Complainant

Respondent

Anonymised Parties

A childcare manager

A childcare facility

Representatives

Citizens Information Service

Fiona Egan, Peninsula Group Limited

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-00029432-001

03/07/2019

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

CA-00030027-001

01/08/2019

The Complainant was employed by the Respondent as an Afterschool Childcare Manager from the 22nd February 2017 and Acting Preschool Childcare Manager from February 2018 up until her resignation on 20th June 2019.

This complaint was received by the Workplace Relations Commission on 3rd July 2019.

The grievance investigation was concluded on the 9th April 2019 when the external investigator produced the Grievance Appeal report.   The appeal report stated that the comments made by the line manager in relation to the Complainant’s injury were found by the appeal investigator “to mean that the line manager does not believe that the Complainant is incapacitated to the full extent of what she is claiming” and further references the existence of interpersonal issues with the Complainant.

This report was forwarded directly to the Complainant by the external investigator and it did not follow any communication from the BoM in relation to the findings of the report, recommendations and subsequent steps.

However, on the 11th April 2019, the Complainant received a letter from her line manager, in relation to the Complainant’s sick certificates stating that “failure to comply with company policy may result in disciplinary action” and reference to “termination of employment”.

In the context where no communication had been received from the Board regarding the completion of the grievance process and the contents of the appeal report as stated above, the Complainant was concerned about the wording of this letter and raised her concerns in relation to same. The concerns raised by the Complainant at this time were as follows:

·         Lack of communication from the Board in relation to the outcome of the appeal report generally and specifically to the finding that Ground C was upheld by the appeal process;

·         Concerns in relation to the wording of correspondence received regarding the Complainant’s sick leave with references to “disciplinary action” and “termination of employment”;

·         Concerns about the application of sick leave procedures regarding the Complainant’s long-term absence;

·         Lack of information regarding the current composition of the Board;

A letter from the Respondent on the 30th April 2019 stated that “We are unaware of any outstanding work place issues needing to be resolved” and asking the Respondent to advise of any outstanding issues. This letter referred to the grievance process as concluded. The letter further advised that the Respondent would not be engaging with her representative. As a result, the letter of the 15th April had to be resent to the Respondent signed by the Complainant.

On the 3rd May 2019, the Respondent wrote to the Complainant. This letter did not deal with the concerns detailed by Complainant in her letter of the 15th April and once again referenced the grievance process as closed.

On the 10th May 2019, the Complainant correspondence with the Chair of the Board regarding her previous concerns as well as an incident that took place that day between the line manager and the Complainant’s GP. The Complainant had learnt from her GP that the line manager had presented in person at the GP’s office threatening to report the Complainant’s GP to the Medical Council and requested a meeting with the Chair. This letter also referenced the Terms of Reference of the Grievance process stating that communication regarding the grievance process would come directly from the BoM.

Following the lack of a reply to this letter, the Complainant wrote to the BoM again on the 31st May 2019 requesting a reply by the 7th June with a time and date to meet with the BoM to discuss the concerns raised in previous correspondence.

Emails from the Respondent on the 21st May and the 4th June confirmed receipt of correspondence and that it would be forwarded to the BoM.

In contrast, regular communication during this period was received by Complainant from the Respondent relating to sick leave on the 11/04, 19/04, 3/05, 10/05 and 5/06.

Despite this level of communication from the Respondent, no reply was received by the Complainant to the issues raised in her letters of the 15/04, 10/05 or 31/05. Additional concerns arose during her meeting with the Occupational Doctor on the 23rd May 2019.

During the medical consultation, the Complainant became aware that the purpose of the referral had been made to assess the “Fitness to Work after a road traffic accident” without any reference to the diagnosis of Fibromyalgia and Work-Related Stress. Fibromyalgia was noted in the Respondent’s correspondence of the 30th April as the reason to seek a specialist opinion on the matter.   The Complainant discussed the full scope of the diagnosis with the medical assessor and received the medical report on the 4th June.

No communication was received by the Complainant from the Respondent in relation to the medical report, follow up welfare meeting or anything further to the report. In the context of the Complainant’s several attempts to engage with the BoM, and the lack of response by the Respondent, the Complainant felt that she had no option but to hand in her resignation which she did on the 20th June 2019 due to the lack of engagement from the Board in relation to the concerns raised in her previous communications.

The Respondent accepted this resignation within a 4 working day turn around.

Conclusion

The Complainant submits that, prior to handing in her resignation, she made several attempts to communicate with the Respondent in relation to a number of concerns that had remained unresolved in relation to the Grievance Process initiated in September 2018 and finalised in April 2019. The issues raised by the Complainant in her letters of the 15th April 10th May and 31st May 2019 went unanswered.   The Complainant stated all her concerns to the Respondent as follows:

·         Lack of communication from the Board in relation to the outcome of the appeal report generally and specifically to the finding that one of the grounds was upheld by the appeal process

·         Concerns in relation to the wording of the letter around my sick leave and references to “disciplinary action” and “termination of employment”

·         Concerns about the application of the sick leave procedures regarding my long-term absence

·         Concerns about the behaviour of the line manager who presented herself in my GP’s office threatening to report her to the Medical Council.

·         Concern about the lack of follow up regarding the medical report provided by the Occupational Health Specialist.

·         Lack of information as to the current composition of the Board and specifically the Chair and no attempt made to schedule a meeting as requested by the Complainant.

The Respondent acknowledged receipt of these letters as confirmed by the line managers emails of the 21st May and 4th June 2019. However, the Respondent did not reply to any of the Complainant’s communications.

We believe that the Complainant at all times has collaborated and cooperated with the Respondent at all stages of the Grievance process and the aftermath of same as well as has provided its full cooperation and has remained accountable and proactive in all questions regarding her sick leave.

Further, we submit that the Complainant has acted reasonably before offering her resignation and has at all times communicated to her employer her issues and concerns, provided the opportunity to resolve them and exhaust the internal procedures available to her.

In contrast, the Respondent, in her delegation through the line manager, actively engaged with the Complainant in relation to her sick leave and sick certificates which further highlights the lack of engagement and response to the Complainant’s letters of concern. We submit that given the circumstances and in light of the Respondent’s conduct, the Respondent had no other option that to offer her resignation having exhausted all avenues of redress available to her and as a result of the irretrievable breakdown of her relationship with her employer.

The Complainant was left with no avenue available to her other than resigning her position as no opportunity was provided to have her concerns voiced, heard and a resolution found to progress her reintegration to the workplace and the resumption of her employment. It had been the intention of the Complainant to resolve her difficulties with her line manager and return to work and she referenced this in a number of communications with the Respondent.

Furthermore, we submit that the Respondent has failed to follow its own standards as stated in the Complainant’s correspondence of the 10th May 2019 in relation to:

a) Sick leave procedures and

b) Terms of reference re Grievance Investigation process.

We submit that the Respondent should have appropriately exercised her line management function and followed the sick leave procedures as stated in the Staff Handbook at the onset of the first sick leave period. The failure to do this at the appropriate time and the fall out of the family holiday resulted in the breakdown of the employer-employee relationship which, despite all attempts by the Complainant to name and resolve, continued to spiral to the point that the focus on the Complainant remained her sick leave and her concerns and requests from communication from the Board in relation to the number of issues raised remained unanswered.  

We submit that the Respondent has acted in an unreasonable and unjustified manner in relation to the Complainant and has failed to respond to the Complainant’s concerns, attempt to resolve the situation and provide the appropriate level of recourse to matters raised to their attention which may have resulted in the retention of the Complainant as an employee of the company and increase the prospect of the Complainant’s full recovery.

It is on this basis that we believe this complaint meets the criteria for Constructive Dismissal as permitted by the Unfair Dismissal Acts 1977-2015.

Introduction

1.       The Complainant was employed by the Respondent as an Afterschool Childcare Manager from the 22nd February 2017 and Acting Preschool Childcare Manager from February 2018 up until her letter of resignation dated the 20th June 2019.

2.       The Respondent is a community based preschool and after school service for children aged four years up to twelve years.

3.       The Claimant has made a claim under the Unfair Dismissals Act 1977 that she was constructively dismissed.

4.       This Respondent denies the Claimants claim in its entirety and will address the allegations in full.

Facts

The Claimant commenced employment as a Childcare Manager on the 22nd February 2017.

The Complainant’s line manager has been employed as the Service Manager of the Respondent Company since April 2018. She was previously the Company Secretary of the Board of Management acting in a voluntary capacity for approximately 6 years before taking on this role. The role of Service Manager was developed due to the new entity of the Respondent being developed which was essentially the merger of two companies. The Line Manager role was and is to manage the transition process of the merger of the two companies, to manage the accounts and the administration as well as dealing with staffing issues. She was also the Claimants line Manager.

Both parties agree that they knew each other in a personal capacity prior to working together and had a positive relationship.

The Claimant was involved in an RTA on the 13th June 2018 and the Claimant was off on sick leave from the period of the 13th-25th June 2018 in respect of same.

The Claimant then went on Annual leave on the 25-29th June 2018 during which the Claimant went to Courtown with her family. The Claimant rang the line manager and asked if she would like to come down to Courtown for a night or two with her youngest child as the majority of her family had returned home. The line manager agreed and went down for one night.

The Claimant was then on sick leave from the 2nd July 2018 to 6th July 2018. The Claimant then was on Annual Leave from 9th July 2018 until the 20th July 2018. During this period the Claimant, the line manager and the Claimants friend went to Ibiza for a holiday with some of their children.

The Claimant alleges that an incident took place on the third night of the holiday between the Claimant and line manager in which a heated argument ensued between both parties.

The Claimant in the aftermath of the above mentioned incident whilst still on sick leave raised a complaint against the line manager and on foot of same the Board of Management met with the Claimant on the 13th August 2018 in order to discuss the matter and discuss other work related issues.

The Claimant submitted a formal written grievance with the Respondent at the meeting on the 13th August 2018 in relation to this incident which occurred in Ibiza in September 2018 and made further complaints over the line manager’s alleged behaviour ranging over the period of April –July 2018 as part of the grievance.

Prior to the incident in Ibiza which took place during personal time both parties had a good relationship and there were no work related matters raised prior to this.

The Respondent in an attempt to rectify matters that arose out of the formal grievance raised by the Claimant offered mediation as a possible solution to restore relations between the parties.   This was refused by the line manager however as she felt the allegations against her were of such a serious nature that she felt it only just that a full investigation be carried out in order for matters to be clarified in full.

The Claimant was advised by the Board of Directors that this matter was going to be formally investigated by an independent third party. The investigation process began on the 14th September 2018 and lasted until January 2019.The investigation was carried out in accordance with the Respondents Grievance procedure as contained in the company handbook and the terms of reference for such an investigation were drawn up.

A full written grievance report dated 30th January 2019 issued to the Chairperson of the Respondent Board as a result.

The Grievance report dealt with five separate grievances one of which related to the incident in Ibiza. Only part of one grievance out of five was upheld and this was a pay related matter.

The Claimant raised an appeal to the findings of the grievance investigation report and an external third party was appointed by the BOM to hear the appeal on the 27th February 2019.

The appeal hearing took place on the 13th March 2019 and the Claimant attended with her representative from Citizens Information Services.

The Grievance Appeal report was issued on the 8th April 2009. There were three grounds of appeal, two of which were not upheld and the third was withdrawn by the Claimant herself at the appeal hearing.

The report was emailed to the Claimant on the 9th April 2019.

Once the appeal was finalised the Respondent wrote to the Claimant on the 11th April as they had not received a sick note from the Claimant since 8th October 2018. In line with the Company’s sick pay policy as detailed in the company handbook, the Respondent wished to request the Claimants consent to contact the Claimants GP in order to obtain a medical report. Sick leave without authorisation as per the company sick pay policy would be considered absence without authorisation and failure to comply may result in disciplinary action being taken. This was the necessary step in order to evaluate the Claimants illness and consider best how best to facilitate her re-integration to work going forward.

The Respondent wrote to the Claimants GP on the 30th April 2019 requesting a report on the Claimants current state and further sought recommendations as to any appropriate measures that the Respondent could take to facilitate a return to work.

It is alleged by the Claimant in her Claim form that the line manager attended at the Claimants GP’s office and was verbally abusive to her GP threatening to report her to the medical council. This never occurred.  

On the 9th May 2019 the Complainant’s GP had contacted the line manager via telephone. During this conversation the GP stated she was a “Doctor and friend” to the Claimant. She stated that she would not be writing a report in respect of the Claimants illness and believed she should be seen by an Occupational Health Specialist. The line manager found the phone call to be threatening in nature due to the GP’s tone and her statement that she believed that the Claimants injuries were due to work related stress caused by interpersonal relationships of which she had “intimate knowledge”. The line manager found this to be most unprofessional and on foot of same felt she had an obligation to make a complaint to the Medical Council.

Directly after the conversation between the line manager and the GP, the line manager wrote a letter to the GP regarding the conversation had. The Chairperson at the time hand delivered the letter from the Respondent to the GP’s surgery.

On the 3rd May 2019 the Respondent wrote to the Claimant explaining that as the Claimants GP had referred to fibromyalgia on one of her certificates they felt it necessary to get a specialist’s opinion with the Claimants consent as part of the organisations policy in assessing the Claimants fitness to resume work.

The Claimant wrote on the 10th May to the Respondent raising a number of concerns which are raised in the Claim form to the WRC.

On the 15th May the Respondent wrote to the Claimant with appointment details to be seen by an Occupational Health specialist scheduled for the 23rd May 2019.

On the 21st May the Respondent emailed the Claimant and acknowledged her letter dated 10th June confirming same had been passed to the Board of Management as was requested.

On the 31st May 2019 the Claimant wrote again to the Respondent and requested an urgent reply to her letter dated the 10th May 2019.

The Board of Management replied to the Claimants letter in full on the 10th June 2019 and addressed each concern in turn. They confirmed that the independent appeals officer acting on directions from the Board of Management emailed the Claimant a copy of the grievance appeal report when the grievance process was fully closed. Same letter set out the company’s sick leave policy once again. The letter confirmed that the grievance process had commenced in September 2019 and therefore it was not appropriate to contact the Claimant from then on as both the Claimant and her medical practitioner had stated that the Claimant would not be engaging until the matter had been resolved. Once the grievance process and appeal had been finalised, contact was re-established. The letter addressed the Claimants concern that the line manager did not believe that her illness was genuine and confirmed that the company was at all times following the company’s sick leave policy and at no point did personal opinions or beliefs interfere with due process.

The BOM in their letter to the Claimant dated 10th June addressed that the grievance appeal did not uphold any other matters and assured the Claimant that the line manager had acted professionally at all times in her capacity as Service Manager.

Same letter addressed the Boards concern at the volume of emails and letters with referred to very serious unsubstantiated allegations towards the Service Manager. The Board re-iterated that upon receipt of the final Occupational Health Board report the BOM would contact the claimant to arrange a meeting.

The Claimant resigned via letter dated the 20th June 2019 shortly after the report from the Occupational Health Specialist  was received by the Respondent and before any welfare meeting could be arranged to deal with the Claimants proposed return to work with the Respondent.

Legal Submissions:

Unfair Dismissal

Section 1 of the Unfair Dismissals Act as amended defines constructive dismissal as:

the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in 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 Claimant was not dismissed. The Claimant resigned. The burden of proof is on the Claimant to show that his resignation satisfies the requirements of the Unfair Dismissals Act 1977 (as amended).

In Debbie Kearns v Silverfern Properties Ltd. [2013] 2 JIEC 0701 the EAT held:

In order to succeed in a claim of constructive dismissal a claimant must show, that either their contractual terms were altered in such a way, going to the root of the contract, as to justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal.

In the decision of Donegan v Co. Limerick VEC (UD828/2011) the Tribunal held it was held:

the respondent’s conduct was not so unfair or damaging to the claimant’s rights and entitlements that she had no option but to resign from her position.

It is the Respondents case that the Claimant was not satisfied with the outcome with the grievance investigation nor the grievance appeal investigation carried out and is attempting to further her claim in the WRC. The Respondent engaged with the Claimant fully at all times once the grievance process was completed. However, as part of the company’s sick leave policy and reintegration to work after a period of sick leave (having not returned since the RTA in June 2018) the Respondent was obliged to follow such procedure in relation to same and this involved ascertaining the details of the exact illness that the Claimant was suffering from and submitting up to date valid certificates. It is the Respondents case that the Claimant resigned before the process had been completed and that nothing further could be done.

In Higgins v Donnelly Mirrors Ltd. (UD 104/1979) (taken from Mary Redmond, Dismissal Law in Ireland, 3rd Edition)the claimant’s claim for constructive dismissal was rejected as she had “failed to discharge the heavy onus of proof she bore.”

Conclusion

It is respectfully submitted that the Claimant has failed to demonstrate her claim of Unfair Dismissal and discharge the high onus of proof that is required and on that basis the claim should fail.

The Respondent reserves the right to submit further evidence on the day of the hearing.

As pointed out by the Respondent:

Section 1 of the Unfair Dismissals Act as amended defines constructive dismissal as:

the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in 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 this instant case we have to look at the conduct of both the Complainant and the Respondent.

The Complainant was absent from work having been involved in a road traffic accident on 13th June 2018, the Complainant then was on medically certified absence from 2nd July until 6th July 2018. On the 9th July 2018 the Complainant commenced a period of annual leave on 9th July 2018 when she went on a holiday to Ibiza, also on this holiday was her friend and line manager from work.

On the third evening of this holiday the Complainant and her friend (who was also her line manager) were involved in a heated argument. In the aftermath of this incident while the Complainant was still on sick leave raised a complaint against the line manager.

A meeting attended by the Board of Management with the Complainant took place at an external venue on 13th August 2018. At this meeting the Complainant submitted a formal written grievance in relation to the incident in Ibiza and made further complaints over the line managers alleged behaviour during the period between April and July 2018, the period just prior to the holiday in Ibiza.

It is difficult to accept that in a situation in which the Complainant lodged a complaint against her line manager due to the behaviour of the line manager between April and early July, had the manager’s behaviour been so bad would the complainant then proceed to go on holidays with her?

This complaint is about a row between two friends who worked together and went on holiday together, the row took place whilst on holiday.

I find that the complaint of constructive dismissal is not well founded and therefore fails.

Outlined above.

Constructive dismissal.