Complainant

Respondent

Anonymised Parties

A Cleaner

A Contract Cleaning Company

Act

Complaint Reference No.

Date of Receipt

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

CA-00010657-001

05/04/2017

The Complainant was employed by the Respondent as a Cleaner from 13 October, 2008 until 21 October, 2016 when her employment was terminated. The Complainant claims that she was constructively dismissed from her employment after she was subjected to bullying and harassment in the workplace. The Respondent denies that a dismissal occurred and contends that the Complainant resigned from her position of her own volition.

The Complainant commenced employment as a Cleaner with a contract cleaning company in October, 2008. In May, 2011, the Complainant’s employment was transferred to the Respondent following a transfer of undertakings and she continued to work as a Cleaner under the same contract at a retail outlet which was located in close proximity to her home.

Up until around July/August, 2013, the Complainant worked from 7 pm to 9 pm on Monday to Friday and 6 pm to 8 pm on a Saturday. The Complainant’s hours were changed after she swapped shifts with another cleaner and took up the morning shift working 6 am to 8:30 am on Monday to Friday and 6 am to 9 am on a Saturday. The new hours suited the Complainant as she was home to bring her children to school and had the rest of the day for her own use.

In October, 2015, word went around the store that one of the evening shift workers was due to retire and the Complainant’s supervisor, Ms. B, started to put pressure on her to go back on the evening shift. The Complainant informed Ms. B that she was happy doing the morning shift as this arrangement suited her. At that stage the Complainant was on good working terms with Ms. B. However, the Complainant claims that Ms. B’s attitude towards her changed thereafter and she began to find fault with her work even though the Managers of the areas where she worked in the store indicated that they had no problems with the standard of her work.

In March, 2015, the Complainant had to have a medical procedure carried out on her right hand which involved attending hospital. The Complainant’s surgeon certified her unfit for work, at her own expense, for a period of six weeks. The Respondent had no difficulty with her being off work and was happy with the hospital medical certificates as she was unable to work until certified fit to return. However, the Complainant claims that when she returned Ms. B questioned the amount of time that she had been off work and indicated that she should have returned much earlier.

The Complainant submitted that she also had difficulties in obtaining payment for the actual number of hours that she worked and reported this issue to her Area Manager, Mr. M. However, she was informed by Mr. M that it was her supervisor, Ms. B’s responsibility to submit the correct details of hours worked to Head Office for payment. The Complainant submitted that she had to sign in and out at the beginning and end of each shift so there shouldn’t have been any difficulty in relation to payment of the hours she actually worked. The Complainant claims that none of the other cleaning staff experienced such difficulties in relation to pay. These difficulties resulted in the Complainant not being paid on time and on occasion she ended up getting her wages two weeks late.

The Complainant again spoke to her Area Manager, Mr. M, about the difficulties with her pay and he indicated that he would try and resolve the issues. However, nothing was done. Eventually, the Complainant spoke to Mr. M again in February/March, 2016 and he called to her house to discuss the issue. The Complainant claims that after checking the details on his laptop, Mr. A accepted that she was correct in relation to the difficulties with her pay. The Complainant also informed Mr. M at that juncture that she was being subjected to bullying and harassment in the workplace by both her Supervisor, Ms. B, and her Supervisor’s daughter, Ms. E, who was also employed by the Respondent. The Complainant claims that her Supervisor, Ms. B, frequently shouted at her and reprimanded her on the shop floor in front of other colleagues. The Complainant claims that she reported this bullying and harassment to Mr. A on a number of occasions, who indicated that he would try and resolve these issues, but subsequently failed to do so.

The Complainant stated that she didn’t report the bullying and harassment to Head Office at that juncture as she was afraid that Mr. M would also turn on her if she made a complaint that he had failed to try and resolve the treatment she had been subjected to by her Supervisor, Ms. B, and her daughter.

The Complainant submitted that matters came to a head in October, 2016 when her Supervisor, Ms. B, asked her to come in for extra hours due to a cleaning audit which was due to take place. The Complainant attended work as requested by Ms. B but later that week, after she had received her payslip, she noticed that the extra hours which she had worked had not been included in her pay. The Complainant asked Ms. B why she hadn’t been paid for the extra hours and was told that it was “catch up time” and that she would not be paid. The Complainant subsequently reported the matter to the HR Department in Head Office and following an investigation she was paid the outstanding wages.

There was also a subsequent incident where the Complainant was refused permission by Ms. B to take two days leave to attend a hospital appointment for an endoscopy procedure. The Complainant stated that the incident which finally prompted her resignation occurred on 21 October, 2016 when she was subjected to further bullying and harassment in the workplace by Ms. B. The Complainant could not tolerate this behaviour any further and sent an e-mail to Respondent’s HR Officer to confirm her resignation.

The Complainant claims that her position became untenable as a result of the bullying and harassment to which she had been subjected and was left with no alternative but to resign from her employment.

The Respondent is a contract cleaning company and offers a variety of cleaning and facilities management services to companies throughout Ireland.

The Complainant originally commenced employment with another contract cleaning company on 13 October, 2008 and subsequently transferred to the Respondent under a transfer of undertakings on 9 May, 2011 in the capacity of a Contract Cleaner. Throughout her employment, the Complainant worked for the Respondent at a multiple retail grocery store.

On 11 October, 2016, the Complainant worked from 5:50 am until 8:05 am. Following completion of her shift, she left the store. Upon inspection, the Complainant’s Supervisor, Ms. B, discovered areas that the Complainant had cleaned were not up to standard and telephoned her to come back into the store to redo some of the areas as there was an internal audit of cleaning due within the store. The Complainant returned to the store and worked from 9:00 am and signed out at 10:40 am.

On 20 October, 2016, the Complainant requested two days’ annual leave covering the 4/5 November, 2016. Initially, the Complainant’s supervisor declined the request as she was having difficulty finding cover for the dates in question as neither of the other cleaning operatives were available and the supervisor herself was on annual leave on those dates. Later that day, the Complainant’s supervisor advised her that another operative could cover her shift on 4 November and she would cover her shift on 5 November in order for her to attend her medical appointment.

On 21 October, 2016, the Complainant discovered that she had not been paid for the additional 1.5 hours she had worked on 11 October, 2016 and that her Supervisor and another cleaning operative had been paid. It was at this point that the Complainant submitted her first formal grievance via e-mail, the same e-mail that contained her resignation.

The Respondent’s HR Officer, Ms. K, replied to the Complainant stating that she would investigate the grievance as a matter of urgency and twice asked the Complainant to reconsider her decision to resign in order to allow time for the investigation to be conducted. The Complainant refused these requests stating that her mind was made up.

An investigation was conducted by the HR Officer, Ms. K, into the Complainant’s grievance. As part of this investigation the HR Officer travelled to a neutral location to hold a meeting with the Complainant on 27 October, 2016. In this meeting, the HR Officer reassured the Complainant that the 1.5 hours worked on 11 October, 2016 would be paid to her on 4 November, 2016. The HR Officer gave the Complainant an opportunity to fully expand on all the issues that she had. At this meeting the HR Officer again asked the Complainant to reconsider her resignation, which again was declined. Following this meeting, a full investigation of the matters in the Complainant’s grievance took place.

On 30 January, 2017, the Complainant’s solicitor wrote to the Respondent requesting that the complainant be reinstated with pay for her loss to date. On 3 February, 2017, the Respondent’s HR Manager, Mr. C, replied to the solicitor’s letter stating the Company’s position in the matter, including the belief that the Complainant’s resignation, while regrettable, was voluntary and that she refused to reconsider her decision on a number of occasions to allow time for her grievance to be fully investigated.

Respondent’s Arguments

The Respondent totally refutes the Complainant’s claim of constructive dismissal. The Respondent submitted that the burden of proof in constructive dismissal claims, as set out in case law, is high and the Complainant has failed to meet this burden.

Fundamentally in this case, the Complainant failed to exhaust the company’s internal grievance process, which is essential as set out by the EAT in the case of McCormack -v- Dunnes Stores[1] where it held that: “the notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve their grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

The vital importance of exhausting the internal grievance process was also highlighted by the EAT in Terminal Four Solutions Limited -v- Rahman[2] where it was held that: “Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair”.

The Complainant in this case did not abide by the grievance procedure outlined in her contract which indicates that where the issue has not been resolved by referring the matter to the Area Manager, the issue can be referred directly to company management. The Complainant did not follow this step before resigning and it was her resignation that brought the matter to the attention of management, upon which they acted. The Complainant’s contract also states that: “It is further agreed that no action will be taken by either side pending the full use of the procedure for resolving grievances and disputes”.

The Respondent has a Grievance Procedure in place to deal with complaints from staff. The Complainant could have raised her concerns via the informal procedure. The Complainant did not make any complaint of bullying or harassment to her area manager. In the event that the Complainant was not satisfied with the outcome of the informal procedure or if she chose not to follow that part of the grievance process, she could have made a formal complaint.

The grievance procedure also provides for mediation between the two parties involved in a dispute, with details of how this process works included in the policy. The Complainant did not at any stage prior to her resignation e-mail, make any form of verbal or written complaint, request mediation or seek advice and support of the HR Department.

In both her e-mail of 21 October, 2016 and her WRC Complaint Form, the Complainant has stated that she was being bullied and harassed by her supervisor. The Respondent does not tolerate any form of inappropriate behaviour by one staff member against another and this is clearly laid out in its Bullying and Harassment Policy. As no written complaint was ever made by the Complainant prior to her resigning, it was not possible to deal with her issue sooner. However, the Respondent did investigate her complaint in line with its policy but unfortunately, this was done after the Complainant’s resignation.

Most importantly, the Complainant failed to give the company an opportunity to resolve her grievance before resigning. In the e-mails of 21 October, 2016, the HR Officer, Ms. K, asked the Complainant on a number of occasions not to resign, including asking her to think about it over the weekend. The Complainant declined. At the meeting on 27 October, Ms. K again asked the Complainant to reconsider her resignation but she declined. Ms. K offered the Complainant time off in order to resolve the issue but again this offer was declined by her.

The Respondent submitted that it is also important to highlight that it had no other contracts in the area where the Complainant was based. As such it would have been impossible for her to return to any location other than her normal place of work following her resignation. As the Supervisor was the only supervisor within the store where the Complainant worked, it would not have been possible for the Complainant to report to any other person.

In summary, the Respondent submitted that it fully investigated the allegations made in the Complainant’s resignation e-mail but she left prior to this, having failed to adhere to the procedures laid down in the Bullying and Harassment Policy. However, it was not possible for the Respondent to resolve issues it had not been made aware of, either made directly wither supervisor or area manager or indeed with the HR Department. The Respondent argues that it at all times acted in accordance with the rights of natural justice and its internal company policies.

As the Complainant is claiming constructive dismissal, the fact if dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The term “constructive dismissal” is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides 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.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp[3]. It comprises of two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “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 other performance.” The reasonableness test assesses the conduct of the employer and whether it “…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.”

According to the Supreme Court in Berber -v- Dunnes Stores[4]: “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.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment.

The Complainant claims she had been subjected to bullying and harassment in the workplace by her immediate Supervisor, Ms. B, and her daughter over a sustained period of time. The Complainant claims that she reported a number of these incidents of bullying and harassment to her Area Manager who failed to resolve the adverse treatment. The Complainant claims that matters came to a head in October, 2016 after she failed to receive payment in respect of additional hours worked on the request of her Supervisor prior to a cleaning audit which was due to take place. The Complainant claims that her position became untenable and that she was left with no alternative but to resign from her employment.

The Respondent disputes the claim of constructive dismissal and contends that the Complainant resigned of her own volition after failing to invoke and fully exhaust the internal grievance procedures in relation to the alleged bullying and harassment in the workplace. The Respondent contends that the Complainant did not inform management about the alleged bullying and harassment until the date she submitted her resignation on 21 October, 2016. The Respondent contends that the Complainant was requested on several occasions to withdraw her resignation in order to afford the company the opportunity to investigate her grievance and try to resolve the matter but she refused to do so.

It was not in dispute that the Complainant informed the Respondent of her decision to resign from her position by e-mail on 21 October, 2016. In this e-mail, the Complainant indicated that her decision to resign was attributable to the bullying and harassment to which she had been subjected in the workplace by her Supervisor, Ms. B, and her daughter. I have found the Complainant’s evidence on this issue to be credible and I accept that she had been subjected to adverse treatment on an ongoing basis for a period of time prior to her resignation.

However, in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers.

The Labour Court has held in the case of Emmanuel Ranchin -v- Allianz Worldwide Care S.A.[5] that: ”In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of John Travers v MBNA Ireland Ltd[6] that: “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 considering this issue, I am satisfied that the Respondent had an established policy and procedures in place in order to deal with bullying and harassment in the workplace. I am also satisfied that the Respondent had a Grievance and Disciplinary Procedure in place which conforms to the general principles and procedures enunciated in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000[7]. Having regard to the evidence adduced, I find that these policies were brought to the Complainant’s attention during her period of employment, both within her written contract of employment and through induction training which she had participated in during 2012.

I have examined both of these policies and they clearly set out the steps and procedures which employees should follow in circumstances where they wish to raise a grievance or complaint about bullying and harassment in the workplace. I note that these procedures provide that any such complaints or grievances should in the first instance be raised informally with the employee’s supervisor or manager. If the issue is not resolved at the informal stage, the employee can then seek to have the matter referred directly to senior management for a formal investigation.  

There was a conflict of evidence between the parties as to whether or not the Complainant raised a grievance at an informal level by informing her Area Manager of the alleged bullying and harassment. On balance, I prefer the Complainant’s evidence on this point and I accept that she did inform her Area Manager that she was experiencing difficulties in terms of her working relationship with her immediate Supervisor, Ms. B, and her daughter.

I accept that these difficulties were not resolved on an informal basis after the alleged bullying and harassment had been reported to the Area Manager. However, notwithstanding the fact that the matter remained unresolved after it had been reported to the Area Manager, I am satisfied that the Complainant has failed to establish that there were reasonable grounds for her to assume that her grievance would not have been dealt with appropriately by further utilising and fully exhausting the company’s internal procedures. In coming to this conclusion, I have taken into consideration that the Complainant had previously reported discrepancies in respect of her wages to the Respondent’s HR Department and that these issues were subsequently resolved to her satisfaction.

In the circumstances, I find that the Complainant took the decision to resign from her employment before she had fully exhausted or utilised all remedies available through the Respondent’s internal grievance procedures. It was not in dispute that the Complainant neither made a formal complaint nor brought the alleged bullying and harassment to the attention of senior management until she raised this matter in the e-mail to the HR Department dated 21 October, 2016 informing the Respondent of her resignation.

I am satisfied that the Respondent’s HR Department took immediate and appropriate action once it became aware of these allegations and I find that extensive efforts were made to try and dissuade the Complainant from resigning until the matter could be investigated. In this regard, I note that the Respondent’s HR Officer convened a meeting with the Complainant on 27 October, 2016 to discuss her grievance, she was encouraged to take some time off to allow the matter be fully investigated and was requested on several occasions to reconsider her resignation. However, despite these efforts by the Respondent, I am satisfied that the Complainant refused to rescind her resignation in order to allow the Respondent the opportunity to carry out a full investigation of her grievance in accordance with its internal grievance procedures.

Having regard to the foregoing, I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that she had no option but to resign her position or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract. In the circumstances, I find that the Complainant resigned from her position of her own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that her complaint cannot succeed.

I find that the Complainant resigned from her position of her own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that her complaint cannot succeed.

Unfair Dismissals Act 1977 – Section 1 - Constructive Dismissal – Bullying and Harassment -Disciplinary Procedures – Voluntary resignation – Complaint fails