Complainant

Respondent

Anonymised Parties

Office Administrator

A Courier company

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-00012784-001

26/07/2017

The complainant commenced working with the respondent as an office administrator on 1stApril 2016. The complainant resigned from her employment on 4th April 2017.   Her weekly gross pay was €413.64 and she worked 40 hours per week. A Complaint Form, claiming constructive dismissal, was lodged with the WRC on 26th July 2017. The complainant's preferred redress was compensation. The respondent's preferred redress was re-engagement.

The complainant submitted that when she started working with the respondent she was promised training but this never materialised and she had to teach herself the ins and outs of the work. Due to the amount of work she was expected to do she asked her boss to increase her hours but he refused.

When a colleague returned to work from maternity leave the atmosphere in the office became quite stressful and the complainant felt quite very uncomfortable. At times the complainant felt she was being bullied.   As time went on the complainant felt she was being asked to do a lot more than her fair share of the work.   The complainant submitted that although she discussed this with her boss nothing was done about it.

The complainant's relationship with her colleagues continued to deteriorate.

She raised an issue of bullying with her boss on 22nd march 2017, but nothing was done.

The complainant was not comfortable at work and went to her doctor who prescribed medication for her and advised her to stay off work for six days, which she did. However, when those six days were up the complainant could not face going back to work and she resigned by email on 4th April 2017. Within a month of resigning the complainant had set up her own business, earning more than she had with the respondent.

The complainant stated that she had never been issued with an Employee Handbook.

The complainant stated that when she sent her resignation email she thought the respondent would do something for her and she was disappointed when he did not.

The respondent submitted that they had been very happy with the complainant's work and would have offered her a new contract if she had not resigned.

In direct evidence the respondent denied that the complainant had been given too much work. The respondent also agreed that the complainant had raised an issue of bullying in late March 2017 and they had been taking advice on the issue when the complainant went on sick leave.

The respondent stated that the complainant had been given a copy of the employee Handbook.

The respondent stated that, although there were issues on the floor, he runs a professional and caring workplace, never anything other than that.

Undoubtedly, there were difficulties between the complainant and her colleagues, however,her assertion that she was given too much was categorically denied by the respondent.

The complaint is one of constructive dismissal.

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

It is relatively easy for an employee to terminate their employment by simply 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 and 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) writes:

"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.

Looked at by reference to either of the above tests the complainant does not come anywhere close to the burden of proof necessary to ground her case.

In relation to the employers behaviour no evidence was adduced to support the claim made by the complainant that the work demands placed on her were intolerable.

In this case the complainant there was a dispute whether the complainant had been issued with an Employee Handbook or not. Notwithstanding this and the fact that the complainant raised an issue of bullying with her boss I find that the complainant did not go anywhere near exhausting the grievance procedure available to her. Indeed she only raised the matter of bullying on 22nd of March, only days before she went out sick, giving little time for the matter to be dealt with properly.

Her resignation without reference to the company procedures is fatal to her case on these facts. The EAT has made it clear in a series of decisions, and followed by the Adjudication Service that failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above).

For example, in Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268

‘The Tribunal finds that the claimant do 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 failed to any of the several avenues open to her.

And in Zabiello v Ashgrove Facility Management Ltd UD1106/2008 the Tribunal stated;

For a claim of constructive dismissal to succeed the claimant needs to satisfy the tribunal that her working conditions were such that she had no choice but to resign. The tribunal is satisfied that the claimant had difficulties with her line manager. However for a period of six months she did not attempt to resolve the issue.

In Kirwan v Primark (UD 270/2003) the EAT held noted that the claimant said that she was only going through the motions and therefore there was not a genuine attempt to utilise the grievance procedures and her case failed.

Having reviewed all the evidence adduced, I find that that the unreasonable behaviour alleged by the complaint is unfounded allied to her failure to utilise the grievance procedures renders the complaint devoid of any merit.

The complaint of unfair dismissal is not upheld.

Constructive dismissal, grievance procedures, behaviour of the employer