Complainant

Respondent

Anonymised Parties

A Cleaner

A Cleaning Company

Representatives

Mihaiela Popa Popa & Co. Law Firm

Sarah Conroy Beale & Company

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-00024784-001

07/01/2019

The complainant alleges that she had no option but to resign her position of employment as no appropriate measures were taken by the Respondent to ensure her safety in the workplace and her health was seriously deteriorating.

The respondent states that it was entirely unreasonable for the complainant to resign her position.

The Complainant commenced employment with the Respondent in January, 2015. In or around September, 2017, a new employee was employed by the Respondent and he and the Complainant were put working together by the Respondent. In or around January, 2018, this new employee was highly verbally insulting to the Complainant in front of a Supervisor of the Respondent. From then on, he was very unreasonable in his behaviour around the Complainant, shouting at her, using bad language to her, being very insulting towards her.

In April, 2018, this same employee was again highly aggressive and abusive towards the Complainant and they became involved in a serious verbal argument at work. The Complainant brought this to the attention of a Supervisor of the Respondent. The Complainant also put in writing her serious concerns about the matter to the Respondent on 27th April, 2018, noting she had even ended up in Hospital on account of the workplace stress and abusive behaviour she was being subjected to by this employee. The Complainant brought this to the attention of a Supervisor of the Respondent resulting in a meeting between the Claimant, the other Employee And a manager on Tuesday 24th April 2018.

Despite the Claimant having brought this to the attention of a Supervisor of the Respondent, and without clarifying the situation and circumstances which caused the incident, the manager asked to wipe everything off and start from zero and each of the parties should do their jobs. This meeting took place without any witnesses.

After this, and for the entire month of May, 2018, the Complainant was continuously made to work with this same employee despite the Respondent being aware in detail of the difficulties she was having and the impact on her. For the month of May, 2018, the Complainant continued to be subjected to this same bad behaviour by the same employee, and she regularly told her Supervisor about this for that month also.

In June, 2018, the Complainant was absent on sick-leave as the stress was getting worse for her and it was impacting further on her health. The Complainant was not satisfied by the Respondent's handling of this serious situation, and in July, 2018, she had no option but to resign her position of employment as no appropriate measures were taken by the Respondent to ensure her safety in the workplace and her health was seriously deteriorating.

The complainant shall rely on Laws to include, but not limited to, the Unfair Dismissals Acts, the Safety, Health and Welfare at Work Acts, and the Employment Equality Acts.

1.       Constructive Dismissal Law

Definition of Dismissal in the Unfair Dismissals Act 1977 at Section 1 b) states thus:

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

Test for Constructive Dismissal

Contract Test:

The first job of the Adjudicator is to look at the contract of employment in order to ascertain whether there is a breach of same. Lord Denning MR in the case of Western Excavating ECC Limited v Sharp [1978] ICR 221 held that;

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

Safety, Health and Welfare at Work Act 2005

Under S.8(2) of the above Act an employer is under a statutory duty to ensure the following in respect of their employees;

The Claimant states that by breaching section 8(2) of the above legislation the Respondent had committed a breach of contract leaving her unable to fulfil her duties as an employee.

Reasonableness Test

In consideration the reasonableness test which is summarised as follows;

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

Relevant examples of caselaw and Constructive Dismissal;

Kennedy v Foxfield Inns Ltd t/a The Imperial Hotel [1995] ELR 216, the Claimant was subject to rude and inappropriate behaviour over a period of time culminating in one event whereupon the Claimant resigned and the manager apologised. In finding for the Claimant the EAT decided that;

“The question for the Tribunal is to decide whether the claimant’s decision to terminate her employment was reasonable.”

In the case of Reihn v Dublin Society for the Prevention of Cruelty to Animals, 2004 ELR 205, The Claimant had been constantly undermined by her employer, she had made complaints and been promised assistance. As a consequence, her health began to deteriorate and she was advised by her Doctor to take time off work. The E.A.T., in finding for the claimant employee stated thus;

“We fully accept that the severe stress suffered by the employee was job-related and feel that it should have been noticed by the employer and not allowed to continue for as long as it did without positive intervention”

Obligation to raise a grievance with the employer

There is an obligation on the employee to raise her complaint with the employer prior to resigning her post, ESPCA Animal Shelter Ltd and Duggan UDD 1855. This obligation is not absolute and the case of Terminal 4 Solutions Limited v Rahman UD898/2011 may be noted as well as the following is stated;

“ it is incumbent on any employee to utilise all internal remedies made available to her unless she can show these remedies to be unfair"

The case of Porter v Atlantic Homecare also found that the Claimant’s failure to follow the employer’s grievance procedures was excused on the basis that the existing problems at work had made her afraid of availing of such procedures.

Summation of the Case law and the case of the Complainant

The Claimant claims that she was subject to behaviour from her co-employee which created an intolerable work situation. The Claimant has suffered significant psychological injury in relation to this and her employer’s actions/inactions contributed to this and further left her in a position where she could no longer continue in her employment. The Claimant states that this situation was not necessary and that given the circumstances that she was subject to ‘constructive dismissal’ as her health was at risk when forced with having to work with the co-worker who had acted in an abusive manner with her. The conduct of the Respondent was in breach of the contract between the parties and it was also reasonable of the Claimant to terminate her employment was reasonable.

2.       Compensation:

Under the Unfair Dismissals Acts the Claimant claims compensation as a result of her claim, this being the only reasonable outcome in relation to her complaint. In accordance withSection 7 (C) of the Act the Claimant may claim compensation in relation to any financial loss incurred by her that is attributable to the dismissal and is just and equitable having regard to all the circumstances.

In the case of Allen v Independent Newspapers Ltd [2002] ELR 84 the Tribunal, in finding for the Claimant, found that her illness caused her financial loss and that this financial loss was attributable to the conduct of the employer leaving the Claimant receiving the equivalent of 78 weeks wages. It is also open to the Adjudicator to take into consideration the losses which may be sustained by the Claimant in the future when determining the amount of compensation.

The Claimant has undergone Counselling and has attended 9 sessions of psychotherapy and has been advised to continue this programme for another 12 sessions to overcome traits of PTSD, high stress, poor sleep, lethargy, limited social engagement and maladaptive psychological features.

The Claimant worked 40 hours per week for the Respondent at a Gross rate of €10.40 per hour. Section 192 (A) TCA97 states that the Claimant, should she be successful, must pay tax on any award as it is one which has come about because of Unfair Dismissal.

The Claimant notified the Respondent that she could no longer work for the Respondent on the 10th July, 2018, and she remained out of work until 11th February, 2019, when she took up new employment.

10th July, 2018 – 11th February, 2019 = 31 weeks

€10.40 x 40 hours per week = €416 per week

€416 per week x 31 weeks = €12,896

The Respondent wholly denies the Complainant’s contention that she was constructively dismissed. The fact of dismissal is in dispute, as the Complainant terminated her contract of employment by resigning on 10 July 2018.

It is respectfully submitted that the Complainant did not act reasonably in resigning. The Respondent wholly denies that any acts or omissions of the Respondent rendered it reasonable for the Complainant to terminate her contract.

It will be submitted that the question for determination by the Adjudication Officer herein will ultimately be whether it was reasonable for the Complainant to terminate the contract of employment.

The relevant legal tests

Section 1 of the Unfair Dismissals Act 1977 (“the Act”), defines constructive dismissal as follows: -

“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”

It is firmly established that two tests govern a claim relating to constructive dismissal.

It is well settled from judicial precedent and determinations from e.g. the Labour Court and the WRC (and previously in determinations of the Employment Appeals Tribunal) that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.

Section 1 of the Act contemplates 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. This is generally referred to as the “contract test”. This has been held to require 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 was held in the oft-cited authority from England & Wales of Western Excavating (ECC) Ltd v Sharp.

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 be expected to put up with it any longer, and if so, she is justified in leaving.

Application of the relevant legal principles to the facts of this case

In this case, the Complainant was employed with the Respondent from January 2015 until her resignation in July, 2018. The case which she has referred to the WRC alleging constructive dismissal refers almost entirely to matters alleged to have occurred in relatively short window in 2018. In reality, the two main incidents relied upon by the Complainant as evidencing significant tension between her and her colleague Mr Employee A are:

·       That on 5 April 2018 a bin was not emptied by Employee A

·       A heated verbal exchange that took place on 19 April 2018 in the storeroom.

In her Statement to the WRC, the Complainant asserts inter alia that “...she had no option but to resign her employment”. The plausibility- or otherwise- of this assertion must be considered in the context of objectively verifiable facts.

During their work on 19 April 2018, the Complainant and her colleague Employee A had a tense exchange in the storeroom; voices were raised. It was agreed subsequently by the Complainant and Employee A, in the course of this matter being fully and properly investigated, that this had been a heated exchange during which both were shouting at each other.

The events of 19 April 2018 were investigated by the Company, and the Complainant was fully facilitated in bringing forth a Grievance against her colleague Employee A.

The Respondent quite clearly treated the Complainant’s letter of 27 April 2018 as amounting to invocation by her of the grievance procedure. Thereafter, the matter was dealt with thoroughly and fairly.

Without prejudice to the generality of the Respondent’s denial of the claim herein, or the Respondent’s right to adduce oral evidence at the adjudication hearing, the following are material matters to which regard ought be had:

a.    There is no specific or meaningful allegation by the Complainant of any matter allegedly constituting any evidence of mistreatment, prior to April 2018.

b.    Insofar as there was a difficulty arising from the heated verbal exchange of 19 April 2018, the Complainant’s grievance in this respect was dealt with in a transparent, thorough and even-handed manner in accordance with the Grievance Procedure. As early as 24 April 2018, the Company advised the Complainant in correspondence that “...if you have any issues while at work, these are to be dealt with in the correct manner. Issues can be raised with your Site Supervisor, Human Resources Department, or the Company Head Office”.

c.     The assertions made by the Complainant regarding the allegedly unreasonable behaviour of her colleague Employee A are denied. Her allegations are not borne out by, for example, her having referred complaints or brought this to the attention of her superiors (which she did not), or by any documentary records or evidence. They are, with respect, unsubstantiated assertions. In reality, the bullying and workplace mistreatment which the Complainant is now alleging, was not alleged by her or made known to the Respondent during the parties’ employment relationship.

d.       On 6 July 2018, the Complainant confirmed that she would attend an appointment with the Company Doctor.

e.       The Complainant at no stage requested of the Respondent that she not work alongside Employee A.

f.        In the circumstances, there was no necessity for the Complainant and Employee A to have been separated.

g.       A strict demarcation ought to be kept between this claim for constructive dismissal, and matters (which are wholly denied) being alleged by the Complainant in the context of a personal injuries claim which the Complainant has lodged with the Injuries Board.

h.       Insofar as the Complainant raised a complaint about her Client Services Manager Ms. LS by letter dated 7 June 2018, again the Respondent’s response was effectual, reasonable and in accordance with the Company’s policies. It was the Complainant who frustrated there being any investigation of her complaint.

i.         The Complainant at no stage ever raised a complaint pursuant to the Company’s Anti-Bullying Policy.

j.         The Complainant’s assertions as regards alleged workplace difficulties are wholly generalised in nature, are not borne out by any objective evidence, and are wholly denied.

k.       Employee A tendered his resignation on 25 May 2018. The last day he worked for the Respondent was 31 May 2018. It was known by the Complainant, well before her decision to resign, that Employee A had ceased working for the Respondent, and was not returning.

l.         The Respondent had received absolutely no evidence that the Complainant was suffering from work related stress (and denies this was the case).

m.     The letter of 1 June 2018 from Ms. RB connotes that there has been an understanding and agreement that the Complainant and Employee A would move forward and work together constructively.

n.       The Complainant had not been in work since 5 June 2018.

o.       Upon receipt of the Complainant’s resignation, the Company clearly and expressly invited her to withdraw her resignation and to return to work. The Complainant refused to do so.

With respect, there can be no presentable argument in this case to the effect that the “contract test” is satisfied by the Complainant. Decided cases make it quite clear that to satisfy this test the employee must demonstrate breach by the employer of an essential term which goes to the root of the contract. The Labour Court has noted that “This is a stringent test which is often difficult to invoke successfully”.

In the circumstances, it is respectfully submitted that having regard to the overall circumstances of this case, the Complainant was not reasonably entitled to terminate her employment and it was unreasonable for her to do so in the circumstances.

Moreover, if (which is denied) as of the date of her resignation, the Complainant had any legitimate grievance, she was under a duty to take reasonable steps to have any such grievance or issues of concern addressed by the Respondent. Not only did the Complainant simply not do this, she refused to engage with the Respondent’s efforts to ensure that any such matter was addressed.

In Marcus Reid v Oracle EMEA Limited[1], the Employment Appeals Tribunal noted that:

"The burden of proof rests on the Complainant to show that he had no choice but to leave his position with the respondent. He must show the Tribunal that his resignation was not voluntary and that the conduct of her employer was so unreasonable that he had no choice but to resign."

The Complainant is required to discharge a high burden of proof in seeking to establish that her resignation was not voluntary. In Employer v EmployerUD1146/2011, the EAT held that:

"….in such cases a high level of proof is needed to justify the Complainant's involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary."

In Adjudication Officer decision, reference number ADJ-00000629, the Adjudicator Officer noted that:

"[T]he burden lies on the Complainant to satisfy that it was reasonable for her to terminate her own employment due to a significant breach by the employer (Respondent) of a fundamental term of her employment contract or because of           the nature and extent of the employer's conduct and the circumstances in which the employee was expected to work."

It is the Respondent's case that the Complainant’s case falls well short of discharging that burden of proof.

Separately, the failure to allow any issues or grievance to be investigated by the Respondent from June 2018 in itself warrants this claim for constructive dismissal being rejected. It is well established that a Complainant who is aggrieved in respect of her employment is required to exhaust grievance procedures in an effort to resolve grievances prior to resigning and initiating a claim for unfair dismissal.

This requirement has been reiterated in numerous cases. The Adjudication Officer in her decision, reference number ADJ-00000629, pointed out that:

   "Prior to an involuntary resignation an employee must exhaust all reasonable attempts      to resolve their complaints and grievances with their employer."

In the present case, of course, the Respondent respectfully submits that the resignation was voluntary- and unreasonable.

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. The complainant alleges that she had no option but to resign her position of employment as no appropriate measures were taken by the Respondent to ensure her safety in the workplace and her health was seriously deteriorating. The complainant in her submissions states that she will rely on the law in relation to the Unfair Dismissal Acts, the Safety, Health and Welfare at Work Acts and the Equality. I note that the only matter before me for adjudication is a matter pursuant to Section 8 of the Unfair Dismissal Act, 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“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 the 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”

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The burden of proof, which is a very high one, lies on the complainant. She must show that her resignation was not voluntary.   As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

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

If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test.

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

When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate her contract of employment.

On a full assessment of the facts I can find no evidence to suggest that there was a significant breach going to the root of the complainant’s contract of employment. In those circumstances, I must ask myself, was it reasonable in all of the circumstances for the complainant to terminate her contract of employment.

The two events the complainant took issue with occurred in April, 2018. The complainant gave evidence that she found Employee A to be very “aggressive and highly verbally insulting”. She brought the matter to her employer’s attention on the 24th April, 2018 and again in writing on the 27th April, 2018. The respondent, upon receipt of the e-mail invoked their grievance procedure and dealt with the matter accordingly. I find that the respondent dealt with the matter in accordance with their policy and in a fair and transparent way. Employee A apologised to the complainant and she accepted his apology. It was open to her not to accept the apology, but she did accept it. A letter setting out a summary of the issues and clearly stating that the parties had agreed to move forward and work together in the future was sent to the complainant on the 1st June, 2018. The complainant did not invoke step two of the grievance process. The respondent in those circumstances was justified in considering the matter closed. I note that Employee A had resigned several days prior to the letter of the 1st June, 2015. The respondent asked him to reconsider his decision, but he confirmed his decision and his last day of work was the 31st May, 2018. The complainant confirmed her knowledge of Employees A’s resignation in her letter dated the 7th June, 2018.

The complainant called in sick on the 5th June. 2015. All of her medical certificates state “Health related condition”. On the 7th June, the complainant wrote to the respondent setting out her unhappiness with the respondent’s handling of the grievance and raised a second grievance in relation to Manager S’s behaviour on the 31st May, 2018. Matters referred to in that letter are contested by the respondent. She was invited to discuss her new complaint on 22nd June, 2018 however she stated she was medically unfit to do so. A medical appointment was set up with the company doctor, however the complainant did not attend. Considering that the complainant was out on sick leave from the 5th June to the date of her resignation, I find that she did not allow the respondent time to investigate her second complaint before she resigned her position on the 10th July, 2018. She was invited to retract her resignation, but she declined.

The complainant’s allegation that she was constructively dismissed from her employment and had no option but to resign her position of employment as no appropriate measures were taken by the Respondent to ensure her safety in the workplace is not consistent with the facts as outlined by the parties at the hearing.

Based on the evidence adduced at the hearing, I find that the complainant did not invoked step two of the grievance procedure following written notification of the grievance conclusion in relation to Employee A. She did not invoke the Bullying and Harassment policy in relation to the treatment she was allegedly subjected to, by Employee A. Despite being allegedly subjected to unwanted behaviour by Employee A, she continued to get a lift home with him every evening. She failed to attend a meeting on grounds that she medically unfit to do so but then failed to attend at the company doctor appointment to assess her fitness in that regard. She resigned her position prior to allowing the respondent time to investigate her new complaint and after Employee A had resigned. In all the circumstances, I find that the complainant’s decision to terminate her contract of employment was not a reasonable one.

The complaint fails.