FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : DROGHEDA RESOURCE CENTRE LTD - AND - MAIREAD REILLY DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Tanham |
1. Appeal Of Adjudication Officer Decision No:ADJ-000099 58 CA-00012707-001
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 19 November 2018 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 16 May 2019. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal against the Decision of an Adjudication Officer under the Unfair Dismissals Act 1977 – 2015 (the Acts) in a claim made by Ms Mairead Reilly against her former employer, Drogheda Resource Centre Ltd, where she alleged that she was constructively dismissed. By decision dated 17thOctober 2018, the Adjudication Officer held that the complaint was well founded and ordered that compensation in the amount of 16 week’s pay be paid. The employer appealed the decision to the Court.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Mairead Reilly will be referred to as “the Complainant” and Drogheda Resource Centre Ltd will be referred to as “the Respondent”.
The Complainant referred her claim to the Workplace Relation Commission on 21stJuly 2017. The Adjudication Officer issued his Decision on 17th October 2018. The Respondent appealed the Adjudication Officer decision to the Court on 19thNovember 2018. The appeal came before the Court on 16thMay 2019.
The Complainant represented herself at the hearing. The Respondent was represented by Mr Jim Moore.
The Complainant told the Court at the outset of the hearing that she was currently unavailable for work and in receipt of illness benefit from the State. She confirmed that this had been the position since the termination of her employment in July 2017. She believed that her illness had been brought about as a result of the circumstances related to the termination of her employment. She further confirmed that she did not submit any medical reports to the Respondent in relation to her illness prior to the termination of her employment.
Background
The Respondent is a resource centre in Co. Louth providing information, assistance and support to unemployed persons to help them in their dealings with the Department of Social Protection, and other Government bodies, and to provide education and training. The Centre is staffed by community employment participants and is managed by a community employment supervisor.
The Complainant commenced employment in September 2011 as an Information Officer. Her principle duties comprised of dealing with the public at the Centre’s front desk. She was paid €215.00 gross per week and worked 19.5 hours per week. She resigned from her employment on 17thJuly 2017.
Summary of the Complainant’s Position
The Complainant provided an extensive written submission to the Court and also gave sworn evidence.
The Complainant told the Court that she was forced to leave her employment due to mistreatment of her by the Supervisor of the Resource Centre, whose treatment of her she ultimately described as bullying behaviour, and by the Board of Management (‘the Board’) who she alleges took no action in response to related complaints made by her.
The Complainant submits that her employment was unremarkable until 2015 when a question-mark arose regarding her eligibility to continue as a community employment scheme participant. She understood that she was eligible for continued employment for a further number of years and she believed that the Department of Social Protection had confirmed that position. A level of uncertainty regarding her continued employment was created and this caused her stress and anxiety. She indicated that she was happy to seek a transfer to another CE scheme sponsor to maintain her employment, but she says she was assured that everything was being done to keep her. Ultimately, her contract was extended however, she was very dissatisfied with how the Supervisor handled the matter.
Twelve months later in 2016 a similar situation transpired and the question of extending her employment further was again at issue and again the Complainant regarded her Supervisor’s role in the matter to be very unsatisfactory. She again raised the possibility of a transfer to another scheme which she believes was reacted to badly by the Supervisor. Additionally, during the course of dealing with the contract matter at that time, the Complainant found herself the subject of a written disciplinary warning from the Supervisor for alleged behavioural matters on her part. The Complainant alleged that she was treated unfairly, and that due process was not followed in any way in relation to the warning. She sought to dispute the warning with the Board and the written warning was eventually confirmed, by the Chairperson of the Board, as withdrawn in October 2016.
While the matter of her continued employment was once again ultimately resolved, the Complainant submits that her relationship with her Supervisor had been affected and she felt that she could no longer trust the Supervisor. She states that their relationship continued to deteriorate, and she felt that in the months that followed she was being subjected to bullying behaviour.
In early 2017 the Centre implemented changes to the Front Desk working hours rostering arrangements. This affected a number of participants employed at the Centre, including the Complainant. The Complainant was unhappy with her working pattern being changed without consulting her and without proper notification. She believed this to be a continuing pattern of mistreatment of her and she complained to her Supervisor and made contact with a Board member, but her complaints were not dealt with by the Supervisor or the Board. She also sought to contact her union representativearound this time to seek advice and assistance regarding her circumstances. She said that her efforts to enlist the union’s help were unsuccessful. She said that it was her understanding that the Respondent’s grievance policies required an employee to report a grievance, either to management or her union representative. She said that this led her to be dissatisfied with the involvement of her union representative and therefore she believed that she was prevented from trying to follow the procedure.
In and around this time, two participants at the Centre made complaints about the Complainant, in response to which the Complainant made a counter-complaint. The Complainant was dissatisfied with how all of these matters were dealt with by the management. The Complainant stated that the complaints of her colleagues against her were dealt with by management but that this contrasted with the approach to her counter-complaint, which she says was not investigated or dealt with.
In May 2017, the Complainant wrote to the Complaints Committee of the Board by letter dated 26thMay in which she stated that she had being trying to make a complaint about the Supervisor’s bullying behaviour towards her but that she was being ignored.
On 31stMay 2017 the Complainant referred two complaints to the Workplace Relations Commission (WRC). One under the Terms of Employment (Information) Act 1994-2018, in relation to changes to her roster and one under the Industrial Relations Act 1969, which the Complainant confirmed to the Court at the hearing was a complaint in relation to the alleged bullying behaviour of her Supervisor.
On 12thJuly 2017, the Complainant sent a follow-up letter to the Board to her letter of 26thMay in which she confirmed that she was seeking an investigation into her complaints against the Supervisor. A response from the Board was received the following day, dated 13thJuly 2017, in which the Board confirmed that it had received the Complainant’s letter of 26thMay but that this could not be considered until the June Board meeting. The Board stated that local procedures had not been exhausted and confirmed that they were prepared to deal with her complaint in accordance with those procedures provided she withdrew her complaints to the WRC and that it received verification from the WRC that her claim was withdrawn.
The Complainant felt threatened by this response and felt it was the “final nail in the coffin” for her as she believed that she could have no confidence or trust that the Board would deal properly with her complaints. She confirmed her resignation to the Chairperson of the Board by letter dated 17thJuly 2017.
Summary of the Respondent’s Position
Mr Moore, on behalf of the Respondent, also provided extensive written submissions to the Court and referred to various authorities in support of his position.
Mr Moore submitted that the question of eligibility for continuing employment under a Community Employment scheme is a matter for the Department of Social Protection and not the sponsoring organisation. He stated that the Department of Social Protection wrote to the Complainant in September 2016 and apologised for any annoyance and frustration caused to her in connection with the eligibility matter.
In October 2016 the Chairperson of the Board also wrote to the Complainant confirming that the Board was pleased that she was being extended and also confirming that in the event that she does not succeed in obtaining a transfer that the Board would facilitate her extended time with the Centre. The Complainant however advised that she still wished to transfer and would continue to look for a suitable scheme.
Mr Moore submitted that the Chairperson’s letter in October 2016 also confirmed that the written warning of July 2016 was removed from her file and expressed hope on behalf of the Board that that would bring closure to that matter.
Mr Moore stated that in January 2017 tensions arose between some participants in connection with roster changes at the Centre’s front desk and this led to a number of participants, including the Complainant, making complaints about one another. Mr Moore stated to the Court that the roster changes were intended to be a trial and ultimately the roster reverted back to the way it originally was within a matter of some months.
Mr Moore submitted that the Complainant made a complaint to her Supervisor in February 2017 about the roster matter. He stated that the Supervisor offered the Complainant the option of management dealing with the complaint or she could take the matter up with the Board. In response, in an email dated 1stMarch 2017, the Complainant confirmed to the Supervisor that she would arrange a meeting with either a member of the Board or a union representative. Mr Moore submitted that the employer was aware that the Complainant had met with her union representative at the Centre, but management did not subsequently receive any formal grievance or contact from the Complainant’s unionrepresentative.
Mr Moore submitted that the Complainant’s letter dated 26thMay 2017 was the first reference to alleged bullying of the Complainant by her Supervisor. It was submitted that the employer’s Harassment and Bullying Procedure (a copy of which was provided to the Court) sets out specific steps at section 6.2 of the procedure to be taken to process a complaint but that such steps were not taken by the Complainant. Mr Moore stated that the Complainant’s letter dated 26thMay 2017 referring to alleged bullying was issued simultaneous with the Complainant’s complaints to the WRC on 31stMay 2017.
Mr Moore stated that the Chairperson of the Board wrote to the Complainant dated 13thJuly 2017 confirming that her complaint dated 26thMay 2017 and her complaints to the WRC dated 31stMay 2017 were considered at the June Board of Management meeting as her letter was received too late to be dealt with at the May meeting. The Chairperson confirmed the Board’s willingness to deal with the Complainant’s complaints.
The Board subsequently received the Complainant’s resignation letter dated 17thJuly 2017. In the letter the Complainant states that she has no confidence or trust in the Board to follow its procedures, that she would not withdraw her WRC complaints to allow for local procedures to be followed and that in circumstances where the next Board meeting would not be until September 2017 she was not prepared to continue on.
By email dated 18thJuly the Chairperson confirmed that the Board had agreed to meet on 25thJuly 2017, not September as believed by the Complainant. He informed her that this meeting was scheduled to consider the issues raised in her resignation latter of 17thJuly 2017.
The Chairperson sent a further letter dated 31stJuly 2017 referring again to the pre-advised July meeting of the Board. He stated that the main reason for the July meeting of the Board was to give all matters, including her complaint, due consideration and report to the Complaints Committee, which had been established by the Board to investigate these matters. The Chairperson further stated the Complainant’s referral of her complaints to the WRC had usurped local grievance procedures. He confirmed that the request of her to withdraw the WRC complaints was to allow the in-house complaints committee to investigate the bullying accusations. It was pointed out that if she was dissatisfied with the outcome of the investigation process then she had the right to re-submit complaints to the WRC.
No further correspondence was received from the Complainant in response to this letter.
The Law
Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal as follows: -
- “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”
Section 6(1) of the Act states: -
- 6.— (1) 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.
As the Complainant is alleging constructive dismissal, the fact of dismissal is in dispute and the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her terminating her employment.
Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. This arises 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 resign his position, often referred to as the “contract test”. This requires that an employer 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”as held in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332.
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 or reasonably be expected to put up with it any longer, if so she is justified in leaving.
The question for the Court to decide is whether, because of the conduct of the Respondent, the Complainant was or would have been entitled, or it was or would have been reasonable for her, to terminate the contract of employment.
It is well settled law in the area of constructive dismissal that an employee who terminates their own employment because of the unreasonable conduct of the employer may only succeed in a constructive dismissal action where they show that they themselves acted reasonably by seeking, prior to termination, to bring complaints to the attention of the employer with a view to resolving the issues.
The Court must examine the conduct of the 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 LimitedUDA474/1981.
Discussion & Decision
In this case the Court notes that the Complainant cites an array of difficulties which arose for her in the employment in the period from 2015 up to her resignation in mid-July 2017.
In summary, these difficulties are: matters in connection with her eligibility for continued employment and her supervisors poor handling of that during 2015 and 2016; the imposition of a written warning which was implemented in the absence of any due process; the unilateral changing of her working hours roster pattern without consultation or proper notification; her difficulties in obtaining responses from the employer to complaints made by her and inaction by the employer in response to her complaints; the employer seeking that she withdraw her WRC complaints as a condition of them dealing with her complaints internally.
The Complainant alleges that the mistreatment of her, principally at the hands of her Supervisor, amounted to bullying and that this behaviour by the Supervisor combined with the inaction of and indifference by the Board in response to her related complaints brought about her resignation, amounted to a constructive dismissal.
Having considered the extensive written and oral submissions before the Court in this matter, the Court finds the following aspects of this case to be significant:
- 1.The contract extension eligibility issues were largely matters for the Department of Social Protection and not the Respondent. The eligibility issues were ultimately resolved towards the end of 2016 when the Department also issued an apology to the Complainant.
An email dated 13th October 2016 from the Divisional Manager of the Department of Social Protection to the Complainant stated that both she and her supervisor had been misinformed by the Department as to her continuing eligibility for CE beyond her fourth year on the scheme. The email stated that the Department had already apologised to her by email dated 26th September 2016 for this misinformation. It stated that the error occurred due to a misunderstanding of her entitlement as she had previously been on a disability scheme before commencing on the CE scheme and this lack of clarity coupled with its implications prompted the Department to seek further clarity on her entitlements. The Divisional Manager informed her that the Department had acted in good faith at all times in relation to queries made by the Respondent regarding her eligibility for CE and again repeated his apology to her.
The Court notes that in an email from the Complainant on 10thNovember 2016 following a meeting with her Supervisor the previous day in connection with the eligibility issue, the Complainant expresses herself to be delighted that the meeting was good and that they had decided to move forward with their relationship in a professional manner.
2.The disputed written warning given to the Complainant in July 2016 was confirmed as withdrawn, with the intention of bringing closure to that matter, by the Chairperson of the Board in a letter dated October 2016. In the same letter the Chairperson confirms that the Board would be prepared to facilitate extended employment should the Complainant wish to remain as opposed to transferring to another sponsor.
- 3.The changes to the roster, which were the subject of a complaint to the WRC, were not raised as a formal grievance by the Complainant, notwithstanding that she was engaging with her union representative on the matter. The employer received no contact from the union on the matter. It is noted that the roster reverted to its original constitution within a matter of months of the change.
- 4.The letter from the Complainant to the Board dated 26thMay 2017 is the first occasion on which bullying behaviour is referenced by the Complainant. In the letter, the Complainant states that she has“been trying to make a complaint about bullying behaviour”of the Supervisor. She goes on to say that she“has not been given an opportunity to make my complaint”. The letter does not set out any details of the alleged bullying behaviour.
- 5.The letter of 26thMay, 2017 which references bullying for the first time, is effectively concurrent with the same complaint being made to the WRC on 31stMay 2017. Notwithstanding the referral of a bullying complaint to the WRC, the Complainant’s letter of 12thJuly 2017 confirms that she is seeking an investigation in to her bullying complaints against the Supervisor.
In this case, the Court does not doubt that the Complainant had issues which she genuinely felt were worthy of investigation by the Respondent. The Court does not accept, however, that the Complainant did not have opportunities open to her to adequately and sufficiently raise those issues through the Respondent’s procedures. The Respondent had both a published Grievance Procedure and a Harassment and Bullying Procedure, neither of which appear to have been properly invoked by the Complainant, notwithstanding that she was engaging with her tradeunion representative. However, the Complainant seemed to misunderstand the role of her union representative in the procedures and seemed to be under the mistaken impression that referring/discussing her grievance with her trade union representative was one of the methods of invoking the procedures. The Court notes that the role of a trade union representative in the Respondent’s procedures is confined to representation at investigations/meetings, as is the norm in such procedures.
From 26thMay 2017 onwards, the Respondent was aware of the Complainant’s alleged bullying complaint. A response on the matter issued from the Respondent on 13thJuly 2017. Notwithstanding the operation of the Respondent’s monthly Board meeting arrangements, the Court is satisfied that the Respondent could and should have communicated with Respondent to acknowledge receipt of the 26thMay letter and to advise of how it was intending to deal with it. This was an omission by the Respondent.
When the Respondent did reply, it was at that stage in receipt of confirmation that the Complainant had referred her bullying complaint to the WRC and was also in receipt of the Complainant’s 12thJuly 2017 letter in which she was seeking an investigation by the Respondent of the same complaints. This was a somewhat incompatible and confusing position by the Complainant.
The Respondent’s response was to require the Complainant to withdraw her WRC complaints as a condition to it undertaking its investigation in accordance with its own procedures. In the ordinary course of events, the Court does not endorse any approach by an employer which seeks to in any way dissuade or coerce an employee from utilising the State’s third-party industrial relations and employment law machinery. Therefore, the Court takes the view that the imposition of such a condition was inappropriate in the circumstances.
However, in the circumstances of this case, while the Complainant had referred matters to the WRC on 31stMay 2017, she was, six weeks later, on 12thJuly 2017 requesting in writing that the Respondent conduct an investigation into her bullying complaints. In circumstances where the July request to the Respondent for an internal investigation closely followed her referral to the WRC and was therefore the most up-to-date request from the Complainant, it is somewhat understandable that the Respondent sought to accede to that most recent request in favour of the WRC process at that stage. Despite her request for an investigation by the Respondent after she had referred the matter to the WRC, the Complainant chose not to proceed with it as offered by the Respondent. When the Respondent subsequently explained its approach in its letter dated 31stJuly 2017 the Complainant made no further responses and the Court finds this regrettable,particularly where other issues had been resolved to the Complainant’s satisfaction in the past.
Having examined the facts as presented, the Court finds, on balance, that the Complainant did not utilise the internal procedures available to her to process her bullying complaints. Therefore, it must conclude that the standard of reasonableness required to substantiate a claim of constructive dismissal, has not been met where the Complainant failed to exhaust the procedures available to her before taking the step to resign, thereby not providing the Respondent with an opportunity to address her grievance in a proper manner.
The Court is, therefore, satisfied that the Complainant was not constructively dismissed.
Determination
The Complainant was not unfairly dismissed by the Respondent.
The appeal, therefore, succeeds and the Adjudication Officer’s decision is overturned accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
MK______________________
10 June 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.