Complainant

Respondent

Anonymised Parties

A Supervisor

A Facilities Company

Representatives

Anne Flynn SIPTU

J. Bolger of E.S.A Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00018897-001

03/05/2018

The case concerns the alleged Constructive Dismissal of a Facility Supervisor by a Facilities Company.

The Complainant was employed for close to 20 years as a Cleaning/Facility Supervisor at a major Shopping Centre complex in the Midlands. Her work was always of the highest standard and never subject to any query.

In July of 2016 a serious stabbing incident took place in the Centre. The Complainant arrived at the horrific scene and did her best to comfort the Victim’s wife who was hysterical. After the arrival of the Emergency Services/Gardaí and the situation was brought under control the Complainant was asked to remain at the scene and help with the clean-up.

Although at the time she did not feel ill effects in the following weeks she began to suffer panic attacks and anxiety issues. She began avoiding all possible incidents such as falls or people becoming ill in the Centre.

The Respondent employer did not offer any counselling or post incident support. She, following consulting with her GP, inquired about private counselling but it was beyond her financial means.

At around the same time /late 2016/early 2017 the Complainant began experiencing problems with the Centre Assistant Manager, Ms XA. The Assistant Manager regularly belittled the Complainant in front of the staff she was expected to supervise. Ms XA engaged in hostile behaviour/systematic ignoring and bullying towards the Complainant. The matters escalated to a point of two or three incidents a week.

A crucial meeting took place on the 15th December 2017 with the Managers of the Facility Company. After the primary business of the meeting the Complainant asked the Mangers, Ms XB and Ms. XC to speak to the Centre Management in an effort to stop the behaviours of the Assistant Manager Ms.XA.

The Respondent failed to act on the Complainant’s request and the behaviours continued.

On the 12th January 2018 the Complainant felt she could take no more and handed in her notice of resignation.

A number of meetings and exchanges of correspondence took place post the resignation and resulted in the Respondent denying that they were ever made formally aware of the Assistant Manager situation. The Stabbing incident had been complete outside their control and they had no liability towards the Complainant.

In summary the Respondent failed to take a proper duty of care towards the Complainant post the stabbing incident and had tolerated the hostile and bullying situation brought about by the Assistant manager. On both grounds the claim for Constructive dismissal, after 20 years unblemished service, is firmly grounded.

The Respondent pointed to the two accepted legal tests required in a Constructive Dismissal case - the contract test and the reasonableness test.

On both grounds the Respondent acted correctly.

The Respondent has a comprehensive Employee handbook, shown in evidence, and the Complainant never lodged any grievance or even issues of concern. The Complainant as a Supervisor would have been well aware of the contents of the Handbook. At a meeting of the 11th April 2017 the issue of Ms. XA was raised. The Complainant asked Management not to raise the issue with the Centre management and to let it rest to see if the complained of behaviours would phase out. This was the last time the issue was ever brought to their attention until after the Complainant had resigned.

Regarding the Stabbing incident this took place in a very public place. The Complainant did not witness the actual stabbing and only came on the scene later. The Complainant had an excellent attendance record and never brought any medical issue such as stress or anxiety to the Respondent’s notice. This alleged issue came to light only after the Complainant had resigned.

The Respondent made strenuous efforts post receiving the Resignation notice to persuade the Complainant to remain in employment. Alternative work was offered but at a reduced number of hours. This had to be seen in the context of a varying business and was realty an interim offer until a better position would become available.

In any case of Constructive dismissal, the onus in on the Resigning Employee to invoke the Respondents grievance procedures prior to a resignation. No Grievance was ever lodged. The extensive actions of the Respondent post receiving the resignation notice clearly indicate that they would have gone a long way to properly address any Grievance the Complainant might have had.

Taking the Standard Tests and the accepted customs and practice in constructive Dismissal cases the Complainant has not got a well-founded case and as such it must be dismissed.

3:1     The Legal Position

This issue was very comprehensively covered in the respective submissions. Following Redmond Dismissal law in Ireland - Round Hall 2007 the following points are relevant.

In essence the term “constructive” dismissal it is a term commonly understood to refer to that part of the definition in s.1 of the 1977 Act which states that dismissal in relation to an employee means:

(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 …

The Legal tests applied to “constructive dismissal” may be summarised as the contract test and the reasonableness test An employee must act reasonably in terminating his or her contract of employment, resignation must not be the first option taken by an employee and all other reasonable options including the grievance procedure must be explored. Murray v Rockabill Shellfish Ltd [2012] E.L.R. 331. The issue of the use or non-use of the Grievance Procedures was also considered in Allen v Independent Newspapers (Ireland) Ltd [2002] ELR84. Suffice to say that the use of the Grievance Procedures is not an absolute requirement but the case for Non- Use must be particularly strong. This is a point to be returned to.

The contract test was summarised by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp103:

“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 as discharged from any further performance.”

Alternatively, the reasonableness test asks whether the employer “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with [it] any longer, [if so] the employee is justified in leaving”. The “reasonableness” was further considered by the tribunal where it stated:

“… [the tribunal] must be satisfied that the employee is either entitled or is acting reasonably in terminating the contract. In order for an employee to meet either of these criteria the conduct referred to in the act cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee. Consequently, the Tribunal must look at the conduct of the employer and the reasonableness of the recognition by the employee.”Joyce v Brothers of Charity Services [2009] E.L.R. 328

Considering these legal issues, we must look at the evidence in the case in hand.

3:2           Consideration of the evidence and key facts presented.  

In the evidence presented two key situations emerged

The Stabbing Incident of July 2016

And

The Alleged Bullying by the Centre Assistant Manager during late 206 into 2017/2018.

Taking the two main Tests – Contract and Reasonableness as a template let us look at the situations

3:2.1     The “Contract” Test

As regards the Contract test no obvious breaches of the standard contract occurred – the Complainant was paid through the employment and had received all entitlements due.

Where it become problematic is the question of the implied Terms of the Contract and how that related to the response of the employer to the Stabbing Incident.

In Redmond on Dismissal Law -Desmond Ryan - Bloomsbury Professional Ltd, 2017 the author states at page 435 Section 19:10

“Where an employee relies on the contract test, it will be of cardinal importance to ascertain the precise scope of the contract. Express terms present little difficulty ……………………. Difficulties may arise, however, where constructive dismissal is alleged in breach of an implied term. An employee may encounter problems in identifying such terms. although the process has been facilitated by a change in judicial attitude to the status of the employment relationship. Examples of terms which have been implied include the maintenance of mutual trust and confidence by an employer. The provision of managerial support and security for an employee and a safe place of work …………………. And the right to be treated with respect by an employer and not to have to endure physical violence and humiliation.”

The Stabbing Incident, (while the physical stabbing was not witnessed directly by the Complainant), involved the Complainant coming on the scene immediately afterwards and having to personally deal with the hysterical wife of the victim. The Complainant was also required to clean up the scene - there was in evidence quite an amount of blood involved.

On questioning the Respondent Mangers stated that they did not have any procedures for this type of situation other than to ask the Complainant how she was a few days later. Good practice in the Emergency services, Gardaí etc indicates that a reference to a counselling session or a general Medical inquiry regarding post situation effects is a practice widely followed. The Complainant gave evidence of a serere stress reaction that developed a few days later. While this not supported by any Medical certificates or Reports to the Hearing I felt her oral evidence was credible.

The argument that the stabbing itself was outside the control of the Respondent is technically correct but the follow up for an employee is clearly within the Respondent’s remit.

In terms of the Implied duty of care by an Employer to an Employee I had to take the view that the actions of the Respondent employer were somewhat lacking here. It is not an acceptable defence to say that the employee did not raise the stress issue or submit medical certs at the time.   The Respondent Employer does not pay sick pay. This is a situation which would not have encouraged the Complainant to raise illness issues. The Operational Managers were in sufficiently close contact with the Complainant, on a weekly basis, to have at least made more than a casual inquiry regarding possible after effects from the stabbing.

Regarding the second issue of\concern - the alleged Bullying by the Assistant Manager the actions of the Respondent were again I felt at too much of a distance. At the meeting of the 11th April 2017 the Complainant raised the issue of how Ms XA was treating her

“X (The Asst Manager) was on her back a good bit and passing smart comments when Z (The Centre Manager) was not around”

The Respondent indicated that the Complainant had not requested any action but to “let things settle down”.

It has to be acknowledged that the Complainant never raised a formal complaint or utilised the Grievance Procedures. The Complainant’s explanation of this, on questioning, was that she was in “a fragile state” at this time and she feared the negative reactions of Ms XA, the Assistant Manager, to any complaints being raised. The Respondent Mangers were in weekly contact with the Complainant and good practice should indicate that this was an issue they should have kept a very close eye on – as stated above by Ryan “support and security for an employee and a safe place of work”. I did not accept that the Respondent Managers, being closely involved operationally, were not or could not have been aware from an early date of the difficulties between the Complainant and Ms XA.

The situation was complicate by the fact that the alleged perpetrator was an employee of the Client Company and not of the Respondent. Regards for commercial sensitivities (The Respondent would soon have to retender for the Shopping Centre Contract) notwithstanding, the legal obligations on the Respondent to take the matter seriously are clear in his type of scenario.

In summary I felt that the Express Terms of the Contact had been observed without fault but an issue arose in the consideration by the Respondent of the Implied Terms of care and security as outline by Ryan in the quote above.

As grounds to justify a Constructive Dismissal claim I had to find that they had some merit.

3:2:2       The Reasonableness Test

Having review all the evidence I could not see any actions taken by the Respondent that were in themselves “Unreasonable” as required in the Act. As stated above the only difficulty for the Respondent was in their non-performance of the Implied terms of the Contact

3:2:3           Actions of the Complainant.

It is also necessary to consider the actions of the Complainant.

In her oral evidence she stated that her approach to the stress situation was to essentially try to manage it herself, “bottle it up” so to speak and not take sick leave. Her GP had advised her to seek counselling but due to personal financial constraints she had been unable to do so. Likewise, the alleged Bullying situation – she had decided the “soldier on” as best she could rather than make a formal complaint.

In this context I had to note that the two Operational Managers of the Respondent who gave oral evidence were sympathetic to the Complainant and I found it hard to see that they would not have been more proactive in supporting her if she had taken a more direct approach regarding her complaints. Their actions post the Resignation were also commendable and it was clear that they did not wish to see the Complainant resign.

In addition, the Complainant had also indicated that the many paperwork changes / new sign off routines in the Shopping Centre were an issue for her and had been a contributory factor in her decision to leave.

It was noted that the Complainant had taken up new employment immediately after her resignation at was at little loss of actual pay.

It was also noted that her resignation letter/e mail of the 12th January 2018 made no mention of any complaints she might have had. In her verbal comments to the Assistant Manager, reported in an email, she had told the Assistant Manager that “stress” was a major factor. In her Oral evidence it was clear that the decision to resign, after some 20 years’ service, was not taken lightly.

In summary I felt that the actions or more correctly the non-actions of the Complainant certainly did not help her case of Constructive Dismissal and had to be weighed against the Implied Contact failings of the Respondent referred to above.

3:3     Conclusion.

In summary I had to find that the claim for Constructive Dismissal must stand as well founded based primarily on the Implied Terms of the Contract failings identified above.

However, I also had to find that the actions or non-actions of the Complainant in not pursuing her case more vigorously through the formal channels of the Respondent mitigated strongly against her. Any award for Redress must reflect this fact.

3:4         Redress Awarded.

As a Redress award I award four weeks’ pay (€464.10 X4 = € 1,856.40) but reduced by 50% to €928 in view of the Complainant’s own actions.

Reinstatement and Reengagement were not deemed appropriate as the Complainant is now in another employment.

Act

Complaint/Dispute Reference No.

Summary decision / Please refer to Section 3 above for detailed reasoning.

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

CA-00018897-001

Claim of Constructive Dismissal is found to be sustained.

Redress of € 928 is awarded.

Taxation of the award to be considered in conjunction with the Revenue Commissioners.