Complainant

Respondent

Anonymised Parties

A Quality Assurance Analyst

A Software Company

Representatives

Appeared in Person

Michelle Ryan, Ronan Daly Jermyn Solicitors

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-00024497-001

21/12/2018

This case centred on a claim for Constructive Dismissal and was contested by the Respondent, a Software Company.

The Complainant presented as a Lay Litigant and had some difficulty collating her written submissions and appendices to present at hearing on the first day of the case, this subsequently resolved. The Respondent was represented by Michelle Ryan of Ronan Daly Jermyn Solicitors.

Both parties made helpful written submissions detailing their respective positions.

The Complainant in the case commenced permanent employment as an Analyst with the Respondent Software company in May 2016. She had previously worked there in an Agency capacity for a period of 5 months. The Complainant had a 5-year background in Human resources. Her salary was €33,900 per annum. The Complainant submitted that she had experienced extreme difficulty in her workplace of 150-200 employees and had been left with no choice but to leave this position by May 2018. The Complainant submitted that she commenced garden leave  on June 1, 2018 and was   involved in processing a grievance and complaint of bullying up until June 22, 2018. She found new work on 25 June 2018 and sought the remedy of compensation.

The Complainant presented a written outline to the background to her case which I have summarised here:

The Complainant was directly employed as a QA Analyst, Manual, she had completed a QA Graduate Programme with another company and scored 3 in her performance rating, “Meets expectation “in November 2016.

The complainant took on some cross-site work during 2017 due to a shortage of the Manual QA resource. She undertook this change with the assurance of continuing support from her Team Lead, Mr A. November 2017 showed a repeat of Score 3 in performance rating. Goals were identified and agreed for the year ahead before Mr A, the Team Lead left employment and was replaced by an Interim lead, Ms B, Head of Engineering, who had a broader level of responsibility than Mr A.

Early in 2018, Ms B raised the incompatibility with the complainants declared goals with SMART goals , which were company objectives .The goals were revised and the complainant felt unsettled by this as she believed that she was being unfairly questioned on her goals, her career intentions and recording of her absence .The Complainant submitted that she was keen to learn and perform effectively and usefully with the company but she felt a defined barrier in that regard by Ms B’s attitude towards her .

In February- March 2018, the complainant agreed a training and testing regime to follow which had not transpired as Ms B prioritised business over training needs. This period also coincided with the complainant being requested to take a higher-level role on the team. She became apprehensive. The QA Project was also facing a pressurising deadline of March/April 2018.

On 30 March 2018, the Complainant consented to and commenced an 8-week Performance Improvement Plan, a copy of which was exhibited in a 4-page version.

“The purpose of this 8-week period is to improve your performance and get you to the level I need you to be at, to be a valued contributing member for the team”

The Complainant was overwhelmed by the 1:1 meeting held with Ms B on 17 April 2018, where 3 handwritten refill pad pages of feedback notes were used by Ms B and directed at her in conjunction with test cases from a lap top. She was informed that the test cases were not of an acceptable standard which was contrary to her own understanding of them. She felt that her work had been pulled apart over a half hour time frame.

The Complainant outlined that this confrontation caused her to feel totally stressed and she was permitted to go home by Ms B. The next day, she secured a medical certificate and requested company policies on Bullying, Grievance and sick leave policies. She secured legal advice.

The Complainant continued certified sick leave and on 14 May 2018, she submitted a formal grievance in relation to Section 23, Performance in the contract of employment and incorporated conflicting feedback, putting in unattainable vague objectives and continuously finding fault with her work. The Complainant also raised a complaint of bullying against Ms B. She formally requested a change in her reporting structure on her return to work on May 17, 2018.

A delay followed in her return to work due to personal circumstances of the HR Team and the complainant returned to work in the open plan office on May 22.

She recalled her back to work meeting, where Human Resource had suggested she give herself a chance post her return from sick leave before launching into her grievance. She was to join a more experienced QA and work was to be shared. A new reporting arrangement was put in place where MR C was now to be her nominated manager, while the grievance was being investigated. She still experienced some distress in seeing Ms B in the workplace.

The Complainant expressed a concern that she may be requested to attend meetings with Ms B on her own and was informed that if that she was met with that request, she was alert to HR and Mr C, either of whom would attend with her. The Complainant was complimentary to the Human Resource Dept in that vein.

A week later, on May 28, the complainant handed her resignation to MR C. She discussed her reasons for leaving as “too much had happened since January “and she had accepted a job at another company. She expressed a view that “it had not been the same working in X since Mr A had left and she had felt undermined.

The Complainant expressed a strong view that she was not motivated by compensation in taking the case but a need to ventilate the events she experienced at work with the respondent. She analysed that Mr A had not been replaced and she ended up being pushed to a higher level without training or support.

The Complainant told the hearing that she was disappointed that the outcome of her grievance and complaint of bullying were not upheld in the 22 June report. She contended that it was unfair that she was not permitted to appeal this outcome and had experienced huge frustration at the delays in process she witnessed. She received social welfare payments during sick leave. The Complainant was firmly of the view that she was to be permitted to appeal the grievance outcome if she wished.

The Complainant confirmed in cross examination that she had been asked to reconsider leaving. She stated that “too much had happened “to permit this. She had not considered measures short of resignation.

The Complainant confirmed that she had applied for new work on May 8 and had attended a second interview for new work on 17 May 2018. She saw no point in staying with the respondent after May 29. She commenced new work on June 25 ,2018.

At the commencement of second day of hearing, in response to the Adjudicators letter of 5 June 2019, the complainant confirmed that she had received a copy of the retained notes of April 17 meeting with Ms B during the grievance investigation. She agreed that it reflected the content of the meeting but wanted the hearing to know that she had felt pushed out of the company.

The Complainant concluded that she had reviewed all her options prior to resigning and considering the clear impact on her health and welfare, she decided that leaving was the most viable option. The Complainant ha endeavoured in relaunch her career.

The Complainant did not make submissions on loss suffered.

The Respondent outlined the background to the complainant’s employment which was at one with that provide by the complainant. The Company provides software development, operational support and consultancy in the on-line gaming industry.

The Respondent denied that the complainant had been constructively dismissed and submitted that she had resigned in May 2018 to take up new work. The Respondents position reflected that the complainant had left work without exploring any alternatives, thus undermining her claim.

The Respondent gave an outline of the complainant in work November 2017 to June 2018, when she left the business. In referring to Performance Management Report, June 2017, The Respondents representative reflected the Overall Score of 3 was qualified by a rider from Mr A

“lots of changes in teams/projects in recent months. Continuing to gel with new team and learn the skills and domain knowledge required for the role in the new team. Dependable and flexible to changes in team structure, deliveries etc. Think a 4 is achievable next time “

The next Performance review conducted by Mr A in November 2017, Overall scored at 3 displayed a difference in the complainant’s self-assessment of 4 and the Managers assessment of 3. While there was a positive endorsement of the complainant’s flexibility and dependency, there were some markers set down.

“There are a few areas we need to address: QA processes, you need to be sure about the QA process that we follow and know that all the steps in bringing a feature from X to Y. This needs to be the focus for you in the coming weeks. Please be mindful of the frequency and audience of “internal messages “as a certain message system can be distracting for team members “

The Complainant had never actioned an appeal on any of her performance appraisals.

The Respondent took a view that the complainant had “an improvement needed “as the transition took place between the stewardship of Mr A and Ms B early in 2018.

The Respondent explained that Ms B has expressed a high level of disappointment at how the complainant had directed complaints against her which had not been upheld. The Respondent, through the Human Resource representatives conveyed that Ms B understood that she had sought to assist the complainant and not hinder her progress. Ms B had decided not to attend the hearing on either of the two dates of hearing.

The Respondent went out to dispute that the complainant had been denied requested training and the respondent had merely pointed out that the training she was seeking was not relevant to the 2018 jointly identified goals. The Respondent was concerned regarding the complainant’s performance and together with the complainant explored the prospect of a Performance Improvement Plan (PIP) This is an informal process utilised to aid an improvement and is not disciplinary in nature.

Three goals were identified for the first two weeks

1 Complete test cases and reports

2 Complete net deposits test cases

3 Test documentation

And accompanied by a direction:

“In the case of all of the above, I need to see each item clearly documented with no ambiguity arounds steps required to run tests “

On April 4, 2018, The Respondent sought to clarify the goals and sought to emphasise that the first stated goal was not being met and the complainant was asked to allow the 8-week period to run before revisiting training requests. A process of engagements was planned to address the goals and were uneventful until April 17.

The Respondent submitted that by April 17, Ms B had formed the view that the Complainant was not working at the level needed by the respondent. The Respondent took issue with the complainant’s version of events when she had expressed the view that she was meeting expected standards. The Respondent exhibited an extract of the record of this meeting retained by Ms B and shared with the complainant during the grievance investigation:

“I then asked X where she thought we were at now. We set out what we both thought were very achievable goals an yet her resulting work was way off the mark. X said that we could go through the next 6 weeks, set out goals again, waste my time, waste her time and she still wouldn’t be of the standard we need. She said she’s worked very hard to reach these goals, she thought she did a good job, but after listening to my feedback she realised that she missed lots of critical parts. She says that she knows that she is letting the team down and she’s simply not at a level we need. She discussed how she has been thinking since January that the company was not the place for her. I asked her what she thought her ideal outcome of this process was. She said what would be best would be if the company gave her notice an went and hired someone else more suited to the role ……

The Respondent submitted that the Complainant then requested to “stop the PIP “and was informed that Ms B accepted her position and told her that she would channel the matter to Human Resources as she wasn’t familiar with the next steps. The Complainant was assured of a reference. Ms B provided the complainant with an option of leaving work to go home after a difficult meeting and this was accepted. The parties shook hands and the complainant said she would be back the next day only to call in sick.

The Complainant commenced sick leave, citing stress and submitted a formal grievance on May 14. The Complainant contended that the PIP had been relied on to “manage her out” of the business by finding fault with her work and placing vague and unattainable objectives in her pathway.

The Complainant went on to state:

“Given the impossible situation I am being put in it can only result in my having to resign but I would be firmly of the view that any such resignation resulting from this would be quite clearly constructive dismissal on behalf of the company “

The Complainant went on to lodge a bullying complaint against her Manager and sought a change in her reporting structure.

The Complainant took sick leave to give herself a chance to recover.

There was a slight delay in hosting the complainants return to work on May 22. The Respondent offered Mr C as the complainants direct Manager while her complaints were investigated, and the complainant agreed to this change. The Complainant was also offered a week “easing in “time post sick leave prior to launching the investigation into her grievance. The Respondent understood the complainant agreed to this and returned to her work.

The Respondent was then surprised to learn that the complainant submitted her resignation on May 28 to Mr C.

“I am writing to announce my resignation from X. My last day of employment will be June 22, 2018.This was not an easy decision for me to make. The last 2 years and 4 months have been very rewarding. I have enjoyed working on successful teams on a variety of projects. Thank you for the opportunity that you have provided me during my tenure with the company. I wish you and the company the very best and hope we can keep in touch in the future “

The Respondent met with the complainant and asked her to reconsider her resignation, but the complainant responded by stating that she was resigning to pursue an opportunity of new work and was not prepared to retract as the new work provided her with career progression. The Respondent confirmed that they would press ahead with the Grievance as raised on May 14.

The Complainant requested to be freed up to facilitate the new work and agree that her last paid day would be June 22, but she would cease work on June 1, relying on paid leave to bridge the gap.

The Grievance meeting proceeded on June 1 and was handled by Ms D, Human Resources and was summarised in 12 issues. Ms D interviewed Ms B prior to re-engaging with the complainant again on June 11. All relevant documentation was shared with her.

A Grievance outcome meeting was scheduled for June 20 off site but had to be postponed. Considering the narrow window in the complainants finishing date, she requested the Grievance findings by email.

The Grievance was not upheld and the Investigator, Ms D placed significant weighting on the complainant’s lack of recourse to direct dialogue to communicate her unease a distress to MS B. The Investigator reflected that the complainant had indicated that “her resignation was not connected to the grievance “

The Respondent offered the complainant the opportunity to retract her resignation and to address her concerns through mediation. The Complainant did not avail of that offer.

The Respondent offered a right of appeal, but as the complainant had left employment, this was rescinded. The Respondent stood over this as a reasonable act.

The Respondent submitted that the complainant had not raised any issue regarding Ms B prior to or during the PIP process. The Respondent contended that the company had acted reasonably by acceding to the complainants request to change her reporting structure, yet there was no record of the complainant engaging with Mr C on any aspect of her unease outside confirming her resignation. The Complainant had spent a mere 4 days back in the office post her sick leave.

Evidence of Ms D, Human Resource Manager and Grievance Investigator

Ms D was new to Human Resources at the company and was asked to pick up the investigation by Senior Human Resources, who were also p [resent at the hearing. Ms D was aware that the complainant had surrendered her resignation as she had been in discussions regarding the complainant’s annual leave calculation on resignation. She understood from the complainant that she had been considering   a new role in a new company and had congratulated her.

Ms D collated a large dossier of documents in preparation for the Investigation. The complainant wanted to move quickly, but her objective was to understand the grievance procedure. Ms D met with the complainant who decided not to be represented on 30 May and set out the methodology of the investigation and invited any challenge to the process. There were none. Ms D was aware of the protective measure of Mr C as the revised line Manager.

Ms D spent time with Ms B to illicit her response and she received extensive documentation from that source, which were provided to the complainant. Ms D met again with the complainant on June 11 and noted that the complainant had a tacit acceptance of her work performance and it was Ms Bs approach which troubled her the most.

She noted that the complainant was very composed, but she did not have one clear message of her understanding of the process where she had difficulty. The Complainant expressed the view to her that Ms B should have been able to interpret from her tone that she was in extreme difficulty. The Complainant was offered an opportunity to challenge any aspect of the investigation but did not do so. Ms D clarified that she believed that the complainant advanced her grievance as a “point of principle “.

During cross examination, Ms D agreed that she was compelled to work outside the 10 days protocol set down in procedures, but her investigation had yielded a considerable volume of paperwork from Ms B which required careful consideration.

She clarified that she understood that the short delay in concluding her final report might allow for the complainant to have the benefit of that delay for appeal purposes and she made the offer of appeal in good faith. This was ultimately withdrawn by the company but not before the complainant was again asked to reconsider leaving in favour of addressing her issues through mediation, an option rejected by the complainant.

Mr D confirmed that during her investigation she looked for signs that the complainant was distraught as she discussed being traumatised but there were no signs. Yes, she expressed a demoralisation , hurt and demotivation but Ms D established that she had not channelled these emotions through to the next steps of the company procedure consistent with the events surrounding the PIP process .There were no witnesses to the complaints and Ms D concluded that the complainant had secured another job which was to enhance her career pathway .Ms D had identified many ways to resolve the complainants difficulties and saw Mr C appointment as the first step . She believed it would have been better if the complainant, a valued employee had stayed with the company.

The Respondent denied any conduct or breach of contract such as would have entitled the complainant to deem herself constructively dismissed in accordance with Section 1(1)(b) of the Act.

The Complainant had freely admitted to contemplating leaving employment as far back as January 2018 and shared these plans with Ms B during April 17 meeting. She was not compelled to resign, and she submitted her resignation without giving the grievance a chance to be addressed. The grievance raised on 14 May was reduced to a “box ticking “exercise. The Complainant had by then made her mind up to leave.

In applying Berber V Dunnes Stores [2009]20 ELR 61 to the facts of the case, the Respondent argued that the Complainant behaved unreasonably in refusing to address her issues prior to her resignation in line with company procedures. the Respondent was not unreasonable and did not breach the trust and confidence of the complainant. In applying Denton v Sexual Health Centre ltd at EAT, UD 705/2008, the Respondent argued that the complainant deprived herself and the employer of the opportunity to explore options.

The Respondent had endeavoured to obtain a retraction of intention to leave from the complainant and replace it with a pro-offered mediation right up to the last day of employment but this was not heeded by the complainant .Barry V Quinn Insurance ltd UD 1775/2010 , where the EAT determined that “ an employee must exhaust all avenues for dealing with her grievance before resigning “ negated that complainants bid for constructive dismissal .

The Respondent had sought to discover the complainant’s loss given her declared new work, but the complainant had not engaged prior to the hearing. The Respondent argued that there was no loss or mitigation advanced.

I have considered both parties oral and written submissions in this case. The case ran over two days. There was a difficulty on day 1 as the Complainant had sent in her written submissions accompanied by appendices but had not collated them for her own benefit to present her case at hearing.

Conscious of the high level of the burden of proof resting with the complainant in the case, it was important for me to consider all documentation submitted by the parties and this was just not possible on day 1 and required an invitation to both parties to return. As I reviewed my copies of the complainant’s submissions post hearing, I discovered what appeared to be an undated written record of the April 17 meeting which ultimately proved to be a watershed moment in the case. The Complainant had not referenced this document at hearing and I was keen to see where it fitted, if anywhere in the case?

I wrote immediately to the parties;

“I will hear oral and/or written submissions from both parties at the outset of the resumed hearing on the relevance of this document in the case “

The Respondent confirmed that it was indeed Ms Bs written record of the April 17 meeting and had formed a part of the Respondent earlier submissions. The Complainant confirmed that she had not received this concurrently in the meeting time frame but in the context of the grievance investigation. She accepted the content of the document as an accurate reflection of what happened but qualified it by stating that she felt pushed out of the company.

I was disappointed not to meet Ms B in this case. I appreciate that this is a very busy company, however I believe Ms Bs presence at hearing to clarify her meticulously compiled documents may have assisted me further in my decision making.

I have been asked to decide whether the Complainant was constructively dismissed from her employment as a QA on June 22, 2018?

It is important for me to state what the Unfair Dismissals Act provides in the definition of a Constructive Dismissal.

Section 1 of the Act states that:

The termination by the employee of her contract of employment with her employer whether prior notice of 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

This test places a very high onus on the complainant to prove a Constructive Dismissal. In Redmond on Dismissal Law, Des Ryan, BL reflects on an earlier WRC decision in A General Operative v A Religious Society, ADJ 2814

In such cases, 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 effect the question is whether it was reasonable for the employee to terminate the contract based on the employer’s behaviour?

I have as stated spent some time considering both parties stated positions and I have reviewed the extensive documentation involved.

The Complainant presented her case mainly in narrative form with limited cross reference to the documentation she submitted. I understood that she had decided against securing a representative in the internal aspect of the case, taking legal advice only in the aftermath of the PIP and the April 17 meeting.

In my opinion, the complainant would have benefitted from representation at a much earlier juncture in this case as for me at least as she experienced a significant difficulty in real time in articulation and communication of what she truly felt.

On reviewing the contract of employment, Section 2 provided for extensive flexibility and mobility within the company or for any associated companies. I note that this company is 8 years old and has had a rapid growth to 200 employees. The Contract also provided for a Grievance procedure and was accompanied by an extensive staff handbook.

I am mindful that the complainant submitted that she had a 5-year experience in Human Resources before diversifying into the world of QA firstly through a Graduate programme, then Consultancy and finally through direct employment in June 2016. She was clear no issues had arisen prior to Mr A leaving the company and his being replaced by the Interim lead of Ms B. I did establish an important operational sub plot of insufficient QA presence during the key timing in this complaint, January to June 2018. It was clear that this placed a certain pressure on all parties. I was also mindful from the Human Resource evidence that the handover message from Mr A to Ms B was that the complainant required “hand holding “in the job. I am certain that the complainant did not see herself in that vein, however this was intelligence available to the company.

The complainant submitted that she was made to feel incompetent and devalued once Ms B became her lead manager. Ms Ds investigation did not establish any platform where this was discussed directly with Ms B and it was clear to me from the evidence adduced and the documentation raised that the complainant suffered in silence. On a careful reading of the April 17 document which reflected the PIP progression, I was struck by the meticulous detailing of the objective and the plans laid to achieve them.

The report detailed that the complainants’ work was “still not at the quality we needed “The Respondent document detailed a stated awareness from the complainant that she was not a “fit “for the company and that she had begun to plan an exit strategy starting with a cessation of the PIP.

The complainant did not deny the “long goodbye “approach she planned but qualified it by saying this was not a voluntary action on her behalf.

This prompted me to probe the Respondent position as stated. The Respondent requested a higher level of productivity and a change from the complainant in her operation of the communication modem at work. I thought these were reasonable requests. In considering the June and November 2017 appraisals I could detect a more laid-back style in Mr A s analysis of the complainant. This was clearly replaced by a more incisive deliberate approach by Ms B from January onwards. The Complainant clearly did not thrive in the new system of management.

Transition to a new management system can frequently be challenging. The Complainant assured me that she had been managed by females in the past and this alone was not an issue for her. Instead she said that she felt diminished and incompetent by Ms Bs attitude towards her. I did not have the benefit of probing Ms B on this, but I am satisfied that the complainant was distressed as a direct result of the change of Manager.

However, I was surprised, given the complainants extensive grounding in Human Resource work that this disappointment did not find its way to a much earlier stage grievance as the complete variance in what the complainant thought and said during the January to June 2018 timeframe was enormous.

The Complainant presented a log of GP attendances 18 April to 14 May 2018. The log reflected stress, laryngitis and indicated on May 9 that “a few legal proceedings pending next week “The Complainant clarified this as her stated intention to raise a grievance rather than a legal course of action. She did not submit a contemporaneous Medical Report.

The Human Resource Team submitted that the Respondent had reached out to assist the complainant and did all they could to help her stay with the company by supporting her during her sick leave and in her return to work. The Complainant did not reach out to Mr C for support and did not speak to the Chief Technical Officer, who was known to her.

I have found the notification of resignation one week after the complainants return to work to show a lack of attention and commitment to process by her. I fully accept that the complainant had every right to raise a grievance, but processing a grievance takes time and engagement. I found that the complainant had not factored that time factor into her plans. She had secured an offer of new work which she had accepted and determined that the respondent had no more to offer her at that stage There was no single “ last straw event” which fortified her thinking in this and the letter of resignation did not reflect any involuntary action on her behalf as she was fulsome in praise and gratitude for her experience at work.

All of this has led me to conclude that the complainant actioned the grievance in an academic fashion as she had an understanding on the cardinal importance of raising a grievance from her own knowledge and the information imparted by two unnamed solicitors .The fact that she conflated her intention to resign with an activation of grievance made it very difficult for the Respondent to help her as it appeared that she had realised her exit strategy

. I am strengthened in this thinking by the complainant’s criticism of the grievance process in terms of procedural tardiness and incompletion regarding an appeal. By then, I have established that the complainant had firmly dissociated from the respondent and had no interest in engaging in conflict resolution. She had been hurt and this was her response to that hurt. I believe that when Ms D summarised the grievance as a point of principle for the complainant, she was unerringly correct.

The Respondent followed procedure to the letter and commissioned an investigation into the grievance. I found Ms Ds completed investigation to be fair and compassionate and most importantly offered to keep the door open to the employment to explore alternative disputes resolution mechanisms. The Complainant had disconnected at that point and the suggestions fell on deaf ears.

All human beings are complex and we all take with us life experiences through our working life. The advancement of social media and electronic mail has blurred the boundaries between home and work. Those charged with Management and those being managed face daily challenges and I don’t suppose anyone welcomes communicating or receiving the hard message of “improvement needed “at work. However, in this case this was the Respondents objective to manage an employee who needed to demonstrate improvement in a fast-paced company.

The Respondent through the notes of April 17 understood that the complainant had ceased the PIP and was to approach Human Resources for the next step. This plan was interrupted by the complainant’s sick leave and replaced by a grievance that ultimately proved unfounded. I can appreciate that the complainant understood that she would retain a right to appeal into her post resignation time line. While the Respondent was under no obligation to run an appeal in this period, I found that the message around this was not well communicated. The resignation then overtook the grievance and became the headlining event for the complainant. I can understand that she wanted to move on and relaunch.

I have not been able to identify actions on behalf of the employer which forced the complainant to leave her job. The Complainant would have benefitted from an opportunity for her to express her real feelings through candour and assertiveness early on in 2018. I found it unreasonable for her to expect her line manager to pick up on her cues if she had not put words to those cues. This was an area in which she could have taken a higher level of personal responsibility and may have yielded benefits from.

I found that the Respondent acted proportionately to her requests for intervention and the change of line manager was key to this. This was a protective measure. The follow up investigation was well conducted perceptive and solution focussed . I was very struck by Ms D’s intuitive remarks which were fair and balanced .

I appreciate that the complainant continues to carry a high level of dissatisfaction at how she believes that she was treated at work. During the investigation and indeed over the course of the hearing she expressed some insight that she may not have been an appropriate fit for the respondent, but she carried a high level of residual hurt at being told that there were shortfalls in her performance.

In short, she took it personally and had not balanced this with a sufficiently strong next step approach before utilising a “last course of action “the nuclear option of termination of employment, in announcing her resignation 6 calendar days post her return to work, I appreciate this date was unavoidably delayed through the Human Resource Department. The Complainant did not give herself a chance to re-establish her position at work and put all her faith in her new position. Crucially, she did not reflect on or actively consider any actions short of dismissal when these were openly available to her at the company.

I am hopeful that nothing I have said above will serve to upset the complainant further. I accept that she was terribly upset about her feedback through the PIP process and I can appreciate that she grappled with the options of “fight of flight “. I respect that she expressed a very strong desire to be heard at hearing. By choosing to leave, the complainant honestly believed that she was doing the right thing for herself. However, her decision to leave arose from a voluntary action which she freely described to the Respondent HR staff. She was provided with a reference to assist in this. At the very heart of the case, the complainant retreated from the respondent and not the other way around. There were no threads of duress contained in the letter of termination, no signs of a declaration on a compulsion to leave. Finally, the complainant did not action her complaint until the very last day permitted her on December 21, 2018. I did not secure a viable reason for this delay .

The Complainant has not attained the burden of proof necessary to satisfy the test for constructive dismissal through either the contract or reasonableness test. Her claim for Constructive Dismissal cannot succeed and is not well founded.

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.

I have found the claim is not well founded. The claim for constructive dismissal has not succeeded.

Constructive Dismissal