ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00008227

Parties:

Complaint(s):

Date of Adjudication Hearing: 04/12/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

CA-00010919-001 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00010919-002Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

Procedure:

The fact of dismissal is in question in this case. The preferred redress or both parties is compensation.

PreliminaryMatter

The Respondent raised a Preliminary Matter

Respondent's Submission on the Preliminary Matter

The Respondent put forward that to ground a claim in the first instance of constructive dismissal, the Complainant must exhaust all internal procedures. In this case, according to the Respondent, the Complainant neglected to exhaust internal procedures prior to submitting her resignation and her failure to do so proves fatal to her case and that her claim for constructive dismissal should be dismissed.

It is the Respondent's position that while the Complainant did utilise the grievance procedure, she did so only after resigning from the company. The Respondent believes that regardless of what efforts went into addressing her grievance, the Complainant had already made up her mind that she was leaving.   Furthermore, the Respondent submits, that due to delays on the Complainant's part, the Respondent was only able to conclude the investigation after the Complainant had left the business and after she had gained employment elsewhere, a clear indication that she had no intention of ever returning to the Respondent or meaningfully engaging with them to bring the matter to a satisfactory conclusion.

Complainant's Submission on the Preliminary Matter

The Complainant submitted she was left with no alternative other than to resign her position after she was transferred to a static management role, on a reduced remuneration package. The Complainant's view was that this change was a demotion and demeaning and was motivated by vindictiveness against her. The Complainant submits that she had not been consulted prior to the mooting of the move and that such a relocation amounted to a unilateral amendment to her contract of employment.

The Complainant submitted that she requested a meeting on 29th August 2016 regarding the change of location and demotion and mistreatment by her manager. However, when the Complainant told this manager that she was seeking this meeting and he told her that he would be attending, the Complainant thought this to be inappropriate and she felt intimidated. As a result, the Complainant cancelled the meeting.

The Complainant also submits that the Respondent did not offer her an opportunity to raise objections to the relocation and did not facilitate any form of independent consultation.

In oral evidence the Complainant stated that she only submitted her grievance having got advice from a managerial colleague. The fact that the grievance was heard only an hour before she left the company made her feel that no one really cared about her leaving. In cross examination, the Complainant stated that she should have put in a grievance before she resigned.

Findings and Conclusions:

Definition of Constructive dismissal.

Sec 1(b) “the termination by the employee of his/her contract of employment with his/her 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”.

 It is well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve their grievance prior to resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

In Tierney v DER Ireland Ltd UD866/1999 the EAT stated, “central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”.

In the EAT case John Travers v MBNA Ireland Ltd [UD720/2006] it stated, “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In Murray v Rockavill Shellfish Ltd [2002] 23 ELR 331 the EAT stated, “It has been well established that a question of constructive dismissal must be considered under two headings, Entitlement and Reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning”.

To succeed with a constructive dismissal case the Complainant must establish that the employer’s conduct/behaviour was such that the employee had no option but to resign their position. They must also ensure that they have given the employer an opportunity to deal with the allegation/ grievance before the decision to resign is taken. They must be able to assert their entitlement and reasonableness to resign their position; in this instance the Complainant has failed to do so.

As plain from the above references case law overwhelmingly confirms that an employee must have firstly exhausted all alternative avenues before repudiating his/her contract of employment. In this case the Complainant had resigned before she entered a grievance. The Complainant had ample time to formulate and lodge a grievance after the move, if she had so wished. Her letter of resignation did not raise any grievance or allude to anything being wrong. As a manager with many years' experience the Complainant must have been aware of the company's grievance procedures.

I do not believe that the meeting requested by the Complainant on 29th August 2016 equates to the raising of a grievance to do with her relocation and no evidence was adduced to support this contention. There was also a three-week window, between the Complainant being told she was to be moved and when she moved, within which she could have raised the matter, she did not do so.

The fact that the Complainant commenced working with another employer within two weeks of her termination of employment indicates that she had her mind set to leave and arrangements in place to cover that eventuality, thus rendering any grievance procedure meaningless.

From the evidence adduced there was no reason why a grievance could not have been lodged prior to the resignation.

In the circumstances, I find that the complaint fails, as the Complainant did not exhaust any of the alternative avenues open to her before repudiating her contract of employment.

Decision:

The complaint is not upheld.

CA-00010919-003 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

This complaint was withdrawn by the Complainant.

CA-00010919-004 Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

Summary of Complainant’s Case:

The Complainant submits that she received a text message from a colleague regarding her absence while under a disability. The Complainant found the text to be inappropriate and it caused her significant distress. The Complainant raised her concern to her manager and was informed that the matter would be investigated. The Complainant also raised the issue of the text message at a performance and absence meeting.

The Complainant submits that the Respondent has confirmed that was aware of the distress this issue caused to her but the matter was not taken any further in breach of the Respondent's statutory duty under the Act.

In addition, the Complainant has claimed that she was subject to penalisation regarding her position of employment and location.

Summary of Respondent’s Case:

The Respondent submits that no breach of the act has been established nor were any issues of penalisation raised with the Respondent prior to her resignation, thus preventing the Respondent from addressing any allegations of penalisation whilst in employment.

Findings and Conclusions:

Insufficient evidence was adduced to support a claim that the Respondent had failed in its statutory duties under this Act.

Decision:

The complaint fails.

Dated: 23rd March 2018  

Workplace Relations Commission Adjudication Officer: Roger McGrath

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