LCR21826

This matter came before Court pursuant to section 20(1) of the Industrial Relations Act 1969. There are two elements to the complaint thus referred by the Worker to the Court on 12 June 2018:

• 
  (i)The Worker alleges that she has been treated unfairly in relation to her grading within the Respondent organisation; and

  (ii)The Worker claims that she was constructively dismissed from the Respondent on 2 October 2017.

Employment History

The Worker was employed by the Respondent as a Guidance Officer from August 2005 until 2 October 2017. She was employed at Administrative Officer Grade and her salary was €59,097.00 per annum. The Respondent is not-for-profit organisation that operates under the aegis of the Department of Education and Skills (‘the Department’). The Respondent has a Board the members of which are appointed by the Minister for Education and Skills. The Worker was employed within the NCGE unit of the Respondent.

Dispute about Regrading

At the commencement of her employment, the Worker was one of three Guidance Officers working within the National Centre for Guidance in Education (‘the NCGE’), a semi-autonomous section operating within the Respondent. From approximately February 2010 onwards, the Worker was the only Guidance Officer in the NCGE. On 22 September 2011, she made a formal application, which was unsolicited, to the then Director of the NCGE to have her position upgraded to Co-Ordinator status. This application was unsuccessful.

The Worker appears not to have pursued this matter again until August 2013 when she initiated written contact with a number of officials in the Department, it would appear with the encouragement of her trade union. The matter does not appear to have been taken up by any of those officials.

The Worker went on sick leave in October 2015 due to stress she was experiencing in the workplace. This was followed by further intermittent periods of stress-related sick leave from November 2015 through February 2016. The Worker appears to have become very unwell again in March 2016 and commenced an extended period of sick leave. During this period – in or around 13 May 2016 – the NGCE advertised the position of FET Programme Co-Ordinator for its Further Education and Training Guidance Programme.

The Respondent’s position is that the Worker made an application to have her position regraded in 2011 at a time when the public service moratorium on recruitment and promotions was still in place. Regrading was not within its gift. The Respondent submits that it attempted to explain this in writing to the Worker. It also explained that it required formal sanction to create a new post at a higher level and that any such vacancy, if sanctioned, would have to be filled by means of open competition. When such a position was sanctioned in 2016, the Respondent sent details of the position along with an application form to the Worker by post but she chose not to apply for it.

Constructive Dismissal Claim

The Worker informed the Court that the treatment she received as a consequence of her unsuccessful application to have her position regraded led to a general breakdown in trust between her and the Respondent and was thus a catalyst for her ultimate decision to resign. However, her written submission makes reference to a number of specific work-related incidents and issues which she says, taken cumulatively, made it impossible for her to remain on in her employment. The list of incidents and issues include:

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  •The Worker’s exclusion in 2010, by her line manager, from participation in the work of the National Advisory Group;

  •Her line manager’s criticism of her for leaving a meeting where she had been acting as note-taker;

  •Her exclusion from participation in the work of a stakeholder group on a European project

  •Unspecified ‘unfair and unjust treatment’ at the hands of her line manager between November 2015 and February 2016 – following which she went on sick leave from which she never returned;

  •The inappropriateness of the desk space she was offered in the new building in Parnell Street to which the Respondent moved in late 2015/early 2016.

The Worker documented her issues in a letter she sent to the Respondent on 24 April 2017. On foot of the contents of this letter, the Respondent proposed to appoint an external investigator to investigate the Worker’s grievances. Three names were furnished to the Worker and she was invited to select one. The Worker made no nomination but sought to apply multiple preconditions to her engagement in the process. On 9 September 2017, the Respondent appointed Forde HR to conduct an external investigation into the Worker’s grievances and complaints. The Worker did not engage with the external investigator but instead submitted her resignation on 29 September 2017.

The Worker also confirmed to the Court that she did not avail herself of the Respondent’s Grievance Process at any time before resigning her employment as she had no trust in those procedures by this time.

Recommendation

The Court is very familiar with the effects of the moratorium on public sector recruitment and promotion that was applied after the financial crisis of 2009. Having regard that moratorium, the Court finds that the Worker’s application for regrading in 2011 was ill-judged and bound to fail. There can be no question of the Worker being compensated for the Respondent’s inability to accede to her request to be graded. This aspect of her claim fails, therefore.

The Court has given detailed consideration to the comprehensive submissions of the Parties in relation to the deterioration in the Worker’s relationship with her then line manager from 2010 onwards and the efforts of the Respondent to address the consequences of those interpersonal issues for the Worker when she very belatedly brought them to the Respondent’s attention. The Court, nevertheless, finds that the Worker’s unwillingness to engage with the external investigator fundamentally undermines her case that she was left with no option to resign her employment in September 2017. Accordingly, this aspect of the Worker’s claim fails also.

Both claims are dismissed for the reasons set out above.

The Court so recommends.

Signed on behalf of the Labour Court



Alan Haugh
15 November 2018______________________
THDeputy Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Therese Hickey, Court Secretary.