Complainant

Respondent

Anonymised Parties

A child care worker

A Community Resource Centre

Representatives

Self

A Manager

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-00015300-001

25/10/2017

The Complainant commenced employment with the Respondent organisation in July 2004, she was employed as a child care assistant. The Complainant resigned from her position on 31/07/2017 and lodged a claim under Section 8 of the Unfair Dismissals Act, 1977 alleging that she was constructively dismissed from her employment.

On 28/04/2017 the four core staff members were informed that one of them would be selected for redundancy, one of the reasons for this decision was to enable the Resource Centre hire a new team leader for the pre-school section. Hiring a team leader with specific qualifications would assist in the Resource Centre’s efforts to obtain additional funding from Government.

The new person would be employed to take charge of the pre-school section, this was the section that the Complainant had spent most of her time since commencing employment some 13 years previous.

The four existing core staff members were invited to interview for the team leader position in the baby room. Two days before the interview date the Complainant met with the Centre Manager to express her concerns regarding work in the baby room, how this stressed her, she went on to inform the Centre Manager that her skills and experience were more suited to the pre-schoolers. The Centre Manager informed the Complainant to go ahead and prepare for her interview. The Complainant interpreted this to mean that she should go ahead and prepare for an interview for the selection of a staff member in the pre-schoolers section of the resource centre.

After speaking to the Chairperson of the Resource Centre the Complainant assumed that the issue would be taken to the Board for discussion. Two days later the Complainant was informed by the Chairperson that she would still be moving to the baby room, the Complainant accepted this and informed the Chairperson that this was okay. A few days after this the Complainant, whilst out shopping, met another member of the Board who during conversation informed the Complainant that no board meeting had taken place.

This left the Complainant feeling that “they have been lying to me and putting me under unnecessary stress as they wanted me to leave”.

The Complainant then pointed out that she had been working at the Resource Centre for 13 years and was happy working there and believed she would have remained working there had she not been ‘singled out’. The Complainant later heard that the other member of staff who had been informed that she would be moved had not actually been moved anywhere.

The Complainant then obtained some advice and resigned for the Resource Centre on 31/07/2017 and lodged her complaint with the Workplace Relations Commission on 25/10/2017.

The Respondent was represented by two members of management staff and the Chairperson of the Board.

There appeared to be no disputing the version of events as presented by the Complainant.

The Respondent managers wanted to re-structure the operation of the pre-school and baby sections of the Resource Centre. This would entail the recruitment of a highly-qualified team- leader, this would be beneficial when it came to funding approval for the Centre.

As an element to this re-structure one existing staff member would be made redundant. The Complainant, at no point made it known that she would be willing to volunteer for this redundancy.

The four existing core staff members would be interviewed for the remaining team leader position. When the Complainant was interviewed, it was clearly for the team-leader position. At no point in the interview process was it made known to the interview panel that the Complainant was neither overly interested in the team leader position in the baby room or interested in volunteering for redundancy.

Moving forward it was management’s intention that all care workers would be fully flexible in working areas, expectation was that care workers could be moved from one area to another as operational requirements dictated.

It was accepted that words between management individuals and the Complainant may have been exchanged in corridors etc. there was no formal request from the Complainant that she be made redundant.

If the Complainant was unhappy with the proposed changes, there was a formal grievance procedure that could be utilised – the Complainant did not make any official grievance known to management.

In any case of ‘Constructive Dismissal’, because the employee has terminated his/her contract of employment, the fact of dismissal will be in dispute. Constructive Dismissal is defined in section 1 of the Unfair Dismissals Act, 1977 as follows:

“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 the 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”.

Circumstances in which notice of termination can or may be dispensed with are indeed rare and set a high standard of proof for an employee.

There are two tests contained in the statutory definition, either or both of which may be invoked by the employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. Secondly, the employee may allege that he satisfies the Act’s ‘reasonableness’ test.

In relation to the test of reasonableness the question must be asked, did the employer

‘conducts its affairs so unreasonably that the employee cannot fairly be expected to put up with itany longer, [if so] the employee is justified in leaving.

The Contract test:

‘The breach of contract being alleged must be either a significant breach going to the root of the contract or one that shows that the employer no longer intends to be bound by one or more of the essential terms of the contract’.

To establish a constructive dismissal case the employee must (ideally) be able to show:

1.       There was a breach of contract and/or unreasonable conduct by the employer

2.       The employee formally complained to the employer in relation to the said breach and/or conduct

3.       The employer failed adequately or at all to address the grievance

In this instant case it was established at hearing that the Respondent organisation does have a formal grievance procedure, the Complainant would have received a copy of this procedure and failed to formally utilise this procedure.

One legal case of note comes from the Employment Appeals Tribunal – UD 6 /1988 (Anthony Cosgrave v Kavanagh Meat Products Ltd): -

·         An employee must act reasonably, in the circumstances, in terminating the contract

·         There is an obligation on an employee to try and resolve whatever the problem is before walking out of the job.

I have considered all the facts of this case and cannot find in favour of the Complainant. For the reasons outlined above the complaint fails.

Constructive Dismissal.