ADJ-00011629

Complainant

Respondent

Anonymised Parties

Finance Officer

A Migrant Support Organisation

Representatives

Ivan Feran Feran & Co. Solicitors

Alfred D. Chidzani Cyril & Co. 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-00015497-001

01/11/2017

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

CA-00015497-002

01/11/2017

The complainant commenced employment with the respondent, a charity providing services to migrant women in Ireland, on 6th January 2015.   She resigned from her employment on 25th October 2017. The complainant worked 37.5 hours per week and was paid €3,333.34 gross per month. A Complaint Form was lodged with the WRC on 1st November 2017.   There were two hearings for this case, the first took place on 25th May 2018 and the second on 7th September 2018.

At the second hearing the Chairperson of the respondent organisation was unaccompanied. However, she did not raise any objection to the hearing going ahead. It should be noted that the Chairperson is a qualified solicitor and well acquainted with the case. 

The complainant is claiming constructive unfair dismissal.

The complainant opened by stating that the complaint to the WRC was not to do with the bullying she had been subject to, but how her grievance had been handled by the respondent. It is the complainant's contention that she had no option other than to resign as the respondent had failed to deal with her grievance over a long period of time. Regarding the Industrial Relations dispute the complainant submitted that this related to the failure of the respondent to follow procedures.

The complainant submitted that she emailed the Chairperson of the Respondent organisation on 8th May 2016 giving notice of her grievance with another employee/board member because of the bullying and intimidation which she had been experiencing. The Chairperson responded in a letter 12th May 2016 confirming that the employee’s email was deemed sufficient notification of her grievance.

Owing to the non-action of the employer in relation to the complainant’s complaint, she was certified by her Doctor as being unfit for duty owing to stress on 12th May. The Complainant was pregnant at this time and there was concern for her and her baby’s health owing to this work-related stress.

The complainant submits that by the time her maternity leave concluded her initial bullying grievance had not been dealt with by the respondent, and, despite numerous reminders to her employer, no grievance process was ever commenced by the employer. The complainant remained out of work on certified sick leave owing to stress, which was not helped by the fact that the respondent made scurrilous and unfounded allegations about her which caused her even greater distress.

On 14th March 2017 the respondent advised the complainant’s solicitor that a Human Resources Management Company was in the process of being recruited, “to take responsibility for the process between (the organisation) and the complainant. The complainant’s solicitor confirmed on 20th March 2017 that the complainant would be agreeable to engage with the Human Resource Company. The solicitor raised a number of queries in relation to the HR company and the process to be adopted by it.

Reminders were sent by the complainant’s solicitor to the respondent on 16th May, 7th July, and on 15th July the respondent replied, advising that they were instructing their solicitors on the matter.

The complainant submits that the respondent’s failure to address her bullying complaint and grievance has caused her severe distress and has had an impact on her health and ability to return to the workplace. In the last year, the complainant submits, three Board members have resigned, citing the treatment of the complainant as one of the reasons for their resignation.

On 27th October 2017, having waited 17 months for the respondent to commence their internal grievance procedure, the complainant felt she had no option but to tender her resignation as it was now impossible for her to return to the respondent organisation.

The complainant called two witnesses who gave evidence in relation to the case. The first witness, Ms Y, stated that she was a board member of the respondent organisation and became very concerned when she heard what was happening in relation to the complainant's complaint of bullying; she felt the board was not adhering to the organisation's own policies and procedures. She, and a number of other board members, could not stand over what was going on and were distressed about how matters were being dealt with by the respondent board. In answer to questions from the respondent Ms Y stated that she had not witnessed the alleged bullying but was giving evidence that the complainant did raise issues which were not dealt with properly.

A second witness, Ms V, appeared for the complainant. She stated that she had been a director of the respondent organisation but she had resigned, chiefly because of the way the organisation had failed to deal with the complainant's grievance. She stated that initially the board were not told about the grievance being lodged. Despite her own and others efforts, they could not get the board to instigate a proper grievance procedure. Eventually she resigned as she believed the board had not followed its own procedures or best practice and she felt the board was legally vulnerable as a result. At one stage she had thought they were moving toward towards a mediation process but it never materialised. The witness also stated that there had been a heated exchange between herself and the Chairperson when the Chairperson had alleged that the complainant had carried out some type of sabotage. The witness also gave evidence that the HR Sub-committee of the board had been, in her view, improperly side-lined by others on the board, from dealing with the grievance.

The complainant also gave evidence at the hearing. She stated that after she had gone sick there had been little interaction between herself and the respondent and that the laid down policies had not been followed.   In response to questions from me, the complainant stated that even having been out for nine months she tried to resolve the issues but to no avail. She felt she had no other choice, her financial circumstances were such that she had to move back to live with her parents.

She decided to tender her resignation because she did not feel the environment (her former workplace) would be safe and she did not believe her employer was willing to make it safe, or even try to make it safe.

Regarding mitigation of loss, the complainant stated as she was on extended maternity leave through to June 2017 she was not at any loss until that point. She also stated that she had attempted to get work and provided documentary evidence to support this, but has so far been unsuccessful.  

In closing the complainant stated that the respondent had failed to follow its own policies and procedures.

In opening, the respondent put forward that the complainant was employed up to 20 June 2016, however as she was on maternity leave she continued in employment until the last day of her maternity leave as per the Organisation of Working Time Act. The complainant looked for 16 weeks additional leave and this was granted, at the end of this period she was paid everything due to her, including pay for Public Holidays; therefore, at the end of her maternity leave her employment had ended.

The respondent submits that on the 8th of May 2016 the complainant contacted the respondent's Chairperson by email stating that she was being bullied and intimidated by a member of the respondent's board.

The respondent’s Chairperson responded to the complainant by email on the 10th of May 2016, acknowledging the complainant's complaints and seeking that the complainant provide further clarification in relation to her allegations of bullying, intimidation and harassment,

The respondent submits that up to today, the complainant has not provided any specific instances in relation to these inappropriate behaviours. In relation in the respondent's chairperson's email of 10th of May, she submitted that the Chairperson had sought an informal dialogue between the complainant and the board member, but that the complainant had refused to give any reason why she felt anxious and intimidated.

The respondent's Chairperson wrote to the member of the board referred to above on the 12th of May 2016 informing her about the grievance and asking if she would engage in an informal discussion.

The board member responded on the 12th of May 2016 stating that due to the seriousness of the allegations against her she would like to have a formal meeting to discuss issues further.

Following the complainant's absence from work the respondent's Chairperson wrote to the complainant on 5th July 2016, outlining her obligations.

The respondent's Chairperson submits that she had maintained an open-door policy with the complainant whereby she did enquire about the wellbeing of the complainant from time to time. The respondent submits that several efforts were made to discuss matters with the complainant in the following month but to no avail.

On 28th August 2017, the respondent received a letter from the complainant's solicitors containing unfounded and malicious allegations. These matters were highlighted in the letter to the complainant's solicitors on the 5th of September 2016 and 13th of April 2018 of which no response was received.

The respondent submits that the contract of employment of the complainant stated that the term of the contract was to be ended on the 31st of December 2016 and that the contract of employment specifically states that the complainant agrees that the unfair dismissals act 1977 to 2007 shall not apply to her dismissal consisting only of the expiry of the term of this agreement without it being renewed.

The respondent submits that the complainant has not particularised any claim of bullying harassment and unfair dismissal.

The Chairperson of the respondent organisation gave evidence at the hearing. She stated that she had been close to the complainant and had told her to take time off if she required it. The witness stated that the reason she had not been in contact with the complainant was that she did not want to put her under any more stress than she already was under. As things progressed the complainant refused to communicate with the respondent.   The witness stated that the reason they did not have a copy of the complainant's contract of employment was because it disappeared from the respondent's offices.   The respondent ended her evidence by stating that the organisation is a sisterhood and they did not want to put the complainant under extra stress.

In response to questions from me, the Chairperson of the respondent organisation stated that the reason they did not peruse mediation was because the complainant was off sick and they did not want to put her under pressure to enter a mediation process. The respondent also stated that it was their belief that the complainant's contract had come to an end at the end of her maternity period.   When asked whether the respondent had ever written to the complainant telling her that her contract was ended the witness stated that they had not done so in writing.

In closing, the respondent stated that it had followed its procedures.   It did not wish to put any additional stress on the complainant when she was pregnant.

The complaint is one of constructive dismissal.

The respondent has raised a point regarding the employment status of the complainant in the time following the end of her maternity leave.   It is the respondent's contention that the complainant's employment with the respondent ended at the end of her maternity leave. However, the complainant did not get her P45 until January 2018, it was issued in December 2017, some three months after resignation in October 2017; she believed she was an employee up to that point, she was never written to by the respondent to tell her that her contract was terminated.   I agree with the complainant on this and therefore I find that she was an employee until January 2018.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of a contract of employment. It is, after all, a breach of a legally binding contract.

In the case of an employer wishing to do so, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

It is relatively easy for an employee to terminate their employment by simply resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment and then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, the duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster Bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

‘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.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

As seen above in constructive dismissal claims there is a significant burden of proof required of the employee; the reverse should also carry a corresponding burden; if an employee raises a complaint the employer is duty bound to investigate the matter to finality.

In this case I find that although the respondent may have made some efforts to deal with the grievance raised those efforts fell well below those expected of a good employer. The respondent's argument that the reason it did not try harder to resolve matters was because they did not want to put extra pressure on the complainant, does not stand up to scrutiny; an employee had a problem and the employer chose to ignore that problem, disregarding its own policies and procedures and the efforts of some board members to have the mater dealt with properly.

Was the complainant left with any alternatives other than resignation? I do not think she had as she believed the situation had deteriorated to such an extent (including accusations being made against her) that she did not have any faith left in the respondent to deal with her grievance fairly. She feared returning to work such had been the behaviour of her employer regarding the very serious allegations she had made of bullying and intimidation. It should be recalled that the complainant did agree to an informal process and later to mediation but these routes were not followed by the respondent. I find, therefore, that the complainant was constructively dismissed.

I find compensation is warranted in these circumstances.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Having regard to the totality of the evidence adduced by the parties, including the complainant’s evidence in relation to her loss to date attributable to her dismissal and her efforts to mitigate that loss, I award the complainant €16,667 by way of compensation, being the equivalent of 20 weeks remuneration. As the award is made by way of compensation for loss of earnings it is subject to income tax.

Allegations, grievance, failure to follow up