Complainant

Respondent

Anonymised Parties

A project worker

A charitable organisation

Representatives

Self

Management

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-00027397-001

31/03/2019

The Complainant commenced employment with the Respondent in October 2013 and remained an employee of the Respondent until 8th October 2018. She was employed as a Project Leader.

This complaint was received by the Workplace Relations Commission on 31/03/2019.

The following is the Complainant’s version of events (in her own words):

I started working in the Company in October 2013 on a part time basis as a project leader. In July 2015 I was appointed on a full-time basis by the then Chairman of the Board. By August 2016 I was leading the Employment Project (for which I have just secured four-year funding from the Department of Justice) and Prison In-Reach Project (also with external funding). I was also co-ordinating activities related to the delivery of Migrant Access Programme (co-ordinated by a partner organisation and funded by the EU).

There were no issues with my employment or my performance at any time until the CEO took up her appointment at the end of August 2017. At that time there were 8 non-kitchen staff employed by the Company. By the time I resigned in October 2018 there were only 2 of those staff members left. 5 others had left or been terminated.

I was left with no option but to resign in October 2018 having exhausted a number of internal procedures and suffering from work related stress which caused me to be on sick leave from October 2017. Over this period there was a complete breakdown of trust between me and my employer.   This was as a result of the behaviour and conduct of the CEO towards me and other staff which was humiliating and intimidating from the time she joined the Company. She was backed completely by the Board who never sought to independently verify what they were being told by her.

During my period of sickness and while awaiting the investigation, both the CEO and the Company Secretary, threatened me with disciplinary action for raising various grievances. The Chairman of the Board was copied in many of the emails exchanged and fully aware of these communications.

The Board was also aware of the CEO’s behaviour as it received multiple complaints from various staff members yet took no action to fairly investigate any complaints.

In the case of my own complaint, when the investigation finally happened, the investigator did not hear from key witnesses and as a result did not uphold my claim.

I had no option but to leave.

I attach supporting documentation with this letter, including statements from other staff members, which were not considered during the investigation. I also invited two witnesses to give evidence at the WRC hearing on 2nd October 2019 – Mr CR the former Manager and Ms SS a former Project Leader in the organisation.

The following is a summary of the complaints I raised and the conduct I experienced.

On 13th October 2017, 3 other members of staff and myself raised our concerns about the impact of the behaviour of the new CEO with the Board by email. These were summarily dismissed. In the letter dated 15th October 2019 the Board stated that the CEO “has the full confidence of the board” and that “the board expects work related communications to be brought to our attention via the CEO” and stated that “it is a condition of [our] employment to adhere to [grievance procedures]”, and advised that “if any staff member feels persistently unable to carry out their duties, the board advices them to consider their suitability for this type of work”.

In October 2017, I went on sick leave on the advice of my doctor.

On 31st October 2017 I brought my own formal complaint against the CEO under the company policy and procedure. This was supposedly investigated but I was never spoken to or given an opportunity to comment on the CEO’s responses or the proposed findings. No witnesses were spoken to. It is not clear which members of the Board investigated the complaint.

On 29th September 2017 I received a full salary of €2,610.11 (€3,333.33 before tax).   On 6th November 2017 I received a payment of €2,674.41 (no payslip or a breakdown was provided).   I understood this payment constituted my salary for the period 1st October 2017 to 9th October 2017 (when I was working) and the sick pay for the period 10th October 2017 to 6th November 2017 (when I was on certified sick leave) over five weeks in total on full salary, minus social welfare payments.   I received no further payments from the company this year. This is important as the CEO at a later stage accused me of not informing the company that I was receiving Illness Benefit and thus being overpaid by the Company.

On 13th November I lodged an appeal to the outcome of the bullying investigation.

On 16th November the Chair of the Board issued an outcome to my appeal, again without making any contact with me or any witnesses.

In December 2017 I went to Poland in order to avail of a psychological treatment in my native language. Since then my sickness was certified by a doctor based in Poland. All the sickness certificates included exactly the same information as the sickness certificates issued by a doctor based in Dublin. This is important as in June 2018 the company decided these certificates were no longer recognised as appropriate and subsequently denied my sick pay.

On 16th January 2018 I made a complaint to the WRC about the behaviour of the CEO as it had been dismissed without proper investigation by my employer and I did not feel able to return to work in the circumstances.

I was denied a Christmas bonus for 2017 and when I asked the CEO about it in January 2018 she said, “any award would be utterly inappropriate in the circumstances”. I appealed this decision and I was “reminded [by the Company Secretary] that any complaints that are not made in good faith can be regarded as disciplinary matters, with sanctions up to and including dismissal”. In the same email thread, the CEO mentioned that “there are other serious matters that relate to [my] performance” and threatened that my “complaint will be investigated in line with Disciplinary Procedures on my return to work”. This was while I was on sick leave.

As required by the company, I travelled to Ireland and attended an independent medical assessment with a doctor nominated by the company in February 2018. The report issued confirmation the nature of my illness and treatment, and its origin in the workplace. It recommended the issues to be resolved through HR channels and declared me fit to attend meetings for this purpose.

On 14th February I raised a grievance in relation to non-payment of my sick pay for 20 days in 2018 assuming that my “per annum” entitlement meant “per calendar year” (same as my holiday pay, which also was linked to years of service).   I was informed by the Secretary that my entitlement is due on the anniversary of the signing of my new contract (which was effective from July 2015). He also advised that if I wished to raise a grievance I needed to attend a meeting with the CEO (who was my line manager) as required by organisational policies stating that “this matter cannot be resolved according to the procedure until you are prepared to attend a meeting” (despite the fact the bullying complaint was still outstanding).

Subsequently rather than focussing on investigating my bullying complaint and contrary to doctor’s report, the company required me to attend the meeting with the CEO (while the complaint of being bullied by the CEO was lodged to WRC) to discuss my return to work. Only after a long email exchange the company agreed to discuss my grievances.

I attended a meeting with the CEO in March 2018 to discuss the Christmas bonus issue (for which I was to be disciplined) and my claim for sick pay which is still outstanding to this day. My return to work was not discussed except I expressed a willingness for the company to carry out a further independent investigation rather than waiting for the WRC hearing. This was refused. The minutes were taken by the Head of Operations (CEO’s long-term co-worker now working together in the Company) and were not correctly reflecting the meeting but none of my comments or corrections were allowed. However, it was confirmed by the CEO that years’ service anniversary (relative to sick pay) is on 27th July.

In a letter dated 21st March 2019 the CEO referred to part of the discussion held during the above-mentioned meeting (that was not reflected in the recorded minutes) and hinted that I was needed in the organisation as a “Polish speaker”.   I worked for the organisation from 2013 and in 2016/2017 my role was much more than a “Polish speaker”. As the projects grew bigger, new staff members were employed to perform front line work with Polish speaking clients, book-keeping, or administrative tasks. It was agreed by the Manager and the Chairman that my work will focus more on sourcing funding (and I successfully secured funding in the region of half of the organisation annual budget). This is important as the CEO tried to belittle my work previously as reported in the bullying complaint.

It is worth noting in this context that the funding application to a government department clearly outlined my Project Leader duties as “responsible for supervision, project management, reporting and evaluation”. Same application listed another company staff member as a “Polish speaker” – “project worker directly assisting project participants”. However, after the funding was awarded a few months earlier, this staff member’s contract was not renewed by the CEO quoting as reasons the fact that the company did not need a Polish Speaker.

While on sick leave I was contacted almost weekly by the CEO and the Company Secretary. This was about various things including, they tried to insist that I attend another independent assessment only a few weeks after the report on the first one issued; they were not receiving my certs (despite the fact that I scanned the certs and sent them by email immediately prior to posting them to avoid being on uncertified sick leave); they wanted to know my temporary address in Poland; they wanted my doctor to contact them; the policy for sick leave was changed to try to get me to furnish sick certs from an Irish GP. The CEO in her response to my complaint to the WRC in relation to sick pay says herself that she contacted me on more than 30 occasions between April and September 2018. This contact served to aggravate my stress and was during a time when the WRC hearing (in relation to non-investigation of bullying) was pending and then the external investigation was underway.

On 26th March 2018 I received an email from the Company Secretary offering to meet me later this week to discuss the sick pay grievance. As I was unable to travel to Ireland, I requested that the decision is made based on the arguments I already raised in writing. In a letter dated 4th April 2018 the secretary informed me that “the procedure is clear” and that he was unable to make any further determination as I did not wish to attend a meeting.

In the same letter dated 4th April 2018 the secretary requested that “as you are permanently residing in Ireland, please ensure all further medical certificates are issued weekly by a practitioner in Ireland”. He also threatened me by a disciplinary action disregarding company’s own policy giving employees up to three days to deliver sickness certificate by stating that “the most recent medical certificate expired on 2nd April 2018. As the Company does not currently have any valid medical certificate for your illness, you are currently regarded as being on certified sick leave. I remind you that your contract states that any abuse of sick leave may result in disciplinary action”.

On 1st June 2018 I received an email from the Company Secretary informing me that the company policies and procedures have been changed and that “medical certificates should state (…) the nature of the illness suffered, an indication of the anticipated duration of the illness and the prognosis. Medical certificates should be provided from a medical practitioner registered in Ireland”. This was contrary to the terms and conditions of my employment.

At the WRC, on the date set for hearing (21st May 2018) the Company agreed to hold an independent investigation into my complaint. This was before the Adjudicator heard the matter which what was I had suggested in March, but which had been refused. It was verbally agreed that both parties would nominate suggested investigators and seek compromise. Subsequently the CEO contacted the CIS Officer who attended the WRC hearing with me to seek the names. Once the name was suggested, the company decided not to honour this verbal agreement now pointing out to the wording of the signed agreements which read “external”.

Despite their voluntary agreement, the terms of reference for investigation drafted by the Company stated that it was to assess the credibility of my allegations and cited that if the complaint was found not to be made in good faith, disciplinary action would follow. Once again, I had to fight to get this changed.

The Company delayed complying with a data access request (made in May 2018) which in turn delayed my ability to proceed with the investigation. In the end, a lot of records, such as minutes of board meetings where my grievances were discussed, or written statements made by other staff members who witnessed me being bullied were not given to me. I was given a lot of irrelevant records relating to my day to day work.

The external investigator did not get evidence from key witnesses:

1.       The Company breached its own non-disclosure clause in revealing to the external investigator that one witness had signed a settlement agreement and if she gave evidence this would be a breach. When this was repeated to the witness, she felt threatened and declined to give evidence. The investigator confirmed receiving a statement previously made in writing to the Board by this witness, where she described how she witnessed me being bullied by the CEO on a particular occasion – yet this statement was neither referenced nor included in the investigator’s report.

2.       Another witness – who witnessed three of the bullying incidents told me she had not received any contact (“I never received any emails from this person”).   On 31st September 2018 I informed the investigator that she is due to go into labour shortly. The investigator claimed to have contacted her on 3rd September 2018 and 5th September 2018, but no evidence was provided. I informed the investigator that she was in the hospital this week (I later learned that she gave birth on 6th September 2018). When I offered to contact the witness again, the investigator responded that “the timeline has passed”.

This is particularly serious given that most of the findings of the investigator are recorded as “not upheld” due to it being one person’s word against another.

The contextual evidence was also disregarded by the investigator. The email written to a member of the Board by a staff member in December 2017 describing various CEO’s attacks on other staff members was disregarded as the author “did not confirm her participation in the investigation”. Another email I received from a former Board Member confirming his awareness of the situation was also not allowed.

A singular feature of all the “investigations” by or on behalf of my employer was the failure to consider the behaviour of the CEO and whether it was appropriate in all the circumstances i.e. for someone at her grade (especially compared to mine) new to the organisation, who had not worked with me previously, who was not familiar with the work of the organisation or my work, who did not seem to know what was required herself except to denigrate my work, my ability and my integrity. She was taking me to task for not doing things the way she said they should be done but in relation to a time prior to her appointment and she (in January 2018) wanted to discipline me for them! This is inherently unfair.

In her statement to the investigator, the CEO kept attacking me: accused me of “irregular invoicing” and supported this accusation by self-made document for the period I wasn’t even working: stated that alongside other staff members I “presented a proposal to the board to support non-recruiting the position of CEO” which was untrue – no such presentation ever happened; presented a narrow selection of documents allegedly documenting lack of my competence – these documents were never shared with me under my Data Access request, yet they were used in the investigation to justify CEO’s bullying behaviour as “performance management”. No documents that could easily prove the CEO’s perspective wrong (e.g. invoices) were sought.

The CEO also talks in her response to the external investigator about having to manage performance but there is a way of doing this which is professional, respectful and supportive and whereby a process of performance management is put in place if initial informal methods are not successful. This is not what I experienced with the CEO. Her conduct was inappropriate, unreasonable and intimidating. She seems to have come to the role with a preconceived and negative view of the staff and the work we were doing. In fact, she references in her response to the external investigator that she knew, before she joined, that “the position of CEO was not being welcomed by all the team”. She also suggests that this was because “people had been doing their own thing for many years previously”. Perhaps most tellingly she also states, “I had very clear objectives as the CEO to look at the existing resources within the organisation and review all resources”. Perhaps her behaviour was a strategy for getting rid of staff, which she succeeded in doing but which was contrary to employment law.

During the last year of my employment with the Company, I was bullied, and my complaint was never fairly investigated. While I was on stress related sick leave, my contract was effectively changed without my consent, so I was refused sick pay. Finally, I was threatened with disciplinary action for raising grievances and other non-specific performance issues upon my return to work. The apparent unquestioning support of the CEO’s actions by the Board over the weeks and months was also unreasonable, partial and unfair. My world was turned upside down in a number of weeks and I have still not recovered.   It became clear to me as time went on that not only did the CEO not want me working there, but the Board were not interested in ascertaining the truth or dealing with any potential fall-out from that. Or it was part of a strategy.

Constructive dismissal is generally considered to be captured by the following definition set out in the Unfair Dismissal Act 1997 as amended:

“dismissal in relation to an employee means 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”.

In the case of Paris Bakery & Pastry Ltd –v- Igor Mrzljak DWT 1468 this was stated to mean that where an employer commits a repudiatory breach of contract the employee is entitled to accept the repudiation and consider himself or herself dismissed. However, not every breach of contract will give risk to a repudiation.   It must be a breach of an essential term which goes to the root of the contract. It was stated also to capture the situation where the employer conducts 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.   Thus, an employer’s conduct may not amount to a breach of contract but could nonetheless be regarded as so unreasonable to justify the employee leaving there and then.

On the facts of that case, which involved a physical assault by the employer on the employee, both limbs of the test where held to have been met. The unprovoked assault had had the effect of undermining the mutual duty of trust and confidence that goes to the root of the employment relationship. Furthermore, it was held that the conduct was so unreasonable that the employee could not be expected to tolerate it any further. It is my case that the conduct of my employer from the time I initiated my first complaint against the CEO was so unreasonable that, having exhausted all available avenues to seek protection, I had no option but to resign.

In Murray –v- Rockabill Shellfish [2012] 23 ELR 331, the EAT in upholding the complaint of constructive dismissal stated: An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.   In the case of Brady –v- Newman UD 330/1979 the Tribunal stated “… An employer is entitled to expect his employee to behave in a manner which will preserve his employer’s reasonable trust and confidence in him so also must the employer behave”.

The Company has tried to portray me as a problem employee who disappeared on sick leave and could not be managed despite the CEO’s best efforts. The reality was very different. I felt very threatened and intimidated from the time the CEO joined and in particular with the generalised allegations made by her about fraud committed by myself and others which had no basis. I felt isolated and let down by the Board whose response to being informed of the CEO’s behaviour and defamatory comments was to say effectively if we did not feel able for the job then we should consider our suitability for the work.  

In the case of Marta Bodziachowska –v- Douglas & Kaldi @ Dundrum Ltd [2013] 24 ELR 108, the EAT found that the claimant had no choice but to leave her employment due to an investigation process that was flawed.   One aspect of this was the fact that there was no real appeal from the decision maker on the investigation as they were one in the same person.   This is very similar to the situation I faced where there appeared to be no independent review by the Board of my initial complaint or any grievance was being looked at genuinely. The twists and turns and contradictions in communications with the CEO and the Secretary of the Board, which were interchangeable, were head spinning. I felt hunted and harried while on sick leave, I tried to engage and co-operate to the best of my ability with the stress I was suffering.

The investigation which ultimately took place by the “Independent” consultant instructed by the Company was significantly deficient and flawed. It was light touch, evidence and witnesses were ignored, and it was clear to me that not only was my employer not interested in learning the truth, I was being exposed to further denigration by the CEO being allowed to make further and new generalised assertions of poor performance by me which she said would have to be dealt with on my return.   Remember I had worked for 4 years with no issues and overnight I was incompetent.

I loved and valued my job at the Company and so I made every effort to find a way of continuing working there.

By way of background, the Company submits that a number of the matters detailed in the Complainant’s papers formed part of the subject matter of the First Complaint and the Second Complaint. The Company does not wish to open matters subject to those complaints again in this dispute and to the extent they have been raised in the Complainant’s submission, they have not been responded to in the detail that would otherwise be the case.

Further, note that in terms of the matters complained of, only matters which have a nexus to the Complainant’s charge of unfair/constructive dismissal are reviewed.

That being so, the Company asks that the following points are considered when evaluating the Complainant’s case:

ADVERSE WORKING ENVIRONMENT

The Complainant charges that the Company, through the acts of the CEO and (in)action of its board of directors, created a working environment which marked a wholesale rupture as against that which had existed prior to September 2017, was one in which it was impossible for the Complainant to work, was unfair and oppressive, and caused the Complainant profound psychological and emotional harm from which the Complainant has yet to recover.

The Company is an old but simple and transparent Institution which has gone about its activities in a largely unchanging manner over the course of many decades – providing food and related services to the needy. The nature of said activities performed by the Company’s professional and voluntary staff are difficult – working at close quarters with the needy and unwell, experiencing their suffering and hardships at first hand, and being able to only provide limited care and support where much more is required.

The Company at no time, during the period referenced by the Complainant or since, has abruptly changed or otherwise materially altered the nature of the organisation, its working practices and the environment within which its professional and voluntary staff operate: the needs the Institution seeks to address are the same as they were at its foundation, its activities substantially similar, and its manner of performing them of the same pattern as they have always been.

The Company is a stranger to the charges levied against it with respect to it creating a markedly different working environment in the period between September and October 2017 and submits that no deliberate or accidental effort was undertaken by any of the staff, management, or officers of the Company during that period.   Further, in a small flat, non-complex organisation such as the Company where members of the board as well as the CEO are involved on a day to day basis, no such effort might be undertaken without the knowledge and, thus, consent of the Institution’s management and directors. The role and daily needs serviced by the Company did not change, no marked change in culture, approach, or expectations of staff was sought or undertaken. The Company submits what even were such a programme to have been pursued, which would require some degree of planning, the period of time to which the complaint relates – less than two months in late summer and early autumn 2017, would be insufficient to implement such effectively in any organisation, not to mention one such as the Company.

Yes, it is not contested that a new Chief Executive was appointed to lead the organisation’s staff on a day to day basis in September 2017 and a change in leadership of a small team will often result in a changed focus, culture and environment within the team and such matters may affect some members more than others.   The Company does not contend that no change whatsoever occurred within the organisation as a result of the appointment of the new CEO and there is no question that practices would have been questioned and signals made that certain activities would be reviewed in future. Aware of such a likelihood, the Company’s board took great care to recruit a CEO well-seasoned in the sector and with a record of successfully meeting the needs of stakeholders such as service users, employees, who would bring about improvements in working practices and offer support to all staff. While the CEO no doubt suggested changes to the manner in which certain of the Company’s activities were organised would be considered, no such changes were progressed not to mind implemented by the time the Complainant commenced illness leave a number of weeks later, and nor could they have been in light of relevant timelines. The Complainant and the CEO worked together from 11th September 2017 to 9th October 2017. To that end, charges of creation of a hostile working environment, intimidation and railroading through a new approach are wholeheartedly rejected by the Company and the organisation points to the lack of any evidence proffered by the Complainant in this regard, as well as the failure of an independent investigator to uncover same.

In summary, contrary to what the Complainant charges in their submissions, the Company submits that neither it, nor any employee acting on its behalf, created a working environment which was unfair, oppressive and/or degrading or indeed in any other way one which was adverse to the interests of its employees and service users - and the claim that it did so to such an extent as to interfere with the good health and wellbeing of the Complainant is simply unfounded and not borne out by any evidence proffered or yet to be provided.

FAILURE TO INVESTIGATE AND MAKE AMENDS

The Company failed to hear the Complainant’s grievance despite numerous efforts on the part of the Complainant and others to raise the matter and seek impartial redress and to the extent that it did hear such a grievance it sided with the CEO.

Contrary to what has been charged, the Company, in the form of its board of directors, did consider the Complainant’s grievances, through the period through which she was absent on illness leave.

The organisation’s response to the Complainant’s charges was considered by its board to be fair, proportionate and impartial in light of the need to balance the interests of staff members, including its duty of care to each of them, the evidence presented to it, and the need to provide an effective service to its vulnerable users.

Unfortunately, the Complainant commenced a period of leave on grounds of illness before the Board’s first hearing the charges levelled by the Complainant against the new CEO. Following the commencement of the Complainant’s leave on grounds of illness, the organisation, through its Board of Directors and in particular a sub-set of those persons, considered the Complainant’s grievances taking into account all information available but found no evidence of any bullying, harassment, intimidation or other unacceptable conduct on the part of the CEO or other staff member with respect to the Complainant. They further sought to explain entitlements to the organisation’s sick pay scheme and the distribution of funds over Christmas to the satisfaction of the Complainant.

Despite the foregoing, and in light of the Complainant’s continuing to pursue these matters, as agreed with the Complainant and at the instigation of a WRC Adjudicator, the Company at considerable expense, procured the services of an independent investigators who conducted their own evaluations of the Complainant’s charges, taking into account such information and other evidence as said investigators saw fit to consider. That investigator issued a report which, in summary found that the Complainant’s charges were not substantiated.

In light of this series of evaluations, investigations and reviews, the Company submits that, contrary to what has been postulated by the Complainant, the organisation did take the Complainant’s charges seriously, attempted to resolve them in an impartial and fair manner – taking into account the evidence, as well as its obligations to the Complainant and other employees of the organisation – and at all times, acted in a reasonable and thorough manner.

ILLNESS ORIGINATING IN THE WORKPLACE

The Complainant claims that the unfair and oppressive practices adopted by the Company resulted in the Complainant’s experiencing psychological trauma – something confirmed by medical experts, and which resulted in the Complainant’s being forced to take extended leave.

The Company is a small, single purpose organisation which takes a direct and ongoing interest in the welfare of its staff – on which it depends absolutely to deliver on its charitable purpose. The Company has no reason to doubt the Complainant’s having been ill during the period concerned, and, indeed, during that time the Company took care to not pressure or otherwise unnecessarily concern the Complainant so as to not accentuate the Complainant’s condition. Despite this, the Company has seen no evidence, and does not consider that such evidence exists, which ties the cause of any illness to the acts or omissions of the Company, nor, indeed, such illness’s arising as a result of the Complainant’s work there.

Contrary to what the Complainant states in the submission made to the WRC no medical professional issued an opinion, which has ever been presented to the Company, to the effect that the Complainant’s ailment arose as a result of conduct in the workplace and the Company would contest any such opinion strongly. Indeed, so brief was the Complainant’s period in the workplace during the management re-organisation in Autumn 2017 that it beggars belief that such might be the cause of a prolonged and debilitating period of illness on the part of the Complainant.

Whilst the Company has not commissioned any medical assessment of the Complainant with a view to uncovering the cause of the Complainant’s illness – and nor would it have been appropriate for it to do so in light of the condition concerned – the Complainant was assessed by a physician at the behest of the Company in February 2018 in accordance with the organisation’s policy. The assessment concerned was not meant to, and did not, determine the cause of the Complainant’s ailment, however, it is telling that the assessment concerned resulted in a finding that the Complainant was at that time fit to meet with management in the Company.   The Complainant was also capable of travel, correspondence, and liaison with the WRC during said period of illness. To that end, the Company submits that the claim that the Company’s conduct resulted in a period of acute and prolonged illness on the part of the Complainant is at best unproven and should not be taken as going towards any claim of oppressive and/or unfair conduct on the part of the Company which caused, or resulted in the Complainant’s dismissal as an employee of the organisation.

CONTACT WHILE ABSENT FOR AS A RESULT OF ILLNESS

The Complainant alleges that the Company, in the form of the CEO and other staff members contacted the Complainant on an almost weekly basis whilst the Complainant was absent for reason of illness, which further demonstrates the unfair and oppressive practices adopted by the organisation.

As referenced above, the Company is a small, single purpose organisation which takes a direct and ongoing interest in the welfare of its staff. The Company is mindful of its duty of care to its staff – especially given the pressures faced by staff in delivering a “front line” service to the poor and needy on a daily basis, as well as that associated with change in management in Autumn 2017. This alone would have resulted in the Company having a greater interest in the reaction and performance of its staff, and the Complainant’s commencing long term sick leave triggered a higher level of concern amongst the organisation’s management, however, such needed to be balanced with a need to ensure privacy, allow for recovery, and not exacerbate any factors which caused the Complainant’s unwellness in light of what was outlined as being its drivers.

In light of the fact that the Complainant had submitted several internal grievances after commencing illness leave, commenced a series of WRC disputes with the Company shortly thereafter, and submitted medical certificates which were not in order, contact with the Complainant on the part of the Company was considered by its management to be appropriate when balancing the need for privacy and recovery on the part of the Complainant, with when balancing the need for privacy and recovery on the part of the Complainant, with attending to the matters initiated by the Complainant. That is, should the Company have failed to make such contact, it would have prejudiced the Complainant’s interests to a greater degree.

As may be seen from a review of all correspondence concerned, and the minutes of the only meeting that the Complainant attended, the Company was at all times, during the course of the relevant interactions, fair, professional and dealt only with the issue(s) at hand. To that end, the Company contacting the Complainant cannot be seen as pointing to unfair, oppressive, and/or partial practices on the part of the Company and rather the necessary consequence of a series of processes initiated by the Complainant.

NON-AWARD OF BONUS

The Complainant submits that the Company did not pay a bonus around Christmas time 2017 in a break with its previous practice, something which demonstrates the unfair and oppressive practices adopted by the organisation.

The Company is a small organisation with limited funding and a very small budget available to celebrate Christmas or at any other regular time – employees have no contractual rights to such bonuses and they remain exceptional as opposed to standard or substantial payments. Prior to 2017 the budget for the occasion was never greater than €2,000 or thereabouts.   For 2017 and the period since, a likewise meagre budget for Christmas bonuses has been allocated. In 2016, the total budget of €2,000 was split by the management team of 3 in the amount of €500 each and the remaining €500 divided among 4 staff who deliver all meals. This passed over a number of staff who were working at the time.   In 2017 the same budget was divided to reach 9 members of staff, 2 volunteers and 26 service users. The non-receipt of such a gift was not intended as a slight on the Complainant or any of the other employees who did not receive such and, indeed, it has been the case that many employees have not received such in the past without their employment being affected, as evidenced by the 2016 distributions.

To that end, the Company submits that non-award of a bonus in 2017 was in no way a negative judgment on the Complainant who was out of the country and who had not provided the Company with an address, and reflected rather the balance of efforts of the new CEO to ensure that the budget was stretched to reach as many as possible who worked through the Christmas period itself. The Company asks that this factor is discounted accordingly in terms of those which go towards demonstrating unfair, oppressive or partial practices on the part of the Company.

UNFAIR STAFF REDUCTION STRATEGY

The Complainant charges that the Company adopted a strategy to deliberately and in a manner contrary to the laws of the State, shed its employees without due rights and entitlements.

The Company is a small but effective charitable organisation exclusively devoted to meeting the most fundamental needs of its service users – providing sustenance and a link back to wider society. As already stated, the Company needs support from a range of parties, none more so than its professional staff and volunteers, many of whom have particular expertise without which the organisation would be simply unable to deliver its service.

The Company, at no time, prior, at the time of, or subsequent to that during which the Complainant’s submission relates adopted a strategy – express or implicit – to remove a significant portion of its professional staff and no evidence of such has been proffered as it simply did not exist. The Company currently employs 9 paid staff on a full time and part time basis including its CEO and 5 of those staff members were recruited before the CEO joined. The adoption of such a strategy on the part of the Company’s management would be reckless in the extreme given the reliance that a food and associated services centre servicing the most vulnerable places on expert personnel and would not be – and was not – undertaken by any reasonable thinking management devoted to the interests of staff and service users. Whilst the period during which the Complainant’s charges relate, a number of persons associated with service delivery which the Complainant’s charges relate, a number of persons associated with service delivery did leave the organisation, such was associated with the natural movement of staff through their careers and indeed the CEO was recruited, in part, in light of such changes being anticipated by the Board of the Company and key person risk being something which the organisation sought to mitigate. Such movement was not of the nature or scale suggested in the Complainant’s submission and in no way substantiates the Complainant’s charges with respect to work environment etc, not to mention the adoption of a staff turnover strategy on the part of the Company when indeed, the very opposite was the case.

In summary, the Company has at no time sought to undertake a staff reduction strategy and no evidence of such as been provided or is, for that matter, available. The Complainant was not a victim of such a strategy and the actions and approach of the Company, as referenced otherwise in this document, demonstrate that this was simply not so.

RESPONDENT’S OBSERVATIONS

In addition to the foregoing, the Company asks that the following matters are considered by the WRC in deciding on this matter.

The Complainant was not dismissed. Despite the many and varied allegations levelled against the Company in the Complainant’s submission, no evidence is proffered with respect to any act of dismissal on the part of the organisation and nor may such be offered as such did not take place. No message or other communication, express or implied, was conveyed to the Complainant to this effect and the Complainant would have been welcome to return to work at the Company at any time up until that at which the Complainant decided, deliberately and of their own violation, to formally cease their employment with the Company.

The Complainant was not constructively dismissed. Despite the many and varied allegations levelled against the Company in the Complainant’s submission, no evidence is proffered to give credence to any such allegation. While the Company accepts that changes in management structure in Autumn 2017 close to coincided with the Complainant going on sick leave almost immediately thereafter, the Company submits that in light of shortness of the period during which the Complainant served with the new CEO and others, the lack of any significant incident or sustained negative treatment taking place during that time, and the organisation’s measured, conscientious, and open approach to the Complainant in the period since the beginning of illness leave demonstrates that there was no profound and/or sustained campaign of ill treatment which lead, never mind forced, the Complainant to resign.

Irrespective of the matters laid out above, the Complainant did not follow, not to mind exhaust, the Company’s internal procedures for dealing with complaints prior to resigning from their position at the Company, with the effect that the Company did not have the opportunity to try accommodating the Complainant’s needs within its structures and in a manner which reflected the legitimate interests of the Complainant and other stakeholders. Investigations conducted into the Complainant’s grievances had not resulted in findings in the Complainant’s favour, however, as evidenced by numerous communications, management of the organisation were at all times willing to reintegrate the Complainant into the organisation – potentially with alternate reporting lines to what had been in place previously, reconsideration of tasks and on a phased basis. The Complainant’s unilateral decision to withdraw their labour from the Company frustrated the organisation’s ability to deal with the matter satisfactorily and the merits of the Complainant’s case must be considered accordingly.

The Complainant has, as per submissions, made in another WRC complaint, secured alternative employment immediately upon her ceasing to be unwell and resigning from the Company.   This would have been in train while the Complainant was on leave. To that end, irrespective of the veracity of the matters alleged by the Complainant, and which the Company disputes, any loss on the Complainant’s part must be seen as being strictly limited and not in any way long term or material.

In summary, the Company is a small, caring and focused charitable organisation which is not now and never has been engaged in providing anything but a fair, open and supportive workplace for its employees and volunteers. Such persons are the lifeblood of the organisation and without their ceaseless efforts in providing a front-line service to the needy, the organisation would fail outright in seeking to achieve its mission.   To that end, the Company did not create a working environment which saw the Complainant have no choice but to resign from the Company and, indeed, management would have taken every effort to ensure that the needs of an experienced staff member were accommodated, had the chance been provided. Likewise, the Company did not dismiss the Complainant and never sought or conveyed the impression that it might do so. The Complainant withdrew their services from the Company without giving the organisation an opportunity to accommodate any grievances the Complainant may have had, for which the Company is regretful. The Complainant appears to have secured alternative employment immediately, mitigating any loss, as should be done.   The Company wishes the Complainant well, however, it submits that there is simply no merit to the dismissal action submitted and ask that the WRC decline to support the Complainant’s claim accordingly.

Section 1 of the Unfair Dismissals Act of 1977 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”

Circumstances in which notice of termination can or may be dispensed with are indeed rare and set a high standard of proof for an employee, this has been illustrated in a series of decisions of the Employment Appeals Tribunal and more recently, the Workplace Relations Commission.

In cases such as the instant case two tests may be applied, these are the Reasonableness Test and the Contract Test.

Contract Test.

The breach of contract being alleged must be either a significant breach going to the root of the of the contract or one which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. In Higgins v Donnelly Mirrors Ltd it was argued that a contract of service includes an implied obligation of mutual respect which might be broken by abusive or unreasonable treatment by the employer. However, the EAT rejected the employee’s claim of constructive dismissal, showing the heavy onus of proof she bore. The EAT said she had ‘painted a harrowing picture’ of various meetings. On the other hand, her employer had denied the meetings were as she described. In the EAT’s view ‘she was unduly sensitive and she over-reacted’.

In this instant case the Respondent has pointed to the fact that the Complainant and the new CEO had only worked together for a brief period, 4 weeks. Could the situation have deteriorated to the extent claimed by the Complainant in such a short period of time?

Reasonableness Test.

In applying this test to the instant case, I must consider the conduct of the Respondent and also the Complainant, although the greater emphasis will be on the former.

The Respondent has clearly stated that the Complainant did not exhaust the Respondent’s procedures for dealing with complaints prior to resigning from her position with the effect that the Respondent did not have the opportunity to try and accommodate the Complainant’s needs within its structures.

There is something of a mirror image between ordinary dismissal and constructive dismissal. For reasons of fairness and natural justice an employer must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedure in an effort to resolve her grievance. In the instant case the Complainant resigned prior to the Respondent’s procedures being fully and totally utilised.

In Conway v Ulster Bank (UD 474/1981) the Employment Appeals Tribunal considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.

I note that the Complainant commenced new employment the same day as she resigned from the Respondent’s employment.

For the reasons outlined above I do not believe the complaint of constructive dismissal as presented by the Complainant is well founded and I find accordingly.

I do not believe the complaint of constructive dismissal as presented by the Complainant is well founded and I find accordingly.

Constructive Dismissal.