ADJ-00017674

Complainant

Respondent

Anonymised Parties

Accountant

Accountancy Firm

Representatives

Cathy McGrady, B.L.

 Cathy Smith, B.L.

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-00022736-002

22/10/2018

The Complainant contends that she was constructively dismissed from her employment.

The Complainant worked as a Senior Accountant and de facto Office Office Manager for the Respondent from 2006 to 2018 (with one year break in 2007 when she was travelling abroad).       She resigned her job due to the conduct of the Respondent.  She advised the Respondent of her pregnancy in October 2017.     She had suffered two miscarriages and so her pregnancy was classed as high risk.  The Complainant had some difficulties with clients, namely one (Client A) who had an outstanding invoice for €6,400 and another (Client B) for whom the Respondent wished to increase fees.  There were a number of telephone calls from the Respondent to the Complainant on 13 February 2017 during which he barraged the Complainant for over an hour and left her feeling upset and distressed.   The Complainant was so upset and distressed that her husband texted the Respondent demanding that he apologise to the Complainant. During the last two weeks in February the Respondent effectively ignored the Complainant and meetings held usually on Mondays were not held.  In early March 2018 the Complainant wished to discuss arrangements for her maternity leave with the Respondent in private, but he insisted on the conversation being held in the open office where other staff members were present.   Another issue arose in relation to Client D which involved the Respondent again shouting at the complainant.  On 12 March 2018, an incident occurred in which the Complainant was shouted at and felt threatened by the Respondent.  There were a number of upsetting allegations made by the Respondent to the Complainant and complaints about her work.  The Respondent stated that she was now nothing more than an employee going forward (as opposed to being the manager).  There was a serious altercation then where the Complainant had left the room and the Respondent followed her up the stairs and put his face close to hers and she believed he might hit her.   The Complainant then left the office in the afternoon and had to go to her doctor who certified her as unfit for work until her maternity leave commenced in April 2018.   The Complainant’s maternity leave commenced on 16 April 2018 and her son was born on 4 May 2018.  The Complainant received no contact from the Respondent.  It is submitted that the Complainant’s job was advertised in July 2018.   The Complainant’s health was adversely affected by the work situation and she notified the Respondent of her intention to resign, effective from the end of her maternity leave.  This was notified by email dated 2 August 2018.  The Complainant set out in that email the clear reasons for her resignation including the Respondent’s behaviour towards her in the months leading up to her maternity leave, the severe verbal abuse directed at her on 13 February 2018 and 7 March 2018 and 12 March 2018.  She also advised him that she had been ignored, isolated, unjustifiably criticised and humiliated by him in the months prior to her maternity leave.  She further stated that she had had an excessive workload which the Respondent had done nothing to alleviate, and that all of the issues had an impact on her health at a time when she should have been happy given the birth of her baby.  She further indicated that she could not see how the matter could be addressed internally given the Respondent’s position in the company.   The Respondent did not reply until 4 October 2018 and it is submitted, his response was belated and disingenuous.  The Complainant had no faith that the matters could be resolved and she was fearful and distrustful of the Respondent given the situation.     It is submitted that the Complainant was unfairly dismissed within the meaning of Section 1 of the Unfair Dismissals Acts 1977 to 2017 wherein the definition of constructive dismissal is:

“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”.

Case law was submitted to support the contention that the Complainant was constructively dismissed i.e. Labour Court in Homecare Medical Supplies v O’Donnell UDD1747  (test of repudiatory breach of contract and test of reasonableness).

Complainant

Respondent

Anonymised Parties

Accountant

Accountancy Firm

Representatives

Cathy McGrady, B.L.

Cathy Smith, B.L.

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-00022736-002

22/10/2018

The Complainant contends that she was constructively dismissed from her employment.

The Complainant worked as a Senior Accountant and de facto Office Office Manager for the Respondent from 2006 to 2018 (with one year break in 2007 when she was travelling abroad).       She resigned her job due to the conduct of the Respondent. She advised the Respondent of her pregnancy in October 2017.     She had suffered two miscarriages and so her pregnancy was classed as high risk.   The Complainant had some difficulties with clients, namely one (Client A) who had an outstanding invoice for €6,400 and another (Client B) for whom the Respondent wished to increase fees.   There were a number of telephone calls from the Respondent to the Complainant on 13 February 2017 during which he barraged the Complainant for over an hour and left her feeling upset and distressed.   The Complainant was so upset and distressed that her husband texted the Respondent demanding that he apologise to the Complainant. During the last two weeks in February the Respondent effectively ignored the Complainant and meetings held usually on Mondays were not held. In early March 2018 the Complainant wished to discuss arrangements for her maternity leave with the Respondent in private, but he insisted on the conversation being held in the open office where other staff members were present.   Another issue arose in relation to Client D which involved the Respondent again shouting at the complainant. On 12 March 2018, an incident occurred in which the Complainant was shouted at and felt threatened by the Respondent. There were a number of upsetting allegations made by the Respondent to the Complainant and complaints about her work. The Respondent stated that she was now nothing more than an employee going forward (as opposed to being the manager). There was a serious altercation then where the Complainant had left the room and the Respondent followed her up the stairs and put his face close to hers and she believed he might hit her.   The Complainant then left the office in the afternoon and had to go to her doctor who certified her as unfit for work until her maternity leave commenced in April 2018.   The Complainant’s maternity leave commenced on 16 April 2018 and her son was born on 4 May 2018. The Complainant received no contact from the Respondent. It is submitted that the Complainant’s job was advertised in July 2018.   The Complainant’s health was adversely affected by the work situation and she notified the Respondent of her intention to resign, effective from the end of her maternity leave. This was notified by email dated 2 August 2018. The Complainant set out in that email the clear reasons for her resignation including the Respondent’s behaviour towards her in the months leading up to her maternity leave, the severe verbal abuse directed at her on 13 February 2018 and 7 March 2018 and 12 March 2018. She also advised him that she had been ignored, isolated, unjustifiably criticised and humiliated by him in the months prior to her maternity leave. She further stated that she had had an excessive workload which the Respondent had done nothing to alleviate, and that all of the issues had an impact on her health at a time when she should have been happy given the birth of her baby.   She further indicated that she could not see how the matter could be addressed internally given the Respondent’s position in the company.   The Respondent did not reply until 4 October 2018 and it is submitted, his response was belated and disingenuous. The Complainant had no faith that the matters could be resolved and she was fearful and distrustful of the Respondent given the situation.       It is submitted that the Complainant was unfairly dismissed within the meaning of Section 1 of the Unfair Dismissals Acts 1977 to 2017 wherein the definition of constructive dismissal is:

“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”.

Case law was submitted to support the contention that the Complainant was constructively dismissed i.e. Labour Court in Homecare Medical Supplies v O’Donnell UDD1747(test of repudiatory breach of contract and test of reasonableness).

The Respondent objects to the manner in which the Complainant pursued her complaints, particularly the fact that the Respondent never received a particularised complaint from the Complainant until after close of business on 11 February 2019, on the eve of the hearing. This was despite the Respondent’s solicitor requesting the Complainant’s submissions by letters dated 6 September 2018 and 13 November 2018. It is argued that at all times in these proceedings the Complainant has acted to the detriment of the rights of the Respondent to fair procedures and due process, particularly in relation to the Principal of the Respondent company against whom she has made serious personal allegations.  These very serious allegations are strenuously denied.                             By way of background, the Complainant claims she is an Accountant and that she was engaged as such and as a Manager by the Respondent. This is incorrect. She is part qualified as an Accountant and she was engaged as an Accounts Senior.   This is particularly where the Complainant claims that she was demoted, which is denied. The allegations put by the Complainant in respect of the Respondent’s interactions with her are denied. The Complainant spoke to the Principal of the firm on 12 March 2018 in a crude and aggressive manner. The Principal did not reciprocate with the same treatment and vehemently denies the characterisation of the incident by the Complainant, which was witnessed by the Respondent’s receptionist. It is acknowledged that the Principal did have to speak to the Complainant on 13 February 2018 about Client A leaving as a client. However, this was a matter which was necessary for him to discuss with the Complainant. A separate complaint was made to the Complainant about her work on 13 February about Client B. It was in the context of two clients being dissatisfied with the Complainant’s service which necessitated that he speak with the Complainant about these issues.   The conversation was not aggressive or hostile as suggested by the Complainant. While the Complainant may well have been distressed by the fact that she had been criticised by clients, and that this was being discussed with her by her manager, this was not exacerbated in any way by the Respondent’s actions.   It is argued the Complainant was always advised of errors when they happened with a view to resolving matters with a client and moving on.   In relation to the 12 March situation, it is submitted that when the discussion regarding maternity leave and the Complainant’s wish to work during her leave arose, the Respondent advised that for various reasons this would not be possible. The Complainant became extremely angry and was rude, aggressive in both tone and language. The tirade was so loud it could be heard by the receptionist. The Respondent rejects entirely any suggestion that he was intimidating or abusive to the Complainant and in fact the opposite is the case.   The Complainant walked out of the room and returned upstairs. When the Respondent went up the stairs to discuss a matter with another colleague, the Complainant who was at the top of the stairs stated “are you going to hit me?” The Respondent was shocked and appalled at this and the fact that the Complainant made this untrue and defamatory accusation to her colleagues in the office and has repeated it in her letter of resignation and in her submission. On the same day, subsequent to the incident, the Respondent made contact with his HR Advisor requesting mediation be provided. He also contacted the Complainant by text enquiring as to whether she was ok.   The Complainant confirmed she would not be returning to work and subsequently resigned on 1 August 2018 effective from 19 October 2018.   The Respondent wrote to the Complainant on 4 October 2018 asking her to withdraw her resignation, telling her she was welcome to return to work and advising her of mediation services to be made available. It is argued that the onus of proof lies with the Complainant to prove that she was entitled to resign her employment because of the Respondent’s conduct. The Respondent submits that while the Complainant was on maternity leave she resigned her employment, did not attempt to raise any grievance and rejected the offer to engage an external professional to facilitate a mediated return to work. The Respondent submits that these actions do not support a position of reasonableness or entitlement on the part of the Complainant to terminate her contract of employment.   Case law was submitted regarding repudiation of contract and reasonableness in support of the Respondent’s arguments (Paris Bakery & Pastry Ltd v Mrzljak DWT 68/2014).   It is also submitted that the Complainant is not absolved from the responsibility of at least raising the issues with the Respondent and failure to accept the assistance of an external HR Advisor was entirely unreasonable on the part of the Complainant. For these reasons her complaint must fail.

The evidence shows that while the parties had a fairly amicable and professional relationship during most of the time, the relationship between the Complainant and Respondent deteriorated rapidly during the months of February and March 2018. The situation came to a head during the meeting on 12 March 2018. I note that the Respondent had issues with the Complainant in relation to some clients and I note and accept the Respondent’s point that pregnancy does not provide a right for employees to be immune from performance management.   However, the evidence shows that a serious altercation occurred on 12 March 2018 when the Complainant was 7 months pregnant at the time. I accept the Complainant’s evidence that she was in serious distress and in some fear as a result of the Respondent’s behaviour.

Section 1 (b) of the Unfair Dismissals Acts 1977 – 2007 defines constructive dismissal as:

“(b) 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”.

In this instant case, I find that the Respondent had a duty of care towards a 7-month pregnant employee and in that context I find the Respondent acted in an unreasonable manner towards the Complainant. In deciding whether it was reasonable for the Complainant to terminate her contract of employment, I note the summary of events as outlined in the Complainant’s resignation letter, I note the complete lack of contact from the Respondent from 12 March 2018 until he contacted her by letter dated 4th October 2018 offering a facilitated discussion. I find in all the circumstances, the conduct of the employer in this instant case was such that it was reasonable for the Complainant to terminate her contract of employment. I uphold her claim that she was unfairly dismissed.