Complainant

Respondent

Anonymised Parties

A General Operative

A Community Organisation

Representatives

SIPTU

M.P. Guinness B.L. instructed by Gleeson McGrath Baldwin 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-00022505-001

09/10/2018

The complainant was employed by the respondent between May 2009 and October 9th 2018. She was paid €216.00 per week for a 19.5 hour week.

She claims that she was constructively dismissed.

In July 2018 the complainant’s shift arrangements were altered without her agreement.

On presenting for work after two days’ absence on sick leave she was sent home by her manager and told that she would not be paid, as she was not rostered to work.

Her union representative contacted the respondent but failed to get a response initially and was then told not to contact the particular manager as a liaison person had been nominated to handle the matter.

Then the complainant decided to apply for carer’s leave and indicated that if this could be facilitated the grievance over the roster could be set aside.

Nothing happened for a number of weeks and at this stage the grievance and remained unanswered for a month. A meeting tool place with the nominated liaison people on September 14th.

Nothing was heard further to this meeting until an allegation was made by letter of October 8th that the complainant tried to influence a third party to record a Board meeting.

Believing the relationship with her employer to be irrevocably broken down and having had no response to her grievance she instructed her union official to inform the respondent of her intention to resign. Her union representative did so the following day.

On October 19th, the complainant was advised that the investigation into her grievance had concluded and it had not been upheld.

She rejected the findings of the investigation but was not given a copy of the report.

She claims that she was unfairly, constructively dismissed.

The respondent denies that there was a change in the complainant’s shifts without consultation.

She had been told in advance on several occasions from July 23rd on that the shift pattern would be changed but she had failed to respond to text messages or answer phone messages, but she was well aware of the impending change.

She was aware of, but did not attend, a staff meeting on July 18th to discuss the changes. There was to be no change in the number of her hours.

On her return to work on July 30th she insisted on working the previous shift and it was in that context that the manager told her to go home. She refused, continuing to work the ‘old’ hours and was abusive to her manager.

Regarding her application for Carer’s Leave her manager declined to sign the application only because it was not within his delegated authority to do so. It was a matter for the Board which was awaiting implementation of a commitment on behalf of the complainant that the grievance would be set aside if the leave was granted.

There was no inordinate delay in processing the complainant’s grievance although the summer holiday period contributed to this.

The letter of October 8th to which the complainant took exception was a complaint made by a third party against the complainant which the Board had an obligation to process and initially to bring to her attention. It was not motivated by malice.

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 complainant took exception to the change in her shift pattern and this gave rise to the incident on July 30th. She submitted her grievance the following day. The respondent appointed someone to deal with it on August 7th. This was confirmed in writing on August 16th.

(The manager said he could not become involved as he was part of the subject of the grievance.)

Nothing happened, and the union wrote again on September 4th and a meeting was arranged for September 14th and the processing of the grievance took off from there.

Then the complainant received the letter of October 8th to which she took considerable exception and submitted her resignation through her union the following day.

Leaving aside whether it is good practise for an employee to resign in this way there is no doubt that it was her clear intention to do so. Ideally, a person resigning from their employment should do so themselves.

While much was made subsequently of alleged delays in processing her grievance there is no doubt from the timing of it that it was a direct result of receiving the new complaint which had made against her and forwarded to her on October 8th.

To the independent eye the issue of the delay was added to lend a bit more substance to the decision. It is too much of a coincidence that the delay only became unacceptable at the time to receipt of the complaint.

The complainant’s union relied on delay in dealing with the grievance in the resignation letter as one of the reasons for it but at that point only just over three weeks had passed since the meeting to consider the grievance.

This means the alleged delays were not significant, and some consideration must be had for the fact that the respondent is managed by a voluntary Board and those appointed to liaise on the grievance were also volunteers. As soon as the holiday period passed the meeting took place in early September and the complication of the proposed withdrawal of the grievance if the Carer’s leave could be arranged muddied the waters somewhat.

Further criticism of the investigation report is irrelevant to the complaint of constructive dismissal as it post-dates the complainant’s resignation. She can hardly rely on events that happened after her resignation to retrospectively justify it.

As it happens the report was concluded the day after her resignation and while it is irrelevant to this complaint of constructive dismissal it is a competent and reasoned report which did not uphold the grievance.

The complainant’s union said on October 25th that it would not appeal the outcome because it had been mishandled by the Board but, by that stage it was over two weeks since the complainant had resigned so it would also have been a pointless exercise.

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

Generally, this 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 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 this case, the issue in dispute; the changed roster arrangement was a relatively minor matter and could easily have been concluded through the grievance process.

Judged by the Berber test, and the general principles applicable to a constructive dismissal her case falls very far short of what is required both in respect of her employer’s and her own conduct.

Her decision to resign was precipitate and no particular fault can be attributed to the respondent ‘s handling of the matter.

Her complaint fails.

For the reasons set out above I do not uphold complaint CA-00022502-001 and it is dismissed.

Constructive Dismissal