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-00010774-001

11/04/2017

The Complainant commenced employment as a Bookkeeper/Accounts Administrator with the Respondent on 5 March 2015. The position, which initially started as three mornings per week, evolved to a full-time position by July 2015. The Complainant resigned her position with the Respondent on 21 March 2017 and is claiming constructive dismissal on the basis that her working conditions had become so intolerable she had no option but to leave.

In her complaint document,   the Complainant stated that she had been doing the accounts for the Respondent for two years. The Complainant contends that since November 2016 one of her managers had completely undermined her, to the extent that she made a complaint in this regard. According to the Complainant she requested that the matter would be resolved through mediation.

The Complainant stated that, while mediation took place, things seem to get worse. The Complainant contends that one of the Directors was continually questioning her and making her feel mistrusted.

The Complainant stated that the constant hostile situation within the office resulted in her taking two weeks stress leave, prior to leaving permanently. The Complainant contended that she had no other option but to leave her employment.

In her written and oral submissions   at the Hearing, the Complainant set out a detailed chronology of the events leading up to her eventual resignation. In particular, the Complainant’s evidence in this regard highlighted the period commencing January 2017 where a series of issues arose. These included issues with the company accounts, mediation involving the Sales Manager/Director, issues arising from the apparent precarious financial position the Respondent found themselves in at this point in time and the investigation of complaints raised by colleagues with regard to the Complainant’s behaviour.

With regard to the complaints referred to above, the Complainant stated that it was her understanding that her two colleagues were withdrawing their complaints, the issues having been resolved, and that they were to email the HR consultant in this regard. However, the Complainant stated that, rather than withdrawing his original complaint, one of her colleagues agreed to go into mediation to resolve the issue. The Complainant stated that she was anticipating an invitation to mediation and receipt of terms of reference in this regard.

However, the Complainant stated that the following day (9 March 2017) she received an email from the HR Consultant, advising that a different complaint had now to be investigated.   The Complainant further stated that she received a letter, dated 8 March 2017, inviting her to attend an investigation meeting on 16 March 2017.

According to Complainant, this investigation was been initiated to consider two allegations against her: (1) non-disclosure to Management of over extending the business finances leading to non-payment of wages for staff on 2 March 2017, due to insufficient funds and (2) allegations that her (the Complainant’s) colleagues had put under pressure and, therefore, they were responsible for overextending the funds leading to non-payment of wages to staff on 2 March 2017 due to insufficient funds.

The Complainant stated that as a result of all the correspondence, complaints and investigations, she was becoming very stressed and upset. According to the Complainant, she was so upset that she contacted her husband, who took her to see her doctor. The Complainant stated that her doctor certified her as sick for a period of 10 days.

The Complainant stated that when she was out sick , she received a phone call from a Recruitment Consultant querying if she was looking for work. According to the Complainant, the position which the Recruitment Consultant had to offer was, in effect, her position with the Respondent. The Complainant stated that when her husband contacted the HR consultant about this situation, she indicated that she was unaware of it , but indicated that she would check it out and revert to him.

According to the Complainant, she returned to her doctor on 16 March 2017 and was informed that she could return to work. The Complainant stated that she went to the Respondent’s office and spoke to the HR Consultant, who indicated to her that she felt the Complainant was not in the right frame of mind to come back to work and, until she had a letter from her doctor confirming she was fit to return to work , she would not be allowed back.

The Complainant stated that she returned to work on 21 March 2017. According to the Complainant, on arrival, she was met by one of the Directors and a Manager, who informed her that they wanted to meet with her. The Complainant stated that she was invited into a meeting room in which there was a table covered with invoices. The Complainant contended that it appeared somebody had gone through everything just to find issues against her. The Complainant described walking into the room was like a “witch hunt”.

According to the Complainant, she was advised that the meeting was not disciplinary or an investigation , but was to address concerns which had been raised by the Respondent’s accountants. The Complainant stated that, as the Director and Manager, who were leading the meeting did not appear to understand what they were looking for, the meeting was joined by the Managing Director.

The Complainant stated that when the Managing Director came in he informed her that was it was never the intention to cause her extra stress. According to the Complainant, she believes the Respondent was looking for any reason they could to upset her. She stated that she further concluded that no job was worth the level of hassle she was experiencing. Consequently, on the basis that she considered her job had become unbearable to the extent that she was very stressed , she had no alternative but to advise the Managing Director that she was resigning and was providing   two week’s notice.

In response to the Complainant’s complaint, the Respondent referred to Section 1 of the Unfair Dismissals Act, 1977, which relates to constructive dismissal. In this regard, the Respondent stated that the onus is on the Complainant to prove that a resignation was a constructive dismissal, whereby her employer behaved so unreasonably that she had no reasonable alternative but to resign.

The Respondent stated that, following accounting issues which were identified in late 2016, further performance issues were raised at a finance meeting held on 22 February 2017, at which the Complainant was present. According to the Respondent’s evidence, following that meeting, she walked out of the workplace and subsequently raised a grievance. The Respondent stated that this grievance was dealt with by the external HR Consultant. The Respondent stated that the issue was addressed through mediation and HR/employee support, which ultimately resolve the issue to the Complainant’s satisfaction.

According to the Respondent, performance issues remained ongoing, such that an investigation was initiated, as notified to the Complainant, in a letter dated 8 March 2017. The Respondent submitted that the Complainant submitted a medical certificate, covering the period 9 March to 20 March 2017, with insomnia as the stated reason for the absence.

The Respondent stated that, on 13 March 27, the Complainant submitted a written reply, to the issues raised, and subsequently returned to work on 16 March 2017, without prior approval or certification. According to the Respondent’s evidence, the Complainant raised the topic of an exit settlement on her return. The Respondent stated that they replied to the Complainant, on 20 March 2017, setting out that her position remains and continues to be available to her and that no termination situation existed.

According to the Respondent’s evidence, the Complainant returned to work the following day, 21 March 2017. The Respondent stated that on this day the Complainant gave both a verbal resignation and confirmed this in writing, via email later that day.

Based on the above circumstances, the Respondent states that the Complainant’s complaint for Constructive Dismissal is denied. In support of this, the Respondent stated that the Complainant suddenly resigned and did not raise any specific complaint, either with the Respondent and/or with their HR Consultant, who remained available and supportive to the Complaint throughout, about any aspect of the investigation, or the manner in which it was being conducted.

The Respondent contends that the Complainant was familiar with the internal grievance procedure and failed to invoke this before resigning. It was further stated that, even after the fact of resignation, the Complainant did not seek to withdraw her resignation or to raise a complaint or grievance after the fact.

According to the Respondent, it was open to the Complainant to engage with the investigation process to the end and await the outcome of same, before making any major decisions about her Contract of Employment. It was further stated that, in the event the Complainant was not satisfied with the outcome of the investigation, it was then open to her to appeal that outcome.

The Respondent further contends that the Complainant could also have sought external representation to communicate with the Respondent, on her behalf, should she have so wished. However, it was pointed out that she did not do so. The Respondent stated that there was no notice of any grievance or dissatisfaction whatsoever until receipt of the Complainant’s WRC Complaint Form of 11 April 2017.

Based on the above, the Respondent contends that this is a case of clear resignation, not constructive dismissal. The Respondent made significant legal argument in this regard and supported their position by reference to a number of prominent cases relating to constructive dismissal. One of the cases referred to was the UK Court of Appeal case: Western Excavating (EEC Ltd v Sharp – 1978 IRLR72), which laid down the two tests – the Contract Test and the Reasonableness Test – to be used when determining constructive dismissal.

In summing up it was contended that the Respondent did have a Grievance Procedure and indeed, this has been invoked by the Complainant previously and the situation was dealt with to her satisfaction. It was further stated that the Respondent had engaged the services of an external HR Consultant, who had met with the Complainant on numerous occasions in respect of various aspects affecting her employment, over some period of time, and had dealt with the issues previously raised by the Complainant, to her satisfaction.

In addition, it was contended that there was very open communication between the Complainant and the Respondent and the HR Consultant throughout this time. Consequently, the Respondent contends that it was premature for the Complainant to resign when the investigation had not yet concluded, indeed, had only just begun.

The Respondent contends that, at all times, they followed fair procedure and dealt with the Complainant in a fair and reasonable manner and, it was suggested, that the Complainant had failed to prove to the contrary. In addition, it was contended that the Complainant had failed to identify any fundamental breach of the Contract of Employment.

The Respondent stated that the Complainant withdrew from her employment completely, both prior and post resignation, and demonstrated refusal to engage in any reasonable fashion whatsoever. The Respondent stated that, as a result, the Complainant had failed to pass the high bar required in establishing a successful constructive dismissal claim and, therefore, her claim in this regard must fail.

The Complainant is claiming constructive dismissal as a result of the situation in her workplace becoming so intolerable as to be causing her considerable stress.

Constructive dismissal relates to a situation where an employee terminates their contract of employment, as was the situation in the case at hand.

Section 1of the Unfair Dismissal of Act, 1977, defines such a dismissal as follows:

“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 the employer, in circumstances in which, because of the conduct of the employer the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,”

Significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it has to satisfy the dual tests of (1) Breach of Contract and (2) Reasonableness. The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign. However, it is now also generally understood that an employee must act reasonably in terminating their employment and that resignation must not be the first option taken by the employee. All other reasonable options including grievance procedures must be explored.

The reasonableness test requires that the Complainant must satisfactorily demonstrate that the Respondent behaved or acted in a manner, which was so unreasonable as to make it impossible for them to continue in the employment and which fundamentally breached their trust and confidence in the bona fides of the other party. In so doing, the Complainant must also show that their action/behaviour in resigning was reasonable in all the circumstances. This is regularly referred to as the mirror image concept.

Having carefully considered all of the evidence adduced in this case, I am satisfied that the Complainant was extremely upset by what she perceived to be a difficult working environment. I am also satisfied that the circumstances at the time were challenging for all concerned. The Respondent’s business was clearly facing considerable challenges on many fronts. In particularly, there appears to have been difficulties in relation company finances, including cash flow challenges.

In her role as Bookkeeper/Accounts Administrator, the Complainant would have been centrally involved in all of the aforementioned factors and would, not unreasonably, have felt the pressures being generated by the unfolding situation. In addition, issues such as the queries in relation to the company accounts and the impending investigation into complaints made against her by some of her colleagues would have exacerbated the situation for the Complainant. Given all of these issues, it is not altogether surprising that the Complainant required some certified sick leave , as a result.    

However, notwithstanding the above, I am not satisfied that this constitutes grounds for constructive dismissal. While the situation was clearly challenging , I am satisfied that the evidence does not support the contention that the circumstances in existence were deliberately created by the Respondent in order to make life difficult for the Complainant. Clearly, the challenges being experienced by the Respondent, at this point in time, were such that they could conceivably threatened the ongoing viability and reputation of the business.

Consequently, in such circumstances, it is not credible to suggest that these situations or factors   were, in some way, deliberately created and/or manipulated by the Respondent in order to disadvantage the Complainant in some way. The working environment was clearly pressurised and stressful and the Complainant found it very challenging. However, this cannot be construed to constitute a situation which supports a claim of constructive dismissal.

I am also influenced, in this regard, by the steps taken by the Respondent in attempting to address the Complainant’s concerns. The involvement of an external HR Consultant must be seen as a positive and progressive development, as was the use of mediation as a means of addressing interpersonal tensions that had clearly arisen among colleagues.

I am further satisfied that, given the nature of the issues which had arisen, it was reasonable and appropriate that the Respondent would seek to conduct a proper investigation into the claims and allegations being made and arising. The fact that the Complainant decided to resign in advance of these processes having concluded, in my view, mitigates against her ability to successfully establish a case of constructive dismissal.

Taking all of the above into consideration, I find that the Complainant failed to establish that the behaviour of the Respondent was such that she was left with no option but to resign. It is clear that, as a result of the pressures she was experiencing arising from the challenges that were evolving in her workplace, the Complainant tendered her resignation to the Respondent, at a point in time when the legitimate processes put in place to address these issues had barely commenced, yet alone concluded.

Consequently, I find that, in a situation where the Complainant failed to establish that a breach of contract occurred or that the conduct of the Respondent was so unreasonable that she was left with no option to resign, her complaint of constructive dismissal must fail.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint of constructive dismissal under the Unfair Dismissals Act, 1977, is not upheld.

Unfair Dismissal

Constructive Dismissal