Complainant

Respondent

Anonymised Parties

A Former Employer

A Toy Retailer

Representatives

Stephen Brady

Colm Kitson B.L. instructed by Felton McKnight Solicitors

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-00028999-001

12/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030440-001

24/07/2019

The complainant made a complaint of constructive dismissal on 12 June 2019. She made a further complainant under the Terms of Employment (Information) Act 1994 on 24 July 2019. The complainant’s employment stopped on 18 December 2018. The respondent says the complainant resigned voluntarily and the second claim, CA-00030440-001 was made outside the six months’ time limit.

The complainant started working for the respondent on 8 September 2014. She submits that from May/June 2018 her workload began to reduce, and it got worse as the months went on. She asked the Creative Director for more work and found out she was no longer directly involved. She was sometimes given one hours work per week and the work she did was heavily criticised; this is when her confidence started to go downhill.

Also, she was never paid on a set date. These delays caused difficulties with payment of her rent and other bills. In August 2018 she eventually was paid half by cheque and half into her bank account, this did not happen to anyone else.

She was being ignored by one of the Directors and as time went on, she started to fell intimidated and bullied by this. This led to a confrontation in October 2018 about filming in the office.

The complainant had a meeting with the Executive Chairman on 12 November 2018 when she told him about the lack of work she had and the isolation she had felt for the past 6/7 months. They had a discussion about her roles and responsibilities. At the end the Executive Chairman suggested she talk to her partner about her future with the respondent and to let him know in a week.

Subsequently, a colleague came to her saying he was making something up for her to do.

On 14 December she handed in her notice because of the isolation.

The respondent submits that from May 2018 the financial performance of the company resulted in everyone’s workload being reduced, but no staff were impacted in their pay or conditions. The Creative Director was the complainant’s line manager, however, in this period, she reduced her involvement until 10 September when she had no day-to-day involvement. At this point the Executive Chairman assumed responsibility for staff and he was not made aware by the complainant of any problems with her workload or the allocation of work, until their meeting on 12 November.

The respondent acknowledges a delay in paying staff in August 2018 which was caused by a delay in funding and affected all staff the same.

The Director denies allegations of bullying or ignoring the complainant and says she was only in the office once or twice per month.

The Executive Chairman says the meeting on 12 November 2018 was very different to the complainant’s portrayal. After the meeting he worked to increase the complainant’s workload. When the complainant flagged her difficulties and lack of motivation the Executive Chairman suggested she take time to reflect what she wanted from her job and her career and that if the company could not provide what she wanted they would not stand in her way if she wanted to explore opportunities elsewhere. Subsequently, the Executive Chairman asked a colleague to see what work he could give to the complainant.

The respondent was surprised when the complainant resigned. They deny the complainant’s allegations that she was forced to resign and note that she raised no grievances.

CA-00028999-001

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, 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 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[1]. 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.”

In both types of situation, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, 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. In reaching my decision I have taken into account all of the evidence, both written and oral, submitted by the parties.

In relation to the “reasonableness test” the Complainant contends that she was isolated at work by the behaviour of those around her and because she was left with little or no work for a period of seven months. This caused her much stress and left her with no option but to resign.

The Respondent disputes the Complainant’s contention that she was forced to resign. The company was going through a difficult trading period and this was explained to all staff, including the complainant. This caused the work of all staff to be reduced. They also say the complainant did not raise a grievance in accordance with their procedures before she resigned.

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 their employment other than to terminate his or her employment. The notion places a 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 or grievance with their employer.

The Labour Court has held in the case of Emmanuel Ranchin -v- Allianz Worldwide Care S.A.[2] 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 in the case of An Employee v An Employer[3] held 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 her employment other than to terminate his or her employment. In effect the relevant section reverses the burden of proof for an employer set out in section 6(1) of the Act. The notion places a 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 her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

In considering this issue, I am satisfied that the Respondent had an established Grievance and Disciplinary Procedure in place which conforms to the general principles and procedures enunciated in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000[4]. Having regard to the evidence adduced, I find that this policy was brought to the Complainant’s attention in April 2015 and although she could not remember receiving the email informing her of the Employee Handbook I am satisfied that she was made aware of its existence.

In accordance with the established principles in constructive dismissal cases, I am satisfied that there was an obligation on the Complainant to fully exhaust the internal procedures to try and resolve the workplace related grievances which arose during her employment before taking the step to resign from his employment. She raised no grievance in accordance with the respondent’s written procedures.

Having regard to the totality of the evidence adduced, I find that the standard of reasonableness required to substantiate a claim of constructive dismissal, has not been met where the Complainant failed to exhaust the procedures available to her before taking the step to resign, thereby not providing the Respondent with an opportunity to address her grievances.

In relation to the “contract test” the Complainant has made no claims that the Respondent breached her contract of employment, other than delays in pay. Therefore, I find no evidence to suggest that the Respondent was guilty of conduct which amounted to a significant breach going to the root of the contract of employment, or which demonstrated that the Respondent no longer intended to be bound by one or more of the essential terms of the contract.

Having regard to the two tests identified above, I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that she had no option but to resign her position or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract. In the circumstances, I find that the Complainant resigned from her employment of her own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that her complaint cannot succeed.

CA-00030440-001

The complainant made her complainant under the Terms of Employment (Information) Act 1994 on 24 July 2019. Her employment stopped on 18 December 2018. This means that the complaint was made outside the six months’ time limit. She provided “no reasonable case” why the claim was made outside the six months and I, therefore, find it to be out of time.

CA-00028999-001

For the reasons given above, pursuant to Section 8 of the Unfair Dismissals Act 1977, I find that the Complainant resigned from her employment of her own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977 and the complaint is not well-founded.

CA-00030440-001

Having carefully considered all evidence available to me, I find the Complainant failed to submit this complaint within the required time limit and no reasonable cause has been established to enable me to extend the time limit. Therefore, I do not have jurisdiction to hear the case.

Constructive Dismissal – time limits