Complainant

Respondent

Anonymised Parties

A Manager

A fuel Company

Representatives

Appeared in Person

Laura Reidy, The HR Suite

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-00023434-001

22/11/2018

This is a claim for Constructive Dismissal on behalf a Portuguese National working in a Food and Beverage area of a Fuel Company. The Complainant presented with the support of a former colleague and the Respondent was represented by Laura Reidy of the Hr Suite.

The Complainant made some latter day written submissions. The Respondent submitted an expansive written submission and attended with witnesses from the Respondent employment. The final replying submission was received from the respondent on 7 May 2019.

The Complainant outlined that she had worked at the respondent business from 7 February 2014 to her enforced departure through constructive dismissal on 1 June 2018. The Complainant worked full time for €513.77 per week.

The Complainant submitted that she had found new work some 5 days post leaving the respondent employment. There was a downward variance in the weekly pay from €13 per hour to €10 per hour. The Complainant exhibited her statement of terms of employment which governed her new work which commenced on June 6, 2018.

The Complainant submitted that she had worked as a Manager in a Pizza section of the business. Prior to this she had spent two years at the Cash Office. She had been diagnosed as having Type 1 Diabetes at the end of March 2018, necessitating 1 week in Hospital. The complainant discussed her health change with her area manager, whom she described reacted in a shocked and in a shocking manner to this information.

In a pro-active attempt to manage her illness, the complainant introduced an additional 4-hour shift Monday to Thursday. This was meant to facilitate breaks and allow meals in a timely manner. The complainant submitted that she had offered to take a drop in her own salary to facilitate this, but the area manager was still angry with her. She explained that she needed to eat every 5 hours in the aftermath of her diagnosis of diabetes. She submitted that she had been unable to secure break times when she needed them.

On 16 April, the complainant met with her area manager to discuss ways of facilitating her diabetic condition. The Area Manager proposed to demote her as the 4-hour shift was not viable. He also indicated that she was to blame for poor business performance and if she refused demotion, he would place her on weekly targets, which unrealised could lead to her dismissal. The Complainant sought to enter a taping of this meeting to accompany a transcript she had undertaken.

The Complainant opposed this proposal saying that she was simply Diabetic but was 100% fit and submitted a formal grievance against the area manager where she complained of bullying and sexual harassment. She submitted that the Respondent had ignored her stated care needs following her diagnosis.

The Complainant indicated that she wished to submit formal complaint of bullying and harassment on 26 April 2018 and provided a lengthy account of the issues which had caused her extreme concern at work. She understood that an investigation was to follow. She believed that the respondent stalled this process and she was expected to continue to report to the same area manager. She stated that she was frightened when she was informed by the respondent that she could continue to add any further ongoing causes of concern to her complaint.

The Complainant submitted that she believed that she was compelled to leave her job as she was seeking a balanced life and “not a life full of stress” and “work overload”. She confirmed that she had taken legal advice prior to lodging her grievance.

The Complainant submitted that she had not received a conclusion to her grievance and only received the grievance outcome on the day before the hearing. She felt disrespected.

The Complainant asked for permission to enter a taping of the April 16 meeting at hearing. She explained that she had taped this information without the consent of the respondent as before she went to the meeting, she had a sense that the respondent was going to “do something “. She had printed off a transcript of this tape and submitted it along with her papers to the hearing.

The Complainant confirmed that she was given time to reconsider her resignation, but her password was changed during her notice week, this unnerved her, and she formed the opinion that she was being edged out. She confirmed that she had secured an interview for another position prior to submitting her letter of resignation.

The Complainant introduced a former supervisor who had worked at the business. Ms S confirmed that securing breaks had been a problem in the business and there were situations where breaks were split between them. She had not participated in the investigation. She told the hearing that the complainant had told her that she was stressed due to her work.

The Complainant concluded in submitting that lies had been told about her at the hearing. She had made the recording as it was easier. She denied that the proposal to step down from her management role had not been of her making and she was targeted for dismissal by the respondent.

In activating the grievance procedure, she understood that she had laid out the facts of her newly diagnosed medical condition and the company did not facilitate her. She had sustained a €3 per hour loss in taking new work. She sought compensation for this loss.

The Respondent provided an outline of the case. The Respondent operates a large Fuel company with service station activities.

The claim for constructive dismissal was contested and the Respondent representative submitted that all reasonable steps to investigate the grievance raised by the complainant were taken by them, but she had not wanted to engage in the process.

The Respondent objected to the inclusion of the tape on the basis that it was a covert recording.

At the time of the complainant’s resignation, her grievance was in the early stages of investigation and had not even been put to the subject of the complaint for response. The Complainant had been appraised of the Respondent Policy on Dignity and Respect at Work and had formally activated this policy only to abandon it. The Complainant had not been demoted.

The Respondent submitted that it appeared that the complainant had taken a covert recording of a 16 April meeting, where the participants were unaware they were being taped. The document submitted by the complainant to the WRC is merely a statement of her own descriptive account of what was discussed and would be clarified in evidence by the respondent witnesses.

The Respondent outlined that the complainant had spoken with the area manager on 9 April 2018. She explained that she had recently become a diabetic and she felt her work role had contributed to this. The Respondent requested information on this medical condition from the complainant and none was forthcoming. During that discussion the augmentation of the 4-hour shift was raised by the complainant and challenged by the respondent as no pre-approval or budget had been granted. A further exploratory discussion was arranged for April 20.

During this meeting, the complainant refused to submit a sick cert covering her earlier absence as she maintained that she had not been absent for more than 3 days. The Complainant suggested a pay reduction to accommodate the augmented shift. Further discussion followed on possible revision of the complainant’s role, but no decision had been taken. The Respondent expressed a disappointment that the complainant had believe that she had been faced with targets and performance management if she refused demotion. This was untrue.

The Respondent had merely responded to the complainant’s introduction of her medical condition and was actively seeking a way to work with the complainant. The Complainants terms and conditions remained unaltered. The Respondent was troubled that the complainant was so reticent in submitting any documentation on her medical condition.

On April 23 rd. the Complainant was provided with the name of the appropriate contact, Mr B, to raise her complaint by the Area Manager. On April 25, Mr B, Managing Director contacted the complainant by phone and explained all the possible avenues open to her. He followed this up in print where the complainant was encouraged to pursue her complaint through informal/formal and alternatively mediation routes under the grievance procedure or via the Dignity and Respect at Work procedure.

One day later, the complainant submitted that she wished to proceed with the formal route of the Dignity at Work procedure. She followed this by taking a week’s holiday.

The Complainant submitted a written statement of complaint regarding allegations of bullying and sexual harassment against Mr A on May 5.

The Complainant was immediately invited to interview and provided with Terms of Reference along with a commitment to address the subject of the complaint once her presentation had been considered.

One-week later May 15, the complainant attended a meeting with Mr B as Investigator which was concluded in co-signed hand-written notes. The typed minutes were sent to the complainant shortly after 10 am on 18 May 2018. Later that afternoon the complainant resigned her position giving two weeks’ notice.

The Complainant raised some issues on the typed notes and made amendments. The Complainant was assigned an alternative Liaison person in the form of General Manager and Co-Owner, Mr C for the duration of the investigation.

On 29 May 2018 the Complainant was offered to have a third party to investigate her complaint but did not respond.

The Investigation continued to the Preliminary Investigation report on 30 July and the complainant was no substantiated and the investigation closed at that stage.

The Respondent submitted that the complainant was new in her role of manager. The break times were electronically recorded at the business. The Complainant had used her own initiative to hire a new employee to cover 4-hour shift without budget approval. The Respondent was prepared to address the complainants need for accommodation of the condition of diabetes, but no radical changes were muted.

Evidence of Mr A. Area Manager

Mr A confirmed that he had learned of the complainant’s diabetes when she told him that “it was due to stress “on 9 April. He confirmed that he had asked her three times for medical certs and was unsuccessful in his request.

Mr A submitted that they had mentioned various options to accommodate the complainant through changing to Supervisor, a request to return to the Cash Office, Deli Manager but nothing could be decided on. The business was in difficulty with costs and sales which were not in line with budget. He queried why a 3rd person was hired for 6pm at an inclusive cost of €400? He confirmed that he had not given permission for this.

Mr A was not aware of the 5 hour “meal interval “and took some Human resource advice rescheduling for a week later.

In answering the complainant’s question, he confirmed that he had first learned of the complainant’s diabetes on 9 April 2018 from the complainant herself.

Mr A confirmed that the complainant had already passed her probation in the earlier role in the cash office. The complainant habitually called him 4 times daily and weekly meetings occurred. He saw no sign of the complainant’s difficulties during the 9 April meeting.

Evidence of Assistant Manager: Ms M

Ms M had encountered the complainants’ frustrations at work at how she perceived that she was being treated. She was aware of her diabetic condition. She knew the complainant was unhappy and looking to leave. She had heard her shouting and blaming the company for her illness. She recalled a conversation with the complainant on 10 April 2018, where she stated to her without elaboration “someday when you are gone, I will tell you everything “.

Evidence of Staff Member. Mr E

Mr E recalled attending the 20 April meeting where he disputed that Mr A had raised the issued of targets and bonus in the complainant’s case. He stated that she had raised these issues. He said that the complainant had not been threatened.

Evidence of Mr D, Managing Director:

Mr D recalled appraising the complainant of her options during their initial contact, where he understood she intended to raise a grievance.

The Complainant subsequently confirmed that she intended to activate the formal procedures and sought an investigation. The Complainants annual leave followed. Mr D then held the first investigative meeting on May 8, where the complainant presented along with her team supervisor, Ms S as witness. He did not recall that terms of reference had accompanied the investigation.

The meeting lasted 3-4 hrs with breaks and the answers to the questions were manually recorded prior to typing. The Complainant initialled the handwritten notes. The typed notes were then sent to her on May 19. Mr D was surprised when he learned that the complainant announced her resignation. He was on the road and learned about it by phone. He had not picked up any intention of leaving during the interview and knew that there ha not been delays in addressing her complaint.

He considered her reasons cited for leaving as the complainant’s unhappiness with the typed minutes of the investigation. He knew the minutes could be amended and asked that she stick with the process. She had no objection to the process up to this point. He wrote to her 3 times in this vein. The Complainant was offered an external investigator, but she continued with her resignation.

Mr D pressed on with the investigation and concluded on 31 July. The complaints were not substantiated.

The Respondent concluded that the complainant had resigned from her position of her own accord and no dismissal had occurred. She had no loss. The Respondent had not forced her resignation and had a thorough paper trail to confirm the steps they took to ensure her grievance was addressed.

Two witnesses had confirmed that her weekly targets were not threatened.

The Respondent relied on Joyce V Brothers of Charity [2009] ELR 328, where conduct in a claim for constructive dismissal is referred to as

“……cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee “

The Respondent followed its own procedures in seeking to investigate the complainant’s complaint of bullying and sexual harassment up to and including appointing an alternative contact person for the complainant at a very high level in the company.

About the EAT case of O Gorman V Glen Tyre Company ltd [2010] UD 2314/2010, the respondent reminded the hearing that an obligation rested on the complainant to raise issues of concern and the employer permitted an opportunity to resolve the issues.

The Investigation continued in the wake of the complainant’s resignation and concluded that her complaint was not substantiated, therefore the contract test has not been met in her claim for constructive dismissal. The complainant was also unreasonable in not staying with the investigative process. The Respondent was not afforded an opportunity to resolve matters.

In the Respondents replying submission post hearing, they submitted that the complainant had not formally raised her break times during her employment.

I have considered both parties’ presentations in this case. The Complainant relied mostly on an oral account of her work experience and had not made a submission outside that contained on the complaint form. I did, considering her Lay Litigant status, allow her to make a supplementary submission post hearing. However, she submitted a re-affirmation of her oral evidence at hearing.

The Respondent submitted a very comprehensive and sequential record of the Respondent handling of the case and evidence was adduced by witnesses.

On the Preliminary issue of whether it was permissible for the complainant to enter her taped recording and transcript to the record, I ascertained that the meeting was taped without the permission of the participants, who were unaware that they were being taped.

The Complainant referred to the meeting as taking place on April 16 and later revised to April 20. An employment relationship like so many other relationships is based on trust and confidence and covert taping undermines that process. I have made the decision not to accept this covert recording as evidence on that basis. I explained to the parties that I would take evidence from the participants the meeting, all of whom were present at hearing and permit cross examination.

Section 1 of the Unfair Dismissals Act defines a Constructive Dismissal as an involuntary action, where “……. 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 her contract of employment without giving prior notice of the termination of employment “

The Burden of Proof falls on the complainant to reach that definition and it is a high burden.

I have analysed the evidence in the case. I can see that the complainant was struggling in her role as a newly appointed manager. She had made a big leap from the cash office to the newly franchised Pizza section of the business. Both parties accept that she did not have a probation in this role. However, I accept that she was in frequent contact with Mr A as area manager and structured meetings had occurred during her six-month tenure. Unfortunately, her tenure had also coincided with a high leaver rate. The transition to management level does not come easy to everyone and defined leadership and management training should have been made available from the outset. I have established that an underlying concern on the business unit trading performance on behalf of the respondent goes to the root of the case.

The circumstances which led to this case crystallised from April 9 to the date of the complainant’s termination of employment, June 1, 2018. In my analysis of the facts of the case, I have considered the conduct of the complainant as well as the respondent, Berber V Dunnes Stores. [2009] IESC 10

I found it unusual that the complainant was so reticent on sharing details of her illness with her employer. I also found it unusual that she did not have at her disposal any documentary medical evidence of how she should be accommodated at work. Diabetes is highly prevalent in the workforce in this country and I would have thought guidelines would have been within both parties reach. I appreciate that the respondent made several formal requests for both the medical certificates which confirmed the diagnosis and any direction they needed to follow. On this, the respondent acted reasonably and responsibly. I found the complainant to have adopted an overly defensive approach in this regard.

However, what happened next needed close examination. The Complainant hired an extra worker to undertake extra work of 4 hourly shift to accommodate her breaks post diagnosis. She did not clear this with her seniors. Given the undisputed conversations that the parties had already had on leavers, I would have expected that extra staff would have to be pre-approved.

I found that the complainant did not understand the limits of her authority in that regard and this rendered her some what vulnerable when challenged on it. She had not taken the time “to cover herself “Specifically, she had not told the respondent that she needed to have meals every 5 hours, neither had she produced a medical certificate which endorsed this move. I can understand that the Respondent was apprehensive of this development and sought to manage it.

It is important for me to reflect that concerns regarding the complainant’s performance were running side by side with her exploration of making a complaint against Mr A. He told the hearing that she had needed a high volume of support in her role and the business was facing trading difficulties. Mr As’ letter in the wake of April 20 meeting reflected “requests you had brought to my attention “in addition to “performance of the operation “before rescheduling for April 27.

During that week, the complainant began her journey on her stated wish to report the area manager for bullying. She met with the General Manager, Mr D on 25 April to that end and was furnished with her options prior to lodging her formal complaint on 26 April. She furnished the written sequence of the complaint on 8 May 2018. This constituted an elaborate account of allegations of bullying and harassment.

For me, it is of cardinal importance to note that this complaint, while populated by allegations of bullying and harassment also detailed the events since April 9 surrounding the complainant’s medical condition. The document read as a hybrid of complaints, which may have been helped by a stronger earlier intervention and triage.

I note that the complainant expressed a wish to action the Bullying / Harassment procedures. Both policies were sent to her. I could not establish which route she elected for as the complaint of May 8 was presented without this request attached. I noted that the invitation to hearing dated May 9 indicated that Terms of Reference were appended, yet Mr D did not recollect this at hearing.

I found a certain opaqueness in these terms of reference as it was unclear just which policy was actioned. In the company grievance procedure, the option of mediation was always be considered prior to investigation. I appreciate that the complainant was advised of this option. I am just not sure that she understood its meaning and its potential to resolve matters. She would have benefitted from having a professional representative during the latter month of her employment. I cannot hold the respondent responsible for this omission. She did tell the hearing that she had secured legal advice, but this had not transmitted to representation. I note the variance in the progression of both policies. I did , however, note the visible means of appeal provided and open to the complainant.

During a claim for constructive dismissal the contract test and reasonableness of action test are the windows through which events are judged. While I accept that some discussions clearly took place surrounding the complainant’s role post her diagnosis, no decision had been made. Change was contemplated by both parties but not actioned .

I must accept from the evidence that this was a two-way street and both parties were considering various possible permutations that might address the twin track objectives of maintaining the complainant’s health and maintaining profit at the business. I cannot, however, identify any repudiatory breach in the complainant’s contract, nor can I identify just where the complainant put the complainant on notice of her concern re breaks outside the self-directed hiring of another staff member. I must accept that this was a gesture rather than a spoken word.

However, it is to the letter of resignation that I must give my next attention. The complainant said she resigned because the respondent had twisted her words at the first investigation meeting. I noted that she had initialled the handwritten notes which were not altered on elevation to type. I took from this that the complainant had consented to this account of proceedings.

Notwithstanding the latter-day objection, the respondent promptly reached out and offered to amend the minutes as she desired. The Complainant was asked to reconsider her resignation and offered to appoint an external investigator. The Complainant did not respond to this final letter and I was left with some unease at this.She confirmed in evidence that he had assisted her in managing the situation when her IT password was   removed during her notice period .

I read through the complainants set of allegations submitted on May 8. I am clear that this took time to correlate. I appreciate that she spent time advancing on this at the May 15 investigatory meeting. I appreciate this may have been distressing. However, she did not return to the table after her resignation and I found this to be unreasonable and in sharp contrast with a similar case of O Reilly V Acuman Facilities let ( In liquidation) UD 853/2014 , where the EAT held that a Constructive Dismissal had prevailed when a complainant made allegations on unacceptable treatment at work which led to him not being able to continue to work with his line Manager . He offered to participate in a grievance investigation post his termination. He was subsequently offered his job back, but the message was not understood, and a resignation evolved.

In the case of Michael Murray V Rockabill Shellfish ltd [2012] 23 ELR 331 ,the EAT held that an employee must act reasonably in terminating her contract of employment. “ Resignation must not be the first option “ and all other reasonable options including following the grievance procedure , must be explored . This involved a case of personal degradation in front of staff and the respondent refused to engage in a resolution. I have found that this is distinguished from the facts in the instant case where efforts at engagement were agreed as common case between the parties .

In the instant case, I have been invited by the complainant to find that her experience at work was serious enough to warrant her termination. This has been hotly contested by the respondent. For my part, I have a sense of unease about the complainant’s dissociation from her carefully compiled complaint just 10 days post submission. I could see nothing in the notes of the first meeting to indicate a bias or a breakdown in fair procedures. Instead the complainant submitted that the notes were twisted, and I was further troubled when she did not engage with genuine efforts at rectification. My role is not to re run the investigation . On reading the documents in relation to the first interview , I felt that the investigator demonstrated a skill on incisive questioning .I found that the complainant engaged fully on the first occasion .

I have found a need to look at the overall picture of the complainant’s employment by May 18, the date of her resignation. The complainant clarified that her resignation was directly attributable to the “twisting of her words” but she later attributed her dismissal to not getting breaks. The Complainant was provided with a mechanism to resolve the “minutes issue” but did not return to the investigative meeting or process.

I have established that the parties did not discuss just what would occur in that instance and I am mindful that the complainant had not sought an investigation outcome prior to receiving it as part of the respondent submission to hearing.

This has led me to form the view that the complaint was not uppermost in her mind on terminating her employment, by giving two weeks’ notice. I found this to be a stark omission.

I would have preferred if the parties had discussed the proposed pathway for the investigation post resignation.

At any rate, I cannot accept that the “proposed minutes of the first investigatory meeting “amounted to a “last straw” for the complainant. Her dissatisfaction had manifested because of her own acknowledged stress, general medical condition and work pressure. I would have thought it reasonable for her to participate fully in such a serious investigation, which stood a chance at least of rectifying matters. I found her lack of ownership of the complaint to be unreasonable.

The Complainant had submitted a very serious complaint which was potentially reputationally damaging to the subject and indeed herself and I was taken aback that the complainant had strayed away from the process so very early on. I was not happy that the respondent had not explained the process post resignation. These were extremely serious allegations. I am not sure that I can condone the respondent viewpoint that it was curtailed from including a non-employee in an investigation post her termination. However, I accept these post date the circumstances of the claim.

I have found that the complainant was not compelled to leave her job. I did identify issues which may have benefitted from probation and training in the early days of her appointment.

However, overall, I found the complainant to be evasive in her interaction at hearing. She submitted a strong sense of disappointment with her work and managed to externalise much fault to others . The witnesses pointed to a period of unease prior to April 2018 where she gave the impression at least of considering her position, this was also reflected in the discussions on performance. I found her strategy in seeking to puts things right for herself without having regard for the bigger corporate picture to be disproportionate and I believe that she was overly hasty in deciding to resign

However, it was in relation to starting a complaint without agreeing a mechanism to conclude matters that I have had most trouble with. I found her lack of engagement in seeking to address her concerns about the process to be destructive to her case. She had a responsibility as the initiator of a complaint to see it through. I do not believe that she gave the complaint the attention it deserved.This contrasted with the Respondent approach, which demonstrated that the matter was prioritised from the beginning .

A claim for constructive dismissal requires not only an activation of a complaint/grievance but also an engagement with the process. The complainant had the right to be right or wrong in her complaints, but she reversed from the process prematurely and made no further submissions in her own case.

I must conclude that the complainant was unhappy in her job. She did try to rectify matters in relation to notification of her illness and her allegations of sexual harassment and poor work relationships. Sadly, she did not see anything through. I note that she did not seek an employment reference at the end of her employment.

I must therefore conclude that the complainant by her inconsistent actions in relation to the “handwritten “and then “typed Notes “followed by a complete lack of engagement on Respondent proffered alternatives short of her termination of employment has not acted reasonably. I find that she had already secured alternative work prior to her departure and her termination was not an involuntary action. The Complainant has not satisfied the test for constructive dismissal .

I find that the claim for constructive dismissal is not well founded.

Decision:

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

I have found that the claim for constructive dismissal is not well founded.

Claim for Constructive Dismissal