Complainant

Respondent

Anonymised Parties

A Senior Bank Official

A Bank

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-00017449-001

14/02/2018

The complainant had been engaged as a Senior Bank official since 2004 and claims that she was constructively dismissed in 2017.

The complainant was employed as a senior official with the respondent since 2004 and had periods of sick leave owing to the death of husband and later work-related stress in 2014. When she returned, Ms A was the manager and while the complainant felt welcomed and valued initially; her levels of stress and overwork increased, leading to an increase in her anxiety levels.

During 2016 while in the cash office Ms A came in and asked if she could do off-counter work. The complainant detailed that she was upset with this but tried it as she felt she could not say no. The complainant also felt that as many staff were leaving the bank it put more pressure on her. She received reassurances that she would be supported but she detailed the off-counter role is a stand-alone role and also a very stressful role. On 28 June 2016 she was advised that a lodgement machine was broken and came out and helped her colleague with it but as she worked with the colleague to fix it, she felt what she described as a “ball of panic and upset” and she broke down crying. She left work and never returned. Her doctor recommended tablets and she tried them and also went to counselling.

In May 2017 she had a meeting with the respondent regarding her return to work. She was offered a transfer to a different office, but the complainant outlined that she did not know what to do as the stress of staying working in the bank was not going to go away. She detailed that she did not believe that she could ever return to work and she was never deemed fit by her gp to return to work. Her psychiatrist detailed that she was having a post traumatic stress disorder reaction. As the complainant could not envisage any way of returning, she was left with no alternative but to resign as she had to secure a job elsewhere to pay her bills and was in arrears with her mortgage. She has now secured employment in another organisation and while the pay is not as good as that which she had in the bank, she feels she is now working in a safer environment. In cross examination she advised that she was not in a position to seek a better paid job at the time as her priority was to secure work to pay her bills in a less-stressful environment.

It was outlined how difficult it was to resign on 25th August 2017 but that the complainant felt she was left with no alternative but to submit her resignation owing to her stressful work environment. She detailed that she was offered roles in the bank that would not have helped her mental health. It was outlined by her that it was very important to her not to go to a “dark place” with regards to her mental health and that if she stayed with the bank, it would have been detrimental to her health.

She confirmed that a copy of the grievance procedure was provided to her in 2017 but she was reluctant to utilise it.

The respondent denied that the complainant was constructively dismissed.

It was confirmed that she had commenced employment in 2004.   In 2014 she went out sick for 114 days and to aid her return she was offered a role at a different branch, but she declined this. She returned to work on reduced hours for a period. She was advised that she would be given whatever support she needed by her manager Ms A. It was rejected that the complainant was offered work that was very stressful in an off-counter role, as that role is now a generalised role and is not too much for one person. At the time of the complainant’s resignation, the branch employed 13 employees most of who were in role of Customer Sales Advisory roles and they would all be required to work at times off-counter. It would not be possible to have one person not working off-counter.

In mid-June 2016 the complainant was asked by Ms A to take on off-counter duties for a few weeks and it was explained to the complainant that the role was not like it had been previously and was more streamlined.   While Ms A was aware that it was the preference of the complainant not to do this role, the complainant also detailed a willingness to try it. She commenced this role early June 2016 and on 28 June 2016 she left the role stating that she was stressed. She never returned to work.

During her sick leave the complainant was assessed on 12 occasions and was deemed unfit for work but was deemed fit to engage with her employer. On 29 November 2016 the complainant was advised that she would not be covered by the respondent’s income protection scheme. The respondent sought to engage with the complainant regarding how she might return to work and if there was any workplace intervention that could facilitate her return to work. The complainant met with members of the Absence Management Team on 10th May 2017. The complainant was given a copy of the grievance procedure on 12 May 2017 and expressed on a number of occasions her difficulties with working in an off-counter role and also that the “stress in the bank permeates through most roles”. Her sick pay expired on 30th June 2017 and on 13 July 2017 she was advised that her appeal against the decision regarding her income protection was not upheld.

Around July 2017 the complainant applied for a severance package but was unsuccessful as she did not meet the criteria. The complainant’s solicitor wrote in July 2017 asking for a reduction in the amount of contact that there was. On 25th August 2017 the complainant resigned her position and was given an opportunity to withdraw this but did not do so and her resignation was accepted.

Case law outlined included Paris Bakery & Pastry Limited v Mrzljak DWT1468 and Western Excavating ECC v Sharp, Caci Non-Life Limited v Daniela Paone UD/17/74, Conway v Ulster Bank Ltd in relation to tests that applied when considering if constructive occured and it was outlined that the complainant failed to meet those tests. It was further detailed that the respondent acted reasonably and in line with the contract of employment. Furthermore, it was put forward that the complainant showed delay in resigning and did not allow the respondent to address her concerns. There were no changes in the complainant’s terms and conditions such would justify her terminating her employment in the manner in which she did, and she failed to satisfy the reasonableness and contract tests. It was also outlined that the complainant resigned after receiving notification that she did not qualify for redundancy and that she failed to utilise the grievance procedure.

The claim is one of constructive dismissal, pursuant to Section 1 of the Unfair Dismissal Act 1977. Section 1 of the Unfair Dismissal Act defines constructive dismissal as: “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 the 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”.

In reaching my conclusion I have carefully evaluated the evidence adduced in the course of the hearing, and taken full account of written and oral submission made by the parties.  

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/her 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 be expected to put up with it any longer, if so he/she is justified in leaving.

The Supreme Court in Berber detailed, “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 to determine if it is such that the employee cannot be expected to put up with it.” This places the burden of proof on the employee to show that her resignation was justified in all the circumstances.  

The question arises therefore, 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.

In constructive dismissal cases, it is necessary to examine the conduct of the parties. In normal circumstances a complainant who seeks to invoke the reasonableness test, must also act reasonably by providing the employer with an opportunity to address any 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 which has been set out in Conway v Ulster Bank LimitedUDA474/1981.

The complainant outlined that difficulties arose in her workplace. She had suffered a traumatic event in her life and it did not help her mental health that so many changes were happening in the workplace also. It would appear that a build-up of stress and feeling under pressure occurred resulting in the event at work whereby she had to leave work in June 2016 and never returned to the workplace. It would appear that Ms A lacked empathy at times in relation to how she dealt with the complainant and should have been more aware that the complainant did not feel able to take on some of these changes, such as the off-counter responsibilities: but I also note that the complainant does not appear to attach blame to anyone or any one thing that caused her breakdown at work and that Ms A was not at work on the day that this occurred.

While on sick leave, the complainant was medically assessed on a number of occasions resulting in her applying unsuccessfully to secure income protection. Her sick pay also expired around this time and the complainant was turned down for voluntary severance due to ineligibility. The complainant resigned her position and did not reconsider her decision when asked.

In assessing whether the complainant has met the test of constructive dismissal in respect of reasonableness or the contract test, I note that when the incident occurred in June 2016 which resulted in her going out on sick leave; the complainant was offered but did not utilise the grievance procedure and no sufficient reason was put forward as to why it was not utilised. Efforts were made to look at moving her to a different branch her, and offers of alternative work were put forward, but it would appear that the complainant was not in a position to take up any of these suggestions as she detailed “stress in the bank permeates through most roles”.   It is unfortunate, that she did not work through the grievance process with the respondent, as she may have been facilitated in a role, that she might have found less stressful.

In Berber Finnegan J. held: -

“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.”

While I was struck by the complainant’s strong desire to maintain her mental health which she believed was not possible while remaining with the respondent; however, the complainant also detailed that her decision to resign was owing to a need to secure alternative employment as she had a mortgage to pay. The complainant was afforded an opportunity to consider her resignation but did not seek to withdraw it and did not take any additional time to consider her options. I cannot accept this as a fundamental breach going to the root of her contract, in circumstances where the Respondent complied with its policies and made available the appropriate supports and procedures to the complainant.

Having examined the evidence, I fail to see how the Complainant’s assertions meet the standard of reasonableness required to substantiate a claim of constructive dismissal.

The EAT held in Beatty v Bayside SupermarketsUD142/1987, with regard to a grievance procedure, that: -

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

While there may be situations failure to utilise or give prior formal notice of a grievance may be justified such as Liz Allen v Independent Newspapers [2002] 13 ELR 84 however, I do not find factors present which might excuse the Complainant’s failure to avail of raising a grievance in this instant case. I find no evidence to indicate that the complainant made reasonable efforts to address her grievances before resigning.

The complainant has failed to satisfy either element of the tests referred to above and I find that Complainant was not constructively dismissed from her employment and the complaint of unfair dismissal is not well founded.

I find that the complaint of unfair dismissal is not well founded.

Constructive dismissal, stress,