Complainant

Respondent

Anonymised Parties

Early Years Practice Co-ordinator

A Family Resource Centre

Representatives

 Peninsula Group Limited

Act

Complaint Reference No.

Date of Receipt

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

CA-00021598-001

06/09/2018

The Complainant started her employment with the Respondent on 24^th August 2016 and resigned on 31^st July 2018.

She presented her complaint to the WRC on 6^th September 2018 claiming that she had to leave her employment due to the conduct of the Respondent. She is seeking compensation.

The Respondent rejects the claim.

The Complainant was supported by her brother.

The Complainant submits as follows:

She was employed on 24^th August 2016 as Early Years Practice Co-ordinator. She brought 6 years of continuous experience to this position and her qualifications included a Hons (BA) in Early Years. From the beginning she sought to ensure that the crèche she was employed in would be compliant in all regulations. The Complainant described her achievements to the hearing.

The Complainant submits that on Friday 20^th April 2018 her Manager MM arranged a meeting with the Complainant. Earlier that week MM confirmed that the meeting would deal with 'staff letter of complaint and some other issues' in her exact words. The main topic discussed was the staff letter to the Board. The tone of the meeting from the outset was one of angry criticism of the Complainant’s handling of issues surrounding the letter together with other unrelated issues. Every one of these was accompanied by strong angry condemnation which by the end of the meeting left the Complainant shaken and visibly upset.

The Complainant submits that MM spoke to her in an angry, intimidating and at times, aggressive manner during the meeting and the Complainant had never experienced anything like this in her working life.  The meeting lasted thirty minutes and the Complainant claims she suffered extreme stress and anxiety during that meeting because of the way she was spoken to and what was said to her. She submits that the stress and anxiety continued after the meeting which had a devastating effect on her health and wellbeing. As a result, the Complainant suffered from horrendous nightmares and needed to go to counselling. The Complainant’s doctor certified her sick leave due to work related stress and anxiety.

The Complainant notes that both parties prepared separate reports of the meeting and there was no agreed minutes prepared at the meeting. After that meeting the Complainant’s self-confidence was shattered and her self-esteem gone. She felt totally isolated and distraught and her stress and anxiety is palpable in her report to the Board entitled 'After the Meeting', which was exhibited at the adjudication hearing.

The Complainant submits that she engaged with the Respondent’s complaint procedures and lodged a complaint with the Board of Management (BOM) about the meeting she had with MM. The Complainant received MM’s response to her complaint, which the Complainant claims contained inaccurate, hurtful and degrading comments about her which included a psychiatric medical diagnosis of the Complainant.

The Complainant submits that BOM did not find sufficient grounds for her complaint despite her appeal and she felt that she had no option but to resign when her appeal failed.

In respect of the report prepared by MM dated 1^st June 2018 for the Board investigation into the Complainant’s complaint the Complainant makes the following observations.

(a)    On three occasions in her report MM referred to 'the written complaint by staff against her'.  The Complainant points out that the staff letter was constructive, and the Complainant was never mentioned. The Appeals Board in their finding stated, ' We do not find evidence of a complaint against yourself'.  The Complainant submits that it says something about the mindset of MM at that meeting that she had already decided that the Complainant was going to be taken to task over the staff letter.

(b)    The reference by MM to the Complainant’s mental state was rightly redacted from the records by the Appeals Board.

(c)    In her report MM stated, 'I held a Performance Review Meeting with [the Complainant]'. The Appeals Board agreed that it was not a Performance Review Meeting.

(d)    MM in her report stated 'TUSLA have oversight of the standards of this service.

Public funding is provided which requires strict adherence to standards for this type of service. In my meeting with [the Complainant] I communicated to her that on a range of issues she had performed below acceptable standards. I would have already discussed many of these issues however the requested improvements had not occurred.’
Reading that one would believe that the Board were receiving negative reports regarding compliance. However, the opposite was the case (a copy of Tusla reports was exhibited at the hearing).

The Complainant submits that she had, with the support of the staff, overseen the successful transition of the crèche from the old building to the new location. This was referred to by MM in an email to the Complainant dated 30^th March 2018 in the course of which she stated 'I appreciate all of the work you and your staff has put into the relocation of the Creche. I do realise everyone is working 110% to try to make the move a success’. How quickly the Complainant dropped from 110%. From hero to zero in three short weeks.

The Complainant emphasised that the meeting with MM on 20^th April 2018 caused huge stress and anxiety to her resulting in her attending her doctor and also receiving counselling. The subsequent decision of the Board of Management and Appeals Board together with the attitude of MM did nothing to allay her fears of ongoing aggression from MM if she returned to work. The vague possibility that a third person sit in on meetings with MM is really not practicable and mediation would not overcome the repeatedly stated bias of MM as set out in her report to the Board.

The Complainant submits that a lack of objectivity and fairness was evident during the complaints process.

There was no evidence of 'poor performance ' provided either by MM or the Board.

The Board of Management investigation committee stated that having 'no previous complaints against [MM]' was one of the grounds for not upholding her complaint.

The Appeals Board found inaccuracies in MM’s statement, were forced to redact part of it and also renamed the meeting and continued to believe her account of the Complainant’s work being below standard without any supporting evidence. In fact, the Complainant provided the Appeals Board with detailed evidence of her excellent work and her high standards which were ignored.

The Complainant submits that she has suffered a considerable financial loss as a result. As a lone parent with 3 dependant children, loans, mortgage and other financial commitments she found it extremely difficult to survive for a number of months relying on the goodness of family.

In cross-examination, the Complainant confirmed that she applied for a government grant in or around 13^th August 2018 and became self-employed from September 2018. However, she denied that she left her employment to set up her own business.

The Complainant stated that she has had no previous negative experience with MM until the meeting of 20^th April 2018.
The Complainant said that she went through the grievance process as she “thought there will be justice”. The Complainant said that the Respondent did not give her any guarantees but conceded that she did not inquire as to what form the mediation would take. She stated that mediation would not work and that the Respondent “should have taken her [MM] to task for the way she treated me at the meeting”.

The Respondent submits as follows:
The Respondent rejects the claim.

The Complainant was employed by the Respondent on 24 August 2016 as Early Years Practice Coordinator.

The Complainant was provided with a statement of main terms and employee handbook. The Complainant confirmed receipt of same by signature dated 27^th July 2016.

Subsequent to an inspection conducted by the Child and Family Agency, a new premises opened from which the Respondent was to operate. The new premises opened on 10^th April 2018.

By letter of 10^th April 2018 four members of the Respondent's staff wrote to MM, Managing Director of the Respondent, regarding anticipated issues with the new premises. The Complainant was not named in this letter, however some of the issues related to matters for which the Complainant had primary responsibility in her role as Early Years Practice Co-ordinator.

On 20^th April 2018 MM met with the Claimant informally to discuss matters contained in the letter of 10 April 2018 and Human Resources issues, work that was incomplete, and other minor issues.

The Respondent submits that MM retained minutes of that meeting.

On 25^th April 2018 the Complainant was absent on certified sick leave. The Complainant did not return to work.

On 21^st May 2018 Director of the Respondent (DR), and Chairperson and Director of the Respondent (CH) held an informal meeting with the Complainant. The Complainant was accompanied by her sister. The Complainant was asked to put her issues in writing in order to commence a formal grievance process.
A memorandum of what occurred at the meeting was compiled on 23^rd May 2018 by CH. It will be noted the memorandum is dated "21/4/2018" however this is a typographical error. The meeting occurred on 21^st May 2018.

On 25^th May 2018 the Complainant furnished her grievance in writing.

On 31^st May 2018 the Complainant met with DR and CH. An audio recording was made of this meeting with the consent of the Complainant.

On 1^st June 2018 DR and CH met with MM. An audio recording was made of this meeting with the consent of MM. An opportunity was afforded to MM to respond to the allegations of the Complainant.

On 6^th June 2018 DR and CH met to discuss the outcome of their investigation into the grievance raised by the Complainant.

By email of 7^th June 2018 the Complainant was informed of the outcome of the grievance process. The outcome was that the Complainant’s grievances were not upheld. The Complainant was advised of her right to appeal the outcome.

By letter of 14^th June 2018 the Complainant appealed the outcome of the grievance process.

On 26^th June 2018 a copy of the Complainant’s appeal was furnished to MM.

By letter of 30^th June 2018 the Complainant was invited to attend an appeal hearing on 12^th July 2018. Additional queries were made of MM on 4^th July 2018.

By email of 6^th July 2018 MM responded to the Complainant's letter of appeal.

By email of 9^th July 2018 the Complainant was sent MM’s response to the Complainant’s appeal.

By return email the Complainant stated she was highly distressed by the content of MM's reply and threatened to resign.

Certain documentation to be furnished by the Complainant was either not complete or had not been received by the Respondent. By email of 11^th July 2018 the Respondent offered to postpone the appeal hearing to allow the Complainant to furnish all documentation. By reply, the Complainant furnished a letter to the appeal body, a summary of issues, a response to the meeting of 20^th April 2018, recommendations from previous employment and emails between the Complainant and DR.

On 12^th July 2018 the Claimant attended the appeal hearing. The hearing was held before JG and MG. An audio recording of the appeal was made with the Complainant's consent. Minutes of the meeting were taken by MG.

On 18^th July 2018 JG and MG met with MM to discuss potential recommendations of the investigation. MM agreed to mediation and the amendment of certain documents.

By email of 19^th July 2018 the Complainant was sent the minutes of the appeal hearing. The Complainant returned the minutes signed.

By email of 19^th July 2018 MM was sent the minutes of the meeting of 18^th July 2018.

By letter of 21^st July 2018 the Complainant was informed of the outcome of the appeal of the grievance. The appeal upheld the decision of the original decision maker. In particular, the appeal

concluded:

a)       There was no evidence that MM behaved in an intimidating and aggressive manner;

b)      In discussing performance issues with the Complainant, MM was fulfilling her role as line manager, ensuring best practice and high standards were maintained;

c)       There were some inaccuracies in documentation which recorded certain instances and these were to be amended;

d)      Mediation should take place between the Complainant and MM;

e)      All future meetings between the Complainant and MM should have a third party in attendance where operationally possible.

The Respondent submits that the grievance process was closed on 24^th July 2018.

By letter of 31^st July 2018 the Complainant resigned from her employment.

By email of 6^th August 2018 the Respondent invited the Complainant to reconsider her resignation.

The Claimant commenced the within proceedings on 6^th September 2018.

Submissions

The Complainant has brought a claim pursuant section 8 of the Unfair Dismissals Act 1977.

The Complainant's claim is one of constructive dismissal as the Complainant resigned her employment. Accordingly, the burden of proof is on the Complainant to prove that her resignation was due to the conduct of the Respondent and that the conduct of the employer was such that it either:

a)       Showed the employer no longer intended to be bound by a core term of the contract of employment, or;

b)      So egregious as to leave the Claimant no choice but to resign.

In support the Respondent cited:  A General Operative v. A Religious Society (ADJ-00002814), Nicola Coffey v. Connect Family Resource Centre Ltd (UD/1126/2014), Berber v. Dunnes Store (2009] E.LR. 61.

The Respondent submits that it is anticipated that the Complainant will allege that it was the meeting of 20^th April 2018 was the originating cause of the Complainant's resignation.

In the decision of Charleton J. in Ruffley v. The Board of Management of Saint Anne's School [2017] IESC 000 it was held:

Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instill a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions maynot be pleasant and must simplybe taken in right spirit. Sometimes a disciplinary intervention may be necessary.

The Respondent submits that in this case MM sought to engage with the Complainant in a reasonable manner in relation to legitimate concerns raised by employees of the Respondent. The Complainant took exception to this. The Complainant was absent on sickness leave during which there was an exhaustive grievance process. That grievance process resulted in a recommended course of action that would facilitate the Complainant's return to work.

The Complainant did not participate in the proposed mediation and the Complainant failed to return to work with the proposed arrangements to regularise her contact with MM.

While the Complainant utilised the grievance process, the Complainant failed to engage in any way whatsoever with the outcome of that grievance process. This shows the Complainant had no actual interest in the process itself but rather took part in order to the minimum requirements of constructive dismissal.

Conclusion

The Respondent provided the Complainant with a full grievance procedure, the outcome of which she did not like but which was reached in a reasoned manner.

The Complainant failed to participate in the proposed activities which would facilitate her return to work.

The Complainant's failure to utilise the mediation proposed by the Respondent means that the Complainant has failed to exhaust the reasonable alternatives to resignation.

The Complainant was not unfairly dismissed, either constructively or otherwise and her claim should be dismissed.

The Law

The term “constructive dismissal” is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(1)(b) of the Act which defines “dismissal”, in relation to an employee,—

“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 the Complainant is alleging constructive dismissal, the fact of dismissal is in dispute and the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her terminating her employment.

There was no dispute that the Complainant resigned from her position by letter dated 31^st July 2018.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign her position, often referred to as the “contract test”. This requires that an employer be “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 further performance” as held in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332.

Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly or reasonably be expected to put up with it any longer, if so, she is justified in leaving.

In both types of situation, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment. In reaching my decision I have taken into account all of the evidence, both written and oral, submitted by the parties.

It is well settled law in the area of constructive dismissal that an employee who terminates their own employment because of the unreasonable conduct of the employer may only succeed in a constructive dismissal action where they show that they themselves acted reasonably by seeking, prior to termination, to bring complaints to the attention of the employer with a view to resolving the issues.

In the within case the Complainant cites the difficulties which arose in her employment as a result of the meeting with MM on 20^th April 2018. In summary, the Complainant alleges that MM’s behaviour at the meeting was “angry, intimidating and at times, aggressive” and combined with the outcome of the grievance process in response to her complaint brought about her resignation, amounted to a constructive dismissal.

There was no dispute that the Complainant met informally with a Chairperson and a member of the Board on 21^st May 2018 and subsequently raised a formal grievance on 25^th May 2019. The grievance was investigated in line with the Respondent’s grievance procedure.

The grievance investigation did not uphold the Complainant’s grievance. While the report acknowledged that the meeting of 20^th April 2018 was “perceived as difficult and stressful” for the Complainant, it also noted that there was insufficient evidence to substantiate the complaint. Some 6 other factors were taken into account while arriving at the decision. The report also noted that the Respondent “want to ensure that [the Complainant] feels able to return to work and we intend to facilitate any meetings to enable [the Complainant] to feel safe to return to work. “

The Complainant appealed the outcome of the investigation.

During the appeal the Complainant was informed by the Committee that it would “consider how best to support [the Complainant’s] return to her post, taking into account [the Complainant’s] concerns a safe and supportive work environment”. The Complainant was asked if, in order to facilitate a transition back to work, would the Complainant consider mediation and the Complainant replied that it would depend on the outcome of the appeal process. I note that MM confirmed that she would be open to engaging with mediation.

The Appeal Committee issued its report on 21^st July 2018. While some points made by the Complainant were accepted, the Committee did not find sufficient grounds to substantiate the Complainant’s grievance appeal. The Committee noted that the parties produced conflicting accounts of the meeting on 20^th April 2018. The Committee recognised the distress experienced by the Complainant and the impact of the professional relationship between her and her line manager.
To ensure “a safe and supportive return to your post, when you are medically fit” the Committee offered the following:

·         Mediation process

·         Whenever possible, if it can be accommodated operationally, in the future when [MM] required to discuss performance related issues, a third member of staff will be present.

The Committee noted that the Respondent will make all reasonable accommodation to make sure that the Complainant feels safe and comfortable returning to her duties and will provide any support needed if there will be any issues addressed by her.

The Complainant was asked to forward her response to the outcome letter. The Complaint replied on 31^st July 2018 stating that she cannot return to a workplace that is unsafe for her and resigned her position. The Respondent replied to the Complainant asking her to reconsider her resignation, again offering mediation and offering her to “take some time and think about the other possibilities to sort out your concerns”.

Having carefully considered the parties submissions and any evidence available to me I find that the Respondent, in my view, addressed the Complainant’s grievance in a reasonable manner and made every effort to support the Complainant in her return to work and maintain the working relationship.

The Complainant, on the other hand, appears to have predetermined her actions. I note her email of 10^th July 2018, where the Complainant clearly stated that “I have to inform you that I am seriously concerned about returning to work without the appeal committee accepting my complaint as valid. I will have no option but to resign should the appeal committee not understand the threat I have felt and continue to feel to my safety and wellbeing”.

Despite the Respondent’s efforts the Complainant chose not to reconsider her resignation which the Respondent ultimately accepted.

In all of the circumstances of this complaint, I do not find that the Respondent behaved in such a way that left the Complainant with no option other than to resign from her employment.

I find that the Complainant was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that the complaint is not well-founded.

Constructive dismissal – not satisfied with results of grievance process