Complainant

Respondent

Anonymised Parties

An Office Administrator

A Financial Services Company.

Representatives

A. Turner of Hamilton Turner Solicitors

A. Purdy of Purdy Fitzgerald Solicitors

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-00005858-001

14/07/2016

The case is one of Constructive Dismissal by an Office Administrator against a Financial Services Company

The Complainant was the subject of a prolonged campaign of Harassment and Bullying by the Respondent’s Manging Director - Director X. The Director regularly used rude and offensive language about colleagues, former colleagues and parties to personal legal proceedings he was involved in. He regularly asked the Complainant to type letters of a personal nature related to these proceedings. In September 2015, the Director allegedly slapped the Complainant on the arm and used insulting language towards her. Towards the end of 2015 the Complainant was overwhelmed by the situation and went on Sick Leave. Various communications followed – the Complainant e mailed (7th December) the Director concerned requesting a meeting to discuss the situation. On the 14th December, a meeting to discuss the situation took place with Respondent’s General Manager, the Senior Officer Administrator Ms. XA and the Complainant accompanied by her Niece. By the 22nd December the Respondent offered to have the entire situation investigated and reviewed by an Independent Investigator. Various correspondence followed in January and February 2016. In her oral evidence the Complainant maintained vigorously that was so stressed by the entire situation and was so physically afraid of the Director that she could never trust him or any suggestions that he might make regarding investigations etc. Accordingly, she could not accept the Independent party nominated by the Respondent. She had offered a name of her own choosing as an Independent Investigator. This was declined and the Complainant felt that she had no option left but to resign which she did by letter of the 1st March 2016.

The Respondent pointed out that this was a case of Constructive Dismissal and the normal legal standard of proof required in these types of cases had to apply. Extensive correspondence by e mail, a medical report from MedWise and records of discussions with Managers during December 2015 and the Spring of 2016 were presented in evidence. Most of these documents also formed part of the Complainant’s written evidence. The Respondent maintained that the work relationship had been fine prior to 2015 and to suggest that sustained campaign of Bullying and Harassment had been undertaken for a number of years was not supported by the evidence.

The Respondent was at all times anxious to have any differences quickly resolved and on becoming aware of the details of the Complainants’ concerns (meeting of the 14th December 2015) they had nominated, on the advice of their Solicitor, a very well recognised and highly regarded Independent Investigator whose integrity and Independence were beyond question. The Complainant was requested (as early as 22nd December 2015) to engage with Respondents ‘s formal procedures to allow the issues in question be resolved.

What was characterised by the Respondent as “Tit for Tat” correspondence continued between the Parties during January and February 2015. An Independ Medical Examination had taken place on the 6th January 2016. The MedWise report had cleared the Complainant as being fully competent to engage in “HR measures to address the work situation”. The Independent Doctor had recommended in addition that all these measures be handled without delay. However, the issue of the Independence and suitability of the nominated investigator vis a via the Complainant’s nominee became an issue in late February.

However, the full consideration of this issue was effectively overtaken by the Complainant’s resignation letter of the 1st March 2016.

In vigorous oral cross examination, the Respondent’s Legal Representative queried the Complainant on the fact that she had acquired another employment positon almost contemporaneously with the Resignation. In the Respondent’s view the Complainant had failed during January to March to engage in the requested formal procedures or with the Independent investigator nominated and had instead secured another positon. She had effectively stalled the process and the successful securing of another job was the primary factor in her Resignation decision.

The claim for Constructive Dismissal, accordingly has no basis in fact and should be dismissed.

3:1     The Applicable Law – Constructive Dismissal.

Relevant legislation: The Unfair Dismissals Act,1977 & S.I 146 of 2000- Code of Practice on Grievance and Disciplinary Issues

The Legal position is well set out in Meenan, Employment Law, Round Hall 2015 and Redmond Dismissal Law in Ireland Tottel Publishing 2007.

The Learned Authors state that while the term “constructive” dismissal is not specifically mentioned in the 1977 Act it is a term commonly understood to refer to that part of the definition in Section 1 which states that dismissal in relation to an employee means:

(b)

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, or …

In considering this there is a long chain of legal precedents establishing that for a constructive dismissal claim to succeed it has to satisfy the Legal tests of (1) Breach of Contract and (2) Reasonableness.

The contract test effectively means that the Contract of Employment has to have been breached to such an egregious degree that the normal employee is left with no option but to resign. Nonetheless it is now, also, generally understood that an employee must act reasonably in terminating his or her contract of employment, resignation must not be the first option taken by an employee and all other reasonable options including the grievance procedure must be explored.

The contract test was summarised by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] ICR 121.

“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 further performance.”

Alternatively, the reasonableness test asks whether the employer “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”. The “reasonableness” was further considered by the former EAT where it stated:

“… [the tribunal] must be satisfied that the employee is either entitled or is acting reasonably in terminating the contract. In order for an employee to meet either of these criteria the conduct referred to in the act cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee. Consequently, the Tribunal must look at the conduct of the employer and the reasonableness of the recognition by the employee. Joyce v Brothers of Charity Services [2009] ELR 328

In other words, the behaviours of the Employer would have to be so egregious such as to allow any reasonable observer to conclude that the employee was justified in resigning.

However, the issue is not quite as straightforward as this. Legal precedents and a considerable body of case law emphasises the need for all parties to engage in proper and fair procedures ideally before a resignation takes place.

In Harrold v St Michael’s House [2008] ELR 1 the EAT determination quoted from Redmond, Dismissal Law in Ireland (2002)(:Tottel Publishing 2007)

“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 employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

In this case, which has echoes of the case in the case in hand, there was a quite sustained dispute regarding the composition of the Independent investigation proposed. Effectively the Tribunal ruled that the complainant had acted unreasonably in refusing the suggested Investigators. The point was made that an Appeal to an independent Agency such as the now Workplace Relations Commission was always open to the Complainant should they feel that they not received a fair investigation. In the procedural context, the case of Conway v Ulster Bank (UD/474/1981) and Beatty v Bayside Supermarket. (UD/142/1987) are often also cited to sustain the procedural point.

In the case in hand the Complainant’s Legal Representative referred to the case of Allen v Independent Newspapers, UD 641/2000. The point essentially being made was that the Respondent employer in the Allen case had so undermined the Complainant that all faith in internal Procedures had been lost and the Complainant could reasonably excuse her non-participation in the Grievance procedures on this ground. A similar situation was being alleged to have existed in this case.

However, the Medical report from MedWise had found the Complainant capable of engaging in HR Procedures and as there was no previous internal investigation to base any assumptions on I did not feel the “Allen” argument really applied directly in this case.

In summary and referring to numerous legal precedents it is now clearly accepted that, save in the most exceptional circumstances an employee has an obligation to use the grievance procedures offered by an employer.

3:2       Consideration of the Evidence presented.

The best starting point I felt was the initial e mail from the Complainant to the Director dated the 7th December. The Complainant clearly was open to a discussion to clarify issues and find a way forward. On legal advice, it was felt that the direct involvement of the cited Director would not be appropriate at the early stages of an investigation. Matters were to be handled by the Senior Office Manager Ms. XA. Minutes of the meeting of the 14th December were exhibited. The meeting concluded with the statement by the Respondent in the minutes hoping for a return to work by the Complainant on or about the 5th January 2016. The Office Manager Ms. XA followed up with a lengthy later dated the 17th December which encouraged the Complainant to utilise the Company procedures and also inform her of a referral to the Occupational Health Service -MedWise. The Complainant was encouraged to set out her complaints in detail to allow a full examination. It was clear from the correspondence and the meeting minutes that the Complainant was being assisted by her Representative – her niece (a HR Manager in another organisation) but acting in a personal capacity for her Aunt. The Complainant replied on the 21st December seeking clarifications. It appeared that no formal statement or detailing of a complaint was provided. The request for a formal complaint was re-emphasised in the letter of the 22nd December 2015 (and again in 11th January 2016) from the Office Manager to the Complainant.

Matters largely rested until January when the Medical Examination with Med Wise took place. The report was opened publicly to the Hearing.

The Doctor concerned did not give any direct evidence but is a well-known and most respected Occupational Health Practitioner. In her Report, she identified that “the Complainant has had a stress reaction to work issues and that the Complainant “planned to return to work once the employment situation had been resolved.”. The Doctor had also referred to the need for HR matters to proceed expeditiously.

At the date of the Medical Examination the Complainant was aware of the proposal from the Respondent Employer to engage the Services of Z and Associates as Independent Investigators. The standing, integrity and reputation of this firm of HR Consultants and investigators is well recognised. They could not be described as being under any obligation to any Employer that would prejudice their investigation.

The correspondence between the parties that followed during January and February while it may have been well intentioned served to delay the engagement with Z and Associates. The Complainant’s letter of the 27th January indicated a willingness to meet with the Investigator Mr. Z. In reply Ms. XA wrote on the 3rd February.

“It is incumbent on both you and the Company to have these matters fully investigated in a speedily and orderly fashion in order to ensure your early return to work and accordingly I await same as a matter of urgency”

Reference was also made by the Complainant in her letter/e mail to the existence of the Labour Relations Commission as an outside body of possible expertise.

I could not see from the evidence now (Mid-February) any valid reason on the Complainant’s part not to engage with the Investigators. The question of her being “Physically afraid” of the Director repeated in Oral evidence was an issue that I am sure the experienced investigators could easily have handled.

The Legal Arguments here centre on the Breach of Contract situation -the employer has a duty of care to an employee. If the Employer had behaved so badly (making the Complainant physically afraid) that no reasonable person could hope for any proper outcome from an investigation, initiated by the same employer, a non-participation in the investigation might be excused. As opposed to this however is the fact that the Investigators - Consultancy Firm Z are of the highest integrity. They were suggested by the Complainants Legal Advisors, a most eminent Employment Law firm. In this context, the Complainants physical fears, while possibly genuine, were not such as to warrant a non-engagement with the professional Investigators. In addition, the MedWise Doctor had indicated that the Complainant was fit to engage in all HR Procedures.

In further development in late February the Complainant replied again to the Respondent on the 17th February suggesting an alternative investigator or critically that a neutral party such as the Labour Court could be asked to nominate a suitable Investigator. Further e mails followed regarding the Galway background of the suggested Investigator Mr. Z. However, the correspondence concluded with the letter of Resignation of the 1st March.

In the oral evidence of the Complainant, in response to cross examination by the Legal Representative of the Respondent, there was considerable discussion on the timing of exactly when the Complainant had secured her new employment. It appeared to me that there were some inconsistencies in her version of events here. The Complainant maintained that it had all happened in the space of barely two weeks. The employer concerned is a reputable Public Organisation and to suggest that the entire recruitment process had taken less than two weeks I found hard to believe.

On the balance of probability, I tended to accept the Respondent contention that the securing of the new position was well underway during most of February and that this allowed the Complainant to take a circuitous approach to the proposed Investigation.

The evidence points to a desire on the Complainant’s part in December and indeed January to participate in the Investigations by Mr. Z. This appeared to have cooled considerably by Mid-February and the resignation letter followed on the 1st March.

As stated in other Tribunal/Adjudication cases even if the Complainant does not like the proposed Investigator the option is always there to appeal either the selection of the Investigator or even latterly their findings. The names of the Workplace Relations Commission and indeed the Labour Court appeared in the correspondence. In addition, the Complainant clearly had an experienced advisor in her niece.

On balance and reflection on the evidence the Complainant did not participate in the proposed Investigation process. In terms of the legal precedents the non-engagement with the Investigation was fatal to the Unfair Dismissal case of the Complainant.

The 1st March resignation letter stated

“The proposed investigation by Z Consultants, for which I have been invited and indeed prepared a list of complaints would thus seem to be pointless”.

Albeit this was written in the context of a resignation letter which made serious allegations against Director X but it clearly indicated that the Complainant had her material prepared but had not submitted same despite repeated requests from the Office manager as far back as pre-Christmas 2015.

The letter of the 1st March was, in my view, a considered piece of correspondence which concluded with a final paragraph effectively seeking financial compensation for alleged personal injury.

The Complainant had secured other work and was resigning. The allegations in the letter and the reference to compensation were, in my view, markers being set down for possible legal use in a different context.

3:3     My conclusion was that from the evidence presented this was not a valid case of Constructive dismissal. Procedurally the non-engagement with the prosed Investigator and investigation process was fatal to the claim.

Act

Complaint/Dispute Reference No.

Summary decision /please refer to Section three above for detailed reasoning.

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

CA-00005858-001

The claim for Constructive Dismissal is dismissed.