Complainant

Respondent

Anonymised Parties

An Employee

A Food Company

Representatives

Represented by James Lawless BL instructed by Robert Coonan Solicitors

Represented by IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00029985-001

30/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00029985-002

30/07/2019

The complainant states that she commenced working with the respondent on 14 June 2017. She states that she was not provided with Terms & Conditions of employment. She submits that she was subsequently provided with a set of Terms and Conditions dated 14 January 2018 some one and a half years after she commenced employment. The complainant states that she was employed as a general operative but she found that there were very unsatisfactory work practices within the company. The complainant submits that she was constantly being shouted at and abused by co-workers who were unable to communicate with her properly and she was subject to verbal abuse. The complainant states that she brought these matters to the attention of the HR department on 19 July 2017 where she states that she was tearful and emotional. The complainant states that on at least 3 separate occasions, she was struck by other co-workers namely Z and another employee named J pulled her by the arm. She states that she was also struck on another occasion by a general operative named L and this employee was subsequently forced to apologise to her for such conduct. The complainant also states that she had a workplace accident on the job where her fingers got caught in a machine and she submits that no proper training or instruction was provided by the company in relation to the use of the machine from a health and safety perspective.

The complainant states that on 18 January 2019, she was denied a toilet break. The complainant asserts that in or around 4 January 2019, she was subjected to verbal abuse by a Health & Safety Officer named M who in front of staff referred to her as being untruthful in front of other co-workers where he said she was too small to do her job. The complainant states that on 18 February 2019, a supervisor named Mr. H blocked a doorway and would not allow her to leave the room thereby falsely imprisoning her for a period of time. The complainant also states that the company has a highly unsatisfactory culture within the organisation of systemic bullying and that staff did not have adequate training to deal with the concerns of employees such as the complainant.

The complainant states that she found working for the respondent very stressful and difficult. She states that events which took place on 18 February 2019 were a culmination of events over a sustained period of time and which resulted in the complainant having no other option but to leave her employment for the good of her health. The complainant states that she had to attend her local doctor on account of the stress caused whilst working for the respondent.  

The respondent states that the complainant commenced employment with the company on 14 June 2017 on a fixed term basis as a general operative within the High-Risk facility. The complainant was subsequently issued with a permanent contract of employment in January 2019. The respondent states that the complainant was employed on a contract of 36 hours per week. It states that the complainant resigned from her position by e-mail on 19 February 2019 having just completed 20 months service.

The respondent submits that shortly after the complainant commenced employment in July 2017, Ms. O (HR Manager) witnessed her leaving the workspace looking quite upset. Ms. O invited her into a meeting room to ensure that the complainant was okay. The respondent asserts that the complainant highlighted that she was uncomfortable working with the “foreigners” who did not speak English as she felt that they were shouting at her and talking about her. Ms. O explained that the respondent has a very diverse workforce and that English lessons were being provided to employees whose first language was not English, in order to improve communication levels on the production floor. The respondent contends that Ms. O asked the complainant which steps she would prefer to take next and set out that there were two options that the complainant could take an informal approach or could choose to raise the issue formally through the grievance procedure and have the matter investigated. The respondent submits that the complainant declined Ms. O’s offer to avail of the grievance procedure.

The respondent maintains that in line with best practice, the HR department e-mailed all employees a copy of the Dignity at Work policy in August 2017 and in September 2018 and the company refreshed the employee noticeboards and televisions with the policy. The noticeboard is located beside the employee entrance whilst the television is displayed in the canteen. The respondent states that for the next year and a half, the complainant worked without incident.

On 23 January 2019, the complainant was involved in a road traffic incident. This incident was not work related but led to the complainant’s absence from work. The respondent asserts that a card was circulated amongst all employees on the complainant’s production line to wish her a speedy recovery and subsequently posted to the complainant’s house. Ms. B, Head of HR, separately sent the complainant a text message offering to help her if she needed anything. The respondent submits that the complainant remained on certified sick leave from 23 January 2019 until her return to work on 1 February 2019. The respondent contends that two weeks after her return from sick leave on 18 February 2019, the complainant was working on the production line when she requested a break from Mr. S, Team Leader to use the toilet. Due to the nature of the work, it is company practice that another employee must substitute when an employee needs to leave the production line.

Mr. S attempted to find another employee, however before he could do so, the complainant walked off the production line which in itself is a serious offence, particularly in a meat plant with perishable product and met with Mr. G, Supervisor. The complainant stated that Mr. S was being rude and would not allow her to go to the toilet. Mr. G asked Mr. H, Shift Manager to intervene. Mr. H brought Mr. S and the complainant to the office to discuss the issue. The complainant argued that she was being discriminated against as she was not allowed to go to the toilet, yet the rest of the team could go when they wanted to. Mr. S denied this and explained that he had asked the complainant to wait whilst he found someone to replace her. The respondent submits that the complainant disagreed shouting “All of the foreigners are picking on me”. Mr. H then asked Mr. S to return to work while he tried to reason with the complainant. The respondent states that Mr. H asked the complainant to sit down and discuss the matter but the complainant refused stating that she had enough and she left the office. The respondent contends that Mr. H phoned Ms. D, HR Administrator to inform her about what had just occurred. Ms. D met with the complainant in the changing room. The complainant was angry and upset as she emptied her locker. The respondent submits that Ms. D asked the complainant to speak with her before she left. They went to a meeting room where Ms. D expressed concern and asked for an account of what had happened on the production line. The respondent states that the complainant explained that she was “sick of it” and “sick of them”. However, when Ms. D asked who the complainant meant by “them”, she refused to provide names. The respondent maintains that Ms. D explained that she needed an honest account from the complainant including a list of names so that she could resolve the issue. The complainant ignored this and re-stated that she was “sick of them” and that “they” were taking about her.

The respondent states that Ms. D asked the complainant how she knew that they were talking about her to which she replied, “I’m not stupid”. Ms. D asked the complainant whether anyone else had witnessed this alleged behaviour. The respondent asserts that at this point, the complainant became very agitated stating that it was too late now as she was done with the company as she left the meeting room essentially resigning from her position. The respondent contends that Ms. D then went to find another member of the HR department but the office was empty. Ms. D tried to catch up with the complainant but by this point she had cleared her locker and left. The respondent submits that on 19 February 2019, the complainant e-mailed the HR department and stated that “due to the circumstances that I had to endure yesterday in the workplace, I am mentally not fit to return to work”. Ms. O, HR Manager replied to the complainant and stated that she was delighted she had changed her mind about her resignation and wished to remain employed. Ms. O advised the complainant of the grievance procedure, attaching a copy to the e-mail and invited the complainant to a meeting with her and noted that the company would like to send her to the Company doctor and to the Health and Safety Officer. The respondent contends that Ms. O wished the complainant well and stated that she hoped to resolve the issues as soon as possible and reiterated the company grievance procedure.

The respondent submits that the complainant replied to this e-mail and stated that this was the third time that she had been “up with HR with more or less the same issues”. The respondent asserts that the complainant stated that she had no option but to “dismiss” herself for her own well being stating that being ignored when requesting a toilet break was disrespectful. The respondent states that Ms. O replied to this e-mail and requested that the complainant reconsider her resignation. Ms. O also noted that she was unaware of the true nature of the situation as the complainant had still not submitted a grievance. The respondent contends that the complainant responded to this e-mail stating that she had encountered physical abuse and had been shouted at in a non-English language. The complainant stated that she felt intimidated on a regular basis and that the workplace was not a healthy environment. The complainant also alleged that she was held in a small room when she asked to leave. The respondent states that on 22 February 2019, the complainant requested a letter from the respondent for the social welfare department stating that she ceased employment on 19 February 2019.

In summary, the respondent states that it has a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000). The respondent contends that in advance of the complainant furnishing her resignation, she should have notified the respondent of any concerns she may have had in relation to her employment and utilised internal procedures to resolve any grievance which she failed to do. The respondent maintains that the complainant acted in a hasty and unreasonable manner by resigning from her position before notifying the respondent of her concerns and in advance of exhausting internal procedures. The respondent states that it requested the complainant to submit a formal complaint which would allow for an investigation to take place in line with the company’s grievance policy but the complainant refused to do so. The respondent states that the complainant did not give it an opportunity to work with her to resolve any outstanding concerns as she resigned from her employment before highlighting the true nature of the grievance to the respondent. The respondent submits that it attempted to communicate with the complainant on several occasions and requested that she reconsider her resignation. However, it states that the complainant did not engage with the respondent throughout this process other than to request a letter so as to obtain social welfare. The respondent submits that the complainant was unreasonable in resigning before engaging with the respondent to address any outstanding complaints. It states that the complainant failed to exhaust internal procedures, a fact which is well established to be fatal to a claim for constructive dismissal and cites the caselaw in Conway V Ulster Bank in this regard.

The respondent asserts that it supported the complainant during her time working for the company, in that, the complainant was driven home by the HR Administrator when she was sick and was sent get well cards and texts when involved in a road traffic accident. The respondent also states that the complainant enjoyed a number of nights out with the company and it was sad to see the complainant resign and made a number of attempts to encourage her to change her mind.

In relation to the complainant’s claim in respect of the Terms of Employment (Information) Act, the respondent submits that it issued the complainant with two contracts of employment, one when she joined as a fixed-term worker and the second when she was given a permanent employment contract. The respondent states that the contracts outlined all the terms and conditions of employment and were signed by management. The respondent restates that it complied with the legislation, in that, the contracts and policies were signed by or on behalf of the respondent and provided to the complainant in multiple forms.  

Terms of Employment (Information) Act, 1994 - CA-00029985-001

While the complainant has argued that she did not receive Terms and Conditions of Employment until a year and a half into her employment, I note from the documentation submitted at hearing that the complainant was issued with 2 contracts of employment, one dated August 2017 when she joined the company as a fixed term worker and the second dated January 2019 when she was given a permanent contract. In the circumstances therefore, there is no breach of the above legislation and therefore this complaint is not well-founded.

Unfair Dismissals Act 1977 - CA-00029985-002

As the complainant is alleging constructive dismissal, the fact of dismissal is in dispute and the onus of proof rests with the complainant to establish facts to prove that the actions of the respondent were such as to justify her terminating her employment. Section 1 of the Unfair Dismissal’s Act defines constructive dismissal as “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 the 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”. Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his position, often referred to as the “contract test”. This requires that an employer be “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 further performance” as held in Western Excavating (ECC) Ltd. v Sharp [1978] IRL 332.

Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so she is justified in leaving. The question for me to decide is whether, because of the conduct of the respondent, the complainant was or would have been entitled, or it was or would have been reasonable for her to terminate the contract of employment. As outlined above, the caselaw overwhelmingly confirms that save for exceptional situations, an employee must have firstly exhausted all alternative avenues before tendering a resignation.

In all of the circumstances of this complaint, I prefer the evidence given on behalf of the witnesses for the respondent as I found their testimony more cogent and convincing.   Based on the evidence heard, I am satisfied that the complainant had vented her frustration in relation to dealing with other staff members, in that she stated that she found it difficult working with the non-Irish nationals but when asked by HR if she wanted to make a formal complaint, she was reluctant to raise any official complaint. I am cognisant that the respondent gave testimony at hearing that it has a very diverse workforce and that English lessons are provided to employees whose first language was not English so as to improve communication levels on the production floor. I note that the respondent has a comprehensive Dignity at Work policy and grievance procedure and these documents were e-mailed to employees in August 2017 and re-sent in September 2018. I note that the complainant received training on manual handling and health and safety requirements. I note that the respondent states that the first time it had sight of the specifics of the complainant’s grievances was in the complaint form submitted to the WRC. The respondent submitted that the complainant did not afford the respondent the opportunity to investigate the matter and exhaust internal grievance procedures. I am satisfied that the complainant has not established that the respondent’s behaviour was such that it amounted to a significant breach going to the root of the contract of employment or which indicated that the respondent no longer intended to be bound by one or more of the essential terms of the contract such that the complainant was entitled to treat herself as discharged from any other performance. I am also satisfied that the complainant has failed to establish that the respondent’s conduct was so unreasonable that she was justified in leaving her employment.

The requirement to substantially utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd. (UD474/1981) whereby the EAT said 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 EAT 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.”

In all of the circumstances of this complaint, I find that the complainant did not act reasonably in resigning her employment prior to raising a grievance in line with the company’s grievance policy and affording the respondent an opportunity to respond to her complaints/grievances. Accordingly, the complainant fails in her claim of constructive dismissal.

Terms of Employment (Information) Act, 1994 - CA-00029985-001

Having considered this complaint, I find that this claim is not well-founded as the complainant was issued with 2 contracts of employment, one when she joined the company as a fixed term worker and the second when she was given permanent employee status.

Unfair Dismissals Act 1977 - CA-00029985-002

Having considered this claim, I find that the complainant’s claim of constructive dismissal is not well-founded.

Constructive dismissal, contract of employment