Complainant

Respondent

Anonymised Parties

A Superintendent

A Charitable Organisation

Representatives

Mr. Anthony Slein B.L., instructed by Sean Ormonde Solicitors

Heffernan Foskin Solicitors & Notaries

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-00022108-001

24/09/2018

The Complainant commenced employment with the Respondent on 1 February 2011 in the position of Superintendent and claims constructive dismissal by the Respondent on 31 May 2018. He was paid €596.15 gross per week. The Respondent refutes the claim made and said he resigned without raising any grievance with it.

The following is a summary of the Complainant’s case.

The Complainant claims that he was never given any written terms of employment during his tenure, there was a grievance procedure, but it was not implemented. His duties of employment included regulatory and legislative compliance, secretary to the board, financial management and property management.

The Complainant claims that in early January 2018 that he noted that a payment in the form of a salary of €6,000 was being paid to Mr. A, who was Master and Registered Provider of the Respondent, since November 2012. He said the payment was not in compliance with the code of governance for charities/voluntary bodies. He brought his finding to the attention of the Chairman of the Finance and Audit Committee, Mr. B, who said he would speak with Mr. A.

At the monthly meeting of trustees on 5 February 2018 and after considering advice it was deemed that the payment was illegal and the payment from that point ceased. The Complainant said that he noted an absence of contact from Mr. A from that point onwards. He said that Mr. A failed to visit his office to discuss the agenda for the monthly meeting on 5 March 2018, as he would normally do. He said that he tried to contact him by phone a number of times, but he said that Mr. A refused to communicate with him. He said that he had to revert to email to prepare for the meeting and deal with pressing matters.

The Complainant said that on the night of 17 March 2018 he got a call from Ms. C in the Respondent’s premises to report a trespass by an intruder. The Complainant went to assess the situation and they met with the Garda Siochana on site. They viewed the CCTV, assessed the risk and determined that there was no further risk. The Complainant said that since he was satisfied that there was no further risk, he did not feel that it was necessary to urgently inform Mr. A.

The Complainant said that a trustees’ meeting was held on 22 March, where Mr. A had informed the Complainant about an hour before the meeting that he would not be in attendance. The Complainant said that he briefed the trustees on the trespass at the meeting and they were satisfied with his actions and they approved a quotation for additional security measures as was recommended by the Complainant.

The Complainant noted that Mr. A did not make any contact with him until 11 am on 27 March 2018 when a meeting was arranged to discuss another matter. The Complainant said that in advance of the meeting he and Ms. C met with Mr. A, who went on a tirade of abuse and foul language aimed at them for the manner of how they managed the trespass. The Complainant said that Mr. A directed a litany of foul language and uncontrolled shouting and anger mainly at him. He said that he was visibly shaken and had to leave. He felt intimidated, humiliated and degraded by the outburst in front of another colleague who witnessed the entire event. The Complainant said that the chairman visited his office later and said that he told Mr. A that he had ‘gone too far’ and that “Mr. A has said that his actions ‘had nothing to do with money’(sic)”.

The Complainant said that Mr. A organised an important meeting that directly clashed with a time that the Complainant had a regular weekly engagement. The Complainant was advised of the meeting from Ms. C and not directly himself. He claims that this was a contrived effort to exclude the Complainant further. He said after the meeting, he received an email from Mr. A instructing him to place the trespass incident at item 1 of the agenda for the monthly meeting of trustees on 9 April 2018.

The Complainant said that the exclusion, abuse and humiliation he was subjected to by Mr. A at that juncture caused him to view the relationship of trust and confidence between him and the Respondent as irretrievably damaged. He said that he could not reasonably continue, and he emailed the trustees that he was unable to continue and that he tendered his resignation for a months’ time - 30 April 2018. He outlined the significant work that needed to be completed and was willing to complete this for the good of the Charity. The Complainant said that the time limit was extended for a further month as the Respondent had failed to recruit a replacement in a timely fashion. He said that the stress suffered during that time was “unimaginable but was endured for the sake of the Charity”.

Th Complainant said that having sent his email on 30 March, he received a visit by Mr. A who apologised for his actions. The Complainant said that he accepted the apology but felt that it was insufficient to repair the harm caused. The Complainant said that Mr. A did not offer him to stay or offer any constructive steps to be taken.

The Complainant said that in the trustees’ meeting of 9 April the trespass issue was raised and one of the trustees who was readily in support of Mr. A, repeatedly questioned the Complainant as to why he had not informed Mr. A of the incident and even suggested that he should apologise to Mr. A. Other trustees asked the Complainant to reconsider his resignation and stay on in his role. The Complainant said that in light of the further attack on his integrity he could not see how he could withdraw his resignation.

On 23 April, the Complainant said that the annual general meeting of the board of trustees was convened and again Mr. A failed to meet with him in advance. He said that other letters of resignation of two trustees were circulated to the members at the meeting. However, the Complainant was not given sight of those letters even when he asked to see them. He said he was asked to leave the meeting while they were being discussed. The Complainant said that he subsequently got a copy of the letters and both resignations were directly as a consequence of Mr. A’s treatment of him and Ms. C in relation to the trespass incident. The Complainant said that he spoke to trustees of the board on 28 and 29 May to express the reasons for his resignation, he said they invited him to reconsider but did little else to address the maltreatment by Mr. A.

The Complainant said that the final letter he issued on 31 May 2018 indicated that the verbal abuse that he was subjected to by Mr. A on 27 March 2018 was the reason he would no longer work for the Respondent. He said that he indicated that he would be taking a complaint of constructive dismissal against the Respondent.

The Legal submissions

The Complainant highlighted the two tests, as set out in An Employer v. A Worker (Mr. O)(No. 2) [EED0410], that he is required to meet to satisfy a claim for constructive dismissal. He said that he determines that he had met that requirement as he had demonstrated that his employer acted so unreasonably that he could not be expected to remain in his employment or that there is such a fundamental breach of the contract that he was entitled to treat his contract as terminated.

The Complainant also referred to the decision in Berber v Dunnes Stores Ltd [2009] IESC 10 and in McCallion v D&M Environmental Services Ltd UD616/2015 in relation to the behaviour of the employer. The Complainant said that once he disclosed the illegal payment to Mr. A he was subjected to degrading and hostile treatment at the hands of Mr. A. He said after the initial outburst from Mr. A, the Complainant failed to maintain the trust and confidence of the full board of trustees. His position within the Respondent was minimised, Mr. A refusing to engage with him, and after oppressively questioning him in front of his peers the Complainant felt he had no other choice but to resign. The Complainant said that no steps were taking to improve the situation and no employee could be expected to continue in those circumstances.

The following is a summary of the Respondent’s evidence.

The Respondent acknowledges that the Complainant was employed by it as a Superintendent from February 2011 until his resignation as of 31 May 2018. It disputes the claim that the Complainant was constructively dismissed.

The Respondent said that the Complainant was responsible for HR administration and was fully aware of its grievance and disciplinary procedures. It said that it would have expected that had the Complainant a grievance with the Respondent that it would have been addressed via the procedures. However, no such grievance was ever raised. It said that the Complainant chose to leave of his own accord and there was no constructive dismissal.

The Respondent accepts that the Complainant raised a concern over an annual payment being made to Mr. A and advice was received on that. The Respondent said that the payment was not illegal, as suggested now by the Complainant. Notwithstanding when the decision was made to cease the payment it did not in any way change Mr. A’s working relationship with the Complainant as was suggested.

The Respondent makes reference to a claim made by the Complainant that at an annual dinner Mr. A, as Master, in his speech made a presentation to a voluntary nurse working in the organisation. The Complainant took issue that he was not mentioned in the speech, whereas Mr. A said no one else was individually thanked, it was not the norm at those type of events. Mr. A said when another trustee close to the Complainant offered his thanks to the Complainant, which was unusual in the circumstances Mr. A joined in with the sentiment. Mr. A said that there were no issues between them and they sat next to each other for the evening.

The Respondent said that the Complainant’s evidence suggests that Mr. A was ignoring and/or not available to him at different times and prior to meetings. The Respondent said that Mr. A holds a voluntary position with the Respondent and has other employment commitments where he is often unavailable for several days at a time when his other employment requires of it. There is no specific need for the Complainant to meet with Mr. A in advance of trustees’ meetings to prepare agendas. Should Mr. A have something to add to the agenda he would be in contact with the Complainant otherwise it was not necessary.

The Respondent said that Mr. A, as Master within the organisation, was not informed of the break in, which had substantial and far reaching repercussions, which as Master and Registered Provider of the Respondent, he was responsible for. Mr. A said that he learned of this significant event elsewhere. The Complainant never reported it to him and he was not satisfied with how the whole matter was addressed. Mr. A said he did meet with both the Complainant and Ms. C on 27 March, some ten days after the break in, and accepts he remonstrated with both and used “choice language” and that the Complainant left.

The Respondent said, in response to the Complainant’s claim that Mr. A organised a meeting on 2 April with important stakeholders knowing that it would cause the Complainant a difficulty, that it was the other stakeholders who had arranged the meeting and not him. It was a vital meeting for the ongoing development of works within the organisation. Also, the Respondent said that there was no engagement preventing his attendance.

The Respondent said, in response that the Complainant’s claim that the trigger to force him to resign was Mr. A’s continued insistence that the trespass matter continually emerged and was put to him, that the matter was not dealt with in the proper forum and was the trustees monthly meeting and that is why Mr. A asked it to be placed on the agenda. The Respondent said there were substantial matters for the organisation to address. Whereas, the Respondent said that the Complainant was claiming that the matter had been sorted. Mr. A felt it had not been sorted and he was entitled as Master that all matters were addressed appropriately.

The Respondent totally refutes that it did not approach the Complainant and ask him to withdraw his resignation. It said the Board, including Mr. A asked the Complainant to reconsider his position and stay on a number of times. The Respondent said that the Complainant remained working with it for two months after he announced his resignation. No reason was given as to why he was leaving his position in that time. No grounds were presented in his letter of resignation. The Respondent said that it is settled law that the Complainant should have invoked the internal grievance procedures if he had a grievance, and that grievance was the reason for him leaving, prior to him resigning and now making a claim of constructive dismissal.

The Respondent said that the Complainant is framing a constructive dismissal on the basis of a once off incident between Mr. A and himself. Mr. A did vent his views in strong language to both Ms. C and the Complainant but later went to both and apologised. It said that the Complainant accepted this apology.

The Law

Section 1 of the Unfair dismissal act defines “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 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:

In order to rely upon the provisions of Section 1(b) the Complainant must establish, in the first instance, that there was a termination of his contract of employment. It was not in dispute that the Complainant resigned from his position as of 31 May 2018.

The Complainant is claiming that he was constructively dismissed from his position as superintendent with the Respondent.

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

The appropriate 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 [1978] 1 All E.R. 713. It comprises of two tests, often referred to as the ‘contract test’ and the ‘reasonableness test’. 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] E.L.R. 61, it 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.”

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 his contract of employment.

The Complainant claims that his relationship with Mr. A and the Respondent generally had broken down beyond repair, it was well aware of the situation and no constructive steps were put in place to resolve the relationship. The Complainant claims that this originates from him identifying the ‘illegal’ payments to Mr. A, that there was a change in how he was dealt with thereafter and furore following the break-in, the verbal attack from Mr. A and constantly bringing this matter up, that his position became untenable and he was left with no alternative but to resign from his employment.

The Respondent disputes the claim of constructive dismissal. It said that it was dealing with a serious matter for the organisation, as the Respondent, and in particular Mr. A, as Master, has overall responsibility and a duty of care to its staff and vulnerable clients. Mr. A was not happy that all matters were satisfactorily closed off appropriately. It is obvious that the Complainant held a different view. I note that Mr. A held the Complainant and Ms. C to account and lost his cool with them using inappropriate language. However, I note that he since went to the Complainant’s office and apologised and that seems to have been accepted.

The Complainant paints a picture that the atmosphere around his working environment had changed for the worst, that his relationship with Mr. A had broken down without the possibility of repair. He had been undermined. The continuous dragging up of the break in and him having to defend his actions were the final straw that forced him to resign. He was critical that the Respondent did nothing to address this in a constructive manner. I note that he resigned his position on 30 March and continued to work there for two months. He claims that he did this to complete his necessary tasks and for the sake of the charity.

I fully accept that he felt undermined. However, he did not raise a grievance on the matter. It can be seen that Mr. A wished that issue relating to the break in was dealt with by the formal and what he deemed the appropriate channels. Rather than informally deeming the matter as sorted. To me that should have reminded the Complainant that it would appear to be the Respondent’s modus operandi and that maybe has to be cautiously officious bearing in mind the responsibility it holds.

I note that Mr. A accepts that he crossed boundaries with the Complainant, and he went to the Complainant and apologised. I heard that was accepted. I have heard and seen that the board and Mr. A had asked him to reconsider his resignation, on a number of occasions.

Taking the previous two paragraphs together, it is clear that there was an issue, Mr. A apologised and the Complainant accepted that apology. The question is, had that apology solved the indifference between them. Only the Complainant can unequivocally determine that. He felt that it had not and still deemed that he was forced out. However, he never formally raised his grievance with the Respondent. Therefore, the reason for the Complainant leaving was not raised until the day he left employment. Although, in hindsight, it may be clear that him leaving was connected to the matters that evolved over the past number of months, but the exact nature was not formally raised with his employer, so that they could address it.

It is well established that in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of his employment other than to terminate his or her employment. The notion places a very high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his grievance with his employers.

The Labour Court has held in the case of Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] that: “In constructive dismissal cases, the Court must examine the conduct of both 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 Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of Travers v MBNA Ireland Ltd [UD720/2006] that: “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”.

In accordance with the established principles in constructive dismissal cases, I am satisfied that there was an obligation on the Complainant to activate the internal procedures before taking the step to resign from his employment. Based on the evidence adduced, I do not accept that the Complainant sought a resolution via the formal route, that he is obliged to follow.

In the circumstances, I find that the Complainant has not established that he gave the Respondent an opportunity to address his concerns before taking the decision to resign. Accordingly, I find that the Complainant was not constructively dismissed from his employment.

I find that the Complainant’s case is not well founded. He has not established a case that he had no option but to resign his position. Accordingly, I find that the Complainant was not constructively dismissed.  

Unfair Dismissals Acts - not well founded - not constructively dismissed