ADJ-00016337

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00016337

Parties:

Complaint:

Date of Adjudication Hearing:  09/04/2019

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

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

Background:

On the 17^th August 2018 the Complainant, a Restaurant Supervisor, submitted that she was constructively dismissed on the 17^th August 2018 by the Respondent, a Hotel, due to her frustrations with the Respondent’s handling of her complaint of bullying. The Complainant was seeking compensation. The Respondent denied that it failed to handle the bullying complaint appropriately and submitted that the Complainant resigned before the appeal of the investigation of her complaint had been completed.

Summary of Complainant’s Case:

The Complainant was employed from 1^stSeptember 2015 as a restaurant supervisor at the Respondent’s hotel. She submitted that she was having difficulties with her line manager which culminated in her annual leave being denied over the 2017 Christmas period, that a review of her contract was denied, and there was an exclusion from the Christmas party of her and members of her team. The Complainant further submitted that in March 2018 she spoke the HR manager and to the Assistant General Manager about her supervisor persistently cutting her roster hours and where she was having difficulties with her supervisor’s general attitude and behaviour, particularly regarding the use of group chats.

In April 2018 the Complainant maintained that she met with HR explaining her difficulties with the supervisor, and in May 2018 she again spoke with the General Manager regarding her difficulties. In May 2018 a staff meeting took place that was attended by a number of staff and the Assistant Manager. The Complainant submitted that at this meeting the Assistant Manager mentioned that the Complainant and her supervisor were not getting on together. As matters continued to be unresolved, the Complainant emailed the Assistant Manager about her ongoing difficulties in May 2018, and in June 2018 she emailed the HR manage requesting to be moved. The Complainant advised that in June 2018 the supervisor was moved department, but he persisted with sending messages on group chat and emails, and on the 8^th of June 2018, following comments on a group app by the supervisor the Complainant felt so humiliated that she raised her concerns to the Assistant Manager by email and left work on certified sick leave. The Complainant did not return to work following that event.  The Complainant maintained she emailed her letter of complaint on the 8^th June 2018 and even though the Assistant Manager emailed her back on the same day that he would investigate the matter and contact her in the following week, it took 21 days before matters were dealt.  

The Complainant advised that on the 15^th June 2018 while she was on sick leave the HR manager called her.  The Complainant submitted that she told the HR manager of her grievance and the HR manager told the Complainant that she would get back to her. On the 22^nd June 2018 the HR manager contacted the Complainant and the Complainant was asked to see the company doctor. At this time the Complainant alleged the HR manager told the Complainant that she knew nothing about an investigation of her complaint. The Complainant visited the company doctor on the 27^th June 2018 where she was certified as being fit to return to work, however the doctor suggested management engage with the Complainant in dealing with her grievance and that she should return to work as part of that engagement.

The Complainant met with the Assistant Manager on the 3^rd July 2018 to outline her grievance. The Complainant submitted that whilst the meeting took place off site in a different hotel, the room that was selected for the meeting was a bedroom and she felt this was highly inappropriate and where she felt uncomfortable. The Complainant felt the Assistant Manager was not taking her complaint seriously. However, he took notes of the meeting. In addition to outlining her complaints, the Complainant had asked the Assistant Manager to compensate her for her loss of earning while she was on sick leave as her absence was due to work related stress.

The Complainant submitted that on the 4^th July 2018 the Assistant Manager called her asking her to come back to work but that he was not prepared to investigate her complaint against her supervisor, nor was he in a position to address her loss of earnings for her absence as there was no sick pay policy. On the 4^th July 2018 the Complainant also emailed the owner of the business expressing concerns about the handling of her complaint and the owner who responded stating that he had faith in management, and that they would follow the procedures. The Complainant then requested the Assistant Manager to commence a formal investigation.

The Complainant submitted that on the 7^th July 2018 the Assistant Manager informed her that he had started and finished his formal investigation. The Complainant was concerned that no formal statement had been taken from her, nor were any witnesses met. She maintained that the employee handbook procedures stated that “the complaint will be subject to an initial examination by a designated member of management, who can be considered impartial, with a view to determining an appropriate course of action… a formal investigation of the complaint will take place with a view to determining the facts and the credibility or otherwise the allegation. Whilst it is desirable to maintain confidentiality, once an investigation of an issue begins it may be necessary to interview other staff. If this is so, the importance of confidentiality will be stressed to them. Any statements taken from witnesses will be circulated to the person making the complaint and the alleged bully/harasser for their comments before any conclusion is reached in the investigation. When the investigation has been completed both parties will be informed in writing as to whether or not the complaint has been upheld. Both parties will be given the opportunity to comment on the findings before any action is decided upon by management. All complaints received will be treated seriously, confidently, and dealt with as soon as is practical... A record of all relevant discussions which take place during the course of the investigation will be maintained by management.”

In this regard the Complainant maintained that she was not provided with a written note of the meeting with the Respondent, nor with notes of any meetings with witnesses that were met. She further maintained that the Executive Chef had been approached and spoken to with regards her complaint where she believes this was gossiping and was a breach of the confidentiality as laid out in the team handbook.  The Complainant further maintained that whilst the Assistant Manager advised her he had completed his formal investigation she had not been invited to give a formal statement. The Complainant submitted that she had not given the Assistant Manager permission to use the minutes from the informal meeting on 3^rd July 2018.

The Complainant maintained that at the notes of the meeting on 3^rd July 2018 recorded that the Assistant Manager advised her that her particular complaint referred to the recent text message, and in the interest of fairness she could not bring up issues over the past 6 months which were unrelated. The notes further record that the Complainant asked that all this information be taken into consideration as the complaint was due to the accumulation of 6 months of previous issues.  The Complainant maintained that she had felt her complaints had fallen on deaf ears and she had exhausted all means open to her to resolve her grievance. The Complainant also expressed a desire to return to work as soon as the Respondent had put a process in motion to resolve her concerns,

The Complainant was therefore surprised to learn that the Assistant Manager had informed her he had completed a formal investigation in a matter of days and without receiving any further information or notes of meetings. She submitted that on the 11^th July 2018 the Director of Sales and Marketing (the Director) reviewed the investigation and decided that her complaint was unfounded. The Complainant also submitted that the Director would have disclosed the contents of the Assistant Manager’s report to the Executive Chef where she felt that this was a breach of confidentiality and gossiping. As a consequence of what she experienced and where she felt the investigation procedure was neither thorough nor fair to her, she submitted an appeal of the investigation. In this appeal she raised six areas of concern which included a concern that the formal procedures were not followed and that she had not given a formal statement nor had any witnesses been spoken to;  that the Director was incorrect in not upholding the supervisor’s behaviour as bullying as she maintained that the staff handbook indicated bullying is direct or indirect; that bullying is also a series of events however whilst the Assistant Manager acknowledged that she had made a series of complaints these complaints were ignored and the Assistant Manager was unwilling to take them into account as part of the investigation; that HR had not been involved in the process; that despite heads of departments being informed 12 months earlier by the then HR manager that the use of messenger was to stop immediately, it had continued. (In this regard evidence was provided at the hearing by the former HR manager that issues had previously arisen with the use of messenger and as a consequence the use of messaging was no longer permitted); and that the Respondent failed to adhere to the policy.

Having appealed the outcome of the investigation the Complainant was invited to a meeting with the General Manager on the 10^th August 2018 to hear her appeal. At this meeting she was accompanied by her representative whom she indicated previously to the Respondent that he would be dealing with the matter. She submitted that when the General Manager observed that she was being accompanied he refused to progress with the meeting and left.  As the Complainant did not hear further from the General Manager she reported to her GP on the 17^th August 2018.  At this stage she felt she had no option but to resign and she submitted her resignation letter on the 17^th August 2018 “with a heavy heart.” Following her resignation, on the 20^th August 2018 the Complainant received a letter from the General Manager which addressed her appeal. In this letter the General Manager advised that he did not uphold her appeal.

The Complainant maintained that she had never been provided with an opportunity to make an official statement regarding her complaints of bullying and that she had never been given the change to call witnesses with regards to her complaints. She advised she had also been denied her representation at the appeal hearing and that there had been a breach in the confidentiality with regards to her complaint. She maintained that all of this left her feeling humiliated and in a fragile mental state. She submitted that she had sought and was successful in finding alternative employment, but this was at a lower rate of pay, was temporary, and where there was no promotional opportunities available to her. She was therefore disadvantaged with what she had experienced and was seeking compensation for the unfair dismissal and the ongoing loss of earnings since her dismissal.

Summary of Respondent’s Case:

The Respondent denied that the Complainant had been unfairly dismissed or that it had failed to reasonably handle her complaint.

The Respondent spoke highly of the Complainant advising that she was an asset to the hotel. The General Manager maintained that throughout his time with the hotel he would have held the Complainant in high regard and hoped that she would have been in a position to return to her employment.

The Respondent acknowledged that the Complainant would have spoken to HR and raised concerns with regarding her working conditions, and on 9^th April 2018 she would have met with the HR manager where she was asked at that time if she wanted to make a formal complaint about her concerns of the behaviour of her supervisor.  The Respondent maintained that the Complainant advised she did not want to do so. The HR manager submitted that she would have advised the Complainant on how to deal with these matters, but the Complainant did not wish to progress with any formal complaint about her supervisor at that juncture.

The HR manager was of the view at that time the Complainant was seeking less hour’s work.  The Respondent submitted that the Complainant had also raised concerns that she was working every weekend and she was seeking to be rostered every other weekend.

The Respondent advised that on the 8^th June 2018 the Complainant made an informal complaint by way of an email that was sent to the Assistant General Manager and where the HR manager was copied on the complaint. The Respondent maintained that this complaint referred to a comment on a group message from the supervisor where the Complainant felt that she had been singled out and humiliated by the supervisor’s comments. The Respondent advised that the Complainant did not return to work following making her informal complaint and remained off work since that date.

The Respondent further submitted that the complaint was handled in a timely manner. It maintained the Assistant General Manager acted quickly in relation to the complaint on the 8^th June 2018, that as the Complainant was on sick leave the HR manager decided to allow a week to pass before contacting the Complainant, and a week later the Complainant was invited to an occupational health assessment. This assessment took place on the 27^th June 2018 and once the occupational physicians report was received the Respondent maintained that it set up a meeting the following week and progressed with matters in a timely manner from that point.

Following the occupational health assessment, the Complainant had been advised that the Assistant General Manager would investigate the complaints and would come back to the Complainant within a week, which he did.  The HR manager departed on planned annual leave but had ensured that matters could progress in her absence and the procedures as set out in the team handbook were followed. Whilst acknowledging the HR manager was on leave during the course of the investigation the Respondent denied that the HR manager had not progressed with matters. The Respondent contended that it was a matter of fact that the HR manager was on leave and rather than to delay procedures the Respondent was satisfied that its managers were capable of dealing with the matter, which they did.

The Respondent submitted that the Assistant General Manager reviewed the informal complaint and commenced an investigation in accordance with the appropriate procedures. The Assistant General Manager invited the Complainant to a meeting on 3^rd July 2018 and forwarded her an agenda prior to the meeting, which took place off site.  The Assistant General Manager in his evidence confirmed that the meeting room that had been arranged was a hotel bedroom, he acknowledged that this was unhelpful, and he was embarrassed by this situation as it was not intended. Notwithstanding, the meeting progressed, and he took notes of the meeting which were submitted at the hearing.

The Respondent acknowledged that on the following day, 4^th July 2018, the Complainant had informed the Assistant General Manager that she wanted to make a formal complaint. On that basis the Assistant General Manager proceeded to upgrade the investigation to a formal status and continued to carry out various investigative steps which included a meeting with the person complained of.

The Respondent advised that the complaint it had received from the Complainant referred to an issue relating to a text message that she had sent to another member of staff and where the supervisor had made comments about this message. It was these comments that had humiliated and upset the Complainant.  The Respondent maintained the Assistant General Manager conducted a detailed and formal investigation where relied on the notes he had taken with the Complainant on 3^rd July 2018. In accordance with the team handbook the Assistant General Manager compiled the evidence provided and presented this evidence to the Director to review and to make a determination on the complaint. The Respondent submitted that the procedures laid out in the team handbook states that “When a formal complaint is being made, then the employee should contact their supervisor/ manager as soon as possible and outline the nature of the complaint in writing. If this is inappropriate, then the employee should contact the Human Resource manager. In the interest of natural justice, the alleged bully or harasser will be notified in writing of the nature of the complaint, given a copy of the allegation, informed of his or her right to representation and will be given every opportunity to rebut the detailed allegations made. The complaint will be subject to an initial examination by a designated member of management, who can be considered impartial, with a view to determining an appropriate course of action. An appropriate course of action at this stage, for example, could be exploring a mediated solution or a view that the issue can be resolved informally. Should either of these approaches be deemed inappropriate or inconclusive, a formal investigation of the complaint will take place with a view to determining the facts and credibility or otherwise of the allegations.”

In this regard the Respondent maintained that the Assistant General Manager had completed that phase of the formal procedures and submitted documents and evidence to the Director who assessed all the documents and reached a determination in relation to the complaint.

At the hearing the Director provided evidence that she had considered the information provided, and before making any decisions sought to meet with the Executive Chef to get an understanding of the environment and to help her make a determination of the issues. She acknowledged that whilst she met the Executive Chef, she did not take notes of that meetings, nor did she submit the notes of this meeting to either the Complainant or the supervisor accused of the bullying. She denied that she would have engaged with the Executive Chef in a gossiping manner and that she considered his advice which assisted her in coming to a conclusion. The Director advised that while considering the supervisor’s comments on the group chat to be a wrongdoing she did not deem the incident as being an act of bullying particularly as the Complainant had started the group chat. The Director acknowledged that she submitted her final report and conclusions by letter to the Complainant on the 11^th July 2018 in which she determined on the facts and evidence presented that the Complainant had not been bullied by her supervisor.

The Respondent acknowledged that on the 18^th July 2018 the Complainant filed an appeal of the decision by way of email to the General Manager. The appeal contained six grounds.

The Respondent submitted that the General Manager conducted the appeal process in line with the team handbook and dealt with all six points in the appeal. He maintained that he considered the notes, the materials and evidence provided during the course of the investigation including the minutes of interviews held with the parties. The General Manager also took into account that the Complainant had worked with the hotel for 3 years and where he highly regarded the Complainant.  The General Manager therefore sought to meet with the Complainant personally for the purpose of informing her of his decision regarding the appeal. This meeting was arranged on the 10^th August 2018, and the General Manager advised that this meeting was not to hear the appeal but rather to explain to the Complainant that he had decided upon the appeal and where he wanted to share his decision in person before issuing his decision in writing, that he wished to discuss a structured return to work of the Complainant and to address any outstanding issues.

The General Manager submitted that when he arrived at the meeting, he was met by the Complainant who was accompanied by an external representative. As a General Manager was not accompanied he decided not to progress with the meeting at that point on the basis that he had no note taker. The General Manager advised that he did not recall telling the representative that he would not progress with the meeting because the representative was there. He advised that the reason for not progressing was that he had no note taker and had not been informed that the Complainant was to be accompanied. He advised he therefore cancelled the meeting and did not discuss the appeal findings with the Complainant. He had not issued his appeal findings at that point.

The Respondent maintained that on the 17^th August 2018 the Complainant submitted her letter of resignation and the following day the Complainant submitted her complaints to the WRC. The Respondent contended that the Complainant’s resignation and her complaints to the WRC was in advance of her receiving the appeal decision, and where the Complainant had also refused an option of mediation subsequent to the appeal decision being issued.  The Respondent advised that the General Manager delivered his written decision of the appeal dated 17^th April 2017 and the Complainant received this on the 20^th August 2018. The appeal upheld the decision of the Investigation. 

With regards to the appeal the Respondent advised that they considered all 6 elements of the Complainant’s appeal where the General Managers letter addressed all six grounds. The Respondent maintained that it did adhere to the formal procedures; that it had considered the allegation of bullying and had found that the supervisor’s response to her communication on the group chat did not constitute bullying; that it did not view the Complainant’s complaint to be covering a series of issues but that it viewed the complaint under review to be an isolated incident of behaviour. It confirmed the HR manager was involved in the investigation process from the beginning and that whilst there was a direction that social media and group apps were not to be used by staff it was the Complainant who started the group chat on the 8^th June 2018 and that the supervisor had commented on that.

Overall the Respondent denied that it had behaved unreasonably or in a manner that could lead to the Complainant believing that their behaviour was so unreasonable that there was no option but for her to resign from her position. In that regard the Complainant referred to jurisprudence and in particular to Olivia Barry vs Quinn Insurance (UD1775/2010) and Betty Clifford Vs Maritrada Ltd (2000) UD27/2000, MN58/2000. The Respondent argued that in these cases where an employee claims they have been constructively dismissed the burden of proof is placed upon the employee to prove that their resignation was justified. In effect the Complainant is required to provide that they have exhausted all avenues of resolution before they resigned from their position. This generally requires the employee to bring is grievance to the attention of its employer, to follow all the employer’s grievance procedures and industrial relations procedures as outlined in a respective contract or employee hand book. Only where these procedures have not received an appropriate outcome, or where the employer has refused to comply with or engage in these procedures, then should an employee consider resigning from its position. A failure to invoke these procedures or follow them through to their natural end will leave the court or tribunal with no option but to reject a claim of constructive dismissal.

With regards to the Barry vs Quinn case, the Respondent noted the EAT stated that “Except in very limited situations an employee must exhaust all avenues for dealing with his/her grievance before resigning.” And in the Clifford vs Maritrada case, which was a case where the Complainant could no longer work with a manager, the EAT had stated that whilst they accepted the evidence of the Complainant a reasonable step was to invoke the grievance procedure, not resign. In this regard the Respondent maintained that the Complainant had resigned her position before the procedures had been completed and that is tantamount to not engaging in the procedures in the first place.

The Respondent therefore submitted that as the Complainant had failed to allow the Respondent to complete its process, where she resigned before an appeal letter was issued and before the Respondent could discuss the arrangements for her return to work.  The Respondent argued that under these circumstances it was unreasonable for the Complainant to conclude she had no option but to resign. Accordingly, the Respondent maintained it had not behaved in a manner that would amount to a constructive dismissal and therefore denied that the Complainant was unfairly dismissed.

Findings and Conclusions:

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, the were substantial grounds for justifying the dismissal”.

S6(4) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.

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 unfair 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. 

In the case within the Complainant raised concerns about her treatment from her supervisor, sought to have these concerns investigated under the Respondent’s bullying procedures, maintains the Respondent failed to adhere to the procedures, and when she appealed the findings of the investigation into her complaints the General Manager who was dealing with the appeal terminated the appeal meeting before it started. As she heard nothing further from the Respondent she resigned her position a week later on the basis she had lost all trust in the employment relationship. 

The Respondent for its part maintained it conducted a proper investigation of the complaint and the Complainant left her employment prematurely before it had completed the appeal process, or before the Respondent had been given the opportunity to discuss a structured return to work following the investigation of the complaint and before any outstanding issues could be addressed.  

Having reviewed the evidence it is clear that the Complainant had concerns about an ongoing relationship with her supervisor from at least December 2017 and where she would have raised her concerns in April 2018 with HR.   At that time the Complainant indicated she did not want to engage with a formal procedure but instead hoped that by addressing her patterns of work that matters could be resolved.

It is also clear from the evidence that the Complainant had further difficulties which culminated in a complaint she raised with management on the 8^th June 2018 and where this complaint referred to comments made by the Complainant’s supervisor in a group chat that the Complainant had instigated that day. The consequences of what occurred led to the Complainant taking sick leave where both her GP and the organisation’s occupational health had identified matters relating to her work and the relationship with her supervisor as contributing to her sick leave. It is also clear that the occupational health report indicated that the Complainant’s concerns with her supervisor needed to be addressed and once that process was put in place that she could return to work.

The evidence further supports that on receipt of the occupational health report the Respondent did progress with the handling of the Complainant’s concerns where the Assistant General Manager met with the Complainant on the 3^rd July 2018, and where he noted the Complainant’s concerns at that stage. On the 4^th July 2018 the Complainant advised the Respondent that she wished for matters to be dealt with formally. The Complainant also emailed the owners at that point as she had concerns as to whether the matters would be dealt with fairly. The owners responded by advising the Complainant the matter would be dealt with properly.

The Assistant General Manager then progressed with a review of matters where he understood the complaint related to a group app message and comments from the supervisor.  The Assistant General Manager maintained he adhered to the formal procedures as set out in the team handbook, reviewed the complaint, and produced the relevant documentation to a senior manager, the Sales and Marketing Director, to review the matter and come to a decision. The Director then spoke with the Executive Chef before issuing her decision. On the 11^th July 2018 the Director issued her findings where she did not uphold the allegation of bullying.

In reviewing how the Respondent handled the investigation, I must consider the procedures as laid down in the team handbook which sets out the steps to be followed. In this regard it is clear that the team handbook states that in a formal investigation a statement will be taken from the Complainant, the Respondent, and witnesses, and that records of these meetings will be shared with the Complainant before any decision is made. Having reviewed the evidence it is clear that neither the Assistant General Manager nor the Director fully adhered to these procedures. It is therefore clearly evident that the Respondent omitted to follow its own procedures, which form part of its contract of employment with the Complainant. I am satisfied that the notes of the meeting of 3^rd July 2018 between the Complainant and the Assistant General Manager clearly identified that the Complainant was raising concerns that went back a number of months. However, when the Complainant advised the Assistant general Manager on 4^th July 2018 that she wanted a formal investigation to progress, the Assistant General Manager decided that he was only investigating the event of the 8^th June 2018 regarding the group app comments, and not the ongoing concerns that the Complainant had since January 2018.

In conducting the investigation, the Assistant General Manager did not adhere to the process in that he failed to provide the Complainant with notes of his meetings with the Complainant and any other persons met. Had he done so it is probable that the Complainant would have raised her concerns that the Assistant General Manager had decided to limit his investigation to only one of her complaints, and it is likely this procedural matter would have been dealt with at that stage. 

I also find that in the Director met with the Executive Chef before making her decision, and that the Director did not share the notes of that meeting with the Complainant before a decision was issued.

The investigation process was therefore far from perfect, and when the Complainant was issued with the investigation decision on 11^th July 2018 she was understandably aggrieved with the outcome. On 18^th July 2018 she appealed the decision, where she raised six areas of appeal. The appeal was considered by the General Manager and the Complainant was invited to attend a meeting with the General Manager on 10^th August 2018. When she attended she was accompanied by another party.  The General Manager decided not to progress with the appeal meeting at that stage as he had not anticipated the Complainant would be accompanied. Having adjourned the meeting, the Complainant waited for a number of days and as no further communication was forthcoming, she lost all trust that the Respondent was going to deal with her concerns and resigned her position on the basis she had been constructively dismissed.  As she had been out of work since 8^th June 2018 without any income, where she had participated in the procedures offered to her by the Respondent, and where she maintained the Respondent had discontinued the appeal process without any further notification she felt she could not continue in her employment. Accordingly, she concluded she was constructively dismissed due to the actions and omissions of the Respondent in handling her complaints.

It was only after her resignation that the Respondent communicated to the Complainant and advised her that having considered her appeal the investigation decision was found to be valid and the appeal was not upheld. The Complainant received this communication on 20^th August 2018, after she had resigned.

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.

Having carefully considered this case and the evidence presented the Complainant has not demonstrated that she made a reasonable attempt to exhaust the internal procedures in that she resigned before the appeal decision had been issued to her, and before she held discussions with the Respondent as part of that process regarding her return to work and how any outstanding matters could be resolved. Whilst there are clear flaws in how the Respondent conducted its investigation, it is regrettable that the entire process had not been completed before the Complainant decided to resign.  Whilst her concerns regarding the conduct of the investigation may be reasonable, her decision to resign before the appeal findings had been issued cannot under the circumstances be objectively judged to be reasonable. The Respondent had every intention to communicate the outcome of the appeal with the Complainant and to discuss her return to work, but that intention was temporarily set back as the General Manager was not properly prepared for the meeting and was considering how to progress with matters when the Complainant resigned.

Whilst I understand the frustrations experienced by the Complainant, I must have regard to the jurisprudence in relation to constructive dismissal where it is well established employees must allow the internal procedures to be exhausted before they can rely on a constructive unfair dismissal.  I am satisfied both parties were genuine is seeking to resolve the complaint, and the shortcomings identified in how the Respondent dealt with the Complainant’s bullying complaint had not been fully responded to by the Respondent before the Complainant decided to resign. Whilst the internal investigation had not upheld her complaint the next steps in the process had not been completed, and the Complainant decided to leave her employment before that phase had been exhausted.

Therefore, I must conclude that the standard of reasonableness required to substantiate a claim of constructive dismissal has not been met as the Complainant failed to exhaust the procedures available to her before taking the step to resign before the appeal process had been completed, thereby not providing the Respondent with an opportunity to address her grievance in a proper manner.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the aforesaid reasons, pursuant to Section 8 of the Unfair Dismissals Act 1977, I find this complaint is not well-founded and conclude that the Complainant was not unfairly dismissed by way of constructive dismissal.

Date: August 23^rd 2019

Adjudication Officer:  Gerry Rooney