FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : RYAN, CANNON AND KIRK ACCOUNTING SERVICES LIMITED (REPRESENTED BY CMG CONSULTANS) - AND - VIOLETA KNEITE (REPRESENTED BY HRS CONSULTANTS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr Hall |
1. An appeal of an Adjudication Officer's Decision no. ADJ-00009889.
BACKGROUND:
2. The Complainant appealed Adjudication Officer's Decision No ADJ-00009889 to the Labour Court in accordance with Section 8A of the Unfair Dismissal Act, 1977 to 2015. A Labour Court hearing took place on 7th February 2019.
The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Ms Violeta Kneite of an Adjudication Officer’s Decision under the Unfair Dismissals Act 1977 – 2015 in her claim of unfair dismissal against her former employer, Ryan, Cannon & Kirk Accounting Services Limited. The Adjudication Officer found that the Complainant’s claim was not well founded.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Violeta Kneite will be referred to as “the Complainant” and Ryan, Cannon & Kirk Accounting Services Limited will be referred to as “the Respondent”.
The Complainant submitted her claim under the Acts to the Workplace Relations Commission on 31stJuly 2017.
Background
The Complainant commenced employment with the Respondent as a Bookkeeper/Accountants’ Assistant on 15thSeptember 2006. She tendered her resignation on 27thJuly 2017. She was on a salary of €31,503.60 per annum.
Summary of the Complainant’s Case
Mr Peter McGlynn, HRS Consultants, on behalf of the Complainant, stated that while the Complainant was employed as a Bookkeeper/Accountant Assistant she regularly had to complete tasks that would have been part of an Accountant’s role despite not being trained or given acknowledgement from the Respondent to do so. He proceeded to outline the events leading to the Complainant’s resignation on 27thJuly 2017.
The Complainant holds a Diploma in Accountancy, Finance and Bookkeeping and therefore felt capable of doing the tasks she was set.
There were no complaints with her work for ten years, until March 2016, when she had an issue with the Office Manager, when she was asked to carry out a duty which was not part of her role. As she was busy at the time the Complainant refused, the Office Manager then proceeded to make a complaint to one of the Directors. The Director called the Complainant into his office and asked her about the Office Manager’s request of her. The Complainant told the Director that she could not do the work as she was too busy with her own work. He said it was fine.
Following this the Director planned a meeting between both parties, however when this did not occur the Complainant made a formal complaint to the Respondent about the Office Manager’s behaviour. On 5th August 2016 the Director sent the Complainant a letter listing a range of problems that he had with her and her performance. This culminated in a number of meetings where her work was criticised, and the Complainant alleged that the Director shouted at her that she was making errors. The Director told her that she did not have the right attitude for the accountancy area, that it would be unfair of the Respondent to push her into that career direction and she should concentrate on administrative work. The Complainant was upset by this, she had been working in accountancy since her early twenties and was now in her late thirties, she felt humiliated and useless, she now doubted her own abilities and her self-confidence was destroyed. She went absent on stress leave. The Complainant then made a formal complaint of bullying and harassment against the Director in October 2016.
The Respondent engaged an independent investigator to carry out an investigation into the complaint. The Investigator’s Report did not find in favour of the Complainant’s allegation of bullying and harassment, although it did find fault with the Respondent’s approach to engagement with the Complainant’s work methods and made a number of recommendations. Mr P. McGlynn said that at this point all trust had broken down between the Complainant and the Respondent and for the sake of her health she was forced to resign in July 2017. In her resignation letter she outlined the reasons for her decision and informed the Respondent that she would be taking a constructive dismissal case.
Mr P. McGlynn submitted that it was only after the Complainant made a complaint about a manager, a complaint which he said was not addressed by management, that one of the Directors suddenly found fault in the Complainant’s work and subjected her to a letter and a series of meetings where it was highlighted to her all the things she was doing wrong. He said that on reading the investigation report, the Complainant knew she could not go back to the workplace, she had lost all trust in her employer.
Mr P. McGlynn said that if she had raised a grievance it would have had to have been addressed to one of the Directors and considering the complaint that she had made against the Office Manager had fallen on deaf ears, she had no faith in any grievance she might make being listened to. For the sake of her health, she had no choice but to resign.
He cited a number of cases to support his contention that this was a constructive dismissal, including: -
Beglan v. Scanomat Ireland LimitedUD688/2012 where an employee wished to have his grievance referred directly to the LRC (now known as the WRC) as there was no one within the Company he could bring his grievance to, but management had refused as it was an internal matter. Therefore, the employee felt he had no option but to resign and he brought a constructive dismissal case against his employer. The EAT found in favour of the claimant and that he was constructively dismissed.
Schonfield v. West Wood Club Clontarf LtdUD1013/2013, the claimant had no one to complain about the conduct of the General Manager and therefore resigned. The tribunal found that the resignation of the claimant was involuntary and upheld her complaint of constructive dismissal.
In the case ofAllen vs. Independent NewspapersUD 641/2000, the EAT found that the claimant had been constructively dismissed. The claimant had contended that she had been subjected to harassment and bullying, that she had been isolated at work and her confidence undermined and her health affected to such an extent that she was forced to resign. She raised issues verbally with management and outlined her general feelings of isolation. The EAT found that she acted reasonably in terminating her employment and it was accepted that a complaint could be processed directly to management rather than using the formal grievance procedure.
Summary of the Complainant’s Evidence
The Complainant gave evidence under oath to the Court. She told the Court that there had been no problems with her work prior to March 2016. However, things changed when on 3 March 2016 her Office Manager made a complaint about her to one of the Directors. The Director then promised to set up a meeting between the Office Manager and the Complainant to sort matters out. However, this never transpired and instead she received a letter from the Director, outlining various complaints with her work, her timekeeping, working hours, performance and her attire. When meetings were set up to discuss these alleged shortcomings she said that the Director became aggressive with her and shouted at her. She then made a formal complaint about the Director’s behaviour and an investigation was undertaken. The Complainant told the Court that she was given the choice of three proposed independent investigators to select from and she decided on one. The Report was completed on 25thJuly 2017. She said that she was devastated with the outcome of the investigation, as it did not find that the treatment she had received was classified as bullying or harassment. She told the Court that on the basis of these findings, she said that she could no longer see any future for her in the Company and felt that nothing was ever going to change.
When asked why she did not appeal the findings, the Complainant said that she had no one to appeal to. She accepted that such an appeal was possible under the Respondent’s Dignity at Work Policy and/or that a formal grievance could have been made under the it’s Grievance Procedures.
When asked if she discussed the report with anyone before making the decision to resign, she said that she spoke to her HR consultant. However, she felt that she had to decide quickly, as she needed to move on, therefore she submitted her resignation with immediate effect, on 27thJuly 2017. She accepted that she did not wait to hear the Respondent’s reaction to the report. She said that she had decided that she could not return to work despite the fact that the report was critical of management’s style and its handling of performance issues and made a number of recommendations on suggested improvements. She said that at that point she had no interest in being involved in the mediation process recommended by the Independent Investigator.
Summary of the Respondent’s Case
In response to the allegation of unfair dismissal made by the Complainant, Mr Colin McGlynn, CMG Consultants, on behalf of the Respondent, stated that the Respondent at all times behaved reasonably and expeditiously when dealing with the Complainant’s complaints. He said that she had failed to exhaust all avenues available to her prior to her resignation and therefore her claim of constructive dismissal must fail.
He outlined the Respondent’s response to the Complainant’s claim, as follows: -
The Respondent received an initial complaint from the Complainant’s representative dated 5th September 2016. The Respondent discussed it with her representative Mr Peter McGlynn, HRS Consultants, on 15th September 2016 and it was agreed that the Complainant would submit a formal detailed complaint and on receipt of same an investigation would be undertaken. It was agreed that the Respondent would nominate three independent investigators and the Complainant would select an investigator from the three persons nominated.
The Complainant and her representative stated that she would not return to work until the investigation was completed.
The investigation was finalised, and a report dated the 25th July 2017 was issued.
The Recommendation of the Investigator’s Report stated as follows: -
- ‘As the finding is that the complaint is not upheld it is not recommended that the disciplinary procedure be used. It is recommended that both parties are offered mediation to resolve issues contained herein.’
Mr C. McGlynn said that the Complainant made no attempt to participate in the recommended mediation with the Respondent, nor did she make any attempt to engage with the Respondent after the findings of the investigation were issued. She made no attempt to submit a grievance and made no attempt to appeal the decision of the investigator, all of which was available to her under the Respondent’s Grievance Procedure and/or its Bullying & Harassment Policy, as defined in its Employee Handbook.
The Respondent confirmed in their letter to the Complainant dated 4th August 2017 that the Respondent‘had been willing to implement the Independent Investigator’s report’.
Mr C. McGlynn stated that the Respondent was of the view that at all times it dealt with the Complainant reasonably and fairly, however, the Complainant’s failure to exhaust all avenues available to her prior to her resignation was detrimental to her claim. In arguing that the Complainant’s termination of employment did not meet the tests for a constructive dismissal, Mr C. McGlynn stated that the Respondent’s conduct did not amount to behaviour which undermined the relationship of trust and confidence between the parties in such a way as to go to the root of the contract.
Mr C. McGlynn similarly submitted that the Respondent could not be held guilty of conduct which was a significant breach going to the root of the contract of employment, or which showed that it no longer intended to be bound by one or more of the essential terms of the contract, as defined by the reasonableness test. In support of the Respondent position, Mr C. McGlynn cited a seminal decision from the Supreme Court,Berber v Dunnes Stores Limited[2009] E.L.R. 61 where Finnegan J. examined the reasonableness test, i.e. whether an employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to tolerate it any longer and justifies the employee leaving. He submitted that these circumstances did not exist in the instant case.
The Law Applicable
Section 1 of the Act 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”
Section 6(1) of the Act states
- 6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Issues for the Court
As the Complainant is alleging constructive dismissal, the fact of dismissal is in dispute therefore the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her terminating her employment.
Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. 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 his/her position, often referred to as the “contract test”. This requires that an employer be“guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”as held inWestern Excavating (ECC) Ltd v Sharp[1978] IRL 332.
Secondly, 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 he/she is justified in leaving.
The question for the Court to decide is whether, because of the conduct of the Respondent, the Complainant was or would have been entitled, or it was or would have been reasonable for her, to terminate the contract of employment.
In constructive dismissal cases, the Court must examine the conduct of the parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign:Conway v Ulster Bank LimitedUDA474/1981.
- •The findings of the Independent Investigator
The Independent Investigator found that by raising the issues first in writing, the Director formalised the process and therefore presented an escalated response to a performance issue, even though such method of communication is the norm within the Company. However, he held that the decision to compile these issues in a letter, while not malicious, demonstrated a lack of appreciation of how it would be received and interpreted by the Complainant and was not conducive to positive industrial relations. In essence, he concluded that the Director’s letter to the Complainant demonstrated a lack of tact, it was misjudged and misguided but was not a demonstration of bullying behaviour.
With regard to the meetings between the Director and the Complainant which took place in August 2016, the Investigator held that due to the opposing views expressed on the Complainant’s work performance the meetings created a narrative of multiple interpretations and mixed, more often negative responses to communication. He accepted that the Director was focussed on enhancing improvements while the Complainant concentrated on being criticised for making multiple errors. He said that these opposing positions appeared quite stressful for both parties and that the Director had tried to defuse matters when the Complainant had left the meetings visibly distressed by inviting her back to his office, however, she refused to return to the Director’s office.
The Investigator considered the allegation that the Director was aggressive and shouted at her. Based on the investigation he carried out, the Investigator did not find evidence that the Director shouted at the Complainant at the meetings nor did he find evidence of him being aggressive to the Complainant. He stated that difficulties arose when the Complainant sought clarifications from the Director on certain matters he was raising, whereas the Director viewed these clarification requests as obstacles and methods to question his authority. On balance, the Investigator held that it was clear that communication had broken down between the parties, but it was not clear that it constituted bullying behaviour and accordingly held that the Complainant’s allegations of bullying were not upheld.
The Investigator made a number of observations on how matters could be improved within the Company, to enhance employee relations, industrial relations, improve management style, accept individual responsibility and on how to handle disagreement. It includedinter alia, that the Respondent should provide clarity on individual roles and responsibilities; give clarity of organisation structure; suggested that training & performance appraisal policies should be formalised, and the dress code should be discussed and reviewed, etc.
He concluded that both parties had presented as genuine and honest individuals and that both were genuinely upset with how matters and their working relationship had deteriorated, and he recommended mediation to resolve issues between them.
Findings and Conclusions of the Court
InBerberFinnegan J. held: -
- “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”
The Court had considered the written and oral submissions of both parties and the evidence tendered by the Complainant. The Complainant told the Court that the dominant reason why she resigned was her lack of trust and confidence in the Respondent’s efforts to deal with her complaint of bullying and harassment. In all the circumstances of this case, the Court cannot accept this contention as a fundamental breach going to the root of her contract, in circumstances where the Respondent fully complied with its Dignity at Work Policy following the complaint made by the Complainant; where it appointed an independent investigator of her choice to carry out an investigation into the allegations made; where it informed her that it was fully prepared to accept the findings and recommendations of the Investigator’s report and where an appeal of such that report was available to her.
Having examined the evidence proffered by the Complainant, the Court fails to see how the Complainant’s assertions meet the standard of reasonableness required to substantiate a claim of constructive dismissal. In any event, there is a concomitant obligation on a person seeking to rely on that test to act reasonably.
InBeatty v Bayside SupermarketsUD142/1987, in referring to the existence of grievance procedures in a company the Employment Appeals Tribunal held: -
- “The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.
The Court accepts that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal seeLiz Allen v Independent Newspapers [2002] 13 ELR 84, Moy v Moog Ltd, [2002] 13 ELR 261 and Monaghan v Sherry Bros [2003] 14 ELR 293. See also the Determination of this Court inNew Era Packaging v A Worker [2001] ELR 122. However, in the instant case, the Court is not satisfied that there were factors present which might excuse the Complainant’s failure to either avail of an appeal, to raise a grievance, to opt for mediation or to seek implementation of the Investigator’s recommendations. From the evidence tendered by the Complainant, the Court has found no evidence to indicate that she made reasonable efforts to address her grievances before resigning. Following her resignation and at its first opportunity, the Respondent informed her that it was willing to implement the recommendations made in the Investigator’s report.
Determination
Having carefully considered the case put forward by the Complainant, the Court takes the view that she has not satisfied either element of the test outlined above. Accordingly, the Court determines that the Complainant was not constructively dismissed from her employment. The Decision of the Adjudication Officer is upheld, and the appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
25th February, 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.