UDD193

Background

The Complainant commenced employment with the Respondent in September 2015. The employment terminated following the submission by the Complainant of an email dated 15^thMay 2017 tendering her resignation. At the time the Complainant submitted the email terminating her employment the Complainant was on annual leave.

Complainant’s case

It is the Complainant’s case that she felt she had to leave her employment because of the way she was being treated by her line Supervisor. The Complainant’s representative confirmed to the Court that the Complainant had not at any stage raised any issues with the Respondent in relation to any concerns she had nor had she invoked any of the Respondent’s procedures. The Complainant’s representative accepted that the Complainant had received a contract and had received copies of the Respondent’s policies. The Complainant in her evidence to the Court confirmed that she commenced employment with another cleaning company in April 2017 and was working for them at the time she submitted her resignation to the Respondent.

Respondent’s case

The Respondent’s position is that the Complainant had not at any time raised any issues with them in relation to having issues with her line Supervisor or any issues in general with her work. The Complainant submitted her resignation by email on the 15^thMay 2017. On the 24^thMay 2017 the Complainant requested by text message that her P45 be issued to her. The Respondent confirmed that the P45 was issued on that day. The Respondent disputes that there was a dismissal or that there were any issues raised by the Complainant that they had failed to address.

The applicable law

Section 1 of the Acts defines constructive dismissal in the following manner

“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,”

“ 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 dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Acts.
Section 1of the Acts envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, 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 regard him-self or herself as having been dismissed. This is often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test”
an employer must 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”.
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 and, if so, he is justified in leaving. It is this latter reasonableness test that is relied upon by the Complainant.

Discussion

The question that arises for decision in this case is whether or not it was reasonable for the Complainant to terminate her employment because of the Respondent’s conduct.
On the 3^rdMay 2017 the Complainant sent in a request to take leave from the 8^thMay 2017up until the 28^thMay 2017. This leave was granted. On the 15^thMay the Complainant sent an email stating “This is to let you know that I’m giving notice on the job, as I cannot continue in the situation I am. I ended up on sick leave because of my supervisor, and I decided to leave the job. I will seek help from the Workplace Relations Commission in these matters. Please consider this one week notice for quitting job. I wish you best of luck.”The Court notes that at the time the Complainant submitted her letter of resignation she had already commenced working for another cleaning company. A week later the Complainant sought her P45.
The Respondent’s position is that they were not aware that she had commenced working for another company. They understood her to be on leave till the 28^thMay. The Respondent’s position is that the Complainant was not dismissed.

Findings of the Court.

The net issue for consideration is whether or not the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1 of the Acts. In reaching its conclusion on that question the Court has carefully evaluated the evidence adduced in the course of the appeal and it has taken full account of the written submissions made by the parties

The Court notes the Complainant’s evidence that at the time she submitted her resignation she had attained another job. The Court also noted the Complainant’s position that she never raised any issues either directly or indirectly with the Respondent other than what is stated in her email of resignation.

In constructive dismissal cases the Court must examine the conduct of both 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 normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (seeConway v Ulster Bank LimitedUD 474/1981).

InBeatty v Bayside SupermarketsUD 142/1987, in referring to the need to utilise grievance procedures, 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 UD 474/1981. 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”.

On the other hand, inAllen v Independent Newspapers (Ireland) Limited[2002] ELR 84, the Employment Appeals Tribunal held that it was reasonable on the facts of that case for the complainant not to have faith in the employer’s ability to properly or effectively address her grievances.

However, in the instant case, the Court is not satisfied that there were factors present which might excuse the Complainant’s failure to formally complain to the Respondent before resigning. The Respondent had a grievance procedure in place and the Complainant was aware of its existence.

On the facts of this case the Court cannot see how it could realistically be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle her to terminate her employment without having sought to ventilate and resolve whatever grievance(s) that she had through the internal procedures. The fact that she failed to do so negates any possible basis upon which her subsequent decision to resign could be regarded as a reasonable response to the situation then pertaining.

Determination

In all the circumstances, the Court cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating her employment by way of constructive dismissal nor was the Respondent’s conduct such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of her contract of employment. Accordingly, the Court must hold that the Complainant’s employment did not come to an end by reason of dismissal.

The Court determines that the Complainant’s complaint is not well-founded. The appeal is rejected. The Decision of the Adjudication Officer is affirmed.

The Court so Determines.




Signed on behalf of the Labour Court



Louise O'Donnell
CC______________________
29 January 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.