ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00024101

Parties:

Complaint(s):

Date of Adjudication Hearing: 21/11/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with section 41 of The Work Place Relations Act, 2015 and section 8 of the Unfair Dismissal Act 1997 – 2015, following the referral of the complaints to me the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

This complaint refers to an allegation of constructive dismissal due to the alleged failure of the Respondent to deal effectively with the Complainant’s grievance regarding a complaint of bullying behaviour. The Respondent denied it had unreasonably treated the Complainant.

The Complainant submitted that she had made three complaints, two under the Industrial Relations Act relating to the handing of her bullying complaint, and a third under the Unfair Dismissals Act. The Complainant withdrew the complaints under the Industrial Relations Act and progressed her complaint under the Unfair Dismissals Act.

Summary of Complainant’s Case:

The Complainant was employed as an OTC Assistant where she worked on a part time basis. On 2nd October 2017. She left her employment on 26th July 2019 due to the alleged failure of the Respondent to deal with her grievance of bullying at work. The Complainant indicated at the time of the hearing she had not returned to work due to ill health.

CA-00030851-001 Complaint under section 13 of the Industrial Relations Act, 1969         

This complaint was withdrawn by the Complainant.

CA-00030851-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant maintained that she was constructively dismissed due to the alleged acts and omissions of the Respondent when the Respondent was handling her complaint about how she was managed in the workplace. The Complainant advised she had not worked since her departure date which was the 26th July 2019 as she was unfit to work and had not sought alternative employment. She maintained that she is working towards regaining her confidence to return to work and is under medical review. She was seeking compensation for the alleged unfair dismissal.

The Complainant submitted that an incident occurred on the 31st August 2018 with a college in the pharmacy, the Pharmacy Manager, where she experienced an outburst that day and she could not understand where it came from. The Complainant outlined that the issue that occurred was a dispute relating to the setting up of a box to host new merchandise in the pharmacy. The Complainant maintained that the Pharmacy Manager had accused her of undermining behaviour, and this led to a dispute between the parties that morning.

The Complainant maintained that she was upset by what she experienced and there was a bad atmosphere in the shop that day as a consequence. The Complainant went home, drafted an email to the Director of the business, and before sending the email decided to approach the Pharmacy Manager. Following an exchange of emails between the Complainant and the Pharmacy Manager an agreement was arranged to meet in the shop. The Complainant submitted that the meeting became heated and where the Complainant maintained the Pharmacy Manager banged on the table and that the manager verbally abused the Complainant.

As a consequence of this the Complainant was concerned and left the shop at approximately 9:30 am. She sent a text message to the Director and followed the text with a detailed email of her concerns. She advised that the Managing Director did not respond to her complaint when it was sent, but she did receive a text that evening from the Managing Director. The Complainant maintained that she subsequently arranged to meet with the manager offsite the following day. The Complainant had received a text from the Managing Director stating he was aware the Complainant was meeting with the Pharmacy Manager and that he felt it was an appropriate time to resolve the matter.

The Complainant maintained that she met with the Pharmacy Manager, that the meeting was brief, and in the course of her discussions she also questioned about her hours worked as she had realised another staff member was getting more working time than she was. The Complainant submitted that the Pharmacy Manager advised that the other staff member needed to be working full time and was good at the job and that’s why she was being given the extra hours.

The Complainant agreed to return to work on her next scheduled day which was a Thursday. She noted that she had not been paid for her absence on the Monday. She acknowledged that matter was subsequently rectified, and she continued to work in the shop over her next nine working days. Some of this time included a two day supervisory course which she attended.

The Complainant maintained that she was still concerned with the attitude of the Pharmacy Manager where she described that the manager’s attitude could change. As the atmosphere remained difficult between herself and the manager the Complainant reported sick on the 26th September 2018 due to work related stress. She maintained that as she had not heard anything from the Managing Director she assumed the Respondent was not taking her complaint seriously, nor was there a proper concern for her health and safety in the workplace.

The Complainant advised that she sent a sick cert for 2 weeks on the 27th September 2018. She advised that when she handed in her sick cert she was told by the Pharmacy Manager that she was landing them in a situation as another employee was due to go on holidays. The Complainant felt the Pharmacy Manager was trying to start another argument with her, so having handed in her sick cert she left the shop and advised the Pharmacy Manager to ask the Managing Director to contact her.

The Complainant also submitted that on the 21st October 2018 there was to be an awards ceremony in which the shop had won an award and she received a text from the manager at 11pm with a picture of the award but she received no text asking her how she was feeling or if she would be back in time to attend the awards. The Complainant also maintains that there was a breach of confidentiality with regards to her sick leave as the Pharmacy Manager would have advised a customer and another party that the Complainant would be out on long term sick leave.

On the 1st October 2018 the Complainant maintains she received a correspondence from the Respondent seeking to meet with her to discuss her absence which related to workplace stress and the Complainant replied that she was unable to meet with the Respondent at that time.

The Complainant advised that she submitted sick certs on a two-weekly basis and on the 25th October 2018, she issued a formal grievance which she also sent by email on the 26th October 2018. In her grievance letter the Complainant raised a number of complaints which included how she was spoken to in an abusive and unprofessional manner in front of other staff; how she was screamed at by the Pharmacy Manager who used bad language and aggressive behaviour including banging on the counter top; that the Pharmacy Manager had threatened to leave the pharmacy and leave the Complainant on her own; that the Complainant was accused of causing a bad atmosphere within the pharmacy; that the Complainant was discriminated in relation to her working hours compared to another staff member; that the Complainant was belittled and demeaned in her position as supervisor; that the Respondent had refused to resolve the impasse in a professional manor; and that she was demeaned and ridiculed when she presented her sick note.

The Complainant further submitted that when she sent in her grievance, she received a letter from the Respondent on the same date regarding her absences and where she was accused of not adhering to the policy by properly notifying the Respondent. The letter advised her that her absences constituted unauthorised absences which had been recorded on her employment record and needed to be addressed upon her return.

The Complainant submitted that on the 29th October 2018 she responded to her absences and outlined her attendance with her GP and the dates of her sick certificates. She advised that she would be on a sick leave from up until the 7th November 2018 and that she was also seeking a progression of her grievance.

The Complainant advised that on the 30th October 2018 the Respondent responded to her grievance complaint by letter where she was advised that the company takes all staff grievances very seriously and it would be conducting a thorough investigation into the allegations that she had made under the company’s bullying and harassment procedure. The letter also advised the Complainant that another Director (who was who is a wife of the Managing Director) would be conducting the investigation.

On the 30th October 2018 the Complainant again wrote to the Respondent acknowledging that her grievance was to be dealt with, and she again referred to her concerns regarding the letter relating to her sick leave and where she outlined the circumstances regarding her sick certificates. The Complainant also advised she was keen to resolve the matter in a timely manner and return to work at the earliest opportunity advising the issue was having a detrimental impact on her health. The Complainant advised that she did not think it was appropriate that her case would be heard by the nominated Director but that she was happy to deal directly with the Managing Director and would attend a grievance meeting with him. The Complainant also advised that she would engage with her doctor to arrange confirmation that she was fit to engage in the grievance process.

The Complainant advised that on the 1st November 2018 she received a letter from the Director where she was told that in order for the Respondent to progress with the grievance process and for the Director to share her findings of the investigations that the Respondent required a certificate from her GP confirming she was fit to partake with the grievance process. The Complainant wrote to the Respondent on the 7th November 2018 expressing further concerns with regard the handling of her absences and to the Respondent’s progression of the grievance process. She further advised that she spoken to her GP regarding the request for certificate to confirm she was fit to participate with the process and that the GP advised that he had never received a request of this nature before. The Complainant was therefore not in a position to provide a certificate to confirm her fitness to attend the grievance procedure.

On the 9th November 2018 the Respondent wrote to the Complainant addressing a number of issues including the GP certificates; matters in relation to the contract of employment; and the Respondent’s complaints procedure. The Complainant was again advised to submit a certificate from her GP confirming she was fit to participate in the grievance procedure and to attend the grievance meeting.

On the 28th November 2018 the Respondent forwarded a letter to the Complainant referring to the Complainant’s medical certificate and asked the Complainant to attend an occupational health assessment for 6th December 2018. The Complainant attended that meeting. The Complainant subsequently attended the grievance meeting with the Managing Director and the Director on the 14th December 2018. Notes were produced of that meeting and were forwarded to the Complainant who responded on 27th of December 2018.

The Complainant submitted when she subsequently received the grievance report in January 2019, she was shattered with what she read. The Complainant maintained that none of her grievances were upheld, and when she read the statements provided by the witnesses, she was shattered with what they had said. The Complainant was unhappy that the findings were made on the balance of probabilities and were she maintained that her words or her version of events were not favoured when compared to the parties who were met in the course of the grievance hearing. The Complainant   maintained that only two members of staff worked in the area and she questioned why other members of staff would have been interviewed as part of the process. The Complainant submitted that she was particularly hurt and upset with the comments by the witnesses where she felt that her character had been assassinated and it was an untrue reflection of the person that she was.

The Complainant therefore sought advise with regards to the outcome of the grievance process and met with a solicitor. A solicitor’s letter was forwarded to the Respondent on the 8th February 2019 were the Complainant felt that she had no option but to seek her P45, that she asked to be provided with an appropriate reference, and that the Respondent make an adequate proposal to address her loss of earnings and out of pocket medical and associated expenses. The Complainant advised that the Respondent did not agree to address her loss of earnings and instead she received a letter which was sent directly to her rather than her solicitor. This letter stated that the Respondent was committed to working with her to ensure her re-integration to the workplace, she was invited to a return to work meeting, and she was advised she had a right to appeal the grievance procedure but that the Respondent had received no response by this time.

The Complainant took further legal advice and sought an appeal of the grievance findings. The basis of her appeal referred to the personal remarks made about her by which she maintained disclosed a bias and lack of objectivity, and that the comments in question about her were unwarranted and unfair. The Complainant maintained that these comments were particularly unwarranted in light of fact she had been praised for her work prior to the incident stating that August 2018 the Managing Director had spoken to her about increasing her salary and that he would review her role with regards to a supervisory responsibility. The Complainant also advised her appeal referred to an inconsistency and lack of objectivity in the report when she considered how the company had dealt with another employee. The Complainant also submitted that that the findings reached in the report were unreasonable and without any basis in fact, maintaining that there had not been a full and fair investigation.

The Complainant submitted that an external party was appointed to hear her appeal and she met with the third-party Appeals Officer on the 10th April 2019. The Complainant maintained that the appeal upheld that she did not have a fair procedure with the grievance process. The Complainant submitted that she had been accompanied by a HR professional at the appeal hearing. The Complainant also referred to the fact that at her grievance meeting in December 2018 the Managing Director had offered to move her to another location but then withdrew this on the intervention of the other Director. The Complainant advised therefore there was no opportunity for her to return to work during the grievance procedure and there was no further reference to a return to work to another location had the matter not been resolved between herself and the Pharmacy Manager.

The Complainant advised that she received the notes of the appeal meeting on the 26th of April 2019 and she submitted amendments to these notes. She advised that she subsequently received an email from the Director on the 19th April 2019 advising her that her sick certs have expired. However, the Complainant maintained that she had sent two copies of her cert- one to the pharmacy and the one directly to the Director.

The Complainant advised that she received the appeal report on the 15th May 2019 and whilst the appeal did not uphold all her complaints it had found that she had not been subject to a full and fair grievance procedure. She therefore maintained that the appeal outcome was in her favour.

The Complainant submitted that as she heard nothing from the Respondent her solicitor wrote to the Respondent on the 12th June 2019 stating the matters had not been addressed following the appeal hearing and as such the Complainant was entitled to know what steps the company were purposing to take to deal with the adverse findings made against the Respondent with regards to the Respondent not following correct procedures on a number of issues. This letter also referred to the Complainant noting her entitlement to take this issue further if required, and were the Complainant reasserted that there has been a complete breakdown in the working relationship between her and her employer and it would not be possible for the Complainant to return to the working environment. The letter set out that under those circumstances she was seeking her P45, an appropriate refence, a payment for all outstanding holiday money, payment of her outstanding medical expenses and a payment for her loss of earnings. The letter also sought a copy of all records on her HR file which included minutes of meetings, letters, and memos.

The Complainant further submitted that on the 9th July 2019 she received a letter requesting her to attend a company doctor as it was now over 10 months since her sick leave, and this was required before her return to work. The Complainant was again upset with this response maintaining that there was no attempt by the Respondent to address her concerns and she was merely being asked to return to work. She therefore refused to attend the return to work meeting on the basis that there was no acknowledgement of what had happened to her, there was no compassion in the correspondence she had received from the Respondent, and that rather being referred to in her first name she was being referred to as Mrs … The Complainant submitted that, all in all, she had found the whole process to be a shattering experience. She restated that she had experienced an incident in the workplace that she sought to have addressed through a grievance procedure and that this grievance procedure had been shattering for her. Accordingly, she maintained there was no reasonable effort by the Respondent to address her concerns to enable her to return to work. The Complainant therefore concluded having been asked to attend a return to work meeting without any sense as to what options were open to her such as mediation to resolve the matter that, on the 23rd July 2019, she decided she had no option but to resign her position. On the 26th July 2019 the Complainant’s solicitor forwarded a letter of resignation.

Overall the Complainant was very upset with her experiences. She felt that she was not provided with a fair grievance procedure, that there were observations and comments made by members of staff that were unfair on her, and when she sought a discovery what was on the file that she found the comments and remarks made by her colleagues as part of the grievance interviews upsetting and unfair. She maintained the witnesses’ evidence was not a true reflection of the person she is.

It was evident at the hearing within that the Complainant was upset with the situation she found herself in and in what she believed as being the inappropriate and unreasonable handling of her complaint by the Respondent.

CA-00030851-003 Complaint under section 13 of the Industrial Relations Act, 1969         

This complaint was withdrawn by the Complainant.

Summary of Respondent’s Case:

CA-00030851-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Respondent submitted that it did dealt fairly and reasonably with the Complainant’s grievance.

The Respondent initially raised preliminary objections with regards to the industrial relations complaints. The Respondent submitted that it had not agreed to participate in the industrial relations complaints, and it had expressed this wish to the WRC but noted the complaint was still listed for hearing. It maintained there was no trade dispute and it would not participate in the industrial relations dispute as it requires its consent to do so. The Respondent also argued that the industrial relations complaints were similar in nature to the unfair dismissal complaint and that there were three complaints arising out of the same incident, and it therefore would not be reasonable and it would be a breach of fair procedure and a breach of the rule of Henderson vs Henderson to permit the Complainant to pursue the same case of action under different or alternative statures.

The Respondent acknowledged that the Complainant had withdrawn her complaints under the industrial relations act and was satisfied to have the complaint dealt with under the Unfair Dismissal Acts.

The Respondent maintained that the Complainant was employed as a Pharmacy Sales Assistant and there was never an agreement to employ her at a supervisory capacity. The Complainant maintained that the shop was too small to have a supervisor and that the Pharmacy Manager, as the senior person, was the person in charge. The Respondent further maintained that it had never provided a commitment to the Complainant to appoint her at a supervisory level.

The Respondent maintained that there was a difficulty between the Complainant and Respondent, and it acknowledged that what occurred was upsetting for both the Complainant and Respondent. The Respondent submitted that on 31st August 2018 a team meeting was held in the shop and the Pharmacy Manager advised all staff member at the meeting that anything big needed to be run by her. This meeting caused a difficulty between the Pharmacy Manager and the Complainant. The Managing Director was informed of the situation both by telephone from the Pharmacy Manager and from text and email from the Complainant. The Managing Director further advised that as he was aware of the situation, he understood that the parties had agreed to meet to discuss the matter over the weekend. He therefore advised the Complainant on the Friday evening that the matter was to be dealt with in that manner. The Respondent further submitted that the emails exchanged between the Pharmacy Manager and the Complainant at that time were amicable and indicated the parties were seeking to resolve the matter informally between themselves.

The Respondent acknowledged that the Pharmacy Manager and the Complainant met in the pharmacy on Monday 3rd September 2018. It advised that the Complainant had arrived with notes for the meeting, that the discussion between the parties became heated, and that the Complainant had left the pharmacy after the meeting. The Respondent submitted that the Complainant did not return to work that day.

The Managing Director received an email and a text from the Complainant that morning but as he was busy, he did not have a chance to respond to the Complainant directly. He did receive telephone calls from the Pharmacy Manager about the incident. The Managing Director understood that parties had again agreed to meet to discuss the matter off site and he was satisfied with that and felt it was unnecessary for him to establish any further intervention. He sent a text message to the Complainant that evening confirming he felt that process was appropriate. A meeting took place the following evening off site were the Respondent maintained the Pharmacy Manager apologised to the Complainant for any conduct which may have been inappropriate the previous day, where the Pharmacy Manager asked the Complainant if she was happy with everything that was discussed at the meeting and how they were to move forward. The Respondent understood the Complainant had confirmed that matters had been resolved with the Pharmacy Manager.

The Respondent maintained that the Complainant returned to work and worked for a number of weeks and never raised further concerns regarding the relationship between herself and the Pharmacy Manager.

The Complainant text the Pharmacy Manager at 11pm on 26th of September 2018 to advise her that she had been to the doctor and would be taking some time off. (At the hearing the Complainant maintained that while she confirmed the matter was resolved with the Pharmacy Manager on the 4th September2018, she maintained that in her heart the issue had not been resolved and following a further concern she took sick leave). The Respondent maintained it was not aware of ongoing issues or that the Complainant felt the matter had not actually been resolved.

On the 2nd October 2018 the Managing Director emailed the Complainant asking her if she would like to meet with him, but the Complainant refused. The Respondent maintained that the Complainant had remained on sick leave and had not properly submitted sick certs, so it sought to have that matter regularised on the 25th October 2018. The Respondent maintained it was not aware that the Complainant had submitted her grievance in writing on the same day and it was an unfortunate crossover of correspondence.

The Respondent maintained that it was keen to progress with resolving the grievance and advised the Complainant that it wanted to meet her, but in light of her sick cert indicating she was unfit for work it was seeking a certificate that the Complainant was medically fit to participate in the grievance procedures. The Respondent advised the Complainant was also told that the grievance investigation would commence. In the meantime, it sought on a number of occasions to meet the Complainant within the grievance process but that the Complainant was not in a position to confirm she was medically fit to participate. Accordingly, the Respondent set up a separate occupational health assessment on the 6th December 2018 where following that assessment the Complainant was fit to attend the grievance meeting. That meeting took place on the 14th December 2018.

The Respondent advised that it had received concerns from the Complainant that the named Director should not be conducting the grievance procedure and that the Complainant wanted the Managing Director to hear the grievance. To satisfy that objection the Managing Director attended the grievance meeting with the Complainant who was agreeable to participate on that basis. The Respondent maintained that the grievance meeting lasted for approximately three hours and a copy of notes the meeting were forwarded to the Complainant where any observations she made to the notes were considered.

The Managing Director confirmed that at the meeting he would have suggested that the Complainant could be moved to an alternative location but that was an off the cuff remark at the time and it was meant that when the matters were resolved and the grievance process was complete that it was an option that was open for consideration. However, the Managing Director never intended the offer of the move was something he was suggesting could occur at that point in time.

Following the observations made by the Complainant, the named Director interviewed staff members again and put more detailed questions to them. Having considered all matters the Respondent issued a grievance report on the 15th January 2019. It maintained the report set out the issues as presented by the Complainant and clearly set out the findings and conclusions of the grievance investigation. The Respondent acknowledged it did not find in the Complainant’s favour. The Respondent also advised that its findings were based on the balance of probability and were it had received collaborating evidence from other witnesses with regards to the events. On that basis it was not in a position to uphold the complaints. The Respondent further advised that it would have received comments from some of the witnesses that under the circumstances, if released, would not have been helpful to the Complainant at that time. It had however provided in its report a summary of the comments that it was relying upon from the witnesses in making its findings.

With regard to the Complainant’s grievance on the hours of work that was being given to her, the Respondent advised that it based its findings on factual matters where the Respondent looked at the payroll and compared that to the other colleague where it was alleged the Complainant was being treated less favourably. The Respondent maintained that this evidence would not have supported the complaints as raised by the Complainant.

Having issued the report the Respondent advised that it then received a letter from the Complainant’s solicitor which indicated that the Complainant was seeking to resign her position. The Respondent maintained that this was the second time that the Complainant had threated to resign if she did not receive compensation. It advised that it wanted the Complainant back at work, as did her colleagues, and it was seeking the Complainant to attend a return to work meeting. However, the Complainant refused to attend. The Respondent maintained that the purpose of the meeting was to see what needed to be done to enable the Complainant’s return to work, and that could have included mediation or other options. The Respondent contended that as the Complainant failed to engage in the return to work process and issued her resignation before attending that meeting and that she had decided to resign her position. The Respondent maintained it had not behaved unreasonably and the Complainant had decided to resign before exploring the options to facilitate her return to work.

The Respondent facilitated an appeal of the grievance and appointed an external HR practitioner to hear the appeal. The independent HR practitioner provided a detailed report. In his evidence the Appeal Officer outlined how he conducted the appeal, that he would have met the Complainant, took a submission from the Complainant, shared his notes of the meeting with the Complainant, and would have revised his notes following her subsequent submission. He then drew his conclusions. The appeal did not uphold that the personal remarks being made about the Complainant in the report amounted to a bias or lack of objectivity. However, the Appeal Officer acknowledged that these comments were unwarranted and unfair. He also did not uphold that the contents of the report disclosed an inconsistency and lack of objectivity. The appeal maintained that the Director who held the grievance had properly considered the evidence presented and had made reasonable findings on the balance of probability.

The Appeal Officer did however recognise that it was unfair on the Complainant not to have received the full comments made by her colleagues during the grievance. Notwithstanding, the Appeal Officer was satisfied that the comments which were not shared with the Complainant did not influence the decision and would not have changed the outcome of the decision in any way. However, he did acknowledge that the Complainant should have been provided that information. (It is acknowledged that when the Complainant received this information through her data request she was concerned and upset with the comments made by her colleagues).

In summary the Respondent maintained that it had not treated the Complainant unfairly. It acknowledged it was a difficult situation and it maintained that the Complainant had perceived the comments made by her colleagues as being unfair on her. The Respondent contended that the grievance procedure had been set up to deal with what had happened in the shop on the 31st August and the 3rd September 2018 and therefore any information contained in the statements from the Complainant’s colleagues was not a decision that had been made against the Complainant. The Respondent asserted that the comments were opinions of others and that was their perception, as was the perception by the Complainant of what happened at the incident in question. It maintained that it conducted a fair grievance process where the findings were upheld by an external appeal. The Respondent then further sought and made every reasonable effort to seek for the Complainant to return to the workplace, but she failed to engage in the return to work process.

The Respondent maintained the Complainant voluntarily resigned her position without any influence by the Respondent. It maintained that the Respondent engaged with the Complainant thoroughly and throughout her alleged difficulties even referring the matter as stated to an external independent investigator.

Legal Submission

The Complainant referred to the Unfair Dismissals Act, 1977 which it stated defines constructive dismissal as “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 reason for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

The Respondent submitted that there are two tests which must be considered with regards to assessing cases of alleged constructive dismissal. It stated the two tests are the contract test and the reasonableness test. The Respondent submitted that the two tests were summarised by the Labour Court in Paris Bakery and Pastry Limited Vs Mrzljak DWT 68/2014 were the contract test was summarised as where “an employer behaves in a way that amounts to an imputation of the contract of employment”. The Respondent in referring to the reasonableness test stated it arises if the employer “conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot be fairly expected put up with it any longer.”

The Respondent further referred to Conway Vs Ulster Bank limited UD 474/4/1981 were it was found that the claimant did not act reasonably in resigning without having first “substantially utilised the grievance procedure to attempt to remedy her complaints”. The Respondent maintained the Complainant in the case within did utilise the grievance procedures which were in place, although it argued it is questionable as to whether the Complainant ever intended to return to work following the initial process. The Respondent argued that the Complainant having been dissatisfied with the initial outcome appealed that outcome to an independent third party. The independent appeal into the matters found that the Complainant’s concerns regarding the substantive issues to her grievance were not upheld, and where the Appeal Officer stated he was of the opinion that the Respondent acted in the best interest of all concerned to carry out a timely, full, and thorough investigation of the facts pertaining to the allegations made by the Complainant.

The Respondent maintained it therefore acted in a more than reasonable fashion in investigating the complaints in both the first instance and the appeal.

Furthermore the Respondent submitted that it did not accept that it behaved in a bullying manner towards the Complainant, and referred to jurisprudence in Ruffley Vs Board of Management of St. Anne’s School [IESC33] were the judgement of Charlton J stated “an employer is required to expect ordinary robustness from its employees… correction and instruction are necessary in the function of any workplace and these are required to avoid accidents and to ensure the productive work is engaged in. It may be necessary to point faults. It may be necessary to bring home a point by requesting engagement in an unusual task, or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or career by an early intervention. Bullying is not about being tough on employees. Appropriate intervention may not be pleasant and must simply be taken in that spirit. Sometimes a disciplinary intervention may be necessary.”

The Respondent therefore submitted that it was entitled to address issues that had occurred in the workplace regarding the performance of a member of staff. It further stated it was entitled to request the Complainant to carry out work in whatever way it deemed reasonably appropriate. It maintained that in addressing the Complainant’s grievance and instructing her to engage in that process cannot constitute bullying, nor is not a breach of contract at all, and certainly not one which goes to the root of the contract. The Respondent therefore contended it did not act unreasonably. It advised that the conduct engaged in by the Respondent was at worst nothing more than a robust engagement with the Complainant.

It submitted therefore there is not a breach of the contract that would entitle the Complainant to repudiate her contract of employment. It further relied on the juris prudence set in the Ruffley case referred to above which supports that the commencement of an investigation or disciplinary process cannot be considered to be bullying. It maintained that the Complainant was alleging that the commencement of the investigation and the comments made therein amounted to bullying; however, it argued this was not the case. It maintained that the Respondent was seeking to consider fairly the grievance, and to resolve the grievance, and once that process was complete to seek the basis upon which the Complainant could return to work.

The Respondent also submitted that while it denied the Complainant had been unfairly dismissed the Complainant had not made reasonable attempts in relation to address any losses incurred. The Respondent referred to section 7(2) of the Unfair Dismissals Act, 1977 the Respondent submitted that there was no loss as the Complainant was not available to work, there was no efforts made by the Complainant to mitigate her loss as she had not been seeking work, and therefore if the unfair dismissal was upheld that there was no loss of earnings to be awarded.

Findings and Conclusions:

CA-00030851-001 and 003 Complaint sunder section 13 of the Industrial Relations Act, 1969      

These complaints were withdrawn.

CA-00030851-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, there were substantial grounds for justifying the dismissal”.

The breach of a contract of employment is a very serious matter and which in cases of unfair dismissal, requires an examination of whether an employer acted fairly. This test is a demanding one involving a mix of both procedural and substantive issues. The onus falls on the employer in such cases to justify any termination. In cases where an employee breaks the contract and then seeks to pursue the employer for constructive unfair dismissal, as in this case, the bar is set just as high. Likewise, the burden of proof, which now passes to the employee, is set at a high level.

Constructive dismissal cases are based on the entitlement test and the reasonableness test. Under the entitlement test the Complainant must succeed in arguing that she is entitled to terminate the contract on the grounds that the Respondent has breached a fundamental condition that goes to the root of the contract. In general, this arises where the actions of the Respondent demonstrate to the Complainant that the Respondent no longer intends to be bound by one or more of the essential terms of the contract of employment. Referring not just to the juris prudence the Respondent referenced, the test being applied in Western Excavating (ECC) Ltd V Sharp (1978) as was applied further in Murray V Rockabill Shellfish Ltd (2012) ELR 331 requires that a significant breach of the Complainant’s contract should be evident. In effect the question is whether it was reasonable for the employee to terminate her contract on the basis of the employer’s behaviour.

Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the Complainant’s resignation, and something that represents a repudiation of the contract of employment. In this regard the Supreme Court has 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.’ (Finnegan J in Berber v Dunne’s Stores [2009] E.L.R. 61).

In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

Having considered the matter I am satisfied there was a dispute in the workplace which was upsetting to the Complainant and to the Pharmacy Manager in the shop she worked in. The incident occurred over a discussion the parties were having with regards to a display box. Subsequently an approach by both parties to seek to resolve their differences some days later ended up in an upsetting experience for the Complainant where she left work that morning and raised her concerns to the Managing Director by email and by text. There also appears to have been an expectation held by the Complainant that she would be given a supervisory role, an issue disputed by the Respondent who maintained the Complainant was an assistant.

Having considered the evidence I am satisfied that following the altercation between the Complainant and the Pharmacy Manager the initial intervention for the Complainant and the Pharmacy Manager to meet off site to discuss the matter and to seek a resolution of the issue was reasonable. I find the Respondent did not behave unreasonably in allowing this space and in facilitating that discussion. Following that meeting the matters appeared to be resolved and where the Complainant returned to work and did not raise any further concerns with the Respondent for some weeks.

Based on the evidence provided I am satisfied that Complainant, for whatever reason, felt in her heart the matter had not been resolved. With these concerns she departed on sick leave on 26th September 2018.

I find that the Respondent was reasonable in seeking an update from the Complainant when she was on sick leave, particularly as it was a small shop and that the Respondent needed to have reasonable notice with regards to the Complainant’s return to work. It was unfortunate that whilst the Respondent was seeking to regularise the Complainant’s attendance that at the same time the Complainant issued a grievance and there was a crossover of correspondence. This made it appear to the Complainant that when she lodged her grievance it was responded almost immediately to a criticism of how she was taking her sick leave. I am satisfied however that having reviewed the evidence the Respondent was genuinely seeking to engage with the Respondent.

The evidence supports that the Respondent then progressed to hear the Complainant’s grievance, but the Complainant was unavailable due to her sick leave and being certified unfit for work. It took some weeks for the Complainant to be certified to be fit to attend the grievance procedure. The Respondent also facilitated the Complainant by having the Managing Director attend the grievance meeting with the Complainant, and where the meeting took some hours to complete. Notwithstanding there was no evidence presented to suggest that the Director appointed to hear the grievance was biased against the Complainant other than this was the perception of the Complainant.

It is noted that the Director holding the grievance held back specific comments that were made against the Complainant. I am persuaded by the Respondent’s evidence that this was done with the best interest of the Complainant, and when these issues were reviewed in the appeal process that information was not found to have been influential in the decisions made during the grievance.

When the grievance report was issued to the Complainant it is clear that she was upset with the outcome, and she was particularly upset with what she believed was said about her. Her perception was that she was a good employee and were she did not perceive that she was the cause for the dispute and incident that happened between herself and the Pharmacy Manager. However, I’m satisfied based on the substantive issues covered in the grievance that both parties contributed to what had occurred in the shop, and significantly where the Pharmacy Manager had apologised to the Complainant after that event.

It is noted that upon receipt of the grievance report the Complainant took legal advice and where a letter from her solicitor was issued indicating that she wished to resign, and that she would do so on the basis of getting a reference and getting compensated for her loss of earnings and compensation for her medical expenses. I do not find the Respondent’s reply to that matter to be unreasonable in that it did not view the issue warranted any payment of compensation to the Complainant, and instead sought for the Complainant to return to work. Furthermore, the Respondent advised the Complainant that she could appeal the grievance findings, which she did.

The Respondent again acted reasonably in setting up the grievance appeal process. The Complainant participated in that process. The outcome of the process was communicated to the Complainant which substantially upheld the initial findings, and at that time the Respondent sought for the Complainant to return to work.

A further letter was issued from the Complainant’s solicitor, yet again seeking compensation for the loss of earnings and cost of sick leave, and where the Complainant indicated that she would resign on that basis. The Respondent again asserted that it did not want the Complainant to resign, that it had completed an internal and an external review of her grievance, that it had come to a conclusion and was seeking her to return to work. However, before the Respondent could have the return to work discussions the Complainant decided to issue her resignation by way of letter on the 26th July 2017.

It is clear that the Complainant perceived that the outcome of the grievance procedure was unfair. However, I have to consider the acts of the Respondent, and the whether there were any significant omissions by the Respondent in dealing with the complaints. It is clear that the Complainant had indicated her intention to resign when the grievance did not find in her favour, and when she saw a summary of the comment made by her colleagues. When she received the full disclosure of these comments and the outcome of the appeal process, she decided to reassert her intention to resign. Whilst her colleagues’ comments may have been hurtful, they were not made by the Respondent, and unfortunately can be part and parcel of a grievance procedure when witnesses are met. Charlton J comments in the Ruffley case referred to above which notes “an employer is required to expect ordinary robustness from its employees… carries some resonance to the case within. In this regard where an employer proceeds in good faith with its grievance and appeal procedures, the Complainant equally must accept the outcome from such procedures provided there is no unfairness in how they are conducted. Substantially the Complainant’s grievance was not upheld in either the grievance or the appeal hearings, and where not significant omission or unfairness was evident in how the Respondent dealt with the grievance and appeal.

The grievance report did not find any wrongdoing by the Complainant but merely did not uphold her complaints. I am also satisfied that the complaints regarding the hours of work and the Complainant’s rostering on public holidays was considered fairly.

Furthermore, I find that the Respondent behaved reasonably when on two occasions it received a letter from the Complainant’s solicitor seeking compensation. It was clear from the Respondent’s perspective that it did not want the Complainant to leave her employment, and the Respondent was focused on the Complainant’s return to work. The Respondent was contractually obliged to deal with her grievance and to allow the Complainant to appeal the grievance, an obligation it honoured. It is therefore somewhat remarkable that the Complainant’s letters were focussed on a resignation and compensation before matters were completed.

I also find that there was no evidence presented that amounts to unreasonable behaviour on the behalf of the Respondent. It attempted to manage the ongoing absence of the Complainant in a reasonable manner, and on completion of both the grievance and the subsequent appeal it sought a return to work meeting with the Complainant to assess the basis of how she could be introduced back into the workplace. It was unfortunate the Complainant had felt there was no compassion in the letters the Respondent sent to her and that she decided to resign.

Based on the above, and having considered the matters carefully, I do not uphold the complaint and do not find that the Complainant was constructively dismissed.

Decision:

CA-00030851-001 and 003 Complaints under section 13 of the Industrial Relations Act, 1969      

These complaints were withdrawn by the Complainant.

Summary of Respondent’s Case:

CA-00030851-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

In order to prove constructive dismissal, the claimant must clearly show that there was no other alternative option open to her other than leave her employment. It must be demonstrated that all reasonable alternatives have been considered.

In this case I have found that the Respondent conducted its grievance and appeal procedures reasonably and sought to meet with the Complainant to discuss her return to work but that the Complainant resigned before that process was completed.

Therefore, the case of unfair dismissal is not upheld.

Dated:   9th March 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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