Complainant

Respondent

Anonymised Parties

Credit Union Employee

Credit Union

Representatives

Patrick Nicholas instructed by Michael F Nolan Solicitors

Campbell International Human Resource Consultants

Act

Complaint Reference No.

Date of Receipt

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

CA-00027071-001

14/03/2019

The Complainant was employed by the Respondent from 2010, initially on a temporary basis. She resigned from her employment in September 2018 and subsequently submitted a complaint for constructive dismissal against her former employer.

The Complainant submits as follows:

The Complainant began working for the Respondent in a temporary position as a teller in 2010. After leaving and being called back to cover a number of times, she was eventually made permanent in 2011. The Complainant working primarily as a teller until 2014 but also voluntarily learned the position of Clerical Officer so that she could provide cover when the Clerical Officer was absent.

In late 2014, although the Complainant was not officially given the role of Assistant Compliance Officer, she started assisting the Assistant Manager, who was also the Compliance Officer as well as carrying out her other roles. The assistant compliance role involved assisting in tasks such as preparing returns to the Central Bank, reports for the Board of Directors and preparing and amending policies and procedures. It also involved meeting with the CEO as necessary – previously the Complainant had very little contact with him. This continued until October 2015, when the position of Assistant Risk and Assistant Compliance Officer was advertised internally.

A few days prior to the closing date, the Complainant queried the salary and some other aspects of the role with the CEO in his office. The CEO became extremely irate with her. He said that the Complainant ‘needed counselling for my status issue’, and that ‘just because no one had ever said it to me before didn’t mean it wasn’t true’. The CEO also said that the Assistant Manager seemed to like the Complainant and got on well with her but that he (the CEO) did not and he said that the Complainant had no respect for him. He also alleged that the Complainant stood in front of him on a previous occasion with an attitude problem which he maintained he could tell by her body language. The Complainant asserts that this was completely untrue.

The Complainant ended up crying in the CEO’s office for the duration of their meeting during which time the CEO continued to berate her. The closing date for the Assistant Risk and Assistant Compliance Officer position was the following Tuesday and the Complainant had not yet applied in light of the incident in the CEO’s office. On the closing date, the CEO asked the Complainant if she had applied for the position. When she responded that she had not and that she was unsure if she was going to do so, the CEO suggested that she should apply for the position.

The Complainant then decided to submit an application as she had worked hard to get to that point and it would have been a promotion for her. The CEO later announced at a staff meeting that since the Complainant was the only applicant for the Assistant Risk and Assistant Compliance Officer position, she would be appointed to the position once she had done an interview. The Complainant was left waiting for an interview for months until, on foot of a request from her, the interview as held in February 2016.

In the months in between the announcement that the Complainant was successful in her job application and the interview taking place, the Complainant was not allocated a defined body of work nor was she assigned a set work station.

The Complainant submits that the CEO treated her unreasonably throughout her employment with the Respondent by:

·         Discarding changes that she had made to a policy because he thought they were her recommendations rather than recommendations from external consultants

·         Constantly telling her that she had an attitude problem

·         Belittling her in front of other staff

·         Putting pressure on her in relation to compliance issues and insinuating that the compliance function was not carrying out tasks correctly.

·         Telling her that she wasn’t a team player and that she did not want to do any work outside of her own role

·         Refusing to listen when she advised him regarding items that needed to be completed for the internal auditor

·         Not giving an accurate description of her qualifications when asked by an external body

·         Insisting that she change her holidays to cover a clerical officer role and then when she did so he continuously took her away from the job

·         Cutting her salary and refusing to restore her to her previous level until she eventually had to have a meeting with him and her union representative.

·         Constantly ignoring her in front of other staff

·         Asking her numerous compliance questions when the Assistant Manager was off and sending other people to her even though she was no longer working in compliance and he had reduced her salary to reflect this

·         Comments regarding her personal appearance

·         Ignoring the Assistant Manager and the Complainant after two Central Bank inspections and blaming them for the poor inspection outcomes

·         Withholding information relevant to the carrying out of her job

·         Various issues in relation to sick leave

The Complainant submits that she did not follow the grievance procedure because she saw how another staff member (the Assistant Manager) was treated when he made a complaint. The Complainant felt that if she had followed the same route she would have been signed off on long-term work related stress and she did not know how she would be able to return to work afterwards.

The Complainant contends that she did not have any faith in the Board of Directors that an in-depth investigation would be carried out if she lodged a complaint. She submits that this was due to the fact that the Board of Directors was aware that there was an issue and never followed up on the root of the problem. In this regard, the Complainant refers to her resignation from the position of Risk and Compliance Officer (a Staff Officer position) in January 2018 shortly after being promoted – a promotion and salary grade that she had worked towards for years. The Complainant also refers to the fact that she was signed off on work related stress for two weeks in April 2018 and she had requested voluntary redundancy in May 2018.

Furthermore, the Complainant submits that she had advised the Staff Liaison Officer (who is also a Director on the Board) about issues that she had with the CEO when she was called as a witness in the bullying case between the Assistant Manager and the CEO in June 2018. The Complainant contends that she also included this in her witness statement and reiterated the fact to the Staff Liaison Officer on a further occasion in August 2018.

The Complainant submits that less than two weeks after she gave her witness statement she received an email and a letter from the CEO informing her that she was being sent to Medmark for an independent medical assessment by the Respondent due to being ill for a “prolonged period of time”. The Complainant submits that she was off sick for 4 weeks at this stage.

The Complainant went for the Medmark assessment as requested on 14th September 2018. She explained to the doctor about the stress that she was under and he acknowledged in his report that she was under the care of her doctor and appeared to be improving. He suggested counselling to deal with the stress.

The Complainant heeded his advice and phoned the Respondent’s external Employee Assistance Programme provider. The Complainant spoke to a counsellor there and outlined her work situation for the past three years. According to the Complainant, the counsellor said ‘it sounds like that man has it in for you’, meaning the CEO. The Complainant submits that the counsellor also advised the Complainant that, in the interests of her health, she should leave her job as her workplace was toxic and the benefits very obviously did not outweigh the one big disadvantage.

On 19th September 2018, the Complainant received a note on her payslip saying that her wages were being withheld because of a meeting that was to be held which she would be advised of separately. According to the Complainant, this was the final straw. The meeting, which she received a letter about after resigning, was ‘a medical capability meeting’ in the Respondent’s offices. The letter did not specify who would be attending on behalf of the Respondent nor who would be assessing her medical capability. While the doctor at Medmark had suggested a meeting to address work concerns, the Complainant understood that it was not meant as a meeting to assess her medical capability. The Complainant had already been to the company doctor five days previously and had been assessed by him.

The Complainant gave notice of her resignation to the Staff Liaison Officer by email dated 19th September 2018 and asked him to inform the Chair of the Board of Directors. She indicated that she would forward a letter outlining her reasons for leaving.

The Complainant maintains that she was not questioned as to why she was resigning from the Respondent company. She was advised by the Staff Liaison Officer that he would inform the Chair and Board later that evening at the monthly board meeting. The Complainant received an email eight days later advising her that the Board of Directors had accepted her resignation. She did not receive any further wages despite submitting sick certificates to cover the required notice period.

The Complainant wrote a letter to the Board of Directors on 23rd October 2018 explaining her reasons for leaving and also requested monies owed to her in the form of wages, holiday pay and travel expenses, a reference and a revised P45 showing a termination date of October 2018. She received a response two and a half weeks later stating that the Board would be investigating the claims she had made in her letter and that the Chair would speak to the CEO regarding monies owed. The Complainant did not hear anything else for several weeks.

The Complainant’s solicitor then contacted the Respondent again on her behalf requesting the monies owed. Her solicitor received a cheque for monies owed to her including wages, holiday pay and travel expenses, a reference and a revised P45 in December 2018. She also received a letter from the Chair responding to her initial letter of 23rd October 2018. The Complainant submits that the letter was full of inaccuracies about the issues that she had raised. The Complainant maintains that this confirmed for her that the Board would not have carried out a fair investigation if she had lodged a grievance against the CEO.

The Complainant was aware that she was pregnant when she gave notice of her resignation to the Board of Directors. If she had remained in the Respondent’s employment, she would have worked throughout her pregnancy and would have been entitled to the benefit of full pay on maternity leave. However, she felt that she could not take any more and would not be able to endure continuing to work there even until the time of her maternity leave. The Complainant was also worried about the potential effect that the stress of the work situation could have on the baby, as she had been extremely stressed and had even reached the stage of taking anti-anxiety medication before becoming pregnant.

The Complainant felt that she had no option but to leave, even after taking into consideration the fact that there are extremely limited job opportunities available in her area with comparable benefits and salary to those she had received whilst working for the Respondent company.

Summary of the Complainant’s direct evidence

In response to questioning from the Respondent’s representative, the Complainant confirmed that she was aware of the grievance procedure. She also confirmed that she was a union member and had sought assistance from her trade union in May 2018 in relation to a pay related grievance which was resolved.

The Complainant said that she had raised a grievance in the context of the investigation of the Assistant Manager’s complaint of bullying and harassment against the CEO, and that this was reflected in the minutes of a meeting of 27th June 2918 which reads as follows:

“…she explained that she has a difficult relationship with the CEO and has had numerous differences with him.”

The Complainant considered that her statement implied that she had been bullied.

The Complainant asserted that she was entitled to rely on the following clause in the Respondent’s Policy on Preventing & Dealing with Bullying or Harassment which, in her opinion, obviated the need for her to invoke the Respondent’s formal procedures:

“[The Respondent] is required to act if it is suspected any form of harassment or bullying is occurring, even if no complaint has been made.”

The Complainant said that she was absent from work for two weeks in April 2018 due to work related stress. She felt that this should have alerted the Respondent to the fact that something was wrong.

The Complainant also said that she did not invoke the disciplinary procedures because she saw what happened to the Assistant Manager when he had done so – he had been ignored by members of the Board and the process had dragged on for months.

Summary of the former Assistant Manager’s direct evidence

The former Assistant Manager gave evidence in relation to an unsuccessful complaint of bullying which he had taken against the CEO. In response to direct questioning from the Respondent’s representative, he said that the Respondent had probably followed the procedure which was set out in their Policy on Preventing & Dealing with Bullying or Harassment.

The Complainant relies on the EAT Decision in Allen v Independent Newspapers (Ireland) Ltd ELR 84 in support of her claim.

The Respondent submits as follows:

The Respondent received very distressing reviews from the Central Bank of Ireland regarding Compliance and Risk in 2016 and 2017 and the Board of Directors were seriously concerned regarding those reviews and the implications they could have regarding the Respondent company. After the 2016 review, the Board of Directors asked the CEO to ensure that the compliance and risk issues were resolved. The Complainant was the Assistant Compliance and Risk Officer for the Respondent.

When the Complainant accepted the role of Risk Officer and Assistant Compliance Officer in October 2015 the CEO asked that she undertake a relevant diploma course to assist her in her role. The Complainant refused stating that she wished to continue her ACCA qualification and that a break would cause her to lose some of the exams she had passed to date. The CEO had meetings with the Complainant to reinforce the education plan for the Complainant and provided support regarding the requirements of her job. The CEO also reiterated the availability of external expert advice if the Complainant needed this. Up to the end of the summer 2017, just before the 2017 Central Bank review, the Complainant told the CEO that she had never contacted the available external expert. The Complainant also confirmed that she had not done any further ACCA examinations since 2015.

After a return to work from illness in April 2018, the Complainant had a meeting with the CEO to finalise a new jobs description because the Complainant indicated that she needed to step away from the Risk and Compliance role for health reasons. This was signed by both pending a future meeting — to include the Complainant’s union representative to finalise the salary. That meeting took place on 29th May 2018 and the Complainant appeared to be happy with the outcome. It was subsequent to this meeting that the Complainant’s trade union representative asked the Respondent to consider a redundancy package for the Complainant but that option was not progressed.

In May 2018 the Complainant was able to bring forward her grievances to the Respondent and they were resolved with the help of her trade union representative. The Respondent contends that it cannot understand why the Complainant did not follow this approach and avail of the grievance procedure and trade union representation at the time of her resignation in September 2018.      

The Assistant Manager responsible for Compliance and Risk made a bullying complaint against the CEO. This complaint was fully investigated through the Respondent’s Bullying and Harassment Policy and the HSA Code of Practice on the Prevention of Workplace Bullying. At all stages of the investigation, the Assistant Manager was represented by his union official. Likewise, all witnesses (including the Complainant) were offered, and availed of, trade union representation.

The Complainant provided a signed statement as part of the investigation. The statement of the Complainant was delayed by two months due to her absence on sick leave which caused a delay to the investigation. The Complainant made changes to her statement and her revised statement was fully accepted. The draft report on bullying was discussed with the Assistant Manager and his union representative and neither the Assistant Manager nor his union representative requested any changes to the report. The final report on the bullying allegation was discussed with the Assistant Manager and his union representative and the union representative only commented that it was a comprehensive report. The Assistant Manager did not challenge the outcome of the report. The comprehensive investigation concluded that no bullying took place. The Respondent deals with all grievances and bullying complaints in a correct and thorough manner and there is absolutely no reason to lack faith in those processes of the Respondent.

It was the Staff Liaison Officer who requested the Complainant to attend a medical appointment with Medmark due to the delay in the Complainant finalising her input into the ongoing investigation into the Assistant Manager’s complaint against the CEO. In September 2018 the Complainant was still on certified sick leave. After the Medmark medical on 14th September 2018, Medmark reported back to the Respondent that, in their opinion, the Complainant was fit to return to work and stated in their letter that 'In my opinion the Complainant is fit to meet with her employer/HR to address her work concerns. I recommend a meeting to address her work concerns'. However, the Respondent received a new sick certificate from the Complainant's doctor on 17th September 2018 stating that she remained unfit for work for at least another one week from the date on the certificate.

Furthermore, the Respondent had not received any payments due to it in respect of the Complainant's sick leave from the Department of Social Protection for the previous seven weeks. The Respondent’s sick leave policy requires employees to submit payments from the Department of Social Protection in order to continue salary payments. On 18th September 2018, the CEO stopped the Complainant's salary payments as per company policy and asked the Complainant for a meeting to discuss her continuing sick leave despite the Respondent’s doctor certifying her fit to return to work and the lack of payments from the Department of Social Protection.

On 19th September 2018, the Complainant submitted her resignation to the Respondent’s Liaison Officer and the Respondent accepted the resignation as of 19th September 2018. In her resignation email, the Complainant gave her resignation date as 19th September 2018. The Complainant did not mention that she was giving the Respondent any notice and the Board of Directors did not seek any notice from her. At a later stage the Complainant requested the four week notice period to which she felt entitled, and the Respondent gave her the requested four weeks' notice following the correct company procedures. The   Complainant was paid all the monies owed to her up to that date. Furthermore the Complainant was given a requested reference letter by the CEO and she received a revised P45 with the last date of employment of 19th October 2018.

Eventually, on 24th October 2018, the Respondent did receive the missing sick leave payments from the Department of Social Protection. No explanation for the delay was provided.

The Respondent is completely unaware whether the Complainant had a telephone conversation with an external counsellor and has no way of verifying if such an alleged telephone discussion took place and, if so, what was said. The Respondent says that it organises this service for their employees, as a good employer, knowing that it is completely confidential.

The Medmark medical report of 14th September 2018 does not make any references to the Complainant’s pregnancy and the Complainant had not informed any member of staff in the Respondent company of her pregnancy prior to her resignation nor did the Complainant refer to her pregnancy in her resignation letter.

The Respondent is of the view that at no time did the Complainant give a clear indication that she believed she had been bullied. The Complainant has not availed of the Respondent’s Grievance Procedure as provided in the Staff Handbook to highlight any concerns she might have had. Neither did the Complainant inform the Staff Liaison officer of any concerns at the end of her employment. This is even more surprising given that the Complainant was a member of a trade union, which is the recognised union in the Respondent company, and the trade union had previously represented the Complainant at discussions with the CEO regarding her job description and salary on 29th May 2018. The issues discussed on 29th May 2018 were resolved to the satisfaction of the Complainant and her trade union official.

The Respondent submits that the Complainant could also have raised a grievance when she sought redundancy in May 2018.

The Respondent further contends that the September 2018 meeting which the Complainant did not attend, also provided her with an opportunity to outline her grievances with the assistance of her trade union representative.

It is the Respondent's position that no constructive dismissal took place and as such, no jurisdiction exists under the Unfair Dismissals Acts 1977-2015 for this claim to be heard.

The Respondent relies on the following precedents in support of its position: Conway and Ulster Bank (UD474/1981), CACI Non-Life Ltd v Danielle Paone (UDD1750) and Animal Relief Shelter v Pamela Duggan (UDD1855).

As the Complainant is claiming constructive dismissal, the burden of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

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

““dismissal”, in relation to an employee, means—

(b) 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.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp. It comprises of two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “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 other performance.”

The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

According to the Supreme Court in Berber -v- Dunnes Stores [2009] ELR 61: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment.

It is generally accepted that employees who claim that they have been constructively dismissed must show that they have substantially utilised the grievance procedure before resigning from their employment. Whilst there are exceptions to this, such exceptions are extremely rare.

In the case of Conway v Ulster Bank Ltd (UD 474/1981) the EAT found that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated,

“We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

Desmond Ryan aptly describes the onus on employees in this respect in Redmond on Dismissal Law (2017) at paragraph 19.14: “There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignations. Where grievance procedures exist they should be followed: Conway -v- Ulster Bank Ltd UD474/1981. In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints.’”

In the herein case the Complainant has ascribed her failure to exhaust the internal procedures to two factors – a clause in the Respondent’s Policy on Preventing & Dealing with Bullying or Harassment which she believes obviated the need for her to do so and the experience of the former Assistant Manager. I will examine each of these factors in turn. I will also examine the applicability of the decision in Allen v Independent Newspapers (Ireland) Ltd ELR 84, cited by the Complainant, to the herein case.

Clause in the Respondent’s Policy on Preventing & Dealing with Bullying or Harassment

I note that the Complainant has placed significant reliance on the following clause in the Respondent’s Policy on Preventing & Dealing with Bullying or Harassment which she asserts obviates the need for her to exhaust the grievance procedure provided in that document:

“[The Respondent] is required to act if it is suspected any form of harassment or bullying is occurring, even if no complaint has been made.”

I am of the view that this clause only comes into play in cases where the Respondent suspects that any form of bullying or harassment is occurring. If, as happened in this case, the Respondent does not appear to suspect that any such behaviour is occurring, then responsibility for bringing it to their attention rests with the Complainant.

Even if I accept that the Complainant raised the issue of bullying informally in the context of the investigation of the former Assistant Manager’s complaint against the CEO, it is apparent that no action on foot of the Complainant’s complaint was taken by the Respondent.

The lack of action by the Respondent effectively meant that there was an onus on the Complainant to invoke the formal procedures. She did not do so and, therefore, has no met the test set out by the EAT in Conway v Ulster Bank Ltd which is still the guiding precedent in cases of constructive dismissal.

Experience of the former Assistant Manager

I note that the former Assistant Manager conceded that the investigation into his complaint was probably undertaken in accordance with the agreed procedures. I find, therefore, that the Complainant cannot rely on his experience to excuse her failure to exhaust internal procedures.

Allen v Independent Newspapers (Ireland) Ltd

Details of numerous meetings between the Ms Allen and her employer in relation to her grievances were provided in the EAT decision in case of Allen v Independent Newspapers (Ireland) Ltd.   Details were also provided of a letter which the Complainant wrote to her immediate manager setting out her grievances. Additionally, the EAT accepted the unchallenged evidence of Ms Allen’s husband that he took it upon it himself to speak to his wife’s immediate manager about his concern that Ms Allen had been coming home from work in a state of distress on a number of occasions.

In response to Independent Newspapers (Ireland) Ltd’s assertion that it was incumbent on Ms Allen to utilise the grievance procedure of the National Union of Journalists before resigning, the EAT found that “the object of this procedure was to bring the claimant’s grievances to the attention of management but in their view that management were fully aware of her grievances”.

I am of the view that the Complainant in the herein case, unlike Ms Allen, did not make sufficient effort to ensure that her employer was fully aware of her grievances.

I do accept that the Complainant wrote to the Board of Directors of the Respondent company outlining her grievances on 23rd October 2018. However, since this occurred after her employment with the Respondent had ceased, I am of the view that her communication was too late to have any meaningful impact.

Based on the totality of the evidence adduced, I find that the Complainant did not substantially utilise the grievance procedure provided for in the Respondent’s Policy on Preventing & Dealing with Bullying or Harassment prior to resigning her position. I find that, in line with established legal precedent in this regard, the Complainant’s failure to substantially invoke the available grievance procedure proves fatal to her complaint.

For the reasons detailed above, I find that this complaint is not well founded.

Constructive dismissal, failure to exhaust internal procedures