Complainant

Respondent

Anonymised Parties

A Retail Assistant

A Retailer

Representatives

 Solicitors.

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00019897-001

19/06/2018

The complainant was employed as a general assistant in a multiple supermarket. She earned €12.71 per hour.

The complaint is one of constructive unfair dismissal.

The complainant commenced her employment June 26th, 2006 and it terminated on January 5th, 2018. She had always been a good employee and had no disciplinary problems.

In September 2015 she went on a prolonged period of sick leave which she says was attributable to workplace related stress; specifically, due to bullying and harassment by a manager.

In July 2016 her grievance related to the bullying was heard and in the report on her grievance, which did not issue until October 1st, 2016, only one of the complaints was upheld. However, the general complaint of bullying was not upheld.

She returned to work the following June and the respondent accommodated her with reduced hours but, to her dismay, the bullying behaviour continued. Specifically, the person against whom she had made the bullying allegation visited the store on July 6th and engaged in intimidating behaviour.

She made a complaint about this. Also, she had continuing contact with the store manager and HR manager in relation to her ongoing stress issues. She acknowledges that both had been supportive.

She believed that she did not have to make a fresh complaint because the conduct was a continuation from that in 2015 and 2016 and did not do so

She submitted her resignation on December 22nd, 2017.

The respondent met her for an ‘Exit Meeting’ on January 3rd and on January 27th indicated that it was declining her resignation unless she withdrew the complaints of bullying.

The complainant resigned but she has failed to exhaust all internal procedures in relation to her grievance or demonstrate that the respondent’s conduct was company unreasonable so as to justify her resignation.

The question is whether the complainant had acted reasonably in resigning.

In relation to the grievance in 2016 this was fully investigated by a manager from another store and was partially upheld. Witnesses were interviewed but the investigation did not uphold a complaint of bullying.

The incident on July 6th, 2017 was investigated and no proof of the allegations could be found on the CCTV system.

The Manager gave evidence that he was sufficiently concerned about the July 6th incident to take advice on it from the company’s HR department and he also took steps to discourage the person involved from visiting the store, even as a customer.

The complainant’s resignation took place over twelve months after the conclusion of the appeals process and two years after the incidents which gave rise to it.

The complaint is one of constructive dismissal.

It is necessary to look at the sequence of events to see whether the conduct of the respondent justified the complainant’s resignation and her complaint of constructive unfair dismissal.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of any contract of employment.

It is, after all, the breach of a legally binding contract.

In the case of an employer wishing to dismiss an employee, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

Most complaints under the Act arise when the employer has terminated the employment, and the tests above apply in determining whether the dismissal has been a fair one.

In general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, the duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

‘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.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

This provides the starting point in the current case.

It will be seen from the narrative above that she failed to take any, even elementary steps to have the specific grievance which gave rise to her resignation addressed by the respondent.

The respondent demonstrated diligence in dealing with her previous complaint, and indeed shoed great understanding and sympathy to her at various stages.

She had no grounds for believing it would not apply the same standards again, and no reason not to submit a grievance. The argument that there remained some connection with the previous complaint has no merit at all..

Also, the distance in time between the events which gave rise to the problem, the previous investigation and other steps taken by the respondent all go to undermine the complainant’s case.

Accordingly, I find that she has not made out a good case and her complaint fails.

I do not uphold complaint CA-00019897-001 and it is dismissed.

Constructive unfair dismissal.