Complainant

Respondent

Anonymised Parties

An Administrator

A Rehabilitation and Community Organisation

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-00003154-001

13/03/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00003155-001

13/03/2016

The issues in this case revolve around an Administrator and a Voluntary Community Organisation. A claim of Constructive Dismissal is central to the case.

In comprehensive written and substantial oral evidence the Complainant stated that she had resigned from her employment on the 13th March 2016. Her resignation was in a letter from her Union – the IWU to the Respondent.

The Union maintained that the Respondent had

1.       Failed in its duty to the Complainant under the Safety, Health and Welfare at Work Act 2005 -especially as regards the “Door Incidents” of September 2013.

2.       Engaged in a prolonged Campaign to force the Complainant to resign

3.       Made it impossible for her to realistically engage in any internal processes regarding her employment

4.       Failed to provide proper access to treatment and counselling in 2012

5.       Failed to properly maintain the Door Security System -endangering the Complainant

6.       Failed to properly liaise with the Gardaí regarding an incident on the premises in September 2013

7.       Hounded the Complainant regarding trivial matters

8.       Harassment in front of other staff

9.       Tolerance of other staff shunning the Complainant

10.   “Victim Blaming” of the Complainant during Supervision meetings

11.   Progressive diminutions of the Complainant’s job role

12.   Obstruction of her Training and Development Opportunities

13.   Irregularities in the Complainant’s’ Sick Pay

14.   Failure to conduct proper disciplinary proceedings as regards the proper provision of records of meetings etc.

All told the culmination of the above items made the continuation of the Complainant’s role impossible and she had to consider her Contract of Employment fundamentally breached leaving her with no option but to resign.

The Respondents made a detailed written submission which was supported by extensive oral evidence.   The Respondent’s Representative pointed to the accepted processes and legal tests involved in a Constructive Dismissal case.

In summary, the Respondent maintained as follows

2.1:   Sick Leave

The Complainant was treated correctly and in keeping with the accepted rules as set out in the Contract of Employment & Staff Handbook of the Organisation.

2.2:     Workplan/Work Flows

The Complainant was subject to the normal Supervisory Oversight of any employee. In the Respondent’s view, there was nothing amiss in the relationship here.

2.3:     Disciplinary Investigation / Incident (The Door Incidents) of the 23rd September 2013.

Extensive detail /evidence was produced here. In the Respondent’s view, there was nothing out of the ordinary or procedurally improper in how this matter had been handled.

2.4:     Absence (prior to and after the 29th July 2014) – Last day physically at work.

Detailed evidence was given here of all steps taken to remain in contact with the Complainant and to dealt with these matters procedurally and in keeping with the accepted staff rules.

2.5:     Maternity Leave 2015

This issue was handled in keeping with agreed Procedures and in keeping with the Maternity Protection Acts ,1994 -2004. It was accepted that the Complainant had not received Maternity Pay from the Respondent but this was in keeping with the rules of the Organisation and in keeping with the relevant Statutory Provisions.

2.6:     Training

All opportunities were afforded to the Complainant, in keeping with Organisational Procedures, in providing Training to the Complainant. Evidence was submitted in support.

2.7:       Grievance Procedures

The Respondent identified four occasions during the period from September 2014 to November 2015 when the Complainant was invited to avail of the Respondent’s Grievance procedures. It was the Respondent’s contention that the Complainant did not avail of these invitations and in effect did not actually process a grievance.

The Respondent argued that the contention in the Complainant’s submissions that she had effectively “lost faith” in the Respondent’s Grievance procedure was a completely mistaken assertion. The Respondent would have ensured that a fully independent process would have been followed. The professional manner of the handling of the Investigation following the September 2013 incidents was cited as evidence of good faith and proper procedures.

2.8:     Summary

The Respondent maintained that the Resignation of the Complainant was completely unwarranted. She had failed to follow the normal Grievance procedures and the Respondent had done nothing untoward to lead to any belief on the Complainant’s behalf that she was being forced to resign.

The Respondent had demonstrated considerable patience with her circumstances and had at all times been most supportive in what was a very difficult and evolving situation for the Complainant.

3:1     The Law

It was accepted by the Parties that this was a Constructive Dismissal case – following on from the letter of Resignation dated the 13th March 2016.

Accordingly, the two standard tests for Constructive Dismissal cases must apply - namely

1.       Fundamental breach of Contract so grievous that any normal employee would have no option but to resign

2.       Unreasonable Behaviours by the Employer of such an egregious nature that again a reasonable employee would be left with no option but to resign.

It is also accepted that the burden of proof is normally on the Resigning employee to reasonably support both of the above contentions.

It is also well accepted that the resigning employee has to clearly utilise to the full all available internal Grievance procedures and other avenues of redress before taking the ultimate step of resigning.

The resigning employee does not, to support an Unfair Dismissal claim, have to satisfy both headings but has to clearly prove to an acceptable degree one of the grounds.

Furthermore, it is accepted that it is not the role of the Adjudicator or formerly the EAT to re-run any investigative processes and arrive at its own Conclusions. The function of the Adjudicator is to ensure that the rules of Natural Justice are carried out and any final decisions are within the “band of reasonableness”. S.I 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures is the touchstone to be followed here.

3:2     Reviewing the evidence in the light of the above Legal points.

3:2 (a)  The Fundamental Breach of Contract.

Reviewing the extensive evidence, I could not find any grounds to support the view that a Fundamental breach of Contract by the Employer had occurred. The Respondent had very detailed procedures and followed these closely. Breach of Contract generally focuses on the employee not being paid for wok carried out. Nothing of this nature occurred in this case. Sick Pay was paid until the entitlement was exhausted.

The Employer was anxious that the Complainant follow Grievance procedures and had in effect left the issue rest with the Complainant’s Representatives from late November 2015 until the letter of Resignation on March 2016.

This was not the actions of an Employer seeking to fundamentally “breach the contract of employment”.

Arguments were made by the Complainant’s Representative that the Respondent had been in fundamental breach of the Safety, Health and Welfare at Work Act 2005 (especially in relation to matters connected to the September 2013 “Door Incidents”). However, these arguments could not be described as substantial enough, if at all, to support a claim of a breach of contract so bad as to justify a resignation.

In addition, the allegations of a Breach of Duty of Care in regard to Counselling /Access to Support Services were not of a nature to qualify as a Breach of Contract.

3:2(b)     Summary View of The Fundamental Breach of Contract test.

Having reviewed all the evidence both written and oral I came to the view that the Complainant had not satisfied this legal test to a degree necessary to base a good Constructive Dismissal case.

3:3(a)         Unreasonable Behaviour by the Parties / especially the Respondent Employer.

The fundamental issue here is that the behaviour of the Employer – the Respondent – must be so bad as to give the Employee/ the Complainant no other option but to resign.

Reviewing all the evidence, in this case going back over quite a number of years and covering a range of serious incidents for the Complainant such as her unfortunate medical /miscarriage difficulties in 2012, the Door Incident in 2013, her maternity Leave in 2015 and considerable sick leave /absences there was no evidence of Unreasonable Employer behaviour of the nature required to base a good Constructive Dismissal claim. The reverse was, in my opinion the case.

The Respondent made every effort to accommodate the Complainant within the procedures of the Organisation. The references to Medmark for an Independent Medial review and the taking of Disciplinary actions for issues involving the Door Incident were not “unreasonable” employer actions.

The Complainant remained an employee despite a very lengthy absence in late 2015 (post her Maternity Leave) to early 2016. The Oral evidence of the Manager (Ms. Ab) of the Company, a Voluntary Organisation was convincing. She was not in any way seeking to terminate the Complainant and appeared to have been at all times most sympathetic to an employee going through serious difficulties outside of the employment.

The Oral evidence of the Complainant was emotional and very wide ranging on numerous incidents over the previous years. She undoubtedly felt “hard done by” but I found none of the incidents related, in themselves, sufficient to justify giving up the job.

Regarding the fitness of the Complainant to engage in the processes of the Respondent the Medmark report of the 22nd April 2015 indicated that the Complainant was “medically fit to meet with HR to discuss her allegations of work difficulties so that they can be managed appropriately”.

Accordingly, no real issue arises here. Nonetheless I felt that the Respondent could have had a follow up later in 2015 or early in 2016 to again ascertain the situation of the Complainant. However, by this stage she had engaged a Trade Union to represent her and all correspondence was being handled by the Union.

3:3(b)     Summary View in regard to Unreasonable Behaviour Test

Having reviewed all the evidence both Oral and Written I came to the view that the Complainant had not demonstrated that the Respondent had engaged in Unreasonable Behaviours so bad as the justify the Resignation on the Constructive Dismissal grounds.

3:4     Use of Grievance Procedures by the Complainant.

Having reviewed the written evidence, it was clear that the Complainant had not, for whatever reason, fully utilised the Grievance Procedures. In a Constructive Dismissal claim this is a major issue and is not helpful to making a case of Constructive Dismissal.

3:5       Summary

Having reviewed all the written evidence and listened to the Parties Oral evidence (all of which was open to cross examination by the Representatives of the Parities) I came to the view that the necessary Tests and Grounds to justify a resignation were not satisfied. There was not a Fundamental breach of Contract and there were no Unreasonable Behaviours demonstrated such as to make a resignation the only option.

Accordingly, the Claim for Constrictive Dismissal fails.

In addition, the claim under the Industrial Relations Act 1969, covering the identical grounds, also fails.

Act

Complaint/Dispute Reference No.

Summary Decision / Refer to Section 3 above for detailed Arguments/Reasoning.

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

CA-00003154-001

Claim for Constructive Dismissal is dismissed. No Breach of Contract or Unreasonable Behaviour to support a Constructive Dismissal Claim was evident.

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00003155-001

As the IR claim follows the UD Act result the claim is dismissed.