Complainant

Respondent

Anonymised Parties

A Quality Manager

A Storage and Warehousing Company

Representatives

Ms. Serena McGrane BL on the instructions of Kenny Stephenson Chapman Solicitors

Mr. Lars Asmussen BL on the instructions of Sean Ormonde & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00018698-001

24/04/2018

The Complainant was employed by the Respondent from 9 October, 2015 until 29 December, 2017 and was working as a Quality Manager when her employment was terminated. The Complainant claims that she was constructively dismissed from her employment after she was punished in respect of serious accusations of which she was never made aware. The Complainant claims that despite extensive attempts to prove her innocence and prove that the claims made against her were frivolous and vexatious, she received no apology or explanation as to how the situation could have reached such a serious level. The Complainant contends that she was left with no option but to resign from her position due to the unilateral destruction of the relationship of mutual trust and confidence and the refusal of the Respondent to bring her formal grievance to a conclusion.

The Respondent disputes the claim of constructive dismissal and contends that the Complainant resigned her position of her own volition. It is contended that the Complainant has failed to satisfy the burden of proof upon her to prove that the Respondent acted in such an unreasonable manner as to leave no reasonable option open to her other than to resign or that it acted in such an unreasonable manner as to amount to a fundamental breach of the contract of employment.

The Complainant was initially employed by the Respondent as a Quality Analyst in October, 2015 and was promoted to the position of Quality Manager in or around September, 2016. The Complainant was an exemplary employee who was wholly committed to her role as a Quality Manager. The Complainant had a verbal agreement with the General Manager following her promotion that her salary would be reviewed after a period of twelve months in the position.

The Respondent evaluated the Complainant twice during her tenure as Quality Manager, in April, 2017 and October, 2017, and the exemplary standard of her performance was reflected in both of these appraisals. In line with the agreement she had made with the General Manager when she took the role of Quality Manager, the Complainant requested an increase in her salary. The Complainant requested an increase in her salary from approx. €39,500 to €50,000 to bring her in line with the industry norm for such a role. The Complainant was informed by the General Manager that due to the fact she was seeking a sizeable increase, such a request would have to be referred to the company directors. The Complainant had no issue with this and was confident, given her outstanding appraisals, that she would receive the requested increase.

The Complainant was subsequently informed by the General Manager that one of the two company directors, Mr. A, had refused her request for a pay increase. Mr. A was reputed to have made this decision on the basis that he was aware of problems surrounding the Complainant and issues she was having with other employees. The Complainant was never made aware of how these “issues” came to light and was shocked and hurt to learn of them.

The Complainant sought an update from the General Manager on 2 November, 2017 in relation to her salary review and was informed that this matter had been raised with senior management and was on the agenda for discussion at a meeting the following day. Following discussion of this issue at the meeting on 4 November, 2017, the Complainant was informed by the General Manager that the claims levied against her by Mr. A related to (1) how she had dealt with a customer on a particular issue; (2) a report that she was requested to compile in relation to another manager and (3) a member of the Quality Team, Ms. C, Quality Analyst, had raised concerns about the Complainant.

The Complainant was horrified to learn that such serious allegations had been levied against her good name and was shocked to learn that her salary was being frozen for at least a further six months. The Complainant submits that without as much as being notified that such allegations even existed, she had been punished by a Director of the Respondent with absolutely no basis for such a punishment. The Complainant strenuously denies the veracity of the three allegations which were made against her.

Subsequent to the Complainant being informed of the reason for her punishment, she e-mailed the General Manager on 8 November, 2017 to outline her dissatisfaction in relation to the matter and to request a meeting with the Respondent’s two directors to discuss the issues raised and address them. The Complainant submits that it was left to her to try and set up meetings to address the very serious claims which were levied against her without any merit. It was also submitted that this request for a meeting represented a formal process being initiated by the Complainant.

The Complainant was notified that a meeting was scheduled for 10 November, 2017 which was to be attended by a number of members of senior management with the exception of Mr. A, Director. The Complainant responded to the General Manager requesting that Mr. A attend the meeting as she believed that he was the person that brought the three issues forward and was also insistent that her salary review be deferred for six months. The Complainant made it clear that she wished for Mr. A to attend so that the three issues could be discussed and “hopefully close the matter”. The meeting took placed on 10 November, 2017 and the Complainant outlined her position in relation to the three claims. It was confirmed by senior management at the meeting that the three claims were unfounded.

A further meeting took place on 16 November, 2017 which was attended by Mr. A and other members of senior management and it was necessary for the Complainant to address the three claims again. The Complainant submits that Mr. A raised an issue for the first time at this meeting relating to a claim that she had been bullying a colleague, namely Ms. C, Quality Analyst. In fact, Ms. C, who was supposedly the subject of the bullying allegation attended this meeting and confirmed that she had not been bullied by the Complainant and that they had a good working relationship. On the conclusion of this meeting Mr. A informed the Complainant that he was happy to “drop” the three issues and that the matter was closed. The Complainant was extremely upset following this meeting especially in light of the fact that this had been the first occasion that the allegation of bullying had been put to her.

A further meeting took place on 20 November, 2017 at which Mr. A informed the Complainant that he was satisfied that there were no more issues as against her and that her salary would be reviewed. It is submitted that a crucial aspect of the Complainant’s unfair dismissal claim is that she stated to Mr. A that these issues were simply not about her salary review. The Complainant expressed serious concern in respect of her reputation within the company and how it had been damaged by this episode. The Complainant requested clarification from Mr. A as to how these issues were never discussed with her before they were used as sole basis to punish her. The Complainant also requested an explanation as to how a serious complaint, such as bullying, was never investigated and an accusation that had come from a third party had effectively been taken on face value and she was, in effect, found to be a workplace bully.

The Complainant submits that the Respondent refused or neglected to answer any of the concerns which she was voicing directly to senior management. The Complainant expressed serious concerns to Mr. A that she felt she had absolutely no protection against similar issues arising in the future. The only response the Complainant could get from the Directors was that they had no issue with her at that time. The Complainant was shocked and upset at the complete lack of any support shown by the Respondent despite the fact that she clearly stated that this was affecting her possible future within the company.

Subsequent to the meeting on 20 November, 2017 and given the complete lack of any supports provided by the Respondent the Complainant spoke with the General Manager. The Complainant explained to the General Manager how disappointed she was about how the matter had been dealt with and the manner in which it had dragged out over a considerable period of time. The Complainant also expressed her hurt that and disappointment at the fact that she had received no apology for the manner in which she was treated. The Complainant accepts that she was subsequently given a pay rise of approx. 7.5 %.

It is submitted that the manner in which the Complainant was treated would leave any reasonable employee in a position where they felt that the mutual trust and confidence that exist between master and servant had been completely destroyed. The Complainant was a wholly committed employee who had an outstanding track record. Within a period of seven weeks, from the Complainant’s outstanding review to the date she submitted her resignation letter, the Respondent had unilaterally destroyed the relationship of mutual trust and confidence, leaving her with no option but to tender her resignation. The Complainant informed the Respondent by letter dated 1 December, 2017 that she was resigning from her employment with one months’ notice. It was made clear in the letter of resignation that the Complainant was being forced to resign from her position due to the acts and omissions of the Respondent and its servants.

The Complainant received a letter of reply dated 7 December, 2017 from the Respondent and it was submitted that this response showed a complete lack of any support for her and was representative of the disdain which she had been treated. The Complainant had, at that point, spoken about her issue’s ad nauseum, and with every level of management, without resolution. The Complainant was at that point in time physically and mentally drained with trying to re-establish her good name and had yet to receive even the most basic apology from the Respondent. The Respondent had completely failed to act throughout the formal procedure which she had enacted. The Complainant had three formal meetings in relation to the issues raised, she had fought to undo the damage caused by the three frivolous and vexatious claims against her and had reached the point where she was forced to resign from her position.

It is further submitted that the General Manager’s invitation to “discuss the reasons behind your resignation” was quite simply disrespectful as the Respondent was fully aware of all issues surrounding the Complainant’s resignation. The Complainant submits that she had been forced to fight at every juncture to try and clear her name in circumstances where she was punished for three very serious, but frivolous and vexatious claims, that had been taken at face value.

In summary, the Complainant contends that she was left in a situation where she had no option but to tender her resignation which was due to the unilateral destruction of the relationship of mutual trust and confidence and the refusal of the Respondent to bring the Complainant’s formal grievance procedures to a conclusion.

The Complainant relied upon the following cases in support of her complaint, namely: A Worker (Mr. O) -v- An Employer (No. 2) [2005] ELR 132; Liz Allen -v- Independent Newspapers (Ireland) Limited [2002] ELR 84; May -v- Moog Limited [2002] ELR 261 and A General Operative -v- A Religious Society ADJ-00002814.

The Complainant was promoted from the position of Quality Analyst to Quality Manger on 12 September, 2016. The Respondent furnished the Complainant with a Statement of the Terms and Conditions of Employment in respect of her new position in December, 2016 which stated that she was entitled to a review after 12 months in relation to her performance related bonus. The Respondent contends that the Statement did not provide any contractual right to the Complainant for a salary increase as opposed to a salary review at any specific time.

On 14 August, 2017, a discussion took place in the canteen, involving the Complainant, the General Manager and Ms. B, Quality Contractor. The Projects Manager came upon the impromptu meeting unexpectedly. During the discussion, the Complainant outlined several issues that she was having with the Warehouse Manager and she was extremely critical of him suggesting that he was the cause of many issues that were arising in one of the Respondent’s warehouses. The Projects Manager indicated that the Warehouse Manager had only been in the job for three months and had in fact inherited some of the issues which predated his employment and also highlighted training gaps that had materialised during his tenure. The Complainant disagreed with the Projects Manager on this issue, so he suggested that she put all of her concerns to him in writing. The Complainant subsequently circulated a two-page list of issues that she was experiencing with the Warehouse Manager.

Following the circulation of this list a meeting was arranged between the Warehouse Manager and the General Manager at which the issues were put to him. The Warehouse Manager stated that only a small number of the issues raised by the Complainant were relevant and could be improved upon and that the majority of issues were without foundation. At the conclusion of the meeting, the General Manager was asked to go back to talk to the Complainant about the issue.

Thereafter, a meeting was arranged between the Complainant, the Warehouse Manager and the General Manager. The General Manager indicated to the Complainant and the Warehouse Manager that they both could do certain things better and that it was crucial both parties worked together. The General Manager instructed both parties to cooperate with one another going forward. The Respondent contends that this meeting resulted in a temporary improvement in the relationship between the Complainant and the Warehouse Manager. However, after a few weeks their relationship reverted. As a result, it was decided that the Complainant would no longer deal with the Warehouse Manager and that the Quality Analyst, Ms. C, would be the only person from the Quality Department to engage with the Warehouse Manager.

Ms. C was absent from the office on sick leave between 6 and 11 September, 2017 and upon her return informed the Respondent that she wished to move from the office as she was having difficulties with the Complainant. Ms. C had indicated that a rift had developed between her and the Complainant as a result of the Complainant’s perception that she had taken sides with the Warehouse Manager in relation to the dispute between the pair. Ms. C advised the Respondent of an incident wherein she felt that the Complainant was laughing at her and also mentioned about receiving inappropriate e-mails from her but stated that she did not want a big thing made about either issue. Ms. C indicated to the Respondent that she would talk to the Complainant herself about these issues. The Respondent submits that the issue was not subjected to its dignity at work procedures or raised with the Complainant by management due to Ms. C’s explicit request to the contrary.

On 11 October, 2017, the General Manager conducted the Complainant’s appraisal and subsequently issued approval to pay her performance related bonus as per the terns of her contract of employment. The Complainant also sought a significant increase in her base salary at that juncture despite the fact that she did not have a contractual entitlement to a salary review in respect of her base salary. In any event and at its own discretion, the Respondent acceded to the Complainant’s request to conduct a salary review and this matter was discussed at a management meeting on 4 November, 2017.

As part of this review, the Respondent took into account, inter alia, the Complainant’s positive Appraisal Report but also the interpersonal difficulties that she was encountering with the Warehouse Manager and Ms. C. The issues with the Warehouse Manager had been brought to her attention and remedial action taken through appointing Ms. C as his point of contact. The issues with Ms. C were not brought to the Complainant’s attention at Ms. C’s explicit request. The Respondent concluded the salary review by agreeing that the Complainant would not receive a salary increase at that time but would receive a new review in six months to provide time to demonstrate that the issues had been resolved.

The Respondent maintains that while the Complainant might have had a contractual entitlement to a review in respect of her bonus as of December, 2017, and while it might have acceded to her request that it carry out a salary review in respect base salary at this time; the Complainant did not and could not have enjoyed a contractual right to a guaranteed salary increase at that juncture.

Shortly afterwards, the General Manager communicated the decision of the Senior Management team to the Complainant and outlined the discussions that had occurred and the reasoning behind the decision not to increase her salary. The Complainant informed the General Manager by e-mail on 8 November, 2017 that she was unhappy with the issues raised in relation to her not receiving a salary increase and requested that a meeting be arranged with the Company Directors to discuss the issues raised and address same.

The Respondent contends that the Complainant was effectively invoking Stage 3 of its internal grievance procedures in having her complaint referred to the Directors. Despite Stages 1 and 2 of the procedures being bypassed, the Respondent acceded to this request to facilitate the Complainant. The Respondent arranged two meetings (which occurred on 10 and 16 November, 2016) to ventilate her complaint (as one of the Company Directors, Mr. A, was not available to attend the first meeting). The Complainant was afforded representation and provided with the opportunity to present her case, to make representations and call witnesses (including Ms. C) at these meetings. Ms. C attended the meeting on 16 November, 2017 and advised that she had not felt bullied by the Complainant and had a good working relationship with her. The Company Director, Mr. A, accepted what Ms. C had said and having heard from both sides stated the matter would be set aside. It was also agreed that the Complainant’s salary review would take place and the outcome would be positive. The Respondent contends that it upheld the Complainant’s complaint version of events; taking further remedial action in informing her of this, informing her that all matters would now be set aside and not raised again and informing her that she would receive a salary increase. The parties explicitly agreed that all matters had been resolved and the parties shook hands and left the meeting on 16 November, 2017 on amicable terms. The Respondent submits that it treated the complaint as resolved and the grievance as successfully closed and contends that it behaved reasonably in relation to the manner in which this matter as dealt with.

By e-mail dated 22 November, 2017, the General Manager wrote to the Respondent’s HR Administrator to request that a new contract be prepared for the Complainant and that her salary be increased from €39,000 to €42,000 per annum and that the salary increase be backdated to 11 September, 2017. This e-mail was copied to the Complainant and she replied “Thanks X. Appreciate that” which the Respondent contends corroborates its position that the matter was resolved and the grievance successfully closed.

The Respondent refutes the Complainant’s assertion that a further meeting took place between the Complainant and Mr. A, Company Director, on 20 November, 2017. The Respondent maintains that this meeting did not happen and that the Complainant in no way, formally or otherwise, raised any further complaints that had not been successfully raised at the meeting on 16 November, 2017 prior to her resignation. The Respondent submits that the Complainant failed to invoke the internal grievance procedures or comply with any of its stages whatsoever prior to her resignation in relation to any issues that had not been successfully resolved at the meeting on 16 November, 2017.

By letter dated 1 December, 2017, the Complainant wrote to the General Manager resigning her employment and providing one month’s notice. Therein, the Complainant listed the reasons for her resignation as being; the postponement of her salary review by six months due to the three issues that had been highlighted but not discussed with her in advance of same; and the allegation of bullying Ms. C that had been put to her by Mr. A, Company Director, at the meeting on 16 November, 2017. The Respondent maintains that the reasons for the resignation are the issues that the Complainant had previously raised a grievance pursuant to the internal grievance procedures, that had been properly heard by the Respondent as per the procedure and which the Respondent actually upheld in favour of the Complainant.

The Respondent maintains that the Complainant raised tow new issues in her resignation letter; that Ms. C’s bullying complaint had never been previously investigated; and that this bullying complaint had been taken at face value. The Respondent submits that if the Complainant had previously raised these issues, they could have been addressed and she might have been informed that Ms. C had explicitly instructed the Respondent not to raise the issue on her behalf. However, the Complainant did not raise these issues in a manner so that the Respondent could address and resolve them for her.

Upon receiving the Complainant’s resignation, the General Manager invited the Complainant into a dialogue to discuss the reasons for her resignation. However, the Complainant declined to accept or even respond to this offer. The Complainant successfully worked out her notice period without further issue or complaint.

In summary, the Respondent maintains that, far from acting so unreasonably as to leave the Complainant with no reasonable option other than resignation, it conducted itself in a reasonable manner throughout.

The Respondent relied upon the following cases in support of its position, namely: A Worker (Mr. O) -v- An Employer (No. 2) [2005] ELR 132; Carthy -v- Clysdale Investments UD1091/2004; Healy -v- Credit Card Systems Ireland Limited UD148/2003; Conway -v- Ulster Bank UD474/1981; Allen -v- Independent Newspapers Limited [2002] ELR 84 and Terminal Four Solutions -v- Rahman UD898/2011.

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides 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.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp[1]. It comprises of two tests, 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.”

In both types of situation, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment. In reaching my decision I have taken into account all of the evidence, both written and oral, submitted by the parties.

The Complainant is essentially relying on the “reasonableness” test to ground her claim.

In relation to the “reasonableness”testthe Complainant contends that the Respondent acted in a totally unreasonable manner towards her in relation to the way that it dealt with a number of workplace related issues that occurred during her period of employment. The Complainant contends that within a period of seven weeks, she went from an employee who was documented as outstanding, to an employee who had her relationship with her employer destroyed as a result of the unreasonable behaviour of the Respondent. The Complainant contends that she was punished for what were serious accusations of which she was never made aware and despite fighting tooth and nail to prove her innocence she received no apology or explanation as to how the situation could have reached such a serious level. The Complainant further contends that she was left in a situation where she had no option but to tender her resignation which was due to a unilateral destruction of the relationship of mutual trust and confidence and the refusal of the Respondent to bring the Complainant’s formal procedure to a conclusion.

The Respondent disputes the Complainant’s claim of constructive dismissal and contends that she has failed to satisfy the burden of proof that the company acted in such an unreasonable manner as to leave no reasonable option for her other than to resign from her employment. The Respondent contends that that Complainant raised a formal grievance which was dealt with in accordance with the internal grievance procedures. The Respondent contends that it acted totally reasonably in relation to the manner in which this grievance was handled which ultimately resulted in the Complainant’s grievance being upheld; the taking of remedial action resulting in a back dated pay increase for her and all parties agreeing to put the issue to the side and move forward. The Respondent contends that the Complainant then resigned, citing matters which had been resolved as the cause for her resignation and raising fresh matters which she had not previously raised or referred to the internal procedures.

It is well established that in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of their employment other than to terminate his or her employment. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his or grievance with their employer.

The Labour Court has held in the case of Emmanuel Ranchin -v- Allianz Worldwide Care S.A.[2] that: ”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 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 Limited UDA474/1981”.

The Employment Appeals Tribunal in the case of An Employee v An Employer[3] held that: “In advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. In effect the relevant section reverses the burden of proof for an employer set out in section 6(1) of the Act. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

In considering this matter, I note that it was not in dispute between the parties that the Complainant was a highly competent employee, who had been promoted within the company to the position of Quality Manager, and that the issues which ultimately gave rise to her decision to resign occurred after she sought a pay review/increase in October, 2017. There was a dispute between the parties on the issue of whether or not the Complainant was actually entitled to have her base pay reviewed at that juncture. On balance, I prefer the Respondent’s evidence on this issue and I accept that the Complainant had a contractual entitlement to have a review conducted in relation to her performance related bonus at that juncture rather than a review/increase of her base salary. I am satisfied that the terms of the Complainant’s written contract of employment (which she signed on 19 December, 2016) support my conclusions on this matter.

However, notwithstanding the foregoing, I note that the Respondent agreed to undertake a review of the Complainant’s salary which was discussed at a senior management meeting on 4 November, 2017. It is clear that several concerns were raised by Mr. A, Company Director, at this meeting in relation to the Complainant’s performance, and more specifically there were general concerns regarding her people and personal skills following on from some recent interpersonal issues that had arisen with the Warehouse Manager and Ms. C, Quality Analyst. It was decided by senior management, on foot of discussions at this meeting, that the Complainant’s pay review would be deferred for a further six months.

I note that these performance related concerns and the Respondent’s decision to defer her salary review for a further six months were subsequently notified to the Complainant by the General Manager following the senior management meeting on 4 November, 2017. This resulted in the Complainant invoking a formal complaint under the Respondent’s internal grievance procedures on the basis that she had not previously been made aware of any of the alleged performance related issues. It was not in dispute the Complainant was informed that there were three performance related issues raised by Mr. A in the context of the pay review, namely; the issue with the Warehouse Manager; issues concerning her working relationship with Ms. C; and an issue in relation to a customer and responsibility for tying down loads.

I note that the key plank of the Complainant’s claim of constructive dismissal relates to the contention that she was effectively punished in respect of serious accusations which had not previously been brought to her attention and that she had to initiate meetings to try and address the very serious claims in order to clear her name. In this regard, I accept that the specific details and precise nature of the issues in relation to Ms. C were not brought to the Complainant’s attention at that juncture which the Respondent contends was on Ms. C’s explicit request. I note that this issue subsequently developed into an alleged bullying complaint and I am satisfied that the matter was comprehensively dealt with at a meeting on 16 November, 2017 during the course of the grievance process. I do not accept that the Complainant was unaware at that juncture of the interpersonal issues concerning the Warehouse Manager and I am satisfied that the Respondent had previously raised these issues in August/September, 2017 and put remedial action in place to address the matter.

It was not in dispute that the Complainant sought to have her grievance dealt with through the formal internal grievance procedures and that she sought to have this matter addressed directly by the company directors.

I am satisfied that the Respondent had an established Grievance and Disciplinary Procedure in place which conforms to the general principles and procedures enunciated in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000[4]. Having regard to the evidence adduced, I find that this policy was brought to the Complainant’s attention during her period of employment and that she was fully aware of its existence. I note that the Respondent acceded to the Complainant’s request to have her grievance dealt with by the company directors at Stage 3 of the internal procedures. I have carefully considered the manner in which the grievance procedures were conducted by the Respondent and I am satisfied that the process fully complied with fair procedures and that the Complainant was afforded the opportunity in two meetings on 10 November, 2017 and 16 November, 2017 to fully articulate her concerns in relation to the alleged performance related issues which had been the subject of her grievance.

I take the view it was remiss of the Respondent not to raise any underlying performance related issues with the Complainant at her performance appraisal which was conducted in October, 2017. If the Respondent had done so at that juncture it may have averted the requirement to have the matter dealt with subsequently through the internal grievance procedures.

However, notwithstanding this deficiency, I am satisfied that all of the alleged performance related issues, including the alleged bullying involving Ms. C, were comprehensively dealt with during the course of the formal grievance process initiated by the Complainant. In this regard, I am satisfied that the Complainant’s grievance was upheld and that the Respondent made it clear to her at the meeting on 16 November, 2017 that all of the alleged performance related issues had been resolved satisfactorily and would not be raised again going forward. I am also satisfied that the Respondent took appropriate remedial action following the conclusion of the Complainant’s grievance process which included the granting to her of a pay increase.     

I note that there was a conflict between the parties as to whether there was a further meeting between the Complainant and, Mr. A, Company Director, on 20 November, 2017. The Complainant contends that the discussions at this meeting form a crucial aspect of her constructive dismissal claim on the basis that she expressed serious concern to Mr. A that the alleged bullying allegations had not been brought to her attention prior to the initial decision being taken to defer her pay review and that her reputation within the company had been tarnished as a result of these unfounded allegations. The Complainant claims that she sought clarification at this meeting as to why these bullying accusations had not been investigated and that she informed Mr. A that she was seriously considering her position within the company as a result of the Respondent’s failure to adequately address same and the lack of support from management in relation to this matter.  

The Respondent vehemently denies that a meeting took place on 20 November, 2017 and contends that Mr. A did not have any further contact with the Complainant between the meeting on 16 November, 2017 and her resignation on 1 December, 2017. The Respondent contends that it was satisfied that all matters relating to the Complainant’s grievance had been successfully resolved through the internal grievance process which concluded on 16 November, 2017 and that the Complainant failed to invoke the internal procedures in relation to any further grievances prior to her resignation.

On balance, I prefer the Respondent’s evidence on this matter and I find that the meeting which the Complainant claims took place on 20 November, 2017 did not occur. In reaching this conclusion, I have taken cognisance of the evidence of the HR Administrator, Mr. E, who attended the meetings on 10 and 16 November, 2017 as the Complainant’s nominated support person. I note that the Complainant claimed that Mr. E was in attendance at the meeting on 20 November, 2017. However, Mr. E denied in his evidence that he had attended any such meeting on this date. I have found Mr. E’s evidence on this matter to be very compelling and I prefer his version of events.

Having regard to the totality of the evidence adduced, I find that the Respondent had taken all reasonable steps to address the Complainant’s grievance and that it was reasonable for senior management to conclude that this matter was fully resolved to the satisfaction of both parties following the conclusion of the internal grievance process on 16 November, 2017. I am satisfied that the Complainant failed to raise any further grievances during the interim period from 16 November, 2017 until the date of her resignation on 1 December, 2017. I have also taken cognisance of the fact that the Respondent’s General Manager wrote to the Complainant on 7 December, 2017 following the receipt of her resignation letter and offered her the opportunity to discuss the reasons behind her resignation. However, the Complainant did not respond to this letter or seek to avail of the opportunity to discuss this matter further with the Respondent. Having regard to the foregoing, I find that the Complainant has failed to satisfy the burden of proof that she acted reasonably in the circumstances and that she had no option to resign from position because of the conduct of the Respondent.

I have also considered the Complainant’s claim in the context of the “contract” test and I find that there was no evidence to suggest that the Respondent was guilty of conduct which amounted to a significant breach going to the root of the contract of employment, or which demonstrated that the Respondent no longer intended to be bound by one or more of the essential terms of the contract.

Having regard to the two tests identified above, I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that she had no option but to resign her position or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract.

In the circumstances, I find that the Complainant resigned from her employment of her own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that her complaint cannot succeed.

I find that the Complainant resigned from her employment of her own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that her complaint cannot succeed.

Unfair Dismissals Act 1977 – Section 1 - Constructive Dismissal – Disciplinary and Grievance Procedures – Bullying – Voluntary Resignation – Reasonableness Test – Contract Test - Complaint fails