Complainant

Respondent

Anonymised Parties

An Accounts Executive

A Property Management Company

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-00027135-001

18/03/2019

Complaint seeking adjudication under Section 13 of the Industrial Relations Act, 1969

CA-00027571-001

07/04/2019

Note; This case was assigned two ADJ reference numbers and as the complaints were heard together the decisions in respect of both complaints appear together here.

In June 2018 the complainant discovered a reference to him getting a formal warning in an email left on a printer although nothing came of it.

Later, on December 29^th that year a second email was placed on his desk which also contained an adverse  reference to him and which caused him some anxiety as there a reference to a bullet in it.

Throughout January he felt isolated and his co-workers would shun him or stop their conversation when he joined their company. There were also crude, hurtful references to his sexuality.

He made a complaint to the Financial Controller against his manager and other co-workers but was met with the suggestion that he should look for another job.

The complaint was passed on to the MD who asked him to meet the following day. The MD asked him to reflect on where he wanted to go with the complaint.

Having done so the complainant decided to continue with his complaint and he requested a formal investigation.

The respondent agreed to this and an investigator from the London office of the respondent was appointed to carry out the investigation.

The investigation meeting took place on February 12^th, 2019 although there was no notetaker present.

It concluded the following day and the complaint was not upheld.

The complainant appealed on February 18^th and also resigned from his employment at the same time. The appeal was a detailed, seven page outline of his dissatisfaction with the process; alleging inadequacy in the conduct of the investigation and breaches of the company’s own procedures.

There was a delay in arranging the appeal, but it eventually took place on March 22^nd, 2019. The appeal was not successful.

The respondent first learned of the complaint on January 24^th, 2019 and the following day the company MD met the complainant and told him that it was being taken very seriously.

The complainant was asked whether he wished it to be dealt with formally or informally. The MD expressed a preference for trying to resolve any issues through an informal process but stated that this was a matter for the complainant.

The complainant contacted the company on January 27^th asking for a current copy of the company procedures and this was forwarded on the following day.

On Friday, February 1^st the complainant confirmed his preference for a formal process and attached a formal letter of complaint. He was given details of the investigation which would follow and also facilitated with a move away from one of his co-workers who was the subject of complaint.

He then took three days’ annual leave.

The London-based Investigator arrived on February 12^th and met the complainant, one of the respondents in the complaint, and on the following day five others named in the complaint and one other person.

He concluded that while one of the emails was unprofessional there was no evidence to substantiate the complaint and telephoned the complainant later on that same day to tell him. He also concluded that the first email complained of had no outcome and a second was just ‘a moan’ between two colleagues.

The investigator suggested a mediated approach to resolving the outstanding issues and was offered redeployment away from one of those he complained about.

On February 18^th the complainant appealed against the conclusions of the investigator and in the same letter resigned from his position.

Both parties‘ submissions to the hearing addressed the appeal and what happened after February 18^th at some length but as that was the date on which the complainant resigned they are not relevant to his complaint of constructive unfair dismissal.

The only material of relevance to that complaint is what happened to bring it about, not anything that came after it which can have played no part in it.

A constructive dismissal takes place when an employer’s behaviour is so unreasonable that the employee is justified in unilaterally breaking the contract. The burden of proof is set high in such cases for the same reason that it is in unfair dismissals cases of the normal type.

A breach of the employment contract sufficient to fall under the Unfair Dismissals Act must be very serious and well justified.

In this case the relevant time frame is relatively compressed between the time the complaint was first brought to the notice of the respondent  on January 24^th and his resignation on February 18^th.

This is to be generous to the complainant as he did not formalise his request for an investigation until February 1^st.

Again, the sequence of events that then followed is also important.

On February 4^th the MD met the complainant to outline the process, the complainant was out of the office on leave on February 6^th, 7^th and 8^th (Wednesday to Friday) and on February 12^th (two working days later) the investigation meeting with the complainant took place.

In cases of constructive dismissal, the behaviour of the employer is critical, although the employee’s behaviour must also be considered.

Generally, this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment; the tests set out in Western Excavating (ECC) Ltd v Sharp [1978[ IRLR 27 as the ‘contract’ test and the ‘reasonableness’ test.

The Supreme Court has said that;

 ‘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.’

Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In assessing the employer’s conduct regard must be had to what it knew of the complainant’s complaint and how it reacted to it. The answer is that it knew nothing until January 24^th 2019.

Ought it to have known more, or earlier?

It is hard to see how it could have. The only issues raised by the complainant in 2018 related to two emails, one in June and another on December 29^th.

Nothing followed the first email, which contained a reference to a written warning, nor was there any evidence that the complainant did anything about it. He subsequently described this as collusion ‘with the intention of removing me from my employment’. In the circumstances how he could continue to interpret in such a way seven months later when nothing had come of it is not clear.

The complainant says that the real change took place ‘in the first week of January 2019’. He did raise this with one of the co-workers involved who accepted that it had happened and that it would have to stop.

However, the complainant says it did not stop and that was the point at which he brought the matter to the attention of the Financial Controller. As can be seen from the narrative, that was at worst within three weeks of the conversation with the co-worker just referred to.

I can find no fault with the employer’s next response. It acted quickly and correctly in bringing in an investigator unconnected with the events.

Much of the basis for the complainant’s appeal related to delay, but by reference to the above narrative and to the date of the complainant’s resignation (which is the critical point) there is no basis for any complaint regarding delay. Conversely, part of his criticism of the investigator was that he reached his conclusion too quickly.

There is no basis for this either, or at least no evidence apart from the complainant’s bald assertion that ‘an insufficient account was taken from evidence provided’ to suggest that the investigator did not properly consider the material he had amassed from the interviews.

One of the grounds for appeal was simply that the investigator ‘refused to uphold my grievance’.

But of course, an investigator must reach independent conclusions based on the evidence before them; there is no obligation, as the complainant appears to believe, to uphold a complaint and failure to do so is not, in itself, a ground for complaint.

The complainant’s decision to resign at the same time as he appealed was contradictory and inexplicable. A person has a right to resign at any time but as will be clear from the foregoing authorities to successfully ground a complaint of constructive dismissal requires the complainant to exhaust the internal procedures before resigning.

His failure to do so is, on the facts in this case, absolutely fatal to his complaint.

And there is little point in appealing if the appellant has left the employment. And conversely, why would one resign when an appeal might be successful?

Much of the above commentary also applies to the second complaint of bullying and harassment under the Industrial Relations Act.

The narrative above does not support any case that the allegations were not properly and seriously dealt with by the respondent.

In general, the complainant acted precipitately, and he does not meet the legal test for a constructive unfair dismissal.

Both complaints fail.

For the reasons set out above I do not uphold complaints CA-00027135-001 or CA-00027571-001 and they are both dismissed.

Constructive unfair dismissal.