ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017412
Parties:
| Complainant | Respondent |
Anonymised Parties | A Cleaner | A Facilities Services Company |
Representatives |
Complaints:
Complaint/Dispute Reference No. | Date of Receipt | |
CA-00022499-001 | ||
CA-00022533-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint / dispute to me by the Director General, I inquired into the complaint / dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint / dispute.
Complaint CA-00022533-001 was accepted as a duplicate of CA-00022499-001 and was not considered.
Full opportunity to Cross examine Oral evidence was provided to both Parties during the Hearing.
Background:
The issues in contention concern an allegation of Constructive Dismissal of a Cleaner by a Facilities Services Company |
1: Summary of Complainant’s Case:
The Complainant commenced with the Respondent in December 2015. Towards the end of 2016 the work situation began to deteriorate. The Complainant was the subject of unfair gossip and backbiting from colleagues. Issue arose over the fair distribution of work tasks, social collections for birthdays, Lotto syndicates, early exits on Fridays and access to required material lockers. She was, she felt, completely socially isolated from her colleagues and effectively treated as a social non-person. Initially the Complainant tried to resolve issues with her immediate Supervisor Mr. As but to no avail. She made a complaint to her Manager Mr. Xm in May of 2017. He, with her agreement, treated it as an “informal” matter. The complaint went nowhere and on the 27th November 2017 the Complainant filed a Formal Complaint with Mr.Xm. The matter was then referred to Mr. Xh for Investigation. It was later decided that Mr. Xh was not of sufficient independence and the issue was referred to HR and Ms. Xt. A Full Time Official from SIPTU had also become involved by this stage – the Spring of 2018. Due to various unexplained delays and procrastinations by the Respondent the Investigations did not properly begin until the 19th April 2018. For a complaint first lodged in November 2017 this was completely intolerable for the Complainant. Due to severe stress, brought on by the process, the Complainant went home on Sick leave on the 16th November 2017. She was unable to return to work due to severe stress and effectively PTSD arising from the incidents. She furnished a Psychologist’s report to this effect. Ms. Xt conducted her Investigation and published her Report on the 20th August 2018, almost a year after the complaint was first made. The Investigation report was seriously flawed and unacceptable to the Complainant. The Complainant indicated by e mail of the 29th August 2018 that she wished to Appeal Ms. Xt’s Investigation report. However, she later, by letter of the 21st September 2018, tendered her resignation – a constructive dismissal on the grounds of a complete loss of faith in her employer demonstrated by the completely inadequate way her complaint of bullying had been handled. It was clearly a case where she had been left with no reasonable option but to resign - her situation had become absolutely intolerable. She furthermore declined to participate the Appel process (against Ms Xt’s Report) as she had, by this stage, no faith left in the Company or its procedures. |
2: Summary of Respondent’s Case:
The dates of employment set out by the Complainant are accepted. The Complainant, after some earlier informal processes, lodged a Formal Complaint of Bullying and Harassment in November 2017. The complaint was quite substantial and ran to some 11 pages of close type. SIPTU became involved and it was agreed that an investigation would be carried out by a Manger from HR. This HR Manager had no operational involvement with any of the parties to the bullying complaint. This was acceptable to the complainant and SIPTU. Time had to be allowed for availability of parties, the SIPTU Official and different shift work patterns of witnesses. However, by April the Investigation was fully underway and was carried out most professionally by Ms. Xt. All relevant witnesses were interviewed, notes provided to the SIPTU Official & the Complainant and all incidents alleged fully investigated. Procedurally the investigation by Ms. Xt was in keeping with all accepted norms and good HR procedures. A detailed report was compiled and made available on the 20th August to the Complainant. All the Complainant’s complaints were itemised and individually investigated. The Conclusion was that the complaint of Bullying was not upheld. The allegations made by the Complainant did not have any substantial factual or evidential basis and could not be substantiated. The Complainant was offered an opportunity to lodge a Formal Appeal which she initially accepted but later withdrew via a letter from her Solicitor on the 27th September 2018. In legal submissions the Respondent pointed out the Two standard constructive Dismissal tests of Unreasonable Behaviour and Significant Breach of Contract. On both headings the Complainant has not achieved the required standards to substantiate a Constructive Dismissal complaint. In addition, the accepted requirements of full utilization of all Internal Procedures, save in the most exceptional circumstances, have not been achieved by the Complainant. She declined to participate in the Appeal Procedure, without good or reasonable justification. On this ground alone, the Complaint must fail. |
3: Findings and Conclusions:
3:1 The Relevant Law. The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents. In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting. For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides: “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,…” As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “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 other performance.” The reasonableness test assesses the conduct of the employer and whether it “…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.” According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: “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.” Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances. Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002): “There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”
However, a certain degree of Legal caution is required here. In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment. The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000. She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that “the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”. In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a Constructive Dismissal. However, all cases have to be considered on their own facts & evidence and I will now move to consider these in the present case. 3:2 Consideration of the Evidence As this is a Constructive Dismissal case I will use the Three legal steps outlined above (namely Behaviours, Contract and Use of Procedures) as an aid. 3:2:1 Legal Test One - Fundamental Breach of Employment Contract by the Employer Having reviewed all the evidence, both oral and written, I found it hard to see where any, to quote from the Western Excavating case referred to above, significant breach of contract occurred. The Complainant was afforded all normal employee terms and was on sick Absence for a considerable period to time. She was not Dismissed and there was never, in any evidence, any suggestion that the Respondent was contemplating such a step. The Respondent was, it may be argued, somewhat tardy in getting the investigation up and running. However, the oral evidence given by Ms. Xt indicated a reasonable explanation (meeting delays, availability of personnel etc) for any delays. A suggestion that an implied Duty of Care in a bullying situation was in some way compromised is not supportable where the Respondent was investigating both Informally and later formally all the complaints. The Investigation by Ms. Xt was, having reviewed it, I thought, thorough and complete. I did not think that it contravened, on any Natural Justice ground, SI 146 0f 2000 – Statutory Instrument / Code of Practice on Grievance and Disciplinary Procedures In summary I could not see where a “Significant breach” of the Employment contract took place such as to justify a Constructive Dismissal. 3:2:2 Legal Test Two – Unreasonable Behaviours by the Respondent Employer. It is accepted that Unreasonable Behaviours by the Respondent Employer must be egregious -i.e. so very bad that any reasonable person would have no choice but to resign their employment when in the situation. Extensive Oral and Written evidence was given in the case. Despite the Adjudicator making it clear that the Hearing was not an opportunity to re run the Investigation the Bullying and harassment case was extensively ventilated. There was no doubt that the working relationship between the Complainant and her colleagues was not great and had deteriorated during late 2016 and early 2017. Interpersonal difficulties had clearly arisen over issues such as the Loto syndicate and allegations regarding early exists of a Friday. However, all these were investigated fully. In all evidence it was hard to see examples of Unreasonable Respondent behaviours. In conclusion and from all the evidence, both oral and written, and the opportunities to cross examine I could not find any realistic examples of Respondent Unreasonable Behaviours such as to justify a Constructive Dismissal case. 3:2:3 Legal Test Three – Utilisation of Procedures. The Complainant fully utilised all Procedures until the final Appeal Stage where she declined to participate. Her argument of a “lack of faith” in the Respondent processes was based it appeared largely on the apparent, to her at least, slow process of arriving at Ms. Xt’s initial Report. She also felt that Ms. Xt’s Report had substantial Procedural shortcomings and was a largely pre-determined event over which she never had a chance of a Fair Hearing. She felt that she had been denied Natural Justice. This was despite being assisted by a SIPTU Official in the early stages. Her Appeal Application of the 27th August is detailed, running to three close typed Pages and would certainly have required the Appeal Person, a Company Director, to give a comprehensive decision. The Complainant choose, in a Solicitor’s letter of the 27th September 2018, not to proceed with the Appeal. Even referring to the Allen case Allen v Independent Newspapers, IR [2002] E.L.R. 84 quoted above it was hard to see how this unilateral withdrawal from procedures was justified. The Appeal date was fixed for the 4th October 2018 and notified by letter of the 24th September. The Complainant resigned on the 27th September. In keeping with good Legal precedent and Redmond - Redmond, Dismissal Law in Ireland (2002) as quoted above I had to find this decision not compatible with building a Complainant Constructive Dismissal case. Redmond refers to the need for a “Mirror image” in utilisation of procedures. This did not happen here. 3:3 Adjudicator Conclusions Taking the Three Legal steps examined above, and the conclusions drawn from them I had to find that the case for Constructive Dismissal was not made.
The complaint is Not Well Founded and must be set aside. |
4: Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Act | Complaint/Dispute Reference No. | Summary Decision /Please refer to Section three above for detailed reasoning. |
CA-00022499-001 | Complaint does not meet the required Standards to sustain a constructive Dismissal case. Claim is Not Well Founded and is set aside. | |
CA-00022533-001 | Duplicate of above complaint. By agreement of parties not considered. |
Dated: July 11th 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
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