ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00010230

Parties:

Complaint(s):

Date of Adjudication Hearing: 18/10/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977-2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant was employed as a Sales Executive from 27th October 2015 until 16th March 2017 at which time she resigned from her position claiming she was constructively dismissed due to the behaviour of the Respondent.

The Complainant also lodged a complaint under the Organisation of Working Time Act for alleged breaches under Section 12 for failure of the Respondent to provide her with her intervals at work rest breaks.

Summary of Complainant’s Case:

CA-00013319-001- Complaint under Section 8 of the Unfair Dismissals Act, 1977              

The Complainant submitted that due to the behaviour of management during the course of her employment she was left with no option other than to resign from her employment. The Complainant submitted that her performance was questioned regularly by a Director and the Office Manager where she was subjected to unacceptable behaviour; that false accusations were put to her for taking personal calls at work; that she was not given the opportunity to defend herself, and that every conversation was listened to by the Office Managers as if she was waiting for the Complainant to make a mistake.

The Complainant maintained this behaviour was constant and was intimidating for her, and that she was being pulled up on email errors and spoken to in a hostile way. The Complainant also stated that her breaks were watched and scrutinized by management including when she went to the bathroom.

The Complainant believed she was disproportionately micro-managed so that she would be undermined. The Complainant submitted that she was ridiculed and alienated or isolated, and that her time sheets were queried and laughed at. She also complained that she was sneered at and often disbelieved, and where this was done solely to undermine her and reduce her confidence.

The Complainant maintained that the workplace atmosphere was very difficult where one of the Directors, Director A, was very critical and approached a staff member for a mistake in an email abruptly in front of four other members of staff where Director A shouted to the staff member about being incompetent, asking was it a crèche that she was running. This behaviour made the Complainant feel physically sick at her desk, and all the other staff were in disbelief with the Director A’s behaviour.   The Complainant also submitted that the Director A would copy all members of staff in a "query" on an email outlining apparent mistakes and asking for an immediate response as to why the mistake was made. The Complainant maintained this intimidating and bullying behaviour was constant. As a consequence, she broke down in the office after her first 6 months into her employment.

The Complainant outlined that during one tele sales call she was making Director A was standing over her where she felt intimidated and under pressure. Director A insisted that she put the call on hold and the Director then began to speak to her like a child. As a consequence of what had happened the Complainant said she emotionally fell apart and that the incident was never investigated further. The Complainant submitted that due to the stress that Director A was causing she raised the issue with her and said that she was going to hand in her notice. Director A became upset and apologised, and Director A told the Complainant that she should pull the Director aside anytime she felt Director A over stepped her mark. The Complainant was asked not to leave, and Director A promised that things would improve.

The Complainant advised that despite bringing her concern forward as per the grievance procedure nothing improved. The Complainant maintained the verbal outbursts continued, as did the harassing emails. The Complainant also submitted that her morning break was reduced to 5 minutes and she was informed to stop taking smoking breaks by Director A. The Complainant again spoke to the Director again about her behaviour but realised nothing was going to change. By this time, she had competed her first year of work and decided the only option was to hand in her notice in circa October 2016. After handing in her notice the Complainant received a call from another Director, Director B, inviting her to breakfast and she maintained that he begged the Complainant not to leave. The Complainant explained the reasons why she wanted to leave, and Director B said he and Director A would do whatever it took for the Complainant to stay. The Complainant asked if she could work from home, so she would not have to interact with the Director A. The Complainant was allowed to work from home for approximately two weeks and then she said things returned to the way they had been. Another staff member then left the company and the Complainant’s workload increased which heightened her anxiety.

The Complainant submitted that she again brought her concerns to the attention of Director A and alleged she was told by Director A that she was not picking on her but was teaching her to try harder. The Complainant also maintained that her time sheets were now being questioned and snide comments were made querying her hours, and where she was told that she would be docked for time taken.

By January 2017 the Complainant explained that she was also experiencing personal problems where she had broken up with her partner and had sold her house and she was now living in temporary accommodation. The Complainant said she explained her situation to both Director A and the Office Manager, but no support was given to her. One once occasion, the Complainant was asked by her landlord to move her belongings immediately and the Complainant broke down and cried as she had nowhere to go that night, and they had a sales meeting that day. The Office Manager spoke to the Complainant and told the Complainant the landlord should move her belongings and that they had a sales meeting that day. The Complainant said she became hysterical, so the Office Manager went to speak with the two Directors outside her office where they were chatting for at least 10 mins. The Complainant then went to speak to the Directors, but she broke down and was told by Director A to go and be as quick as she could as they had a sales meeting planned. The Complainant left work to sort the issue out and she returned for the sales meeting which ran on after 5.30pm. The Complainant then had to find somewhere to go that night and maintained that Director A told her that work and private life were separate, but on this occasion if she needed a place that the Complainant could stay at Directors A’s home that night. The Complainant decided to stay in a hotel and arranged to go and stay with family member for a week.

On the Friday of that week the Complainant asked if she could leave at 5.20pm as she had to travel. The Complainant submitted that on the following Monday the Office Manager told her she was disgusted that the Complainant had asked her in front of other staff if she could leave early on the Friday as that had put the Office Manager in an awkward position. The Complainant maintained she apologised, and that Director A and the Office Manager whispered and had meetings amongst themselves for most of that day.

The Complainant was upset that night having left work feeling really anxious, upset and stressed. The Complainant decided not to attend work the following day and she received a text from Director A to say that both herself and the Office Manager wanted to meet with her at 9.00am on 21st January 2017 in a local hotel. The Complainant headed to the hotel and as she was going to be late, for the first time, she text the Director. The Complainant arrived at 9.30am and submitted that Director A was angry asking her why she was late that she had a business to run. The Office Manager took minutes at the meeting, and the Complainant recalled that Director A told her that sales were down, and the Complainant was asked what percentage of her time had she given to her work over the past week, and whilst the Complainant could not answer this she felt she was being pushed. Director A then told the Complainant that after this meeting she wanted the Complainant’s full attention to the company where she expected 100%. The Complainant advised Director A that she needed a few days off to sort herself out bus Director A told her the business would suffer and she could not afford to give the Complainant a few days off, stating that a few days would not sort her out as it would take months to get somewhere to live. Notwithstanding the Complainant was told she could have time off until the Friday. The Office Manager then again brought up the Complainant’s request about asking to leave 10 minutes early on the Friday and that she felt disgusted and let down by the Complainant.

The Complainant submitted that Director A and the Office Manager told her that enough was enough and that the Company had been very accommodating to her. Director A then brought up the Complainant’s use of the business phone for personal use for three calls, and that from there on the Complainant was to let either Director A or the Office Manager that she had to let the Director, or the Office Manager know if she was expecting a call, she they could approve it.

The Complainant returned to the office that day and described the atmosphere as being horrendous. The Complainant maintained that when she got up to leave that evening she said goodbye and both Director A and the Office Manager ignored me. The Complainant went to her GP the next day and was certified sick with high blood pressure and stress. The Complainant finally decided in February 2017 for her own health that she had to resign as she felt the situation would never improve despite her efforts.

The Complainant confirmed that she had been approached by the Respondent to reconsider her decision and that she could have her concerns dealt with through a grievance procedure. However, she felt that she could not do that as she had spoken to the Respondent many times about her concerns, but nothing had been resolved.

The Complainant maintained that the failure of the Respondent to address the behaviour of Director A and the Office Manager, despite raising the Complainant raising her concerns to Director A, the Office Manager, and Director B meant the workplace remained hostile and intimidating for her and led to a breach of trust in the working relationship that left her with no option but to resign. For that reason, she maintained that she was constructively dismissed and was seeking remedy of compensation for the Unfair dismissal.

CA-00013319-003- Complaint under Section 27 of the Organisation of Working Time Act, 1997 

The Complainant submitted that she was told after six weeks into her employment by a fellow co-worker, on Director A’s instruction, that their lunch break was 30 minutes and not one hour as she was led to believe. The Complainant maintained that she therefore reduced her lunch break accordingly. The Complainant also stated that they had no canteen or any eating area except for her desk, and if she ate at her desk and the phone rang Director A would expect her to answer the phone. The Complainant submitted that the system of work was designed to exclude breaks rather than include breaks.

The Complainant submitted that she could take a 10-minute break it the morning, a 5-minute break in the afternoon, and a half an hour lunch break, giving her 45 minutes break overall each day.

Summary of Respondent’s Case:

The Respondent, a supplier of medical devices and medical consumable products, acknowledged that the Complainant was employed as a sales executive with the Respondent from 27th October 2015 until she resigned and where her employment ended on 16th March 2017.

The Respondent denied that the Complainant was constructively dismissed or that she did not get appropriate breaks during the course of her working day in breach of the Organisation of Working Time Act 1997.

CA-00013319-001- Complaint under Section 8 of the Unfair Dismissals Act, 1977 

The Respondent submitted that the Complainant was an excellent employee and further stated that it was of the belief that it enjoyed an excellent working relationship with the Complainant throughout her employment.   The Respondent maintained that throughout the Complainant’s employment her personal life was particularly volatile and from time to time the Complainant was very upset in work owing to relationship and housing issues which she discussed openly. The Respondent contended that it went out of its way to support the Complainant through successive difficult times by allowing her additional time off.

The Respondent acknowledged that it raised two minor issues with the Complainant relating to her smoking breaks and taking personal calls during work hours. As a result of the number of working breaks that were taken by the Complainant, Director A would have asked the Complainant to restrict the number of such breaks she took.

The Respondent also maintained the Complainant often took personal calls during her working day and she was regularly informally asked to refrain from this behaviour.

The Respondent advised that the Complainant was selling her house during 2016 and she had put offers on a number of properties, each of which fell through. In January 2017 the Complainant had sold her house but the sale of the house that she had intended to move into fell through which led to her living in short term accommodation for a time. Around the same time the Complainant broke up with her partner. The Respondent said it recognised this was a very difficult time for the Complainant.

The Respondent contended that it was supportive of the Complainant during this time where Director A offered the Complainant the use of a company laptop in order that she could look for a place to rent; that Director A offered to stay back after work to assist the Complainant in her search for a rental property; that when the Complainant’s short term accommodation fell through, Director A invited the Complainant to stay in her home; and where Director A suggested that the Complainant take some time off to organise her affairs.

The Respondent submitted that it became clear toward the end of January 2017 that the Complainant’s work was suffering as a result of her personal issues and she was asked to attend a meeting on 31st January 2017 to discuss the company’s concerns. It was agreed at this meeting that the Complainant would take the rest of the week off to organise her affairs. Following this meeting the Respondent advised that the Complainant submitted sick notes certifying her as unfit to work until 16th March 2017. The Complainant also emailed in her resignation on 16th February 2017 giving 4 weeks’ notice,

When the Respondent received the email, it emailed the Complainant on 17th February 2017 and asked her to reconsider her decision. The Respondent submitted that the Complainant replied on 20th February stating: ‘Following on from my notification of my resignation I feel that I should explain partof the reason for my doing so. …. Joining [the Company] was an exciting time for me in furthering my career within sales and customer service, however I feel it is important to highlight one aspect of my time with [the Company]. It became evident to me while performing my daily tasks that a certain air of anxiety and unease was beginning to impede on my confidence and self-worth which is the total opposite of who I am as a person and a staff member. I have always shown respect and diligence in my duties in whatever industry I have worked in. With this in mind, I think it’s only right that I suggest going forward for [the Company] that management and staff relationships be looked on as a family relationship, without which, the foundation of team building, team respect and productivity will always suffer. Furthermore, without going into too much detail about my personal situation and independent from the grievance and disciplinary procedures [the Company] have in place, it is my opinion that if management and staff etiquette had been sufficiently appropriate to inspire confidence, respect and empathy towards staff relationships, then consequences of my termination of my employment may have had a different outcome.’

The Respondent submitted that it was taken aback by the Complainant’s email and invited her to address her issues through the Respondent’s grievance procedure in an email dated 22nd February 2017. It also asked her again to reconsider her resignation. The Respondent advised that no response was received to the its email and it therefore accepted the Complainant’s resignation in March 2017.

The Respondent maintained that the Complainant’s performance was generally excellent and other than in January 2017 there was rarely any reason to discuss the Complainant’s performance with her. The Respondent acknowledged that there may have been occasions when Director A or the Office Manager discussed the Complainant’s work with her, but only in the normal course of business/management instruction. It advised that no complaint was ever made about the questioning of the Complainant’s work at any stage during her employment and the first time it has been raised as an issue was when the Complainant submitted her complaint to the WRC in August 2017. The Respondent denied it ever inappropriately questioned the Complainant’s performance.

The Respondent advised that it does not recall any behaviour from either Director A or the Office Manager toward the Complainant that could be considered unacceptable. It further maintained that no complaint about unacceptable behaviour towards the Complainant was ever made at any stage during her employment

The Respondentconfirmed that it would have informally discussed the Complainant’s use of the telephone for personal calls with the Complainant on a number of occasions. It contended that the Complainant at a meeting of 31st January 2017 denied using the phone for personal calls, and also provided excuses for doing so which are recorded in the meeting minutes. The Respondent explained that no disciplinary action was taken in relation to the Complainant’s taking of personal calls during work hours, and it denied any accusations were put to the Complainant. Furthermore, the Respondent maintained that no complaint has ever been made about such accusations being put to the Complainant until the WRC complaint in August 2017.

The Respondent further denied that Director A would listen to every conversation held by the Complainant. It denied that Director A was waiting for the Complainant to make a mistake as alleged. The Respondent explained that the office in which the Complainant worked was very small and all staff members in the room could potentially hear the conversations of their colleagues. The Respondent submitted that no complaint was ever made about Director A listening to the Complainant’s phone calls or behaving as if she was waiting for the Complainant to make a mistake. The Respondent noted that the first time this has been raised as an issue is in the Complainant’s complaint to the WRC in August 2017.

In response to the complaint that the Respondent would issue critical and undermining emails to staff, the Respondentsubmitted that the Office Manager sent a general email to all staff about standards of spelling and grammar in emails. It also acknowledged that it is possible that email errors were pointed out in the normal course of business and management instruction. The Respondent advised that no complaint was ever made about the Complainant being ‘pulled up’ on email errors or about emails asking for immediate responses regarding errors in emails. The Respondent noted that the first time this has been raised as an issue is in the Complainant’s complaint to the WRC in August 2017.

The Respondent also denied that the Complainant was spoken to in a hostile way, and maintained it is not the practice of management to behave in a hostile manner toward their employees. The Respondent submitted that the first time this has been raised as an issue is in the Complainant’s complaint to the WRC in August 2017.

The Respondent denied that the Complainant’s breaks were scrutinised to the degree that was suggested by the Complainant. The Respondent maintained that the Complainant’s breaks were recorded as required by the Organisation of Working Time Act, and if excessive breaks appeared to have been taken this was raised with staff. The Respondent submitted that no complaint was ever made about alleged scrutiny of breaks. It contended that the first time this was raised as an issue was in the Complainant’s submission to the WRC in August 2017.

The Respondent denied that the Complainant was micromanaged in an effort to undermine her. The Respondent contended that it managed the Complainant in an appropriate manner where the Complainant was an excellent sales executive and was frequently complimented for her performance. The Respondent submitted emails which it maintained demonstrated where the Complainant’s work was recognised. Management therefore understood that it had enjoyed an excellent working relationship with the Complainant. It advised no complaint was ever made about being micromanaged. The Respondent noted that the first time this has been raised as an issue is in the Complainant’s complaint to the WRC in August 2017.

Similarly, the Respondent denied that theComplainant was ridiculed, alienated or isolated. The Respondent noted that the first time this has been raised as an issue is in the Complainant’s complaint to the WRC in August 2017.

In response to the complaint that the Complainant’s time sheets were queried the Respondent submitted that the only time when there was a genuine query as to their accuracy occurred at the meeting on 31st January 2017 where it is clear that there was an actual error on the relevant timesheet. The Respondent submitted that this meeting was minuted. The Respondent further denied that the Complainant’s timesheets was ever laughed at. The Respondent advised that no complaint was ever made about the Complainant’s timesheets being queried during the course of the Complainant’s employment. The first time this was raised as an issue was when the Complainant submitted her complaint to the WRC in August 2017.

The Respondent also denied that it would have sneered at the Complainant or disbelieved her in an effort to undermine her and reduce her confidence. Yet again the Respondent submitted that the first time this has been raised as an issue is in the Complainant’s complaint to the WRC in August 2017.

In response to the allegation that the Respondent caused the Complainant to breakdown when she was on a sales call, the Respondent submitted that this incident occurred shortly after the Complainant had gone through a break up with her partner. The Respondent advised that the Complainant was under pressure and emotional, that the call was a difficult call and where the Complainant indicated to Director A that she wanted some help. Director A did her best to assist the Complainant and her comments were not intended to be an insult. As it became clear that the Complainant was not following the calculation, Director A decided to give the Complainant the relevant figure and indicated that they could go through the calculation at a later date. The Respondent maintained that the Complainant did not appear upset or to be having a panic attack at any stage. The Respondent advised that the next day the Complainant approached Director A and explained that she was dyslexic and asked that Director A to bear that in mind when explaining issues to the Complainant. Director A said she was sorry as she hadn’t been aware of the Complainant’s dyslexia. The Respondent advised that the Complainant did not hand her notice at this time and that the conversation between Director A and the Complainant was not in the nature of a grievance and there didn’t appear to be any need for an investigation. The Respondent further advised that the Complainant and Director A enjoyed an excellent working relationship after this event occurred.

The Respondent denied there was ever verbally abusive outbursts in the office. No complaint was ever made about verbally abusive outbursts during the course of the Complainant’s employment. The first time this was raised as an issue was is in the Complainant’s complaint to the WRC in August 2017.

In response to the complaint that the Complaint raised her concerns to Director B, the Respondent maintained that the Complainant never had any conversations about the behaviour she alleges with Director A. The Respondent acknowledged that the Complainant did indicate that she was considering resigning at one stage, but the reason she gave for this was that she was planning to move house and the commute would not be manageable. The Respondent advised that it facilitated the Complainant by offering that she could work from home after she moved. The Respondent submitted that the Complainant never in fact worked from home as the house move never took place. The Respondent maintained that the work from home arrangement had nothing to do with any alleged complaint about the behaviour of Director A.

In response to the complaint that the Complainant’s work load increased when a staff member left, the Respondent acknowledged that a sales administrator who would have taken incoming calls left her role on 28th October 2016. The Office Manager started her employment on 2nd November 2016 and was available to take incoming calls from that point, and on 8th November 2016 another employee was appointed to handle incoming calls. The Respondent submitted that there was therefore approximately one week during which there was no person dedicated to handling incoming calls, and during this week there were other staff who were available to answer calls. The Complainant was specifically told not to answer incoming calls as doing so conflicted with her ability to focus on making outgoing calls. The Respondent submitted that no complaint was made about the Complainant’s workload either at this time or at any time during the course of the Complainant’s employment. The first time this was raised as an issue was is in the Complainant’s complaint to the WRC in August 2017.

1. 1. In response to the complaint that when the Complainant was going through a difficult time in January 2017 and needed time off to facilitate removal of her belongings from the home she was renting and for time to stay with a family friend until matters settled, the Respondent maintained that it had supported the Complainant when was she going through this difficult time in her life. The Respondent advised that the supports it offered included giving the Complainant an advance on her wages; inviting the Complainant to stay late after work and use a company laptop to search for rental properties; advising the Complainant of available rental properties that Director A became aware of; inviting the Complainant to stay in Director A’s home when her short term accommodation fell through; allowing the Complainant to take time off work at short notice when she needed to attend meetings at the bank or view properties; and suggesting that the Complainant should take a number of days off to get her affairs in order. The Respondent acknowledged the Office Manager would have made a comment about the Complainant’s landlord, stating the landlord should have organised somewhere else for the Complainant to stay having caused her to be without accommodation. The Respondent submitted that this was not intended to be critical of the Complainant.
   2.  
   3. The Respondent also denied that the Complainant was instructed to be quick and to get back in time for the sales meeting when she was given time off. The Respondent maintained that the Complainant insisted on coming back for the meeting despite being advised to take the rest of the day off. The Respondent advised this indicated how dedicated the Complainant was to her work and where it was in her nature to be a perfectionist.   Furthermore, the Respondent clarified that when Director A invited the Complainant to stay in her house a comment was made about personal and work life being separate in relation to Director A’s own personal life. The Respondent maintained the Director was asking the Complainant to respect her privacy while staying in her home and not to discuss any details of Director A’s private life in the office with other staff members if she was going to take up the offer.

1. 1. The Respondent submitted that in order to facilitate the Complainant’s efforts to manage her difficult personal life while also ensuring the business needs were met, Director A and the Office Manager put in place a process whereby the Complainant was to give a few days’ notice if she wanted time off or to change her working hours. This was in response to multiple last-minute requests for time off/late starts/early clock offs from the Complainant and to allow the Respondent manage its staff appropriately while being as flexible as possible. When these arrangements were being put in place the Complainant announced in the afternoon of 27th January 2017 that she was leaving ten minutes early. The Respondent advised this was in breach of the arrangement which had been arrived at. The Office Manager, who was only a couple of months in her appointment, felt that she was being undermined in her new role and it was in this context that she was upset and disappointed at the Complainant. The respondent denied that the Office Manager would ever have said that she was ‘disgusted’ with the Complainant. The Officer Manager was in fact upset that the Complainant flagrantly ignored the process that was put in place as an exceptional measure for her benefit.
   2.  
   3. The Respondent advised that the meeting on 31st January 2017 was convened because it was clear that the Complainant’s personal life was having a negative impact on her performance and on the Respondent. The Respondent acknowledged that Director A did ask the Complainant to reflect on what percentage she was giving to her job in order to focus her mind on her role. The Respondent advised that it was Director A who suggested that the Complainant should take a few days off because it was clear to the Respondent that she was not capable of working given her personal circumstances at that time. Director A advised the Complainant to put a plan in place as Director A intended to be helpful because it appeared that the Complainant was approaching her problems in a haphazard manner.

Taking all of this into account the Respondent submitted that the Complainant has not identified where a significant breach existed with the root of the contract or what behaviour was so unreasonable that the Complainant could not be expected to put up with it and was thus entitled to resign. The Respondent contended that when making a claim of constructive dismissal it is incumbent on the Complainant to have behaved reasonably, in particular by utilising the Respondent’s grievance procedure. In Respondent argued that in this case the Complainant never raised any grievance during the currency of her employment. It suggested that while the Complainant raised some very vague issues in her resignation letter she was asked to invoke the grievance procedure, but she failed to do so. It was only when the Complainant communicated the substance of her grievances to the WRC, some six months after her resignation, that she specified the details of any complaint she had. The Respondent advised it was therefore never given an opportunity to respond to these concerns, and whilst it had responded to them at the hearing within the Complainant never submitted her complaints at the time. The Respondent submitted that the Complainant’s claim must therefore fail.

CA-00013319-003- Complaint under Section 27 of the Organisation of Working Time Act, 1997 

The Respondent asserted that the Complainant was provided with her statutory intervals at work breaks. It maintained the Complainant received a 30-minute lunch break. The Respondent acknowledged there was no canteen area, but employees were free to leave the workplace to eat and there was no expectation that anyone would work while on their break. The Respondent submitted in the first instance, a 30-minute break in the course of a 8.5 hour day is compliant with the Organisation of Working Time Act 1997 and is in accordance with the Complainant’s contract. Thr Respondent advised the Complainant in particular was neverexpected to take incoming calls and was repeatedly advised that she should not do so as it got in the way of her ability to focus on her own task, which was to make outbound sales calls. It further resented that the Complainant did also take smoke breaks during the day and would have had a least 45 minutes break time over her working day.

Findings and Conclusions:

CA-00013319-001- Complaint under Section 8 of the Unfair Dismissals Act, 1977              

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, there were substantial grounds for justifying the dismissal”.

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 cases of constructive dismissal, 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 the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

Constructive dismissal cases are based on the entitlement test and the reasonableness test. Under the entitlement test the Complainant must succeed in arguing that she is entitled to terminate the contract on the grounds that the Respondent has breached a fundamental condition that goes to the root of the contract. In general, this arises where the actions of the Respondent demonstrate to the Complainant that the Respondent no longer intends to be bound by one or more of the essential terms of the contract of employment. Referring to the test being applied in Western Excavating (ECC) Ltd V Sharp (1978); as was applied further in Murray V Rockabill Shellfish Ltd (2012) ELR 331 a significant breach of the Complainant’s contract should be evident. In effect the question is whether it was reasonable for the employee to terminate her contract on the basis of the employer’s behaviour.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant makes to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery. Indeed, the EAT has made it clear in a series of decisions, as followed by the WRC Adjudication Service, that failure to use company procedures to address a grievance is a necessity in upholding complaints of Constructive Dismissal.

Having considered the written and aural evidence provided by the parties to the case within, I find that the Complainant had become unhappy with her working conditions, and where matters seemed to have come to a head for her when she was experiencing significant personal challenges in January 2017, however the Complainant maintained that she had been treated unreasonably by management for most of her time working with the Respondent.

The Respondent submitted samples of emails between the Complainant and her managers from March 2016. A review of these emails indicates the Complainant’s managers were praiseworthy of the Complainant’s work and where they also facilitated her with her requests for flexibility to attend to her personal matters. The Complainant’s responses also seemed to reflect a positive relationship and appreciation of her managers, in particular towards Director A. When asked at the hearing, the Complainant could not provide examples of the negative or undermining correspondence that she said she received over this period of time.

The evidence presented also supports that the Complainant would have spoken to the Office Manager, Director A, and Director B about her concerns. However, there is a conflict between the parties about what was discussed.   For her part the Complainant maintains that she discussed with Director B the behaviour she received from Director A, and also discussed her concerns with Director A bit nothing changed. The Respondent maintained the discussions at that time were to facilitate working arrangements for the Complainant in light of her personal difficulties, and she did not raise the concerns she presented in her complaint to the WRC. The Respondent also submitted that the Complainant never raised a formal complaint at that time, or at any stage.

On 16th February 2017 the Complainant issued her resignation, and on 17th February 2017 the Office Manager emailed the Respondent expressing surprise at the Complainant’s decision to resign. In this correspondence the Respondent stated that the Complainant was a valued member of staff, asked the Complainant to reconsider her decision, advised the Complainant that the Company had a grievance procedure, and afforded the Complainant with an opportunity to have her concerns formally addressed through that procedure. On 20th February 2017 the Complainant outlined some of her concerns in an email where she was critical of her experiences of management in the company. On 22nd February 2017 the Office Manger responded and again asked the Complainant to raise her concerns through the grievance procedures. However, the Complainant did not issue any formal complaint to the Respondent.

I therefore find that the Complainant did not engage in the formal grievance process that was offered to her by the Respondent. I find the Respondent, by asking the Complainant to make a formal complaint, was reasonable in its attempt to address the concerns particularly as at this stage the Complainant’s personal issues had clearly impacted on her work. I acknowledge the Complainant felt aggrieved by what she was experiencing, but she did not take the opportunity to submit a formal complaint.

Whilst I am not making any decision on the alleged behaviour of the Complainant’s managers as those complaints were not investigated, I must however consider if the Respondent’s handling of the Complainant’s concerns is such that it was so unreasonable that it left the Complainant with no option but to resign. Having reviewed the evidence I am satisfied that the Respondent was trying to deal with the difficult issues that were emerging, and also clearly suggested to the Complainant on at least two occasions that she raise a formal grievance. I therefore do not uphold that the Respondent behaved unreasonably, or that the Respondent’s approach to the matter was so unreasonable that the it could be concluded the Respondent no longer intended to be bound by one or more of the essential terms of the contract of employment. On the contrary the Complainant chose not to do raise a formal grievance and as such prevented the Respondent with an opportunity to consider and seek to resolve the Complainant’s grievance.

For the aforementioned reasons I do not find that the Respondent was in breach of its obligations under the Unfair Dismissals Act, 1977, particularly in circumstances where the Complainant never exhausted the formal grievance procedure.

CA-00013319-003- Complaint under Section 27 of the Organisation of Working Time Act, 1997 

In accordance with Section 12 of the Organisation of Working Time Act 1997, (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes; (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

Having heard the evidence presented by the parties I am satisfied that the Complainant was provided with the opportunity to enjoy her rests and intervals at work breaks in accordance with Section 12 of the Organisation of Working Time Act. Accordingly, I do not find the Respondent was in breach of its obligations under section 12 of the Act. I therefore do not uphold this complaint.

Decision:

CA-00013319-001- Complaint under Section 8 of the Unfair Dismissals Act, 1977              

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. In this case the Complainant has not demonstrated that she made a reasonable attempt to exhaust the internal procedures.

Therefore, the case of unfair dismissal is not upheld.

CA-00013319-003- Complaint under Section 27 of the Organisation of Working Time Act, 1997

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint under Section 27 of the Organisation of Working Time Act, 1997. Section 27 of the Organisation of Working Time Act, 1997 requires me to decide in accordance with redress options under the Act.

I do not find that the complaint under S12 of the Act was well founded and therefore I have decided the Complainant is not entitled to any redress.

Dated:   29 April 2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: