Complainant

Respondent

Anonymised Parties

A Support Administrator

A Software Company

Representatives

Lars Asmussen, B.L. instructed by Sean Ormonde & Co. Solicitors

Adare Human Resource Management

Act

Complaint Reference Nos.

Date of Receipt

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

CA-00016689-001

09/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00016689-002

09/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00016689-004

09/01/2018

The Complainant claims that she was constructively dismissed by the Respondent on or about 10 July 2017 after she was discriminated on the grounds of her Gender and Age and penalised for making a complaint relating to safety, health or welfare in the workplace.

The Respondent denies all the claims made against it by the Complainant, it claims that the Complainant resigned by way of letter without any pre-notice of any issues that are now complained about. They were only subsequently raised with it, post resignation.

Preliminary matters

The Complainant, in reply to the Respondent’s claim that the Employment Equality complaint is not correctly before the Workplace Relations Commission, said that it is properly before me for consideration. She said that her solicitor had written to the Workplace Relations Commission and sought to withdraw part of the Employment Equality claim but admits that there was an error in this instruction. However, the Employment Equality complaint was lodged correctly with the Workplace Relations Commission originally, and the Respondent would not be prejudiced in any way as it was ample given time to consider the Complainant’s submission.    

The Complainant, in reply to the Respondent’s claim that she is attempting to run parallel claims under both the Unfair Dismissal Act and the Safety, Health and Welfare at Work Act, said this is not true. The three claims before the Workplace Relations Commission relate to three different issues covered by three different Acts and are compatible in this instance.

Substantive matters

The Complainant said she commenced her employment with the Respondent as a receptionist on 2 January 2014. The Complainant claims that her contract did not provide for a formal or established grievance procedure instead the Respondent encouraged employees to bring grievances to the attention of their immediate superior. The Complainant claims that in and around 31 August 2016 she was promoted to position of Support Administrator, where she received a gross salary of €27,300 and the Respondent paid her annual telephone bill of €720. Her role and responsibilities included, receiving and logging progress and tracking cases, administering calls, ensuring support technicians cases were logged and monitoring outstanding cases.

The Complainant was located in a regional office away from its Dublin office where her superiors were located. She said the Managing Director, Ms. A, would attend the regional office on a fortnightly basis and that her direct line manager, Mr. B, would attend the regional office on a weekly basis at the start, but that arrangement diminished over time. She had no problems whatsoever working there prior to her taking up her promotion on 7 September 2016, when things changed.

On taking up this promotion the Complainant had to work closely with Ms. X, a technician, who was about ten years older and had just returned from maternity leave. The Complainant claims that Ms. X was fine at the start, but all changed on her return to work and she subjected the Complainant to “rude comments, aggression, undue scrutiny, unfair criticism” and “bully and harassment with the purpose of isolating, undermining and pressurising [the Complainant]”. The Complainant presented a list of situations that she claims supports her position, including when Ms. X questioned her administrative role, and whether it was needed at all, asking if Ms. A “[got] her claws into her [yet]”; questioned her qualifications to represent the organisation at events; stating she was far more senior within the Respondent than the Complainant; questioned whether the Complainant was making out to be an “expert” in IT packages;   undermining her team suggestions and then taking credit for those same suggestions herself; being rude and pointed in conversations and making suggestions that the Complainant was not looking well. The Complainant said that she met with Ms. A and outlined the issues she had with Ms. X, where Ms. A said she would keep an eye on things and sort it out.

The Complainant said that Ms. X was having a severe impact on her health and wellbeing. She was diagnosed with stress and anxiety, she experienced physical sickness and suffered huge emotional pressure, so much so that the Complainant’s partner contacted a friend working within the Respondent in November 2016 raising concerns about the state the Complainant was in. The Complainant said that she felt undermined at technical support meetings and she was not asked to meetings from March/April time onwards.

On 14 February the Complainant claims that she took a day off work sick due to the anxiety caused by Ms. X’s conduct toward her and said that Ms. X made comments about the Complainant’s appearance such as, “looks like you’ve seen a ghost” and “any news for us”, which the Complainant suggested relates to possible pregnancy related sickness.

The Complainant said that Ms. X was promoted to Support Manager in March 2017 following that her misconduct was having an even more profound effect on the Complainant thereafter. Around that time the Complainant had a meeting with Ms. A about her role, her tasks and responsibilities. She said that she realised that her grievance was not being progressed and as far as she was aware she had exhausted the grievance procedure. She claims that she went out on sick leave suffering from stress, depression and anxiety. She remained on sick leave until she resigned her position by way of letter dated 10 July 2017 effective from 31 July 2017.

She said that she was in contact by email with Ms. A regarding her resignation and she mentioned she had been to her doctor “on some personal issues” and she maintained that Ms. A would realise that it related to the stress and anxiety that she was going through on account of working with Ms. X. She said Ms. A was entirely aware of the situation at all times. On 21 July 2017 the Complainant claims that she sent another email to Ms. A and in that email explained in full terms that she could not cope any longer with her work situation and felt bullied by Ms. X, that she was constantly on her back and it had now “stated to come into my personal life” and she “felt devasted that it had come to this” but she had to resign. There followed a telephone conversation with Ms. A however, the Complainant felt Ms. A did nothing to address her complaint.

The Complainant claims that she was approached after she sent in her letter of resignation by other members of the Respondent’s senior management team to see if they could assist but that she had made her decision and was not going back at that point. She said that she commenced new employment with another employer soon afterwards on 21 August 2017 on a gross annual salary of €28,000. She said that her solicitor took up her case with the Respondent on 20 December 2017, but it was not responded to.

Legal Submissions

Comparator

The Complainant claims that she was discriminated by the Respondent on the basis of her Gender and Age. She identified Ms. X as her comparator, she is also female and is 10 years or so older and was treated more favourably by the Respondent. The Complainant contends that if the aforementioned comparator is not applicable then the Complainant can use a hypothetical comparator.

Constructive dismissal

The Complainant referred to the Labour Court’s decision in An Employer v. A Worker (Mr O)(No. 2) [EED0410] on the two tests for a valid constructive dismissal – the contract and reasonable tests. She points to the fact in this case that the Complainant was not penalised for failing to enact the Respondent’s grievance procedure, she also mentioned Allen v. Independent Newspapers (Ireland) Limited 202 ELR 84 and Monaghan v. Sherry Brothers [2003] ELR 293, in this respect, and the non-sympathetic and less than supportive manner of the Respondent on her return to work and where misconduct went unaddressed, un-investigated and unresolved. She also referred to Kennedy v. Foxfield Inns Ltd [1995] ELR 216 and Richardson v. Avant Shipping UD 145/07.

Discrimination

In relation to Section 6(1) of the Employment Equality Acts, 1998 -2008, the Complainant relied up on the rationale as cited in Ntoko v. Citibank [2004] ELR 116 regarding the nature of discrimination “a person who discriminates unlawfully will rarely do so overtly” and Dublin Corporation v. Gibney’s EE5/1986 regarding establish a prima facie case and A Technology Company v. A Worker EDA0714 when there is clear evidence of less favourable treatment the matter shifts to the Respondent to prove the contrary.

Victimisation

In relation to Section 74(2) of the Employment Equality Acts, 1998 -2008 the Complainant said in her legal submission that she made numerous complaints to the Respondent regarding bullying and harassment and the Respondent failed to adequately address or investigate the matters. She claims that having raised those complaints she was excluded from meetings, was isolated and responsibility removed from her, which amounts to victimisation under the Acts.

Penalisation

In relation to Section 27 of the Safety, Health and Welfare at Work Act, 2005 the Complainant said in her legal submission that she made numerous complaints to the Respondent relating to safety, health and welfare of staff at work and the Respondent failed to adequately address or investigate the matter. She claims that having raised those complaints she was excluded from meetings, was isolated and responsibility removed from her, which amounts to penalisation under the Acts.

Preliminary matters

The Respondent said the Complainant’s solicitor had written to the Workplace Relations Commission on 8 March 2018 and sought at that time to withdraw the entire Employment Equality claim and she is now suggesting that that was an administrative error, and only part of that Employment Equality claim was to be withdrawn and the complaint should remain active. It claims that as the Employment Equality complaint was withdrawn and the Respondent was not in a position to deal with it. It said that if the Complainant now wants to resubmit the Employment Equality complaint, it cannot be allowed as it is outside of the 6-month period and is statute barred.  

The Respondent said that the Complainant is attempting to have dual complaints by running parallel claims under both the Unfair Dismissal Act and the Safety, Health and Welfare at Work Act, which is not allowed.

Substantive matter

The Respondent is an accounting software and payroll software provider for small to medium size businesses. The Respondent is the product of a merger between two businesses in 2016/17 which have been in operation for approximately 17 years and has a current staff of 20.

The Respondent said that the Complainant commenced employment as a receptionist with one of the previous businesses in January 2014 prior to the merger. She took up the position of Support Administrator in November 2016 and formally terminated her employment by way of resignation letter dated 10 July 2017 indicating the 31 July 2017 as her termination date.

The Respondent said that on receipt of her letter of resignation, her employer sat down with her to explore why she wished to terminate her employment and to see if she would stay on. It said that the Complainant made no reference to any other reason but a desire to “move on”. On 17 July 2017 the Complainant messaged her employer stating she would not be in the office that week and cited that it was “best for her to leave now”, that things had gotten on top of her within the job and the situation with a colleague’s bullying her and “constantly feeling she is on my back has worn me down”. Subsequently the Complainant went out on certified sick leave absence for the period 17 July to 20 July 2017 and 24 to 31 July 2017 inclusive and did not return to work after that point. The Respondent disputes the claims that the Complainant had to leave her job due to its conduct.

The Respondent said that a constructive dismissal claim requires that the Complainant discharges the burden of proof; she has to demonstrate that she was justified in their decision and it was reasonable for her to resign in the circumstances where she have no other option. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to resign her position, often referred to as the “contract test”. The contract test was described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332 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 discharged from any further performance”

The Respondent said that not every breach of contract will give rise to repudiation. It said it must be a breach of an essential term which goes to the root of the contract. There is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so she is justified in leaving.

The Respondent said that the Complainant in this instance has been unduly hasty and has failed to engage in any grievance procedure with her employer. It claims that an open-door policy exists in the organisation, this policy was highlighted by the Respondent to all employees in the context of their contract of employment and personally by Ms. A the Managing Director. It claims that it was not aware of the Complainant’s claim that Ms. X was rude, aggressive and bullying towards her.

The Respondent addressed many of the individual claims that the Complainant lists as problematic. In particular, it said that the Complainant seems to take offence to the description of her role, when that was part of her job; that many of the issues complained about now are the Complainant’s own interpretation of events and no issue or grievance was ever raised with the Respondent. There was no indication that the Complainant was under duress, work related stress or anxiety. There was one medical certificate to cover 2 June 2017, which states the reason for absence was a ‘Medical Condition’. There was no pattern of regular sick leave in the period November 2016 up to the point of the Complainant resigning. There were no signs of any difficulties.

The Respondent points to examples of email exchanges between the Complainant and Ms. A that indicates things appear normal including checking in on how the new job was going for her and tightening up on the Complainant’s role, salary details and arrangements in relation to the work phone. The Respondent in particular refers to the Complainant’s resignation letter, where she wrote, ‘Thank you for the support and the opportunities that you have provided me with during the last three and a half years. I have truly enjoyed my time with [the Respondent] and am more than grateful for the experience I have gained whilst here’. The Respondent stated that on receipt of the Complainant’s resignation letter the Respondent’s Technical Director and Operations Director asked if there was anything they could do to make her change her mind, to which the Complainant replied; ‘No, I got another job’.

The Respondent said that the Complainant’s email of 17 July 2017 refers to her doctor prescribing anti-biotics for ‘sinusitis’ and that she was speaking to her doctor about ‘personal issues’. It said that there was no reference to stress, work related stress and anxiety as claimed by the Complainant. This email dated 21 July 2017 was the first time that the Complainant made any reference to bullying, which was just six days from her leaving date, while she was on sick leave, and eleven days after handing in her notice to resign. Ms. A contacted the Complainant on receipt of this allegation to discuss the matter on 2 August 2017. The Respondent outlined that no consensus was reached, and the Complainant left and commenced her new employment a few weeks later. The Respondent said that it was subsequently contacted by the Complainant’s solicitor in December 2017.

Legal Submissions

Constructive Dismissal

In M Reid v Oracle EMEA Ltd [UD1350/2014] the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair” and similarly in Tierney v DER Ireland Ltd [UD866/1999] it stated “central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”. The Respondent makes reference to the Labour Court decision in Mary Kirrane v Barncarroll Area Development Co Ltd [UDD 1635] where it stated, “Where constructive dismissal is contended for it is for the person making the claim to establish that the behaviour of the employer was such as to leave the appellant no alternative but to terminate the employment or that the employer’s behaviour has fundamentally undermined the employment relationship. The person claiming constructive dismissal has an obligation to access available grievance procedures in a course of attempting to deal with whatever situation has led to consideration of termination of the employment”. The Respondent said that the Complainant has not discharged the burden of proof under Section 1(b) of the Unfair Dismissals Act 1977 – 2015.

Discrimination

In relation to the second claim, the Respondent denies that the Complainant has been discriminated against on the grounds of Gender and Age in the context of her employer. It said that in order to establish that the Respondent has engaged in discrimination, the Complainant must prove that but for her Gender and Age, she would have been treated differently by the Respondent, hence a comparator, in a comparable situation who is, has or would be treated differently is required. The Complainant has not adduced evidence as to how the characteristics of Gender and Age can be attributed to the alleged comparator, Ms X.

The Respondent said that the Complainant has not demonstrated in any tangible way that she because of the protected characteristic(s) as set out in her claim, received less favourable treatment than others. In A Worker V Mid-Western Health Board 1996 ELR the Labour Court held that to establish discrimination on Gender grounds a Complainant must show both less favourable treatment and that such treatment arises from the Gender of the Complainant. Similarly, contrary to the requirement under the Employment Equality Acts, no evidence has been adduced by the Complainant to demonstrate that she was subjected to discriminatory treatment in respect of her Age by the Respondent. Therefore, her claim for discrimination cannot succeed.

Victimisation

In respect of the complaint of victimisation the Respondent said that the Complainant in her submission alleges that she was victimised as a consequence of making numerous complaints to the Respondent regarding bullying and harassment. The Respondent said the singular reference to bullying made by the Complainant is in her email of the evening of 21 July 2017, subsequent to her resignation. It said that the key elements of victimisation provided for in Section 74(2) of the Acts are, that the employee had taken action of a type referred to at Section 74(2) of the Acts (a protected act); the employee was subjected to adverse treatment by the Respondent, and the adverse treatment was in reaction to the protected action having been taken by the employee – as per Department of Defence v Barrett [EDA 1019].

The adverse treatment that the Complainant claims are that the Respondent failed to adequately address or investigate the complaints of bullying and harassment and that the Complainant was treated in a further adverse manner (as a consequence of her complaints) which adverse treatment included exclusion and isolation.

The Respondent relies on the decision in Michael McGrath & John Ryan v Athlone Institute of Technology [DEC- E2015-114] where Section 74(2) is expressed in terms of there being both a cause and an effect in the sense that there must be a detrimental effect on the employee which is caused by him or her having undertaken a protected act of a type referred to in Section 74. Department of Foreign Affairs v Cullen [EDA116]. The Respondent said as the Complainant has not demonstrated that she has suffered any adverse treatment or victimisation and therefore her claim in this regard must fail.

Penalisation

In relation to the Complainant’s claim that she was penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act, 2005, the Respondent stated that Section 27 (1) of the Safety Health and Welfare at Work Act provides that: ““penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, demotion or loss of opportunity for promotion, transfer of duties, change of location of place of work, reduction in wages or change in working hours, imposition of any discipline, reprimand or other penalty (including a financial penalty), and coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work, giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions, being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.”

It said that Section 27(5) of the Act prohibits the Complainant from seeking relief under the Safety, Health and Welfare at Work Act in respect of alleged penalisation which constitutes alleged (constructive) dismissal of the Complainant as she has already invoked this claim under the Unfair Dismissals Acts.

Preliminary matters

I have heard from both parties in relation to the preliminary matters that are before me for consideration. In relation to the Employment Equality claim and the question whether it was withdrawn and therefore cannot be heard; I have reviewed the file and I note that the original complaint in relation to Employment Equality included discriminatory treatment, harassment, victimisation and discriminatory dismissal and it was filed within the allowed 6-month time frame. I note the Workplace Relations Commission wrote to the Complainant on 1 February 2018 about possible parallel complaints, i.e. discriminatory dismissal under Section 77 of the Employment Equality Acts and a claim of unfair dismissal under the Unfair Dismissal Act and said failing a reply within 41 days, the Employment Equality complaint would be deemed withdrawn. I note the Complainant’s Solicitor wrote back to address this, and said “We refer to the above matter and to previous correspondence herein. We confirm that our Client wishes to withdraw his complaint under the Employment Equality Acts only. We await hearing from you with confirmation of same. (sic)” The Complainant said it made an administrative error and meant to just withdraw the discriminatory dismissal element of the Employment Equality complaint. Notwithstanding this administrative error, I note that a follow up letter was sent from the Workplace Relations Commission to both parties confirming the most up-to-date position of the file, where it reads “… the other complaints under [...] the Employment Equality Act 1998 will also proceed to the Adjudication Service […]”. All I can determine from this is that the Workplace Relations Commission also took the view that the Complainant’s Solicitor was just withdrawing the discriminatory dismissal part of the Employment Equality complaint and not all the other complaints under the Employment Equality Act 1998.

On the day of the hearing an adjournment request was received from the Respondent having been presented with the fact that the Complainant wished to proceed with all the other Employment Equality Acts complaints bar the discriminatory dismissal part and following an exchange of submissions I granted the adjournment to allow them to prepare submissions on the case.

I have not been presented with any evidence that the Respondent has been prejudiced by this confusing occurrence. I note the High Court decision in O'Higgins -v- University College Dublin & Anor [2013 21 MCA] in relation to a different matter, but establishing a precedent of a similar nature to the case I have before me; where Hogan J. held: “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be) .… In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts”. I hold a similar view here that for me to render the entire Employment Equality complaint void in the circumstances would be a grossly disproportionate response in the circumstances where no prejudice is apparent or before me. Therefore, I find in favour of the Complainant on this matter.

In relation to the second preliminary matter of possible parallel complaints - the Unfair Dismissal Act and the Safety, Health & Welfare at Work Act 2005. I am mindful of the specific provision of the latter at Section 27(1)(5) which sets out the restrictions, where it states “If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.” I note that the specific element that the Complainant deems as the penalisation, none of them seem to relate to the dismissal per se but rather other elements of the working relationship. Therefore, I may proceed to consider both complaints at this point in time but ensuring the provisions of Section 27(1)(5) are observed. Therefore, I find in favour of the Complainant on this matter.

CA-00016689-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Relevant Law

Section 1 of the Unfair Dismissals Act 1977 provides that:  

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

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

(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, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a   purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”

Conclusions

I am satisfied that the Complainant was employed by the Respondent since January 2014 and her employment ended following her resignation in July 2017. The Complainant relies on the reasonableness test of constructive dismissal and that it had been reasonable for her to resign, given the way the Respondent acted towards her following her raising complaints of bullying and harassment by Ms. X. It is submitted that she approached Ms. A, numerous times, to outline her complaints, because there was no written grievance procedure in place at the Respondent. She said that she had exhausted the only procedure that she was aware of which was via its ‘open-door policy’ approach that she should go to her manager/supervisor with her grievance. She claims she did that and that it was reasonable for her to conclude that the Respondent was doing nothing about her grievance, that she was at her wits end, it was having a determent effect on her mental health and she could no longer work in that environment and was driven to a constructive dismissal.

The Respondent denies the claim, asserting that the Complainant has not met the burden of proof in a case of constructive dismissal. It states that there was no grievance raised by the Complainant of any sort prior to her furnishing it with a letter of resignation and it was only in her email dated 21 July 2017 that the Complainant made any reference to bullying or anything of that nature; just six days from her leaving date, while she was on sick leave, and eleven days after handing in her notice to resign. It claims that it immediately made contact with her and tried to encourage her to come in to work and sort things out, but she chose not to do so and resigned through her own volition. It submitted that it had acted reasonably at all times and that the Complainant has not utilised the grievance procedure prior to her resignation.

In respect of the relevant legal tests, it is clear the case of constructive dismissal is usually determined in relation to either the ‘breach of contract’ test, or the ‘reasonableness’ test. The breach of the employment contract claimed in the instant case is of the term of mutual trust and confidence. The Supreme Court in Berber v Dunnes Stores [2009] 20 E.L.R. 61, held that the test for whether employer conduct has breached the implied term of mutual trust and confidence in every contract of employment was an objective one. Finnegan J. held:

“1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at. 4. 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.”

In respect of the reasonableness test, I note the legal authorities such as Carthy v. Clydale[UD 1091/2004]investment, Conway v. Ulsterbank [UD 474/1981]and Harrold v. St. Michael’s House[2008] ELR1 all of which place an onus on the emphasis on the employee’s failure to utilise the employer’s grievance procedures. I have also noted the decision in An Employee v An Employer (UD 720/2006) where the Employment Appeals Tribunal held “… We however 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. There was no reason put forth as to why an appeal to [senior manager] would have been unfair or biased and we accept that his failure to avail of this right by resigning on [date] is fatal to his claim… 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.”

There is a conflict of evidence on what actually happened between September 2016 and July 2017. The Complainant claims that she raised numerous complaints and that she did that orally, but nothing was done. I note that nothing in relation to bullying, harassment, victimisation, discrimination (on Gender and Age) or penalisation has been documented between the parties in that ten-month period, until after the Complainant resigned her position. I have to consider that either the Complainant made her complaints and that she was rather trusting and maybe somewhat naïve not to follow this up in a more formal manner by documenting her issues and the lack of progress or, that there were no complaints or grievances of this nature, or at least, not adequately articulated in such a fashion as to leave the Respondent in no uncertain terms that there was such a serious allegation before it to deal with.

I note from the Complainant’s evidence that her grievance was ongoing for some 10 months. I note that she claims that she was under serious duress during that time but chose not to let the situation beat her and went to work pretty much every day until she was forced to resign in July 2017.

When there is such a conflict in evidence the Adjudication Officer has to determine what more than likely occurred on the balance of probability. I am satisfied that the Complainant and Ms. X had a difficult relationship, they may not have liked each other and found it hard to work together, the Complainant’s evidence is of that nature, and such conflict is not unusual in many employment environments. However, that is far removed from an allegation of bullying and harassment, which is a serious allegation. The Complainant did appear to have a good relationship with the senior management team, it appeared she felt comfortable to discuss things with them and had many interactions with them. She claims that she informed Ms. A of her complaints on many occasions. Ms. A was not located permanently at the same site and therefore, they would have communicated through other means on matters of interest and of importance to each other and work. This has been demonstrated from the evidence presented before me. However, I do not see any mention of an alleged complaint of bullying or harassment or reference to a possible issue of an open complaint(s) which is ongoing for a considerable length of time, in any of their inter-communications that was presented to me. The Complainant tells me that she did not have to do anything more, that she made her case orally via the open-door policy and she exhausted the grievance procedure and thus is justified in her constructive dismissal claim.

Having reviewed all the oral and written evidence of the parties, I make the following findings,

·         The Complainant was promoted to a new role which placed her in direct contact with Ms. X.

·         There was certain conflict between the Complainant and Ms. X.

·         The Complainant had a good working relationship with Ms. A.

·         The Complainant worked in that arrangement for ten months approx.

·         There is no evidence of performance issues, unusual excessive certified or uncertified sick leave.

·         The Complainant resigned by letter and in that letter expressed compliments to the Respondent for how she was treated and the way she was supported and the opportunities she received.

·         The Complainant went out on certified sick leave and it was only then that she put her complaints to writing for the first time.

·         The Respondent sought to meet the Complainant to discuss the matter.

·         The Complainant resigned her position and took the case of constructive dismissal to the WRC.

Applying the legal tests outlined above, I do not believe that the Complainant has met either legal test for constructive dismissal. Applying the objective test laid out in Berber, I have had regard to the sequence of events leading up to her resignation. I am not satisfied that the Complainant had brought her grievance to the Respondent’s attention. I note how the parties communicated prior to the Complainant’s resignation. I am satisfied if there was a complaint of bullying, harassment, victimisation, discrimination (on Gender and Age) or penalisation the sequence of events could not have followed in the nature they did. I will state again that the Respondent is more than naïve not to have clear procedures in place to address an employee’s grievance. However, my assessment here must be based on what I determine is correct having considered the evidence on the balance of probabilities. Not having a written grievance procedure in place, does not in its own right establish a prima facie case for the Complainant. That, I am satisfied would be an error on my behalf. I am satisfied on the balance of probabilities that having considered all the evidence and both legal tests and taking these factors into account that the Complainant’s resignation was premature. I note also that she gave notice of her resignation. It cannot be said that she had no or little choice but to resign, or that the employer could be said to have repudiated her contract of employment. I am not convinced that she put her employers on notice of her grievance. She chose to leave and therefore lost the opportunity to try to resolve this to her satisfaction. Accordingly, I cannot find that the circumstances amount to constructive dismissal.

CA-00016689-002 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

Discrimination

The Relevant Law

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ...”. Section 6(2)(a) of the Acts defines the discriminatory ground where one is a woman and the other is a man (in this Act referred to as “the gender ground”), and 6(2)( f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”). The Complainant has cited her comparator as Ms. X who was treated move favourably, or indeed a hypothetical comparator should that be more suitable. I am advised that Ms. X is a woman and is about 10 years or so older than the Complainant.

I was informed from the Complainant’s side that the Complainant’s case in relation to Gender and Age discrimination is that of a “secondary claim” to the main claim of constructive dismissal. She claims that her conditions of employment and the fact that the grievance procedure was not followed through raises a presumption of discrimination on the said grounds. The Respondent said that the Complainant has not adduced any evidence to establish how she was treated less favourably due to the characteristics of Gender and/or Age that can be attributed to the comparator Ms. X.

I note the decision in Melbury Developments v Arturs Valpetters [EDA 0917] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”. Having considered the evidence I am satisfied to conclude that the Complainant has not established any facts whatsoever to which give rise to the presumption of discrimination on the part of the Respondent. Therefore, I must state that I am satisfied that a prima facie case has not been established by the Complainant and the burden of proof did not shift in the course of the hearing. Section 85A of the Employment Equality Act 1998 has not therefore been invoked.

Therefore, I am satisfied that the complaint brought under section 77 of the Employment Equality Act, 1998 in relation to discrimination on the grounds of Gender and Age fails.

Victimisation

The Relevant Law

Victimisation is defined by Section 74(2) of the Act as follows: -

·         For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complaint was solely or mainly occasioned by the Complainant having, in good faith—

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or

(d) given notice of an intention to do anything within paragraphs (a) to (c).

In Determination EDA1017, Department of Defence v Barrett, this Court held that in order to make out a claim of victimisation under the Act it must be established that: -

a. The Complainant had taken action of a type referred to at Section 74(2) of the Acts (a protected act),

b. The Complainant was subjected to adverse treatment by the Respondent, and,

c. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

In the case of the Public Appointments Service -v- Kevin Roddy[EDA1019]  the Labour Court held that: “To  be encompassed within the ambit of section 74(2)(b) “proceedings” must come  within the definition as defined by Section 2 under Interpretations where “proceedings” means—(a)  proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and (b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference, but does not include proceedings for an offence under this Act”

Under the Act the complainant must prove that the catalyst alleged for the adverse treatment complained of came within the ambit of one of the protected acts referred to at Section 74(2) of the Acts.”

Therefore, in order to maintain a claim of victimisation within the meaning of the Employment Equality Acts it is necessary that the Complainant demonstrates the connection between her actions in relation to defending entitlements under the Act and the adverse treatment complained of.

The Complainant contends that on foot of her raising her complaints of bullying and harassment by Ms. X to the Respondent she suffered by being excluded from meetings, was isolated and responsibilities were removed from her. She claims that this constitutes adverse treatment and victimisation resulting from the complaint made by her.

The first step for a Complainant to establish a prima facie case in relation to a claim of victimisation under this Act is of one or more of the following occurred, (a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment), (b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment, (c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or (d) given notice of an intention to do anything within paragraphs (a) to (c).

I have carefully examined the evidence presented in the written statements and the oral evidence presented at the hearing. I note that she only sought redress under Employment Equality Act 1998 after she resigned her position. I am satisfied there was no mention of discrimination on a ‘protected ground’ – in this case Gender or Age - by the Complainant prior to her Solicitor’s involvement well after her resignation. There was no reference to giving evidence in another proceeding under this Act. There was no reference to giving notice of an intention to take a complaint under the Act.

Having considered the evidence I am satisfied to conclude that the Complainant has not established any facts which give rise to the presumption of discrimination on the part of the Respondent. Therefore, I must state that I am satisfied that a prima facie case has not been established by the Complainant and the burden of proof did not shift in the course of the hearing. Section 85A of the Employment Equality Act 1998 has not therefore been invoked.

Accordingly, the Complainant’s complaint under victimisation fails.

CA-00016689-003 - Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Relevant Law

In accordance with Section 27 of the Safety, Health and Welfare at Work Act 2005,

1. “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. 

2. without prejudice to the generality of subsection (1), penalisation includes—

(a)   suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b)   demotion or loss of opportunity for promotion,

(c)    transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d)   imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e)   coercion or intimidation. 

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a)  acting in compliance with the relevant statutory provisions,

(b)  performing any duty or exercising any right under the relevant statutory provisions,

(c)  making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d)  giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e)  being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f)  subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent, and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

 (4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

Conclusions

In relation to this aspect of the claim I note the findings and conclusions of the Labour Court in St. Johns National School v. Ms Jacinta Akduman [HSD 102] when it sought to reflect on the jurisdiction of the Court in relation to Section 27 where is said,

“This Section is intended to protect employees who exercise any of the rights referred to at Subsection (3) from retaliatory conduct by their employer. In applying the provision the Court must be careful to recognise the distinction between a detriment which may be suffered by an employee as a result of an employer’s failure to fulfil a duty under the Act and a detriment amounting to “penalisation”. Therefore, the Court must be careful not to claim jurisdiction which it does not have by classifying as penalisation conduct, by act or omission, which is properly classified as a failure to fulfil a general duty imposed by the Act. Accordingly, the Court must now consider if the subject-matter of the within complaints, taken at their height, should properly be classified as penalisation as opposed to a contravention of the general health and safety imperatives of the Act. Subsection (1) of this Section defines penalisation in broad terms and can include a failure to act which results in a detriment to an employee in terms of his or her conditions of employment. Crucially, however, what is rendered unlawful by Section 27(3) is acts or omissions of the type referred to at Subsection (2) directed at an employee for having committed an act protected by that Subsection. Hence the decisive consideration is that of causation. It is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by Subsection (3) and but for the protected act the employee would not have suffered the detriment complained of (see Determination No HSD095, Toni & Guy Blackrock Ltd and Paul O’Neill).”

The decision in Toni & Guy Blackrock Ltd and Paul O’Neill, as referenced above, is often quoted by the Labour Court as an authority under the Safety, Health and Welfare at Work Act 2005 it clearly sets the tests that should be applied to the circumstances on each case. It states that,

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

I am satisfied that the scope of what can be considered a protected act is quite broad. I note that there are a number of cases in the Labour Court that have addressed this point, inter alia, County Offaly Citizens Information Service LTD v. A Worker [HSD 161] and - Board of Management of St. David’s CBS Secondary School Artane v. Siobhan McVeigh [HSD 118] , where a complaint was made on the basis of or relating to Bullying and Harassment Policies, which it was determined may qualify as a protected act for a claim for penalisation to be considered under the Safety, Health and Welfare at Work Act 2005.

The Complainant asserts that the Respondent penalised her for the complaints she made, in relation to bullying and harassment by her work colleague Ms. X. As instances of penalisation, she refers to the way she was treated, excluding her from meetings, isolation and removing responsibilities from her. The Respondent denies that penalisation took place, it was at a loss to what this could mean; she attended the meetings she was supposed to attend, there was no isolation or the removing of responsibilities.

From the evidence adduced it is somewhat vague as to the examples that the Complainant intends to rely upon. I note the Respondent said the Complainant never raised this formally and on the contrary actually expressed rather positively of her time working there, in her exchange of emails with the Respondent and in her letter of resignation. This does not demonstrate to me someone who feels that they are being penalised by the same Respondent. Having listened to and considered all the evidence I am not at all convinced that there is any compelling evidence to support her claim. I am satisfied that there is no evidence of any act of penalisation by the Respondent. On balance, I prefer the Respondent’s version of events, I therefore, find that the complaint is not well founded.

CA-00016689-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this claim in accordance with the relevant provisions. Based upon the reasoning as set out above I find that the complaint made pursuant to the Unfair Dismissals Act is not well-founded and accordingly, the complaint fails.

CA-00016689-002 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998 -2015. I find that:　

(i)                  the Respondent did not discriminate against the Complainant on grounds of Gender in terms of Section 6(2).

(ii)                the Respondent did not discriminate against the Complainant on grounds of Age in terms of Section 6(2).

(iii)               the Respondent has not victimised the Complainant in terms of Section 74(2) of the Acts.

Accordingly, her complaint fails.

CA-00016689-003 - Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

I find that the complaint of penalisation made pursuant to the Safety, Health and Welfare at Work Act is not well founded and accordingly, the complaint fails.

Unfair Dismissals - Employment Equality - Safety, Health & Welfare - complaint fails