Complainant

Respondent

Anonymised Parties

Architectural Technician

Local Authority

Representatives

Tim Dixon BL

Oisin McAsey Solicitor

Coleman Legal Partners

Keith Irvine LGMA

Ruth McNally HR

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00014830-001

06/10/2017

The Claimant commenced working for the Respondent in April 2007. She resigned from her employment on the 9th April 2017. She worked a 37-hour week for which she was paid €1,442.43 fortnightly.

She had intended to bring a claim under the Unfair Dismissals legislation and had the service to do so. However, her claim was lodged under the Industrial Relations legislation.

The Claimant started working for another local authority the following day after she resigned namely the 10th April 2017 in a higher graded position with more pay, without any break in service. To obtain this role, the complaint went through an open recruitment process.

The Claimant commenced working on a fixed term contract for the Respondent as a Grade 2 Architectural technician but was carrying out Grade 1 duties. She remained in this role for several years. While her colleagues retired they were not replaced, but the Claimant had to take on their work. The Claimant submitted that she was overloaded with work in comparison with her colleagues.

She brought this to the attention of her line manager together with other issues of bullying that she was experiencing. This complaint was dealt with informally by her line-manager. The outcome was that she was promised to be promoted into a Grade 1 position with other perks. What she received was an acting up position with a promise that it would be made permanent. This didn’t materialise, and she was given a temporary position which was renewed every three months.

Ultimately the acting up role was terminated. Following same she met with her line-manager and the Director of Services and Head of Human Resources. The outcome of that meeting was that her acting grade 1 role was returned to her.

The acting role was again terminated in July 2016. She complained about this and was advised that her acting up had not been terminated but that there was a recalculation of her annual increment. She received conflicting correspondence in this regard.

The Claimant experienced social and professional isolation. She noticed that colleagues were waiting until she was not present and then proceeding en masse to tea or breakfast. The Claimant was given unrealistic deadlines and micromanaged.   She discovered that diaries were being maintained unbeknownst to her by her colleagues. She felt threatened when she proposed to take legal advice.   She was absent from work due to stress induced illness brought about by her work conditions.

While she didn’t formally use the grievance procedure or threaten to resign, she had written letters to her line manager, the Director of Services and the County Manager.   She had several line mangers during her employment. Some of them had met with her on her complaints. She had verbally communicated her issues with them. She felt that her last line manager had washed his hands of her complaints. Nobody cared about her.

She could not have resigned any earlier than she did because she had financial commitments and needed to keep working. She was a carer for her mother also who lived in the same town as her.  

She submitted that the behaviour of the Respondent was unreasonable. She felt she was incredibly overworked and stressed.   She was very unhappy and was discouraged from moving on with her career. The constant attacks on her acting up allowance and the other submissions and direct evidence she gave at the hearing made for a truly intolerable situation beyond the fortitude of any reasonable person to bear. The aggression directed against her was sustained, deliberate and could not be explained by any accidental slip or omission.

Her financial loss arising from her resignation was that she had to travel 50km each way to her new job. While she went up two increments in salary, this increase would not have covered the additional cost of travelling and maintenance for her car. She would have preferred to work and live in the same town.

The Respondent’s position was that the Claimant was successful in achieving a promotional position with another local authority and because of this resigned from her position. She had not given the Respondent any formal notice of her complaints or lodged any grievances under its policies.

The Respondent submitted that the fact of dismissal was in dispute and the Unfair Dismissal Act did not apply to a situation where the employee resigns. It submitted that protection is only given where an employee is “forced to resign” because of the conduct of the employer.

The Respondent set out that in the circumstance of a resignation, the burden of proof is on the claimant. As there had been no fundamental breach of contract in this case (the contract test”), nor had its conduct been such that it was reasonable for the Claimant to regard herself as being dismissed (“the reasonableness test”) the Claimant should not succeed in her referral.

The Respondent explained that it had not been afforded a reasonable opportunity to resolve any issues that the Claimant may have had. There was no ‘last straw’ that amounted to a breach of the implied term of trust and confidence. It was entirely unforeseeable that the Claimant would resign her position.   There were no formal complaints that the Respondent had to deal with relevant to the Claimant. If there were, they would have investigated under the grievance policy and all involved would have been provided with fair procedures.

The Respondent also queried what financial loss if any the Claimant suffered as a result of resigning from her employment.

Constructive dismissal is defined in the Unfair Dismissals Acts 1977 – 2007 as “the termination by the employee of his/her 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 statutory definition contains two tests either or both of which may be argued by an employee: 1. The “contract” test. Here the employee claims an entitlement to resign on the basis that there has been a significant breach of contract by the employer which goes to the root of the contract or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; 2. The “reasonableness” test. Here the employee claims that it was “reasonable” for him or her to resign. The employee bears the burden of proof as to dismissal and, therefore, goes into evidence first at a hearing. While employees are generally expected to invoke the employer’s grievance procedure to resolve their grievance before resigning, in sufficiently serious circumstances, this may not prove fatal to a constructive dismissal claim. There is a high burden of proof on an employee to demonstrate that he or she acted reasonably. It further needs to be demonstrated that the employer’s conduct was so unreasonable as to make the continuation of employment intolerable.

I have reviewed the Respondent’s grievance procedure. At paragraph 3 it sets out the general principles namely that it complies with natural justice and fair procedures which include:

(i)                              That details of the allegations or complaints be put to the staff member concerned.

(ii)                            That the staff member concerned be given the opportunity to respond fully to any such allegations or complaints

(iii)                           --

(iv)                           That the staff member concerned has the right to a fair and impartial examination of the issues being investigated….

I have also reviewed the correspondence and emails sent by the Claimant in July 2016, August 2016 and September 2016. I have reviewed the replies she received from the Respondent. The correspondence written by the Claimant in July 2016 was very detailed with a legal undertone and was written with the heading of gender discrimination, equal pay directives and employment equality.  

The reply from the Chief Executive of the Respondent advised that her complaints should be addressed in accordance with the Respondent’s normal complaints/grievance procedures.

The documents furnished to me by the Claimant confirmed that she had been in receipt of legal advice well in advance of her notice of resignation in March 2017, however there was no effort on the part of the Claimant to raise her ongoing complaints with the Respondent under its grievance policy.   The HR department was cc’d on some of the emails provided to me, but no formal complaint was lodged with them.  

The Claimant photographed pages from her line-manager’s diary but did not raise the diary entries with HR under the grievance procedure. I note that the Claimants legal advisers wrote to this co-worker in November and December 2016 by registered post seeking a copy of the Health and Safety analysis report in relation to her workplace and general office area. This was in relation to the Claimant being moved to another office. In the correspondence the solicitors set out that should they fail to hear from the line manager in relation to the Claimant’s new work station within a stated period, they had instructions to report the matter both to the Health and Safety Authority and simultaneously to the State Claims Agency who were a notice party under the legislation. I note that he Claimant did so notify both agencies in December 2016.    

While sympathetic to the Claimant and her wish to continue in employment in the same town as she lived due to her family commitments, I prefer the evidence of the Respondent. I find that her claim of constructive dismissal does not fall within any of the tests set out in the definition of constructive dismissal in Section 1 of the Unfair Dismissals Act. I find that the Claimant resigned because she was having ongoing interpersonal issues in her employment and had secured a new job. However, these issues were not so oppressive or acute as to fall within the contract test or the reasonableness test. While having the benefit of legal advice, the Claimant did not utilise the grievance procedure of the Respondent. She was advised to do so by the CEO of the Respondent more than 6 months prior to her resignation. She chose not to do so. If she had done so, all parties (including the Claimant) would have had the benefit of having her complaints investigated and decided upon.

Overall, I find that the Claimant resigned because she secured a promotion with a new employer. Had she not secured this role, there was no indication that she would have resigned when she did or if at all.

The dispute referral is not successful. I make no recommendation in this dispute.

Constructive dismissal