Complainant

Respondent

Anonymised Parties

An Outreach Development Worker

A Community Organisation

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-00029865-001

24/07/2019

The issues in contention concern the alleged Constructive Unfair Dismissal of an Outreach Development Worker by a Community Organisation.

The Complainant submitted a detailed written submission supported by a verbal presentation.

The Complainant began work with the Organisation in 2006. Her immediate Manager (Ms.X) was appointed in April 2012. The working relationship between both Parties proved difficult. In July 2012 the Complainant made a first formal complaint against Ms.X. This pattern was followed and in January 2018 the Complainant met with members of the Organisation’s Board to discuss concerns she had regarding Ms.X. This all proved most unsatisfactory for the Complainant. A further meeting with Board members took place in late December 2018. Since the appointment of Ms X in 2012 a culture of Bullying and Harassment of the Complainant had developed to such an extent that the Complainant’s mental and general health had deteriorated dramatically. Work for her had become a daily torture instead of the pleasure it had always been prior to 2012.

She had a number of periods of Sick leave during 2018 and a minor hospital procedure during January 2019. On her return from work on the 18/01/2019 things had not changed for her and she felt that she had been left with no option but to resign which she did on the 21st January 2019.

Her working conditions had been made intolerable for her by Ms.X. The Employer was clearly in breach of a contractual statutory duty of care to an employee and guilty of intolerable behaviour. On both grounds a case for Constructive Dismissal is well founded.

The Respondent submitted a detailed written submission supported by a verbal presentation. In essence their position was that they had acted very reasonably at all times (over a considerable period of time but especially during 2018/2019) towards the Complainant. They had facilitated considerable time off for sick absences and personal issues. Special time off was also given to the Complainant to attend counselling sessions. Any meetings by her Manager with the Complainant were perfectly normal HR Support and Supervision meetings and not in any way out of the ordinary. Not in the remotest way could the Employer behaviours be described as Unreasonable and there was clearly no Breach of Employment contract involved.

By contrast the Complainant had breached the rules of the Sick Pay scheme on a number of occasions and had become difficult and aggressive with her fellow colleagues.

Her Resignation on the 21st January 2019 was entirely of her own volition. The Respondent was at the time trying to organise a top-level meeting with her to discuss issues. She was a valued employee of long standing and very skilled at her difficult work.

At no stage during 2018/2019 did the Complainant ever make a formal Grievance application although she was very familiar with the relevant procedures.

In supporting Legal arguments, the Respondent pointed to the two Constructive Dismissal tests of Unreasonable Behaviour and Contract. The Complainant did not satisfy either test. In addition, she had not lodged a formal grievance – a step which is also well advised in an Employment context.

Accordingly, the case for Constructive Dismissal must be deemed not to be Not Well Founded.

3:1       The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 “For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

“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,…”

As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructivedismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, 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 Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“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 employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, a certain degree of Legal caution is required here.

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

“the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.

In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a Constructive Dismissal.

However, Legal precedents notwithstanding, all cases rest on their own facts and evidence and I will consider these below.

3:2         Consideration of the Evidence presented.

To consider the evidence I will use as a guide line the Two “Test” referred to above -i.e.

·         Breach of Contract

·         Unreasonable Behaviour

The question of the Use/Non-Use of Employment procedures will also be touched upon.

3:2:1     Breach of Contract

As referred to in the Legal section above the Breach of Contract to satisfy a claim for Constructive Dismissal must be really serious and go to the very heart of the Contract of Employment.

In this case the Complainant position was that a fundamental Contractual failure had occurred on the Employer’s side in that they had allowed a culture of Bullying and Harassment of the Complainant by Ms.X to take root. This had developed and worsened to such an extent that the Complainant’s heath had failed. This was a major Breach of the Duty of Care implied in any Contract of Employment.

Having reviewed the written evidence and heard the oral evidence of the parties I failed to come to this conclusion. The working relationship between Ms. X and the Complainant had certainly hit a “rocky patch” in the 2016 to 2018 period but at all times the Respondent had sought to assist the Complainant via Counselling, Special Courses and Time Off. The oral evidence of other Managers was useful here in supporting this view. The Respondent had always tried to be of assistance to the Complainant. I failed to see comprehensive evidence of a sustained campaign of Bullying of the Complainant by Ms.X.

Taking the overall picture, I could not see how the Contract had been breached to the extent necessary to justify a Constructive Dismissal claim.

3:2:2         Unreasonable Behaviour.

In considering this aspect of the case it is important to note the general background the Parties operated in. This was a Community Development organisation in a very challenging local environment and a high degree of flexibility in normal HR rules and Regulations might be justified.

However, this does not mean that a degree of normal management control is not warranted and issue such as sick pay rules can be ignored. The evidence pointed to an initial high degree of interaction with Ms. X in 2012 but this had receded until 2018 when the Complainant had several bouts of Sick leave and significant absences.

The meetings and interactions between the parties during in 2018, as stated in the evidence, did not in my view display a degree of Unreasonableness such as to comprehensively support a Constructive Dismissal claim. In fact, the reverse appeared to be the case with a considerable amount of management time given to the Complainant and efforts to seek a constructive outcome to her difficulties. It was important to note that some of these difficulties were not directly job related but were very serious for the Complainant and would have had to impact on her work.

I did not find that there was Unreasonable Behaviour of the degree required, i.e. so bad as to make life impossible for the Complainant, to support a Constructive Dismissal complaint.

3:2:3       Use / Non-Use of Procedures.

The Complainant resigned on the 21st January 2019. At this time, she had to have been aware that the Board of the organisation was attempting to set up a meeting for her with a Board Member well qualified in Counselling and Work-related issues. Even accepting the view, allegedly derived from earlier meetings, that the Complainant felt that “the dice were loaded against her” resigning against this background was not conducive to a strong Constructive Dismissal claim.

The Respondent had clear procedures set out in a handbook and the Complainant had utilised these before in her initial complaint in 2012 against Ms. X.

To not utilise these Procedures now was ill advised.

As an observation from the Oral evidence it was clear that Ms. X did not delay in accepting the Resignation. There was an argument that the acceptance was hasty, and the Complainant might have been offered a “Cooling off period”. However, in her own oral evidence the Complainant was clear that her decision had been considered and thought through.

On balance, considering the Employment Procedures arguments, I had to find that the Complainant had not properly availed of all Grievance/Disciplinary Procedures options open to her prior to a Resignation.

3:3       Final Conclusions

Having heard all the Oral evidence and reflected on the written evidence I came to the conclusion that the Complainant did not satisfy the Constructive Dismissal tests and was not helpful to her case as regards utilising the Employment procedures.

Accordingly, the Complaint is Not Well Founded and fails.