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-00017670-001

27/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00017670-002

27/02/2018

The complainant commenced her employment on an agreed salary of €25,000.00.

In November 2015, as the complainant’s workload increased, she renegotiated her salary orally to €28,000.00, with the respondent Director (hereafter A), however this agreement was not honoured and when the complainant raised it with her manager she was told that she ‘got paid enough if [she] can travel as often as [she] can.’

On 24 June 2016 her salary was increased by only €1,000.00.

On 23 September 2016 the complainant handed A her resignation letter due to having a low salary. Following this she had another meeting with him where she explained the situation and agreed to stay once her salary was renegotiated to €31,500.00 from 21 September 2016 and then to €35,000.00 on 21 January 2017 with another salary review in November 2017.

In October 2016 the complainant found out she was being underpaid again and she brought the issue to A again and this was rectified the following month.

In November 2017, the complainant asked A about her salary review and he denied this saying that he had ever promised this. She became anxious and felt a similar incident was happened as before (in relation to her raise being denied).

She also asked that her workload be lightened as she could not cope anymore. A replied that she was a woman and she could multitask.

By the following 21 January 2017 the agreed change in the complainant’s salary had not been implemented and around the 16 March 2017 she emailed and texted A in relation to this. Around 18 March 2017 they met with the respondent accountant and she was told that he was not in a position to pay her. She said that had she known this she would have left in September 2016.

On 30 March 2017 her salary was increased to €35,000.00 however it was not backdated to the agreed upon date of 21 January 2017.

Regarding her working conditions thecomplainant was moved to an office of her own on 10 October 2016. This was a small room with no windows, no ventillation and a malfunctioning light governed by a sensor to a sensor which the respondent would not address.

In this room the complainant had to see one or two students at a time which would be uncomfortable, stressful and in breach of health and safety standards.

She brought this to the attention of senior management but as the light problem persisted, a small table lamp was given to the complainant by the facilities management team member in December 2017.

From March 2017 to December 2017 she continued complaining about the lighting situation in her office which was ignored and in October 2017 the accountant asked to fix the lights in her office on the complainant’s behalf.

The complainant gave her notice dated 27 November 2017 terminating her position on 28 February 2018. On 22 December 2017 she approached Mr. Ormsby to discuss the situation and the deduction from her salary to which he began screaming on her and yelling that he doesn’t have to deal with her ‘stupid problems’ and that he has his own family issues to which she couldn’t take it any more and left and returned with her resignation with immediate effect.

As a result of the extreme workload put on the complainant since the commencement of her employment, the failure to reduce her workload, the pay disputes and the unsuitability of her place of work. and a final incident where A verbally harrassed her she could not take any more and was forced to terminate her position with immediate effect.

It was agreed at the hearing that the respondent had complied with the Terms of Employment (Information) Act.

The respondent denies that there has been an unfair dismissal. 

By email dated 9th November 2017 the complainant enquired whether the company had a sabbatical leave policy as she was considering going to Canada for a year.   She said that she felt a strong desire to ‘get away’, ‘get out of Dublin’, that she was finding it increasingly difficult to cope with a domestic situation that she made brought to the respondent’s attention of in the early stages of her employment (and one that was accommodated over the duration of her employment). 

She said that she found herself ‘constantly looking over her shoulder’ and in fear that she might the victim of ‘stalking’.   

 When she resigned on 27th November 2017 she provided three months’ notice although her contract required only one month and she explained this by saying she wanted to ensure that the company had sufficient notice to make transition arrangements and that while she had made a decision to relocate to Canada she needed time to arrange her visa and save up in advance of the trip.

Regarding her second letter of resignation on 22nd December 2017 immediate effect, A, who gave direct evidence denied the accusation that he screamed at the complainant in December. 

The interaction related to what she felt was a dispute over holiday versus sick pay which could not be resolved on that day (December 22nd) day as it was the last working afternoon of the year and that she should resolve the issue with her direct Manager. 

The correspondence from the complainant on whether she was taking holidays or sick leave at a particular time in December 2017 is confusing.  When the matter was resolved the payment was made with immediate effect.

When the letter dated 5th January 2018 confirming her resignation the respondent was surprised by her decision. 

There was subsequent correspondence dated 24th January, 31st January, 19th February seeking confirmation of her intentions, expressing concern and providing an opportunity to discuss any matters the complainant felt necessary.

 Regarding the issues raised concerning the pay claims the respondent says that over the approximately twenty-nine months of her employment her salary increased from €25,000 to €35,000 effective 21st January 2017.  This represents an increase in salary of 40% over an 18-month period. 

All payments were made in full. 

A discrepancy whereby her salary was increased from €31,500 to €35,000 on 21st February 2017 rather than 21st January 2017 was due to a misunderstanding in an email.  This was only brought to our attention by the complainant 11 months later in December 2017 and was remedied immediately.

 In relation to dissatisfaction with her office space, it should be noted that as the   complainant was being considered as a PA for A and to act as Student Services Manager, two rooms were created for this purpose.  She was involved in the discussions as to where these offices were to be located, size, facilities within etc.  The two rooms comprised of the office which s the subject of the complaint for use for PA work and was adjacent to A’s office and a dedicated (larger) student services room  to which the complainant had a key to for exclusive use by Student Services. 

The role of PA was essentially never carried out due to a breach of confidentiality by the complainant so the office in question was left unused most of the time and it is inaccurate to state that she was left in a position where she had to meet students in this room. 

There was no PA work undertaken of any significant nature.  The dedicated student services room and other rooms around the college and indeed reception were utilised for individual student meetings. It is accepted that the office was small and the light did not function correctly but it was not a priority given it did not have a use.

 The factual position is that all salary increments were paid and indeed the scale of the salary increases over such a short period are significant.

 There is no evidence that the complainant’s stress was work related and she made no complaint to this effect to the company.  At all times any reference to stress was associated with the employee’s personal circumstances up to and including November 2017.  The company made numerous accommodation to facilitate this including altering work hours and asking certain individuals not to enter the college, offering lifts home, time off etc. 

Regarding the complaint under the Terms and Conditions of Employment (Information) Act, 1994, this is denied as the respondent complied with the requirements of the Act.

The respondent stresses that the giving of three month’s notice and the amicable nature of this undermines the case for constructive dismissal.

While this exchange was denied to have happened at this time by OV during the hearing, I am absolutely standing by the timing and my recollection of the conversation and I believe that it is relevant that OV has subsequently relocated to Canada.

The complainant claims constructive dismissal.

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 by an employer.

It is, after all, a breach of a legally binding contract.

To do so fairly, 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.

Most complaints heard under the Act arise when it is the employer who has terminated the employment and these then will be the tests as to whether the dismissal has been a fair one.

On the other hand, and in general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

But when an employee terminates the contract of employment and then follows this by making 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 employers 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.

There were three main strands to the complaint; the complainant’s salary, her workload and her working conditions.

The first strand concerns the complainant’s salary and various increases she sought, which were promised and in respect of which some difficulties then arose.

In the course of 2015 and 2016, following the change in her role she sought increases; in November 2015 from €25,000 to €28,000. She says this was agreed but not paid, and the following June and increase of €1,000 was implemented.

In September she submitted her resignation and part of the resolution of this was that her salary would increase with immediate effect to €31,500 and to €35,000 the following January. There was a glitch with the first of these payments which was resolved and a second glitch with the January increase which was not brought to the respondent’s attention until much later and was immediately rectified.

Finally she says that part of this settlement was a commitment to a further review in November 2017, which was reneged on.

Regarding her workload the respondent says he only became aware of a problem in this regard in November 2017 following the allocation of extra duties to the complainant and this was immediately rectified by removing those duties.

From submissions to the hearing it is possible to discern different timeframes for the strands referred to above.

From November 2015 until September 2016 the main grievance appears to have been her wages; she states this as the reason for her first resignation in September 2016. Her written submission describes this resignation as arising ‘due to having a low salary’.

There is limited evidence of either serious workload problems or, more importantly for the purposes of making a decision on the complaint, evidence of her having raised them as a formal grievance until November 2017, and this was after she had submitted her letter of resignation.

The office accommodation had been raised consistently and it is hard to see why the simple matter of the office lighting could not have been resolved more expeditiously. The respondent says that this was not her only work station.

In the background are the complainant’s most unfortunate health and domestic difficulties, some of which are referred to above. She experienced a critical episode in March 2017 and again, following the submission of her resignation.

The circumstances of the resignation were as follows.

The complainant raised, (on November 9th 2017) the possibility of sabbatical leave as she was considering a move to Canada. Her resignation was submitted on November 27th. She gave three months’ notice, which according to the respondent was because she could make preparations for the trip.

She denied at the hearing that she said this. She then resiled on that notice period and resigned with immediate effect on December 22nd.

In response to a query on January 5th from the respondent to which she replied on January 15th she referred to an alleged confrontation with A and certain other matters contained in the current complaint.

However, this complaint must be decided on the basis of the original, November 27th resignation; one cannot give effect to the same resignation twice. Her complaint of constructive dismissal must be decided on the basis of whether she was justified in doing so on November 22nd 2017. The confrontation with A had taken place on December 22nd nearly four weeks after her resignation.

I find that she was not. The facts in the case come nowhere close to meeting the test set out in Berber above.

I discount entirely the wages strand of the complaint. There was room for improvement in the respondent’s handling of it but the complainant’s wages rose by 40% in eighteen months, no doubt fully merited on the basis of the changing nature of her workload, but increase they did.

I find the complainant made insufficient effort to prosecute any grievance she had in respect of her workload. This is important.

The EAT has made it clear in a series of decisions, and followed by the Adjudication service that failure to use company procedures to address a grievance is fatal (and see again Dr Redmond’s remarks above.)

In Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268

‘The Tribunal finds that the claimant did not give her employer an opportunity to deal with her complaints. The tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she failed to any of the several avenues open to her.

And in Zabiello v Ashgrove Facility Management Ltd UD1106/2008 the Tribunal stated;

For a claim of constructive dismissal to succeed the claimant needs to satisfy the tribunal that her working conditions were such that she had no choice but to resign. The tribunal is satisfied that the claimant had difficulties with her line manager. However for a period of six months she did not attempt to resolve the issue.

In Kirwan v Primark (UD 270/2003) the EAT held noted that the claimant said that she was only going through the motions and therefore there was not a genuine attempt to utilise the grievance procedures and her case failed.

Similarly, while the conditions in the office and the lighting reflect adversely on the respondent they will not ground a complaint of unfair dismissal.

Accordingly, having considered the three strands of the complaint, and in particular the full circumstances of the complainant’s resignation I find that she has failed to meet the legal tests required to ground her complaint under the Unfair Dismissal Act and it fails.

The complaint under the Terms of Employment (Information) Act was withdrawn at the hearing.

For the reasons fully set out above I do not uphold complaints CA-00017679-001 and 002 and they are dismissed.

Constructive dismissal.