ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00009007

Parties:

Complaint(s):

Date of Adjudication Hearing: 10/05/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

At the hearing the Respondent and Complainant referred to documentation which was shared with each other at the hearing, and the parties were provided with the opportunity to respond to this evidence. The Complainant and Respondent were asked to forward soft copies of documentation post the hearing so the record of documents submitted would be properly noted. These documents were provided to the WRC on 14th May 2018 by the Complainant, and on 16th May 2018 by the Respondent and were exchanged with each party for completeness. The Complainant subsequently made a further uninvited written submission on 31st May 2018. This submission exchanged with the Respondent in the interest of transparency. This submission was not considered as the parties had been provided with the opportunity to present and respond to the complaint and response and the relevant evidence at the hearing on 10th May 2018.

Background:

The Complainant was employed as a Montessori teacher.

The Complainant submitted that following an incident in the workplace where a child left the premises on its own that she was subsequently advised by the Respondent that it was in the best interest of the Respondent’s organisation that the Complainant should resign. The Complainant maintained that she was unfairly dismissed as she was asked to submit a letter of resignation to avoid an investigation of matters. The Complainant also maintained that the Respondent had advertised her position on a social media site after the incident had occurred and before any investigation of the matter had been conducted. As such the Complainant contended that she had no option but to resign as she was not confident of getting a fair process if she did not resign as suggested by the Respondent. As such she alleged she was subject to constructive dismissal where she was seeking compensation for the alleged unfair dismissal.

The Respondent maintained that the Complainant had resigned and denied it dismissed the employee, or that it acted in a manner that caused the Complainant to feel she had no option but to terminate her employment.

Summary of Complainant’s Case:

The Complainant submitted that an incident took place on 18th January 2017 where a child under her care went missing, and on 25th January 2017 she observed that a role for Montessori teacher, which she understood was her role, was advertised by the Respondent on social media. The Complainant provided evidence that a position similar to her role was advertised. The Complainant had not been informed of this, and in light of the incident of 18th January 2017 when she saw the advertisement she became concerned and approached the Respondent about the advertisement. The Complainant maintained that when she approached the Respondent she was advised that an investigation into the event of 18th January 2018 was to take place. The Complainant also maintained that she was advised that if she resigned there would be no investigation.

The Complainant contended that she was not asked whether any mitigating circumstances had occurred regarding the event, and that she was so upset by what she was told regarding an investigation and the option to resign that she went to the bathroom where she cried and subsequently left work that day. The Complainant did not return to work on the basis she understood she was being put under duress to resign her position.

The Complainant did not attend work the following day, a Friday, and over the weekend she sought a letter of termination of employment from the Respondent to enable her to claim her social welfare payments. The Complainant acknowledged that following a number of text messages on the Friday she called to the Respondent’s house on the Sunday to seek her letter of termination, and her P45. The Complainant submitted that she was asked to write a letter confirming her departure and she was to meet with the Respondent the following day to receive a letter of termination and her P45.

The Complainant maintained that when she arrived at work on the Monday to submit her letter she was asked to add in the letter that this was her resignation and where she was told that if she did not include this she would not receive her P45, or a letter for social welfare payments. The Complainant maintained that she was instructed to resign and that she had no option but to resign if she wished to get the letter to allow her to claim her social welfare payments.

The Complainant acknowledged that prior to the incident the Respondent had part-funded her education, and that the Complainant and the Respondent had been close colleagues over the years. However, the Complainant did not accept the Respondent’s position that that the job advertisement on 25th January 2018 was to address a need to increase staff. Instead she concluded the job advertisement by the Respondent was to replace her as a result what happened. When she confronted the Respondent on 26th January 2017 about this she was told an investigation would take place unless she resigned, and on that basis, she had drawn the conclusion that the Respondent intended to dismiss her.

All of this she argued placed her in a position where she had no option but to resign or else an investigation would take place, and under that pressure she signed a letter that stated she had resigned her position. As such, due to the actions of her employer, the Complainant maintained she was unfairly dismissed.

Summary of Respondent’s Case:

The Respondent refuted that it dismissed the Complainant. The Respondent submitted that it was a small organisation with some five staff, where the owner of the business had been a close friend of the Complainant, and where they had shared common interests and family events. The Respondent advised that it held the Complainant in good regard, had supported and facilitated the Complainant with regard to fostering a child, and where it had encouraged in the Complainant’s professional development by part-funding a Level 6 qualification in childcare. The Respondent maintained that she had worked closely with the complainant.

The Respondent acknowledged that an incident took place on 18th January 2017 at collection time while the Complainant was talking to two parents and where a child had left the premises unaccompanied. The Respondent submitted that the parents of the child accepted what happened and were not seeking any action to be taken against the Complainant for what had happened.

The Respondent advised that in light of what had occurred it reported the incident to the County Childcare Committee as it was obliged to do, and where having taken advice reported the matter to HSE/TUSLA. The Respondent also decided it was necessary to conduct its own internal investigation of matters. It advised that it engaged with an external HR consultancy to conduct the investigation and was in the process of setting that up when the Complainant approached the Respondent on 26th January 2018.

At the same time the Respondent acknowledged that it had placed an advertisement in social media for a Montessori teacher as it had been looking at getting another staff member. This advertisement appeared on 25th January 2017. The Respondent submitted that this advertisement had been placed by the advertiser earlier than anticipated, however it advised that it required extra staff, and in light of the time it takes to recruit a teacher it decided to start the recruitment process. The Respondent maintained that the advertisement for a new teacher coincided with the time it advised the Complainant that an investigation was to take place. However, the Respondent maintained a new role was identified and that it was not attempting to advertise for the Complainant’s position, or that it had decided to dismiss the Complainant.

The Respondent maintained that on 26th January 2017 the Complainant approached the Respondent about the incident of 18th January 2017. The Respondent explained to the Complainant of the steps that had been taken regarding reporting the issue, and that an investigation was to take place. The Respondent submitted that at this stage the Complainant appeared concerned about what had happened and the implication an investigation would have on her, particularly in relation to her responsibilities as a foster parent for a child in her care. The Respondent submitted that upon advising the Complainant of the need for an investigation it asked the Complainant whether she had any mitigating circumstances with regard to what had happened, and where the Complainant responded no I just f**** up. The Respondent submitted that the Complainant then went to the bathroom where she was upset.

The Respondent submitted that she followed the Complainant to the bathroom and maintained that the parties hugged each other, and the Complainant left on the basis that she was going to resign her position to avoid an investigation of matters in light of her circumstances.

The Respondent advised that on the following day, Friday 27th January 2017 the Complainant did not attend work and sent a number of texts where the Complainant was seeking a letter from the Respondent so she could register for social welfare payments. The Respondent also submitted that the Complainant called to her house on the Sunday seeking her P45 and a letter for her social welfare payments. The Respondent advised the Complainant that she needed to ensure procedures were correct and she would sort something for the following morning.

The parties met on the Monday morning, 30th January 2017, and where the Respondent advised the Complainant that it needed confirmation in writing that the Complainant had resigned her position before she could issue her a letter for social welfare payments. In this regard the Respondent submitted that the Complainant had drafted a letter which merely stated that as and from 26th January 2017 she was no longer working with the Respondent. The Respondent asked the Complainant to add in the letter that this was her resignation as the Respondent was advised from their HR consultant that such a statement was required. The Complainant inserted confirmation in her letter that it was a resignation, and the Respondent progressed with providing the Complainant with her P45, and a letter to confirm her employment had ceased and that the Complainant was no longer working with the Respondent. The Complainant subsequently received a reference.

The Respondent submitted that she was upset that the Complainant, who was somebody she had worked with over the years and in whom she had invested in the development of her childcare qualifications, had decided to leave. The Respondent advised that the internal investigation of what happened did not subsequently take place as the Complainant had left; however, a subsequent TUSLA/HSE review of matters indicated that the procedures in operation on the day were in order and that it was concluded there had been a momentary lapse of vigilance at the time of the incident. The Respondent maintained it had no desire to lose a qualified childminder and that it has been difficult to replace the childminder at level VI since her departure.

The Respondent submitted that it regretted what happened and that it had lost an experienced member of staff but insisted that it was the Complainant who decided to resign prior to any investigation taking place, and that it never dismissed the Complainant, but facilitated her resignation in preference to having to be investigated. The Respondent also maintained that the Complainant left before an investigation of matters could commence, and where the outcome of that investigation may not have led to any sanction or dismissal.

As such the Respondent argued that the resignation of the Complainant was unnecessary and was made by the Complainant without duress. The Respondent inferred that the Complainant’s resignation was due to concerns the Complainant had as she was a foster parent and how the Complainant felt the incident may have reflected on her, as a child under the Complainant’s care had gone missing.

Findings and Conclusions:

Based on the evidence presented it is clear the Complainant left her employment on 29th January 2017 having submitted a letter that included a statement in the letter this is my resignation. It is also a matter of fact that a child under the care of the Complainant had left the premises on 18th January 2017 unaccompanied.  

There is however a clear conflict of evidence regarding whether the Complainant resigned of her own choice, or whether she was instructed to resign to avoid an investigation, and as such the Respondent’s behaviour was so unreasonable it amounts to Constructive Dismissal.

The parties disagree about the discussions that took place between them on 26th January 2017 which led to the letter of resignation being submitted to the Respondent.

I find that as a child had left the premises unobserved on 18th January 2017 the Respondent was entitled to investigate matters. I am also satisfied that the Respondent sought external HR advice on the matter, and where it took a week for it to decide the Complainant was to be subject to an investigation for what had occurred. I also find that on 25th January 2017 a job advertisement in the Respondent’s business for a role similar to that held by the Complainant appeared on a social media site. This appears to have been the catalyst for the Complainant to speak to the Respondent on 26th January 2017, and at that time the Complainant was advised an investigation was to be initiated regarding the incident on 18th January 2017.

Based on the evidence provided I find that on the one hand the Respondent was dealing with a difficult situation where a child under the care of the Complainant had gone missing from the premises and the Respondent was considering its obligations under such circumstances. On the other hand, the Complainant was not advised of the intention of the Respondent to initiate an investigation until after the Complainant had noticed a job advertisement for a position similar to hers had been published by the Respondent.

No evidence has been presented to support the contention that the job advertisement was made for the purposes of replacing the Complainant. Similarly, no evidence has been provided to support the contention that the Respondent had intended to dismiss the Complainant prior to an investigation of matters; or that such an investigation was a fait accompli.

Whilst I find a prudent employer would inform an employee of the potential consequences of their actions, I am satisfied on the balance of probabilities the decision to implement an investigation of the issue had only been made on 26th January 2017, and at which time the Respondent put the Complainant on verbal notice of its intention to investigate matters. From that point what occurred between the parties is in dispute. It clearly has led to an unfortunate outcome where the Complainant holds the view that she resigned on the belief she would not be subject to an investigation if she did so, and where the Respondent holds the view that the Complainant sought to resign rather than be investigated, and as such the Complainant asked the Respondent to facilitate this.

The breach of a contract of employment is a very serious matter and which in cases of unfair dismissal, requires an examination of whether an employer acted fairly. This test is a demanding one involving a mix of both procedural and substantive issues. The onus falls on the employer in such cases to justify any termination. In cases where an employee breaks the contract, and then seeks to pursue the employer for constructive unfair dismissal, as in this case, the bar is set just as high. Likewise, the burden of proof, which now passes to the employee, is set at a high level. In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered.

Generally, the criterion regarding the behaviour of the employer 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 this regard 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.’ (Finnegan J in Berber v Dunne’s Stores [2009] E.L.R. 61). In effect therefore, the question is whether it was reasonable for the Complainant to terminate her contract on the basis of the Respondent’s behaviour.

In this case the Complainant has claimed that she was constructively dismissed as a consequence of the Respondent’s suggestion that she could avoid an investigation if she resigned. In effect she maintained that is what she was instructed to do, and where she says she was required to insert that statement in her notification letter to the Respondent before her P45 would be provided to her. The fact the Respondent had advertised for a role similar to the Complainant’s influenced her conclusion that it was always the intention of the Respondent to dismiss her.

I find the Respondent is entitled to advertise for staff, and equally was entitled to investigate the incident of 18th January 2018. Under the circumstances I am satisfied that the Respondent was required to investigate the matter and to report the incident to the appropriate authorities. I am also satisfied that the advice the Respondent received to investigate the matter was reasonable and proportionate under the circumstances.

I am not satisfied the Complainant has provided sufficient evidence that such actions amount to a fundamental breach of her contract of employment, particularly in light of the absence of corroborating evidence that she was intimidated to resign. Correspondence of 9th February 2017 from the Respondent to the Complainant, and before the Complainant raised any complaint about what had happened, sets out what appears to be a contemporaneous review of what occurred, and where the Respondent refers to text messages from the Complainant and its understanding that the Complainant had in fact decided to resign after a disciplinary process was explained to her. Whilst a prudent employer might not engage in facilitating a resignation in the manner this Respondent did before it progressed with its investigation, this error does not amount to behaviour that could be so intolerable to amount to a constructive dismissal,

Accordingly, I find under the circumstances the Complainant has not succeeded in arguing that she was entitled to terminate the contract on the grounds that the Respondent has breached a fundamental condition that goes to the root of that contract.

Decision:

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.

In order to prove constructive dismissal, the claimant must clearly show that there was no other alternative option open to her, other than leave her employment. It must be demonstrated that all reasonable alternatives have been considered. Based on the evidence presented I do not conclude that Respondent has behaved in a manner that would amount to a fundamental breach of their obligations to the Respondent and according decide the complaint is not upheld.

Dated:   10th October 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words:

Unfair Dismissal, Constructive Dismissal.