UDD1928

The Complainant commenced her employment with the Respondent on 8 February 1993. She resigned her employment by letter dated 7 January 2016. Her title at that time was Head of Organisational Learning and Development. Her claim is one of constructive unfair dismissal. The Adjudication Officer held that the claim was well-founded and awarded the Complainant compensation of €20,000.00.

The factual matrix

Although the Complainant resigned her employment in January 2016, the events that culminated in her decision to do so date back to changes that occurred in the Respondent’s organisational structure following the appointment of a new Head of Human Resources, Mr "BL" in 2007. BL went onto be become the Complainant’s line manager in January 2010 following the Complainant’s removal from the Respondent’s Senior Management Team (‘the SMT’). The Complainant was absent on sick leave for an extended period during 2010. In June 2013, she lodged a complaint under the Respondent’s Dignity at Work Policy in which she outlined a very extensive list of allegations, spanning the period 2007 to 2013, principally against BL. The Complainant commenced a period of long-term sick leave in or around August 2013 from which she never returned.

In April 2014, the Respondent commissioned an external investigator, Ms Janet Hughes, to investigate the Complainant’s complaints under the Dignity at Work Policy. Ms Hughes produced a very comprehensive report, the final version of which is dated 27 February 2015. Ms Hughes, in summary, determined that “the majority of incidents, events and behaviours complained of were not found to form the basis of a valid complaint.” Ms Hughes also found that “a pattern of inadequate communications” developed between the Complainant and BL following the Complainant’s return from sick leave in 2010. In her Report, Ms Hughes observe that “the lack of real interpersonal engagement, meetings, consultation and the provision of information around training, in particular around the matters discussed at the SMT, lie at the heart of the flawed relationship between these two employees and left a void in which a sense of grievance on the part of Denise Shaw Kelly developed”. Ms Hughes concluded that while BL had failed to adequately manage the reporting relationship between himself and the Complainant, BL’s conduct did not amount to inappropriate behaviour that equated to bullying.

The Complainant did not return to work after the delivery of Ms Hughes’ Report nor did she appeal its findings although there had been significant engagement between the Parties with a view to facilitating her return.

Parties’ Submissions

The Complainant’s evidence to the Court was that she believed that she had identified to the Respondent a number of outstanding grievances and issues from her side that remained unaddressed by the Hughes Report. She said it was her view that these should have been addressed prior to her return to work. The Complainant told the Court that she had articulated her views in this regard to Mr Ger Lyons, Chairman of the Respondent’s Board of Directors, at a meeting which took place on 16 June 2015 and at which she was accompanied by her Trade Union Official. Under direct examination, the Complainant said that she believed she should have received a formal job description from the Respondent in which her role and reporting structure were set out in detail before she returned to work. She told the Court that the Respondent’s unwillingness to address her concerns prior to returning to work caused her to lose all trust and confidence in the Respondent.

It is submitted on behalf of the Respondent that the Complainant was given categorical assurances from both Mr Lyons and from Ms Norma Bagge, Director of Services, that the Complainant’s job was still open for her to return to work and that the issues that she perceived to be outstanding following the Report’s publication would be addressed as part of her return to work. The Respondent submits that it clearly conveyed to the Complainant that she would not be reporting any longer to BL following her return to work as he been redeployed to a different role in the Respondent’s organisation, quite independently of the complaints that had been raised against him by the Complainant.

Correspondence exchanged between the Parties in the period October to December 2015 in which their respective views about these issues had been aired were opened to the Court. It appears that this correspondence was continued even after the Complainant had submitted her resignation as the Respondent clearly indicated that it did not want to accept the Complainant’s resignation and continued to be willing to facilitate her return to work. The Respondent ultimately issued the Complainant with her P45 in March 2016.

The Complainant gave detailed evidence in relation to her efforts to gain alternative employment and to mitigate her loss in the period following her resignation. From an early stage, it appears she decided to embark on a career change which required her to become registered with the Teaching Council. To this end, she engaged in a number of training and continuing professional development courses. However, she remained unavailable for work until September 2016 due to ongoing concerns about her health. She told the Court that she submitted no job applications in 2016 and had no earnings that year. She made approximately ten job applications in the course of 2017 and had no earnings either that year. In 2018, she again applied for approximately ten jobs and earned €3,400.00 through self-employment. Since September 2017 she has been in receipt of a Back to Work Enterprise Grant of c.€190.00 per week. In 2019 the Complainant was appointed to a panel of tutors with the local Education and Training Board. She expects to receive remunerated work in that capacity in summer 2019.

The Issue Before Court

Simply put, there is only one issue which falls to be determined by the Court in this appeal: was it reasonable for the Complainant to resign her employment in the circumstances outlined above or should she have returned to work following receipt of Ms Hughes’ Report with a view to allowing the Respondent the opportunity to address her outstanding concerns and grievances? The burden of proof in this regard falls on the Complainant.

Conclusion and Decision

Having carefully considered the Complainant’s evidence, and the comprehensive written submissions of the Parties, the Court is of the view that the Complainant has not demonstrated that it was reasonable for her to resign her employment or that she no option but to resign her employment. On the other hand, the Court finds that the Respondent acted in a responsible and reasonable fashion towards the Complainant in so far is it provided for a thorough and professional external investigation of the Complainant’s Dignity at Work grievances; afforded the Complainant the opportunity to appeal the outcome of that process which she chose not to do; consistently assured the Complainant that it would facilitate her return to work, notwithstanding her very protracted absence from the workplace from August 2013 onwards; and undertook in writing and verbally that it would address any outstanding concerns that the Complainant had once she had returned to work.

In all the circumstances, therefore, the Respondent’s appeal succeeds, the Complainant’s cross-appeal fails and the decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
6th June 2019______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.