Complainant

Respondent

Anonymised Parties

Director of Internal Audit

Property Management Company

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-00021802-001

12/09/2018

The Complainant commenced employment with the Respondent in 2009. Prior to going on maternity leave in October 2016, the Complainant was employed as Director of Lettings & Residential Property. On her return from maternity leave in April 2017, the Complainant was appointed to the role of Director of Internal Audit. The Complainant asserts that she had no alternative but to accept this position. The Complainant contends that she suffered poor treatment and job uncertainty after returning from maternity leave and taking on the role of Director of Internal Audit. The Complainant raised a formal grievance with the Respondent in April 2018.   The Complainant submits that the Respondent’s undue delay in investigating her grievance entitled her to resign in response and to treat her resignation as a constructive dismissal. The Respondent rejects the complaint.

The Complainant submits as follows:

The Complainant has an Engineering Degree, a Diploma in Property Studies and a Certificate in Foundations of Management. The Complainant commenced employment with the Respondent on 17 August 2009.

The Complainant was originally employed as a letting agent. On 1 April 2014, the Complainant was promoted to Director of Lettings & Residential Property.

Change in job on return from maternity leave

The Complainant returned from maternity leave on 4 April 2017 after having her first child. According to the Complainant, the Chief Operating Officer (COO) informed her that her position as Director of Lettings & Residential Property was to be made redundant. The COO advised the Complainant that the sole redeployment option available to her was that of Director of Internal Audit. On 4 April 2017, the COO provided the Complainant with a Job Profile for the position Director of Internal Audit. While this position was not within the natural skillset of the Complainant, she agreed to undertake this role on 5 April 2017 subject to the provision of further professional training. The Complainant understood she had no other option.

It is submitted the change in role was a sham. While the Complainant was on maternity leave, existing employees filled in for her. In February 2018, the role of Head of Property was created within the Respondent organisation and a new male colleague was recruited to fill the role. The Complainant submits that this position was effectively the same as the one she had held prior to going on maternity albeit under a different title.

Under sections 26 and 27 of the Maternity Protection Act 1994 as amended, the Complainant had a right to return to the same job, or if this was not reasonably practicable, to a job on no less favourable terms and conditions. It is submitted that a breach of that section constitutes discrimination on the ground of pregnancy and therefore discrimination on the gender ground.

Certainly when the Complainant was being moved into the role of Director of Internal Audit, she faced great uncertainty and insecurity, which would not have happened if she continued in the role she successfully held before maternity leave.

A number of weeks following her return from maternity leave, the Complainant agreed to alternate working hours being 07.00 to 09.00 at home and 10.00 to 16.00 in the office. This was agreed with the CEO.

Poor treatment and job uncertainty after returning from maternity leave and after commencing the Director of Internal Audit job

The treatment of the Complainant deteriorated after her return from maternity leave on 5 April 2017 such that the Complainant was being singled out for being a woman who had taken maternity leave and had a child.

The Complainant’s performance in the roles assigned after returning from maternity leave was greatly hampered by the actions of the Respondent:

·      The Complainant was only ever provided with a 2-day audit training course (which was not sufficient to deem her proficient as an Auditor), and further requests for further professional training were ignored by the Respondent.

·      It was agreed with the Complainant that upon acceptance of her new position, the Chief Operating Officer would provide direction in respect of the Complainant’s role and JK would provide administrative support. Both the Chief Operating Officer and JK left their employment with the Respondent and no replacement support was provided.

·      The role was totally different from the role the Complainant held prior to maternity leave. For instance, the Complainant was expected to be skilled in, and knowledgeable of, the vast requirements of meeting strict Quality, Environmental and Health and Safety Standards, which was something not within her skillset and was something she needed support and training with, which was not forthcoming.   She was required to create a Call Centre from scratch without ever having any prior knowledge or experience in the field. She was asked to create training manuals for a software system that was yet to be installed and to which she had not been given access.

·      The Complainant did not receive job descriptions or Key Performance Indicators (KPIs) for the role of Head of Operations or Operations Director or Internal Audit & Operations.

·      Instead of being encouraged and supported in settling into a new role, the Complainant found herself on a Performance Improvement Plan (PIP).

On 5 July 2017, the Complainant was awarded a bonus of €5,000 indicating at the very least that the Complainant was meeting expectations. In July 2016, she was awarded a bonus of €15,000.     In July 2015, she was awarded a bonus of €6,000.

On 27 November 2017, the Complainant met with an external HR Consultant employed on behalf of the Respondent. She was informed her title was being amended to “Head of Operations” and that additional responsibilities would attach to this role. She was told that she would be provided with a formal job description to include KPI’s and new responsibilities. The Complainant noted that she would consider the new position subject to the receipt of the job description and employment package. The Complainant did not receive a job description or KPIs after this date.

On 11 January 2018, the Complainant met with the CEO, and the external HR Consultant to discuss the proposed change of role to “Operations Director”. The CEO provided the Complainant with a draft outline of the “Core R&R” duties and further advised that she would be provided with an official role profile to include KPI’s. The Complainant never received this.

During the meeting the CEO criticised, belittled and demeaned the Complainant in her role as Director of Internal Audit. The CEO stated that the Complainant was “not a good leader” and that she had “complained about not receiving equal pay to other SLT [Senior Leadership Team] members” however, she did not warrant equal pay as she did not “perform as well as them so it shouldn’t be expected”. The CEO further asserted, without basis, that the Complainant was “unpredictable”, that she needed to “speak up for herself” and that other employees agreed with this sentiment although the CEO did not identify who such other employees were or what exactly they said or were alleged to have said. The Complainant had never been subject to any disciplinary proceedings and has excellent feedback and appraisals. At no point were any of these issues put to her in a formal capacity nor sufficient details were provided for the Complainant to respond in accordance with natural justice. Instead, it is quite clear these comments were being used to belittle, humiliate and bully and create a toxic work environment for the Complainant to put up and endure with no redress. It was extremely upsetting for the Complainant and made her feel nervous as to her future.

On 15 January 2018, the CEO informed the Complainant that she was to be segregated from the other SLT members and would be relocated to a desk facing the CEO’s office. This led to the Complainant feeling isolated and the Complainant believed it was so the CEO could monitor her.

On 4 April 2018, an SLT meeting was attended by the CEO and 7 others from the SLT team. The CEO mocked a suggestion the Complainant made at the meeting in front of the 7 others by saying “you do not know what you are at”. The Chief Finance Officer (CFO), criticised the Complainant for not having a particular ISO Transition Project Plan in place. The CEO and the CFO said in front of the entire SLT that it was poor performance on the part of the Complainant not to be prepared to present the Project Plan regardless of the fact that she had no prior notice. The Complainant was extremely stressed and upset following this meeting. Colleagues noted with concern the unreasonable treatment and were concerned for the Complainant.

Following the meeting on 4 April 2018, the CEO invited the Complainant to a one-to-one meeting wherein the CEO criticised the Complainant for not being prepared in the previous meeting and queried why the Complainant’s performance was so poor. The Complainant tried to justify herself but the CEO dismissed the Complainant’s obvious concerns, and said the following words or words to the following effect:

“Why are you here if you do not feel valued. You are a director and should know as to what needs to be done… I do not trust that you are working your requisite hours. You are distractedalthough you only worked on two projects… I am doing you a favourby permitting you to work your agreed contractual hours in the office of 10am to 4:30pm to accommodate for your commute and family arrangements. “

The Complainant indicated that she felt the only option she has was to leave. It was the third meeting in a row where she had been savagely criticised. It was agreed that the meeting would reconvene on the morning of 5 April 2018.

On 5 April 2018, the Complainant met with the CEO and advised that on reflection she did not want to leave her position. The Complainant provided the CEO with a list of duties compiled by the Complainant in response to the CEO’s claims that she was only operating on two projects. The CEO dismissed these other tasks as being “just filler”. The Complainant indicated she had no job description or KPIs for the new role. The CEO continued to criticise the Complainant’s performance and said “I thought I could trust you”. The Complainant questioned as to what she meant. The CEO informed the Complainant that she was “pathetic and childish and that of course it means I do not trust you”. The CEO claimed the Complainant was not completing enough work. The Complainant was told she would now be placed on a Performance Improvement Plan (PIP). The Complainant was shocked at the CEO’s disparaging statements and asked how she could reasonably assert to measure her performance without ever clarifying the Complainant’s current role as ‘Head of Operations’ or ‘Operations Director’ or ’Internal Audit & Operations’. When the Complainant sought to address the statements and inappropriate treatment inflicted during the SLT meeting on 4 April 2018 the CEO responded aggressively stating “oh for God’s sake [Complainant], is this a complaint?”.

On 6 April 2018, upon the CEO’s request, the Complainant provided the CEO with a complete list of all the projects she was instructed on. On 9 April 2018, the CEO emailed the Complainant again criticising the Complainant’s work and said that the Complainant had not completed enough work.  

On 11 April 2018, the CEO met one-to-one with the Complainant. She presented the Complainant with the initial role profile for Director of Internal Audit along with an additional document containing what the Complainant understood to be additional responsibilities. The CEO said the Complainant had been provided with this before but the Complainant had not.

On 12 April 2018, the Complainant went to her GP and was certified as sick due to work related stress and anxiety. The Complainant returned to work on 3 May 2018.

The treatment the Complainant suffered all happened after her return from maternity leave. She had not been treated like that before her maternity leave. The Complainant believes that the CEO had a particular problem with the Complainant’s flexible working hours. It is submitted that treating the Complainant negatively because she had taken maternity leave was discrimination contrary to Section 6 of the Employment Equality Acts.

The Complainant raised a grievance in a letter from her solicitor on 25 April 2018. In it she raised issues of discrimination on the gender ground. She also raised issues of bullying and harassment contrary to the Safety, Health and Welfare at Work Act 2005.

There was considerable delay in investigating the Complainant’s grievance submitted on 25 April 2018.

The Complainant’s solicitor wrote a letter on 22 August 2018 claiming that the actions of the Respondent were unfair and unlawful. The Complainant followed this up with a resignation on 22 August 2018.

By the time the Complainant resigned, her grievance had still had not been investigated. While some delays were excusable such as a failed mediation process, the delays were largely due to the Respondent not knowing what policies existed and not getting terms of reference prepared swiftly. For instance, the Respondent notified the Complainant of the appointment of an investigator on 14 June 2018 but the Complainant was not furnished with terms of reference until 4 July 2018.

It is submitted that the Complainant did her utmost to use internal remedies but was precluded from doing so by the Respondent’s delay in investigating her complaint, by the hostile work environment created by the Respondent and also by the health issues that directly resulted from the Respondent’s adverse treatment of her. As such, it is submitted that the Complainant was entirely reasonable in resigning from her employment in the circumstances of her employer’s unreasonableness.

The Respondent submits as follows:

The Complainant commenced working with the Respondent company in or about August 2009. The Complainant initially held the role of Lettings Agent.   Her annual salary was €27,000.   In August 2011, the Complainant was promoted to the position of Lettings Property Manager on a salary of €32,000.

When the Complainant commenced work with the Respondent company she did not have a Diploma in Property Studies which she needed for the accreditation with the Society for Chartered Surveyors Ireland (“SCSI”). The Respondent company supported her in obtaining this Diploma both financially and by also giving her time off from work. In June 2012 the Complainant completed her diploma at a cost to the Respondent company of approximately €6,000.

In or around March/April 2014 the Complainant was promoted to the position of Director of Lettings & Residential Property. At that time the Complainant’s salary was increased to €47,500.

By December 2014 the Complainant’s salary had increased to €60,000. This promotion and the various salary increases that she received reflect the fact that the Complainant was considered by the Respondent company to be a very good and talented employee.

In June 2015, the Respondent company engaged an external consultant to assist with training and developing the Respondent company’s Senior Leadership Team (SLT). The consultant also carried out a salary benchmarking exercise. A copy of the external consultant’s report was provided to all members of the Respondent company’s SLT who, at that time, included the Complainant (Director of Lettings & Residential Property), the Director of Facilities Management, the Director of IT, the Director of Finance and the then Director of Asset Management who is now Director of Client Services. Each member of the SLT’s role and salary were specifically median tested. The role of the Complainant i.e. Direct or Lettings & Residential Property established a median of €65,300 (the salary range was between €52,240 and €78,360).

In July 2015, the Complainant’s salary was set at €65,000 as a basic salary which was in keeping with the median established by the consultant’s report. The Complainant was also in receipt of a 5% pension contribution.   The Complainant was the only employee who was not required to match the Respondent company’s contribution.   The Complainant was also in receipt of just under €2,000 worth of gym membership and suit allowances/subsidies.   In July of 2015, the Complainant also received a performance bonus of €6,000.

In July 2016, the Complainant’s salary was further increased to €70,000 as a basic salary. This was a significant pay increase a short number of months before the Complainant commenced maternity leave. At that stage the Respondent company was well aware that she was pregnant and due to commence maternity leave shortly. That year, the Complainant also was paid a performance bonus of €15,000. If (as the Complainant alleges) the Respondent was engaged in discrimination against her due to her gender and/or maternity leave it is implausible that the Respondent would have increased her salary and awarded her such a substantial bonus a short number of months before her maternity leave was due to commence.

In October 2016, the Complainant commenced her maternity leave. She returned from maternity leave to work in or around early April 2017.   Throughout the Complainant’s maternity leave she was paid 50% of her salary by the Respondent company. It is noteworthy that the Complainant was the first employee on maternity leave to be paid her salary or a portion of her salary while on maternity leave. It is submitted that it is of great significance that the Complainant received a €3,000 return to work bonus on her return from maternity leave.   This bonus was paid by the Respondent company to encourage the Complainant to return to work after her maternity leave. It is not the action of employer who is accused of gender discrimination to make payments which are not required by law; the payment of a return to work bonus is, in fact, highly unusual in workplaces generally. The Respondent submits that the payment of 50% salary and the return to work bonus does not suggest that the Respondent company was a discriminatory employer.

The Complainant alleges in her written submissions that on her return from maternity leave, she was informed that her position had been made redundant and that the only option available to her was the position of Director of Internal Audit. The Respondent asserts that this is simply incorrect.

In or around the time the Complainant returned from maternity leave, the Complainant had a number of conversations about her role with the Chief Operating Officer. It is undoubtedly the case that while the Complainant was on maternity leave, it became apparent that there was a need for somebody to deal with various compliance matters including ISO accreditations on behalf of the Respondent company. The Complainant was an individual who functioned brilliantly with the Respondent company’s systems and had an engineering mind. It was decided by the Respondent company to create the position of Director of Internal Audit to deal with the compliance and accreditation issues of the Respondent company. The position of Director of Internal Audit was offered to the Complainant by the Chief Operating Officer and was accepted.

The Chief Operating Officer never suggested or advised the Complainant that her role was being made redundant.   On her return from maternity leave, the Complainant could have (if she had wished) returned to the role that she had held prior to commencing maternity leave.   The Respondent company rejects any suggestion the Complainant is making that she had no alternative but to take this new role. Indeed, the Complainant’s email to the Chief Operating Officer of 5 April 2017 clearly indicates that the Complainant was more than willing to accept this new position. The email states inter alia:

“I know you need to crack on and get planning and I have made you wait long enough, I would be happy to accept the position of Director of Internal Audit. I cannot ever refuse a challenge and a change would be good, I hope!

I note that you have advised that the salary would remain the same, for now, but I would like to ensure that I would still retain the same opportunities for salary review, bonus, etc. as my previous role. I would like to have the opportunity for further training in Business Process Management or Six Sigma and Lean Management (or similar) to ensure that I have the proper skills for the role and would be happy to research suitable courses.

Additionally I will not be availing of certain benefits this year, i.e. VHI and gym allowance, so was wondering if there was an option to avail of alternatives? Anyway we can have chat number 3 if that is easier to cover the above!”

The Complainant’s terms and conditions of employment remained the same. However, her job title and job role changed. Any suggestion that the Complainant intends to make that she was unaware of or confused about her new job/position is rejected by the Respondent. It is quite clear that by email dated 4 April 2017 the Chief Operating Officer sent a draft role profile to the Complainant for discussion purposes.

By email dated 7 April 2017 the Respondent Company’s CEO wrote to all members of the company by email.   The email welcomed the Complainant back from maternity leave and also noted “I am very pleased to announce that [the Complainant] has accepted her promotion and will take up a new role in Director of Internal Audit”.

In the Complainant’s written submissions she suggests that her previous role of Director of Lettings & Residential Property was given to [a new colleague]. She submits that he had the same job but a different title i.e. Head of Property. This assertion is yet again simply incorrect. The Head of Property commenced employment with the Respondent company in or around February 2018. At that stage the company had particular needs and plans to expand into the build to let sector. The Head of Property came from [another company] and has particular expertise and experience in the sector. It is accepted that members of the Complainant’s former team when she held the role of Director of Lettings & Residential Property ultimately worked with the Head of Property. However, his position was extremely different to the Complainant’s former position. It is also noteworthy that when the Head of Property commenced working with the Respondent company his starting salary was €72,500. At that point in time the Complainant’s basic salary was €75,000.

The allegation that the Head of Property in some way replaced by the Complainant is not only incorrect, it is also an unfair narrative of events. The Complainant was aware that the Respondent company was recruiting for the role of Head of Property. At no stage did she ask to be considered for this role or apply for same.

The Complainant refers in her written submissions to her uncertainty in her role upon her return from maternity leave. This is somewhat surprising in circumstances where the Complainant made a presentation to the SLT on 29 June 2017 setting out her Business Plan and objectives as Director of Internal Audit.

The Complainant alleges in her written submissions that she was only ever provided with a two day audit training course which was insufficient. The Complainant failed to make any reference to the fact that a consulting company were at all times engaged by the Respondent company to provide support and advice to the Complainant in relation to matters of compliance, audit, ISO and were paid fees of approximately €17,500 to specifically support the Complainant in her role. The Complainant also failed to acknowledge the fact that since the commencement of her employment, the Respondent company had paid just under €8,000 in SCSI related course fees and training, paid professional subscriptions for her of just under €6,000,   covered the cost of [named] software training in London for her in the amount of €1,500 and paid for a 2 day management course with IBEC in the amount of €800. The Respondent company also has a formal Education Support Policy and Training Application Forms. It is the Respondent company’s position that there was ample support available to the Complainant both internally (from the CEO and other members of the SLT) and externally and it was always open to her to request formal educational assistance if she felt it necessary.

One of the most extraordinary assertions made by the Complainant in her written submissions is that she was “required to create a call centre from scratch”. The Respondent company has for many years operated a call centre. It is accepted that, for business needs, the Respondent company was changing the call centre into a contact centre which would be operational 24 hours a day. However, the Respondent company engaged the services of an external consultant in April 2017 to develop the contact centre and work with the relevant internal personnel including the Complainant.

The Complainant also alleges in her written submissions that she was required to create training manuals for a software system that had not been installed or that she had not been given access to. The Respondent is at a loss to understand the specifics of the allegations that are being made. The Respondent used and continued to use [named] software. The Complainant herself was very experienced in using [named] software and, in fact, was referred to internally within the Respondent company as a super-user and was the go-to person within the organisation for queries.   The Complainant may have been asked to produce short user guides for the Yardi software of 3-4 pages – nothing more.

An external HR Consultant was engaged by the Respondent company to engage with and reinvigorate the SLT from in or about October 2017 until December 2017. As part of this exercise, at an SLT meeting on 5 December 2017, each member of the SLT set out, on a board in the room, their own particular roles and responsibilities. The notes from the board were captured and subsequently circulated for review and comment to all members of the SLT. The Complainant did not at that stage identity any gaps in either her capability or training.

The Complainant appears to allege that from in or around late November 2017 onwards, her role and/or title within the Respondent company was changed to Head of Operations/Operations Director. The Respondent asserts that this is not correct.

The external HR consultant had a number of informal conversations with the Complainant about whether the Complainant would have any interest and/or the ability to take on the role of Head of Operations. The Respondent submits that no employee would be offered a role change and/or a new appointment within the Respondent company without the consent of the CEO of the Respondent Company. The Respondent submits that the CEO never offered the Complainant any such role and/or position within the business.

The Complainant appears to allege that on 11 January 2018, she had a meeting during which the CEO criticised, belittled and demeaned her. She also alleges that the CEO suggested that she did not warrant equal pay within the Respondent company. The Respondent submits that the CEO never criticised, belittled or demeaned the Complainant. Furthermore, the Complainant is suggesting that she had raised the issue of pay with the CEO.  The Respondent submits that this is simply incorrect – no issue of pay was raised at all. Therefore, the CEO did not and could not have made the comments about equal pay which are attributed to her by the Complainant in the Complainant’s submissions.   The CEO does however accept that she may well have stated to the Complainant that she needed to “speak up for herself”. This however was a statement made to encourage the Complainant in her role within the Respondent company.

The Complainant alleges that on 15 January 2018, she was segregated from the other SLT members and was relocated to a desk facing the CEO’s office.

The Respondent submits that in or around this time, having had the office refurbished, the CEO decided to move a number of people within the office of the Respondent company. The CEO had noticed that the management personnel sat together in a cluster. She felt that they should sit together with their own team. At that time, the Complainant who was Director of Internal Audit did not have a team reporting in to her. This was no different to her colleagues the HR Managerand the Head of IT who were also members of the SLT. The CEO felt that it was appropriate for the three members of the SLT Team, who did not have teams reporting in to them, to sit close to each other. It is important to note that at no stage during this move were any complaints raised by the Complainant in relation to this move. The Respondent rejects any suggestion that there was some attempt at segregation.

The Respondent submits the CEO suggested and the Complainant accepted a change to the Complainant’s working hours after her maternity leave. The CEO’s intention was to assist the Complainant and to facilitate her in relation to her family life. This suggestion was made by the CEO in January 2018, a number of months after the Complainant returned from her maternity leave. What the CEO suggested was that rather than trying to be in the office from 9.00am to 5.30pm, the Complainant could work from 10.00am to 4.30pm.   This reduction in hours was not accompanied by any diminution in the Complainant’s remuneration package. She was not required to work from home. This reflects the confidence that the CEO had in the Complainant’s ability to carry out her function and role in an efficient manner. The fact is that the CEO, acted at all times in a non-discriminatory manner in relation to the Complainant and her role in the Respondent company.

In or around March 2018, a meeting was arranged with the Complainant. Three other members of the SLT were in attendance at this meeting.   Unfortunately the CEO was absent due to ill health but had asked the Director of Finance, who had recently joined the Respondent’s business and had some background and experience in audit management, to attend in her stead. The subject of the meeting was “ISO Transition Project Plan”. During the meeting a list of items to action was discussed and it was agreed that the Complainant would prepare a project plan.  

Every week there is a SLT meeting. At the meeting each member of the SLT reports on the past week and there is an open discussion between team members in relation to various issues. On or about 4 April 2018, such an SLT meeting took place. When it came around to the Complainant to update on her progress, the Complainant was unable to do so/could not make any report in relation to the work done and/or the work to be carried out in the future. As the Complainant had provided no update at this meeting, the CEO was concerned. She expressed this concern at the meeting but in a respectful way. The Respondent rejects the assertions made about the conduct of that meeting in the Complainant’s submissions. The Director of Finance had met with the Complainant in March 2018 and he also expressed concern about the lack of update and progress provided by the Complainant, particularly in circumstances where a very clear set of actions had been agreed in March. The lack of update from the Complainant was compounded by the fact that the Respondent company was due an audit in the near future and therefore it was concerning that the Director of Internal Audit did not appear to be fully and/or properly engaged in her role.

Following on from the SLT meeting on 4 April 2018, the CEO did have a further meeting with the Complainant which was on a one-to-one basis. The CEO expressed her concerns to the Complainant about her lack of preparation for the SLT meeting and the Complainant’s lack of a report to the SLT.   The Complainant’s written submissions suggest that she was “savagely criticised”. The Respondent submits that this is simply not the case. However, the Complainant did indicate that she thought it would be better for her to resign from her role. She indicated to the CEO that she was struggling to deliver on her role.   The Respondent submits that the CEO dealt with this meeting in a compassionate but professional manner and suggested that the Complainant undertake whatever work was necessary that day but that then the Complainant should go home and consider carefully whether she really wanted to resign and what issues there were and if there were issues that they could be discussed the following day.

The following day, the Complainant met with the CEO again and indicated that she had had a change of heart and did not want to resign and needed to continue working. During the course of the meeting, the CEO explained that she had difficulty in seeing any progress on the deliverables associated with the Complainant’s role. She also indicated that the lack of an update or report at the meeting on 4 April was very disappointing. At no stage in any of the meetings with the Complainant did the CEO unjustifiably criticise the Complainant’s performance in her role.

The CEO wrote to the Complainant by email on 9 April 2018 . Her email set out an account of the concerns raised by the Complainant. In consideration of the matters raised by the Complainant, the CEO set out her views on the current projects and responsibilities that the Complainant had. In light of the conversations and the performance concerns that the CEO had, she indicated that she believed a number of “Next Steps” were required. She stated:

“1. I will provide you with a clearly defined role specification for your role, we will then review this together.

2. We will introduce a Performance Improvement Plan (PIP) to assist you with understanding the specific and measurable requirements of you role and to assist the company with monitoring your delivery of those requirements. As part of the PIP, regular review meetings will be held to ensure progress is made and deliverables are met while also providing you with a regular opportunity to discuss any potential concerns or delays relating to project completion.

3. You have said you do not feel adequately supported in your current role. I have considered this and to address your concerns I am proposing that [the CFO] become your Line Manager. [The CFO] will be heavily involved in company strategies and project work going forward and as such I believe he will be in a strong position to provide guidance and support to you, considering your required deliverables.   This will be discussed in more detail with you when we go through the clearly defined job specification”.

By email dated 9 April 2018, the Complainant responded indicating that she would like to take some time to review the email and that she would respond to the CEO in due course.   The Complainant was absent from work from 13 April 2018 until 3 May 2018. The Complainant provided medical certification indicating that she was suffering from stress and anxiety.

By letter dated 25 April 2018, the Complainant’s solicitors wrote to the Respondent company. In that letter the Complainant's solicitors notified the Respondent company that the letter should be "treated as a formal grievance raised on behalf of our client pursuant to the company's responsibilities under the Safety, Health and Welfare at Work Act 2005, [the Respondent’s] policy on preventing and dealing with work related stress and bullying/harassment at work policy of which there are several breaches as set out in the policy on page 35".

By letter dated 30 April 2018, the Respondent company wrote to the Complainant suggesting the possibility of mediation. The letter went on to state:

"failing mediation and given that your grievance relates, in a large part, to the company's principal, [the CEO], I am of the view that the most appropriate course of action is to have your complaint investigated by an external third party. In that regard, I have retained the services of [an external mediator].   [The external mediator] is someone who has had no previous involvement with [the Respondent company] and is not known to [the CEO]."

By letter dated 30 April 2018, the Complainant’s solicitors wrote back attaching a copy of the bullying/harassment at work policy and indicated that consideration would be given to the option of mediation. The letter also sought information about the external mediator.

By letter dated 1 May 2018, the HR Manager of the Respondent company wrote to the Complainant. In this letter, the HR Manager indicated that she intended to correspond directly with the Complainant and not via her solicitor. This intention in relation to correspondence was due to the fact that the original letter from the Complainant's solicitors was a formal grievance. The professional bio of the external mediator was attached to the letter.

By further letter dated 1 May 2018, the Respondent company indicated that it would aim to facilitate the desk move that was requested by the Complainant's solicitors in their initial letter of grievance in April. The letter indicated that they aimed to facilitate this desk move in advance of the Complainant's return to work on 3 May 2018.

By letter dated 2 May 2018, the Complainant's solicitors responded. In the letter of response the Complainant’s solicitors indicated that they found it extraordinary that there was a suggestion that the Complainant's desk would be relocated within the vicinity of the Finance Director.   The letter further indicated that the Complainant was happy to consider the proposed external mediator as mediator in relation to the grievance.

By letter dated 2 May 2018, the Respondent asked where the Complainant would like to sit in the office and indicated that the appropriate arrangements would be made in advance of the Complainant's return to work on 3 May. The letter further indicated that terms of reference in relation to the mediation would be provided.

By letter dated 2 May 2018, the Complainant’s solicitors indicated that the Complainant would accept the relocation of her desk to a particular position marked out on the office layout which was provided. The letter also further indicated that the Complainant wished for confirmation that she would be entitled to be represented during the mediation process.   The letter further requested confirmation that if the mediation was unsuccessful that the Complainant would follow the formal investigation procedure set out in the bullying/harassment at work policy.

By letter dated 3 May 2018 the HR Manager of the Respondent wrote to the Complainant. She indicated in that letter that she would facilitate an offsite pre-mediation session between the mediator and the parties involved. She indicated that during those individual meetings, the mediator would explain the process and explore the ground rules and seek to sign an agreement to mediate form. The letter noted that while it was not anticipated that a representative would be required to join this pre-mediation session that should this be requested, it would be reviewed by the Respondent company. The letter went on to provide details of the proposed mediation meeting and indicated that should any party require a representative to attend that they could request same in advance and provide details of their nominated representative. The morning of 11 May was proposed for the pre-mediation sessions to take place.

By letter dated 4 May 2018, the HR Manager of the Respondent wrote to the Complainant enclosing a mediation framework proposed by the external mediator.

The preliminary mediation meetings occurred on 11 May 2018. Following that, the mediation meeting took place on 25 May 2018. However, the mediator who was appointed confirmed by email dated 28 May 2018 to the HR Manager at the Respondent company that the mediation process had been inconclusive.

By letter dated 28 May 2018, the Complainant’s solicitors wrote to the Respondent's HR Manager indicating that they required a formal investigation into the Complainant’s grievance as set out in their letter dated 25 April 2018.

By letter dated 30 May 2018, the HR Manager responded in writing confirming that she was in the process of engaging an investigator.

The following day, by letter dated 31 May 2018, the Complainant’s solicitors wrote to the HR Manager stating that they requested a list of proposed persons together with a bio of their respective qualifications for the appointment of the investigator.

By letter dated 13 June 2018, the HR Manager wrote to the Complainant’s solicitors stating inter alia

"[The Respondent company] have engaged [external HR consultants] with the aim of appointing them to conduct an independent, formal investigation. I have attached a brief bio to this letter relating to their proposed independent investigator.

To ensure confidentiality, the investigation will take place off site.   Dates, times and locations will be agreed with all parties in advance and with ample notice, where possible.   In advance of any proceedings, terms of reference will be provided and agreed upon by all parties.

Should you agree, we will formally engage the investigator to commence proceedings next week."

The HR Manager notified the Complainant’s solicitors by letter dated 14 June 2018 that the Respondent company had engaged an external investigator to conduct the formal investigation into the Complainant's complaints.

The Complainant’s solicitors, on behalf of the Complainant, wrote on 14 June 2018 expressing surprise that the Complainant had had no input into the appointment of the investigator. The letter further raised various questions in relation to the Respondent's policies and procedures and asked for a copy of the terms of reference for the proposed investigation and confirmation that the Complainant would be entitled to representation during the process.

The HR Manager asked the Complainant’s solicitors if there was any personal objection to the external investigator other than the fact that they had not agreed his appointment.   She made this enquiry by letter dated 15 June 2018. She also specified in that letter three policies and the initial letter of 25 April 2018 as documents that she intended to provide to the investigator upon the agreement of the Complainant’s solicitors. These documents were attached to the letter of 15 June 2018.

By letter dated 20 June 2018, the Complainant’s solicitors indicated that they had no view of the external investigator as he was not known to the firm. The letter went on to state:

"Please be advised that the grievance policy and procedure referenced in your most recent letter is not familiar to our client. We understand that the company's Health and Safety Statement was updated on 3 January 2018. As such, we require the company strictly adhere to the policies and procedures therein contained.

For ease of reference, we endorse for your attention, a copy of the company's grievance procedure which is contained at Appendix 8 of the company's Health and Safety Statement.

We also requested that the investigator formally investigates our client's complaint pursuant to the company's responsibilities under the Safety, Health and Welfare at Work Act, 2005."

The HR Manager responded by letter dated 22 June 2018. In that letter she confirmed that the external investigator would investigate the complaint pursuant to the company's responsibilities under the 2005 Act.   She also confirmed that the grievance procedure contained at Appendix 8 of the Health and Safety Statement would be utilised for the purposes of the complaint and the investigation.   The letter further noted that the appointed investigator had been tasked with working on the terms of reference for agreement.

Some time passed between the end of June and early July in relation to the draft terms of reference.   On 4 July 2018, the HR Manager confirmed to the appointed investigator that the Respondent company was happy to proceed with the draft terms of reference. In the intervening period, the Complainant instituted a number of claims before the Workplace Relations Commission. Arising out of same, the Respondent company's solicitors wrote on 25 June 2018 and 17 July 2018 to the Complainant’s solicitors.

On 4 July 2018, the investigator sent the draft terms of reference to the relevant parties to review.   It is the Respondent company's understanding that the Complainant’s solicitors responded with proposed amendments by email on 9 July 2018. This email was sent to an address not regularly used by the investigator and was not seen until 11 July 2018 at which point the investigator informed the Respondent company of the proposed changes to the terms of reference. The Respondent company, through its HR Manager confirmed acceptance of the amendments proposed by the Complainant’s solicitors to the terms of reference. This confirmation was provided to the investigator.

By letter dated 24 July 2018, the Complainant’s solicitors wrote to the HR Manager querying the delay in the investigation into the grievance raised by their client.

On 31 July 2018, the investigator confirmed to the HR Manager that both parties i.e. the CEO and the Complainant had accepted the terms of reference and asked if the Respondent company was happy to proceed. The HR Manager confirmed the Respondent company was happy to proceed with the investigation on the same day.

On 1 August 2018, the investigator wrote to the Complainant’s solicitors suggesting meeting dates of 8 and 10 August 2018. The investigator received no response. He wrote again on 21 August 2018 but again received no response.

On 9 August 2018 the Complainant’s solicitors wrote to the HR Manager of the Respondent company.   That letter raised issues inter alia in relation to the Complainant's salary and bonus and queried the basis upon which the company was entitled to place the Complainant on a performance improvement plan.

The HR Manager responded to the queries raised by the Complainant's solicitors on 13 August 2018.

By letter dated 22 August 2018, the Complainant’s solicitors disputed the HR Manager's response and further indicated that due to the company's "undue delay to investigate our client's complaints" that they had advised her of her entitlement to resign.

By email on the same date i.e. 22 August 2018, the Complainant wrote to the Respondent Company indicating that she was resigning from her employment. Her letter stated:

"I am now at a loss as to how this matter can be resolved when I have fully engaged all internal avenues. The company's conduct and calculated delay continues to have a detrimental effect on my health and I cannot tolerate further engagement in this type of correspondence where my health is at risk. In the circumstances, I have no alternative but to resign with immediate effect."

It appears that the Complainant’s decision to resign was based on an alleged delay on the part of the Respondent to investigate her grievance. The suggestion of any alleged delay is rejected in the strongest possible terms by the Respondent.

As can be seen from the chronology set out above, the Respondent was dealing with this issue by way of correspondence on an almost daily basis. An independent mediation process was set up to resolve the matter and when it became apparent that the outcome was inconclusive an independent investigator was appointed. Every query raised by and/or on behalf of the Complainant was answered. The amendments to the Terms of Reference suggested by the Complainant’s solicitors were accepted. When the investigator then attempted to set up meetings his correspondence was ignored by the Complainant’s representatives. However, some three weeks later the Complainant resigned having failed to properly engage in investigation of her grievance.

In a claim of constructive dismissal the burden of proof is on the Complainant to establish that the actions of the Respondent were so unreasonable that she had no option but to resign and/or that a fundamental term in the contract of employment was breached. The Respondent submits that neither test is satisfied in the within proceedings.

Furthermore, the caselaw in this jurisdiction since Conway v Ulster Bank UD 474/1981 makes it clear that where there is a grievance procedure same must be utilised by the employee prior to his/her resignation. Failure by an employee to engage in the grievance procedure will result in his/her claim of constructive dismissal failing. It is submitted that the Complainant failed to engage adequately in the process and decided to resign after being contacted about attending an investigation meeting in relation to her grievances by the Independent Investigator. Neither the Complainant nor her representative responded to the correspondence in relation to the suggested meeting dates.

It is submitted that the Complainant was not constructively dismissed. However, strictly without prejudice to same if it is held that the Complainant was in fact unfairly dismissed it is submitted that Complainant has little if any actual loss. In this regard the Respondent relies on the Complainant’s Linkedin profile. It is clear she commenced employment with a new employer in September 2018. She resigned from the Respondent by letter dated the 22nd August 2018.   The Respondent submits that it is open to question when the Complainant was actually offered this position with the new employer and queries if the job offer was the real reason for her resignation.

Summary of the Direct Evidence of the CEO

In relation to the Complainant’s assertion that she was confused as to what policy was to apply to the investigation of her grievance, the CEO stated the HR function in the Respondent organisation was evolving. A new HR Manager had been appointed in December 2017 and she had been charged with overhauling all HR policies and procedures.

Summary of the Direct Evidence of the Head of HR

The Head of HR joined the Respondent organisation on 1st December 2017.   At the time that the Complainant submitted her grievance, the Head of HR was setting up new procedures. The overhaul of the employee handbook had not been concluded and any confusion about HR policies was unintentional.

As the Complainant is claiming constructive dismissal, the burden of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

““dismissal”, in relation to an employee, means—

(b) 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.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp. It comprises of two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “If the employer is 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 other performance.”

The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

According to the Supreme Court in Berber -v- Dunnes Stores [2009] ELR 61: “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.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment.

It is generally accepted that employees who claim that they have been constructively dismissed must show that they have substantially utilised the grievance procedure before resigning from their employment. Whilst there are exceptions to this, such exceptions are extremely rare.

In the case of Conway v Ulster Bank Ltd (UD 474/1981) the Employment Appeals Tribunal found that: “the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated:

“We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

Desmond Ryan aptly describes the onus on employees in this respect in Redmond on Dismissal Law (2017) at paragraph 19.14: “There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignations. Where grievance procedures exist they should be followed: Conway -v- Ulster Bank Ltd UD474/1981. In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints.’”

In the herein case the Complainant has ascribed her failure to exhaust the internal procedures to two factors – the delay in concluding the investigation and the detriment to her health due to the Respondent’s conduct and calculated delay.

It is clear from the chronology of correspondence as detailed in the Respondent’s submission above that there was ongoing engagement between the parties from the 25th April 2018 when the Complainant’s solicitors submitted a formal grievance on her behalf until the Complainant submitted her resignation on 22nd August 2018. I note that, in her letter of resignation dated 22nd August, the Complainant asserts that she has “fully engaged all internal avenues. The [Respondent’s] conduct and calculated delay continues to have a detrimental effect on my health and I cannot tolerate further engagement in this type of correspondence where my health is at risk. In such circumstances, I have no alternative but to resign with immediate effect”.

I note the Complainant’s position that the absence of agreed documentation delayed the investigation process. I am of the view that this issues was resolved by the parties and that it did not cause an unacceptable delay to the progress of the process.

At the hearing, the Complainant agreed in cross-examination that there was no delay up to the conclusion of the mediation process which occurred on 28 May 2018.

From my examination of the evidence adduced in relation to the exchange of correspondence between the parties, I am of the view that there was no undue delay on the part of the Respondent between 28 May 2018 and 1 August 2018 when the external investigator wrote to the Complainant’s solicitor’s suggesting meeting dates of 8 and 10 August. The investigator did not receive a response from the Complainant’s solicitor so he wrote to them again on 21 August 2018 but received no response.

At the hearing, the Complainant accepted that her solicitor had received the emails of 1st and 21st August 2018 from the external Investigator suggesting meeting dates but that her solicitor did not respond.

It is very surprising, given their lack of response to the external investigator’s attempts to set up meetings, that the Complainant’s solicitors wrote to the Respondent on 22 August 2018 citing, inter alia, the “inordinate and unjustified delay in investigating our client’s complaints, …, collectively amount to a serious repudiation of our client’s contract of employment. In respect of which, we have advised our client of her right to take legal action pursuant to the Unfair Dismissal Acts 1977-2015 and her entitlement to resign in response.”

I find that by resigning prior to the conclusion of the investigation into her grievance, the Complainant did not meet the reasonableness test as set out in Conway that a complainant must first exhaust internal procedures before resigning from their employment.

I note the Complainant’s assertion in her resignation letter that “the [Respondent’s] conduct and calculated delay continues to have a detrimental effect on my health and I cannot tolerate further engagement in this type of correspondence where my health is at risk”. The Complainant had been on sick leave due to work related stress and anxiety from 13th April until 3rd May 2018. She was not on sick leave from work when she resigned. She did not provide any evidence to support her assertion that the Respondent’s conduct had a detrimental effect on her health. I cannot determine, therefore, if the danger to her health was so great that she had no option but to resign her position with the Respondent.

In my deliberations, I must also take into consideration the fact that the Complainant commenced employment with a new employer on 3 September 2018 which was within a very short time of her resignation from her employment with the Respondent on 22 August 2018. I note that the Complainant’s new position was in the same employment sector, and on very similar terms, as her position with the Respondent prior to her resignation.

Having considered the submissions of both parties and all the evidence adduced at the adjudication hearing, I declare that the complaint of alleged unfair dismissal is not well founded

I find that this complaint is not well founded.

Constructive dismissal – did not exhaust internal procedures