in this regard’ and where she describes it as ‘an opportunity to gain experience in the broader healthcare field’.

She continues with some relatively serious allegations about the management style of the CEO which she says have ‘deeply troubled me at a personal and professional level’.

But, as the respondent has pointed out, she concludes with the following;

…I am not seeking conflict or argument with you. As far as I am concerned I have voiced my concerns which I sincerely hope you will reflect upon for the benefit of the organisation, and I do not wish to engage in any further discussion on the matter’.

The reply on August 8th from the CEO noted that those feelings had never been previously communicated to her, despite the complainant’s assertion that there had been issues of concern since 2011.

More tellingly, the CEO comments as follows on the complainant’s desire not to engage in any further discussion;

‘As a senior manager, you must know that is not the appropriate way for such issues to be addressed and that no organisation can simply ‘park’ a response until the complainant decides they are prepared to hear the response.’

There were some other substantive responses to issues raised by the complainant which are not within the remit of this decision.

However, the credibility of the complainant’s later attempts to represent this as some form of unfinished business is fatally damaged by these exchanges.

The issue around whether the President ought to have brought the matter to the Board is of no significance. The fact is he had nothing to bring to the Board.

The letter was not addressed to him. Staff matters in all such organisations are within the remit of the CEO, and there was the explicit statement that the complainant would not engage in any further discussion on the matter.

Of course, given that the matter involved the CEO this would have justified a complaint being made direct to the President. Remarkably, the complainant did not do so. Indeed, in her later correspondence with him in October she specifically states that it should not be brought to the CEO’s attention.

It was hardly a surprise that he, the President, held to this position in February 2015. Critically also, as just noted, he had been told by the complainant that;

‘this letter is confidential to you. Neither this letter nor details of the contents herein are to be shared with the Chief Executive Officer’

What part can the alleged failure to act on a matter raised in such a way be used to justify a complaint of constructive dismissal over three years later, or indeed to sustain it in 2016 when it surfaced again?

There was no evidence beyond assertion to support the contention that she was forced into seeking the secondment as a form of escape and some evidence (in her letter to the CEO) to the contrary. The process relating to the secondment was well underway before she made the complaint and, more relevant, before she got the reply to it.

The second module comprises the sequence of events in 2016 following the approach by the newly elected President to seek an earlier return of the complainant from her secondment.

Given my conclusions above about events in 2014 and early 2015 I can only conclude here that the offer made to the complainant was a rather generous one in the circumstances. A more forensic review of the facts of the matter might have led to a firmer position being adopted by the respondent, and the departure from the scene of the two main players may have been a factor in the complainant’s favour here.

The respondent agreed to apologise to the complainant, give her two months’ paid leave, pay her legal and medical expenses and facilitate a three-month period of notice. Its reason for refusing to pay travel time and costs, the only issue it did not concede, related to financial governance regulations applicable to the respondent. In other words, the complainant’s entire set of demands was conceded except for this.

Two things occur here.

The first is that this appears to have been a purely opportunistic gambit by the complainant. By May 19th 2016 it is about twenty months since the reply from the CEO to her first communication.

It is fifteen months since she received the letter from the then President which she responded to on March 18th 2015 with a simple acknowledgement and stating that ‘the content has been noted’.

In other words, nothing had been done by the complainant in relation to her purported complaint between March 2015 until the President contacted her in February 2016. Indeed, not only had she done nothing to propel her complaint forward, she gave a number of indications that she did not wish that to happen, (notably her curt acknowledgement).

Her rejection of the Board’s offer stated that she ‘continued to seek reimbursement for the significant financial loss caused to me and my family as outlined above’.

It should be noted that at this stage there had still been no formal complaint made by the complainant on which to make any finding; good or bad, that would warrant any remedy for the complainant.

In the circumstances, the respondent’s offer was generous, especially given the specific written comments it made about the CEO response of August 2014, and the complainant‘s rejection of it therefore appears quite unreasonable.

The complainant told the hearing that she had asked, at the Board meeting on March 1st 2016 for an investigation into the failure to investigate the 2014 complaint.

Her statement read to that Board meeting which was submitted to the hearing refers to ‘the serious concerns that she sought to bring to the Board attentions as to issues with the former CEO’.

This is demonstrably untrue as the extracts above from her correspondence with the CEO in August 2014 and the then President in October will confirm.

From the former we read; ‘As far as I am concerned I have voiced my concerns which I sincerely hope you will reflect upon for the benefit of the organisation, and I do not wish to engage in any further discussion on the matter’

From the latter; this letter is confidential to you. Neither this letter nor details of the contents herein are to be shared with the Chief Executive Officer’.

Emphasis added in both cases

The CEO specifically criticised her for her intention to ‘park’ the complaint.

The complainant’s attempts to represent this as seeking to bring concerns to the attentions of the Board are contradicted by her own words.

All aspects of the case must be tested against the legal principles which apply in constructive unfair dismissal which, and having outlined the events above and before turning to the third module, it is appropriate to consider them at this stage.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of any contract of employment.

It is, after all, a breach of a legally binding contract.

In the case of an employer wishing to do so, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

The most regular complaints under the Act arise when an employer has terminated the employment and these are then the tests as to whether the dismissal has been a fair one.

In general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster bank Limited. In Conway, the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

‘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.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

The EAT has made it clear in a series of decisions, and followed by the WRC Adjudication Service that failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above.)

I find that the complainant up to this point failed utterly to formulate and process her complaint in the manner which was necessary for the respondent to respond to it.

She seemed to believe that the intensity of her conviction as to the justice of her grievance entitled her to dispense with this and ought to be sufficient to determine its validity without the necessity for an investigation or other normal, procedural steps.

It is not sufficient.

There must be a clear complaint, an investigation of a type appropriate to the issues involved to validate it and those affected by it must have their rights to respond to any allegations against them protected.

The third module concerns the work of the Organisation Review and its implications for the complainant.

The merits of the re-organisation in the respondent are not the issue here.

It is whether the proposed re-designation of the complainant’s role was sufficient to bring it within the Berber principles outlined above.

The respondent makes two, related points.

The first concerns the agreement governing the complainant’s secondment.

It prudently makes provision for the possibility of change taking place within an organisation while a person is on a secondment absence.

It argues that while the substantive post the complainant was to return to was at a lower grade than the one she left her personal terms of employment would be ‘red-circled’ and that the position, was one that she performed before her departure.

So, the first question is whether a dismissal took place at all.

The respondent submits that the complainant left her position to take up a permanent position with the seconding organisation and that there was no interruption to her employment status.

As a question of fact this is not in dispute.

Even if the complainant is saying that she was somehow pressurised into this option by the circumstances in her relationship with the respondent this will not be sufficient to ground a case that the respondent is liable for a constructive dismissal.

Given my earlier assessment of the 2014 to 2016 period her entire case rests on this proposed change in her status, which is hotly disputed by the respondent.

The proposals of the ’Organisation and Workforce Review’ were published in February 2017.

The complainant raised this, as she described it ‘discretely’ on March 2nd with the CEO in the course of which it emerged that the CEO had a misunderstanding about some aspects of the complainant’s position in the organisation.

Nothing further happened and the complainant wrote to the CEO on May 22nd, about the grading of her substantive post.

The CEO responded to the complainant on June 15th 2017 that she would return to a ‘red-circled’ position and that ‘your salary, pension, leave entitlements, hours of attendance will remain unchanged in accordance with your terms and conditions of employment’.

The CEO also noted that she had ‘received a request from the [seconding organisation] that you would transfer to [it] and I am making inquiries in this regard…’

The complainant transferred to her ‘new’ position on July 4th 2017. There was no resignation and no further correspondence with the respondent. No grievance was submitted in respect of the matter.

The complainant has submitted a complaint in which she has sought to elevate the sum of its parts to a level that is not supported by any sort of scrutiny of its components, especially against the criteria applicable to a case of constructive dismissal, as has been done here.

It is fatal to her complaint that she did not resign from the respondent’s employment, and that she did not follow (at any stage in the three-year period) the recognised process for having her grievances evaluated. As noted above she appeared to believe that the strength of her personal conviction about matters ought to be sufficient to have them accepted without the necessity for any process.

Her complaint under the Unfair Dismissals Act fails.

Finally, there is a complaint that the complainant was not notified of a change in her Terms of Employment as required by section 7 of the Terms of Employment (Information) Act 1994.

This may relate to the alleged, proposed change in her terms of employment following her return from secondment. However, she did not return from secondment and so no change took effect. Even if it had, no requirement falls on the respondent to notify the complainant until one month after it takes effect.

This complaint also fails.

For the reasons set out above I do not uphold complaints CA-00013769-001 and 002, and they are dismissed.