Complainant

Respondent

Anonymised Parties

A Training Co-Ordinator / Instructor

A Training and Rehabilitation Organisation.

Representatives

Solicitors

IBEC

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-00019894-001

20/06/2018

The issue in contention in this Unfair Dismissal Act action concerns the alleged Constructive Dismissal of the Complainant, a Trainer Co-Ordinator /instructor, by her Employer, a Training and Rehabilitation Organisation.

The Complainant made a lengthy written submission and a verbal presentation to the Hearing.

The Complainant commenced employment in 2001. Matters proceeded normally until the Spring of 2016 when a serious incident took place in the on-site Restaurant. The Complainant reported this to Management, but the outcome was less than satisfactory. At the same time in 2016 the behaviour of one of the Complainant’s colleagues -hereafter called Ms.X, became very hostile and aggressive to the Complainant. Effectively Ms.X was displaying all the negative behaviours of a serious Bully and the Complainant felt intimidated and upset. Another colleague, Ms. B, was effectively bullied out of the Organisation by Ms.X. This was despite having taken a three-year career break to get away from Ms.X. She left in mid-2017.

Various other incidents occurred between Ms.X and other colleagues including the Complainant -effectively Ms.X seemed out of all managerial control and was let have her own way in terrifying and bullying staff. Following the departure of Ms. B, the focus of Ms. X’s inappropriate behaviours seemed to increasingly focus on the Complainant. Management were informed but chose to either ignore or pretend it was not happening.

Issue came to a head in an incident on the 4th January 2018 when there was a heated verbal outburst, in the staff canteen, from Ms.X directed to the Complainant. This incident was witnessed by two other staff members. All were upset. The 4th January incident was reported by e- mail of the 5th January to Management, Ms. H, the Complainant’s direct Manager. The Complainant requested in the email that the matter be properly dealt with. On the 9th January the Complainant attended her GP and was certified unfit for work due to work related stress Arising from the Stress certificates the Respondent arranged to have the Complainant examined by Med Mark Occupational Health in Waterford. The examination took place on the 12th February 2018.

The Respondent HR partner, Ms. Y and Ms. H - her direct Manager met the Complainant on the 22nd of March to discuss the Medmark report. The Complainant felt that the Respondent representatives were very reluctant to confront Ms. X and were trying to get her, the Complainant, to go back to work nonetheless. The situation in the Respondent Procedures governing B&H Investigations was discussed and the Complainant indicated a preference for a Formal Investigation based on her E mail of the 5th January.

It was agreed that the Respondent would meet with Ms.X and then revert to Complainant. On the 12th April the Complainant received an update that the process indicated on the 22nd March had not yet commenced. The Complainant was very disappointed.

On the 20th April 2019 the Complainant submitted her resignation. The Respondent replied on the 3rd May 2018 referring to the Dignity in the Workplace policy.

In summary the Complainant felt that the extremely slow response to the incident of the 4th January 2018 was completely personally undermining and a most serious breach of the Organisations Dignity at Work policies. The Respondent had completely failed to provide a Stress free and non-hostile working environment for the Complainant. This was a completely unreasonable situation to place the Complainant in.

The likely continuance of these negative conditions, when also seen in the context of the Management failures since 2016, was a situation that the Complainant could not countenance. It was completely “unreasonable” Respondent behaviour as understood by the classic definitions of Constructive Dismissal. The Complainant had no reasonable option but to resign and claim Constructive Dismissal. Substantial supporting case law was advanced by the Complainant’s legal Advisors.

In addition, the Complainant advanced, in support, evidence of alleged Discrimination and Penalisation which had to be considered in the allied but separate Employment Equality nd Protected Disclosure cases.

The Respondent made a Written and a supporting Oral presentation.

On the 4th January 2018 an incident took place in the Staff Canteen involving Ms X and the Complainant. On the 5th January the Complainant sent an email to the Area Manager Ms.H regarding the incident. Ms. H then, immediately, contacted the Complainant to discuss the issues involved. The Complainant indicted that she wanted Ms.X spoken to by Ms.H in regard to her behaviour but did not want it to become a formal complaint.

On the 10th January the Complainant went on sick leave citing “Work Related Stress” and remained so for the remainder of her employment. On the 15th January Ms. H spoke to the Complainant and outlined the Respondent’s Dignity at Work Policies, the nature of Formal and Informal complaints and the Occupational Health Requirements when Stress certificates are received. The Complainant indicated that she would consider her options and revert to Ms. H when she had done so. The following day, the 16th January, an Occupational Health appointment was scheduled for the Complainant. Delays ensued but the Assessment took place of the 12th February 2018. This Assessment indicated that the Complainant remain on Sick Leave for a further 4 to 6 weeks but that she was fit to engage with the Respondent on employment matters.

A meeting with the HR Partner and Ms H took place on the 22nd March 2018. At this meeting the Complainant indicted a wish to have the issues made the subject of a Formal Complaint.

The Respondent then took steps to set up a Formal Complaints process/Investigation. On the 12th April the Complainant inquired as to whether or not the Formal Procedure was set up. The Respondent replied that it had not happened as yet but was in train. The steps involved such as getting an Outside Manger etc. always took some time. At the Oral Hearing the Respondent outlined the procedures involved.

On the 20th April 2018 the Complainant resigned her employment.

On the 23rd April Ms. H spoke to the Complainant and asked her to reconsider and allow the Respondent time to have a full investigation. This proved unacceptable to the Complainant and her resignation proceeded.

In supporting Legal submissions, the Respondent pointed to the two standard Constructive Dismissal legal tests - Reasonableness and Breach of Contract.

They maintained that the Complainant had not achieved the required Legal standards here – the behaviour of the Respondent had not been legally “unreasonable”, and no fundamental or egregious breach of the employment contract had occurred. In addition, the Complainant had resigned before any internal procedures could take place. This was well recognised as a major if not always fatal flaw in Constructive Dismissal cases.

On these three Grounds the claim for Constructive Dismissal must fail.

Supporting Legal Precedents were quoted.

3:1       The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,…”

As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

The reasonableness test assesses the conduct of the employer and whether it

“…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

“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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, a certain degree of Legal caution is required here.

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The Tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

“the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.

In summary therefore, a failure to use internal Procedures prior to a Resignation must be considered carefully by an Adjudicator in any consideration of a Constructive Dismissal.

However, all cases rest on their own facts and circumstances and I will consider these next.

3:2       Consideration of the Evidence.

To assist in this, I will use the format of the Standard Constructive Dismissal Legal tests - namely - Breach of Contract and Unreasonable Behaviour.

3:2:1       Breach of Contract

The Legal Requirements here are that a Breach of Contract should be of an “egregious nature” i.e. so bad and fatal to the contract as to render it impossible for the Complainant to continue working.

Normally this would involve the non-payment of wages or such like.

From the evidence presented I could not see anything of this nature.   Regarding the issue of how the implied duty in a contract to have a safe working environment free from Bullying and Harassment was discharged by the Respondent, I had to rely, to form an opinion, largely on the oral evidence of the Parties.

It appeared that the incidents surrounding the kitchen knife incident during April 2016 involving a Catering Contractor in the Restaurant had been adequately dealt with by the Respondent. The other issues such as the Asbestos Roof were also addressed. The alleged Early Retirement of Ms.B in late 2017 was not really part of this case and I did not consider it in detail. Ms.B gave supporting Oral evidence for the Complainant but largely focused on the alleged behaviours of Ms.X. Ms. H, the Area Manager, gave oral evidence and appeared to be well in touch with the operations of the Training Centre and was acting professionally. Disputes between colleagues are matters for day to day management and Ms. H appeared to be competently managing the situation. I did not feel that Ms.X was a completely “loose cannon” as alleged by the Complainant.

Overall there was nothing, in my considered view, of an “egregious” dereliction of the Duty of Care that would warrant a Constructive Dismissal.

3:2:2        Unreasonable Behaviours by Management.

The Legal standard here is that the Behaviours must be of a fundamental and again so egregiously bad in nature as to make it impossible for the “reasonable” Complainant to continue working.

The Canteen incident on the 4th January 2018 was not of the Respondent’s making although they did have a duty of care to all the employees. The Respondent, on receipt of the Sick Certs for Work-related Stress sent the Complainant to Med Mark. They provided the Complainant with all the relevant Policies and Ms.H actively followed up with the Complainant. The EAP programme was offered.

Ms.X may have been a difficult colleague for the Complainant but Ms.H, the Manger seemed to be well aware and in charge of the situation.

The Complainant placed great stress on the alleged delays in initiating the Formal Complaint investigation. The evidence pointed to the fact that the request to begin a Formal process was given on the 22nd March. It appeared that the desire in January had been to keep it Informal. The Respondent is a large Training & Rehabilitation organisation and Ms. H outlined the steps normally taken - to get outside the Region Managers etc to act in these cases. The Complainant inquired on the 12th April and I felt that it was not unreasonable for the Respondent to still be finalising matters.

Regarding the overall background with Ms. X as far back as 2016, the early retirement of Ms. B and the January 2018 Canteen incident were, I felt, matters that the formal Investigation being offered could have looked at. In the absence of this Investigation the basis for a Constructive Dismissal claim on these grounds was a difficulty for the Complainant.

The Complainant, by terminating the employment relationship on the 20th April 2018, effectively precluded this investigation. I could see no reason or rationale as to why this ending of employment decision was taken by the Complainant in April 2018.  Ms. H - the Area Manger followed up with Complainant, to seek to have her reconsider, post the Resignation but to no avail. At the Oral Hearing the Respondent appeared to indicate that a resolution by means of an offer of Re-Engagement would be something they could still openly consider.

On balance and having considered the Oral and Written evidence of the Parties I could not see any legally Unreasonable Behaviours on the Respondent part that would justify the ending of the employment by the Complainant.

3:2:3       Non-Use of the Procedures by the Complainant.

The Respondent made the point that the proper steps were being put in place for a full formal investigation. The Complainant by resigning, effectively, set these at naught.

The Complainant argument , following the Allen v Independent Newspapers, IR [2002] E.L.R. 84 case referred to above, of a loss of faith in Respondent procedures and thus allowing a resignation prior to an Investigation was I felt not sustainable. It presumed a “Negative” outcome to the Investigation before the process had even begun. A key issue here is that there had been no previous “Failed” investigations that would allow the Complainant to have formed a negative opinion of Management investigations.

Furthermore, and in plain English there was nothing to have prevented the Complainant allowing the Investigation to take place even while on Sick leave and then decide whether or not to resign depending on the outcome.

3:2:4       Summary and Conclusions.

The Legal Bar for a successful Constructive Dismissal claim is quite high and, in this case, I could not see it being passed.

Accordingly, I must dismiss the claim for constructive Dismissal.

Act

Complaint/Dispute Reference No.

Summary Decision /Please refer to Section Three above for reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00019894-001

Claim is not well founded and is dismissed.