Complainant

Respondent

Anonymised Parties

Accounts/HR Administrator

A Hotel

Representatives

Bourke Carrigg & Loftus Solicitors

IBEC

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-00032016-001

30/10/2019

The complainant claims constructive dismissal arising from the conduct of the respondent and the failure to properly address her grievances.

The Complainant commenced work with the respondent hotel on 23rd March 2015 and was responsible for accounts, payroll and HR. The complainant’s husband, by agreement with the hotel owner (Mr A), mentored the new General Manager, and subsequently took over the management of the bar and restaurant side of the business. As part of this arrangement a support to the complainant’s husband (Ms B) was employed. From January 18 the hotel was run by the owner and the complainant’s husband and supported by the complainant and Ms B. During the following 10 months the complainant had a good relationship with both the owner and the owner’s wife.

In October 2018 Ms B announced she was pregnant and there was a noticeable change in Mr A’s demeanour towards her. Some emails were exchanged between Mr A and Ms B resulting in Ms B going out sick. Ms B returned to work after a few days and had her grievance hearing on 8th November which the complainant’s husband attended. This meeting was quite hostile. On 14th November Mr A phoned the complainant’s husband and told him he no longer required his services in the hotel.

On 20th November the complainant overheard a further altercation between Mr A and Ms B, following which Ms B submitted a cert and never returned.

On 22nd November Mr A ranted to the complainant about Mr B. On 22nd November Mr A asked the complainant for the SAGE Payroll password and the complainant emailed him saying that this was very odd that he wanted to know this. On 23rd November Mr A rang the complainant about how unhappy he was about Ms B. He asked the complainant to contact Ms B to sound her out and see what she wanted.   On this day, the appointment of a relative of Mr A’s name (Mr C) went up on the staff notice boards which was the first that the complainant knew of the appointment.

On 4th December Ms B emailed the complainant her sick cert. The complainant would normally forward this to Mr A but on this occasion she forgot. This resulted in Ms B receiving a harsh letter from Mr A.   As a result Ms B contacted the complainant who then explained to Mr A that she had in fact received the cert.   Before Mr A had started to isolate the complainant he would have checked with her first before sending the letter to Ms B.

A number of other incidents occurred including;

While the complainant was on leave for a few days the spare keys were taken from her office and given to junior bar staff, which was in breach of GDPR.

Ms B was instructed to send her certs to Mr C removing part of the complainant’s HR role.

Mr A’s wife complaining to the complainant about Ms B

Mr A instructed the complainant not to open mail in the future that was not addressed to her or accounts.

On 25th January 2019 Mr A came and stood at the door of the complainant’s office with another member of staff and read a prepared statement.   He gave the complainant a half an hour to give him the logbook and keys of the car which she had brought with her that day. In his statement he said the purchase of the vehicle was a private matter between the complainant’s husband and Mr A.   When arranging the rental of an alternative car the complainant realised she had left her glasses and house keys at her office and had to return to the hotel. As a result of this interaction the complainant went on sick leave from 25th January 2019.

On 5th February the complainant lodged a formal grievance in which she alleged harassment and bullying by Mr A and Mr A’s wife specifying the following;

That they had chosen to talk to her about Mr B’s grievances and on each occasion the complainant requested them to stop. The complainant was forced to endure their comments even thought it was clear she was upset and reduced to tears.

That her professional working relationship with Mr A had changed and he had stopped greeting her as normal.

That the incident on 25th January involving the car had caused her embarrassment in front of other staff.

On 15th February Mr A responded to the complainant’s grievance introducing her to Ms P who was to investigate the grievance. On 25th February the complainant sent a letter to Ms P advising her of her position with her doctor and obtaining a letter to allow her attend the hearing. On 12th March the complainant contacted Ms P by email. On 15th March the complainant emailed Ms P saying that her doctor did not feel the complainant was fit to attend a hearing.   On 3rd April the complainant emailed Ms P stating that she now had the approval of her doctor to attend the hearing if she could bring someone with her, and received an acknowledgement from Ms P. On 5th April Ms P emailed asking for suitable dates and the name of the person who the complainant wanted to accompany her.   On 6th April the complainant replied suggesting 12th April as a suitable date and gave her two names of people to accompany her including the name of her husband.

On 8th April Ms P emailed saying that it was not appropriate for the complainant’s husband to attend as he was mentioned in the grievance. Ms P also agreed to meet in a different hotel. The complainant responded stating her case and on 10th April Ms P replied quoting the employee handbook and repeating the conditions of who the complainant could be accompanied by at the hearing. On the same day the complainant emailed Ms P stating that she was forwarding the matter to her solicitor.   On 15th April the complainant emailed Ms P again after a visit to her doctor saying that the doctor did not want her to attend the grievance hearing without support. The complainant also contacted a union to see if they would represent her.

On the 16th April the complainant received notification from Facebook that she was no longer on the administration at the hotel.

On 18th April the complainant emailed Ms P stating that as she had joined a union she now met the requirements of the hotel in relation to representation and asked for 29th April to be the date of the hearing. On 23rd April the complainant received a text from Ms P to the effect that she was in hospital and needed to cancel the date for the hearing.

On 24th April the complainant received a call from the union official to say that Mr A had arranged the hearing in the respondent’s hotel which was not what had been agreed with Ms P. The complainant texted Ms P advising her that she could not go to the respondent hotel. On the same day she received a reply from Ms P that the meeting was now arranged for the union office and the union official would accompany the complainant.  

On 30th April Mr A texted the union official to say that Ms P’s mother had a stroke and the hearing would need to be rescheduled. The union official informed the complainant that Mr A had agreed to an independent investigator and was happy for the union official to arrange this with the WRC. He stated that the new date would depend on the availability of the investigator.

The complainant had been out of work since 25th January and it was now the end of April with no end in sight. She saw a job advertised that suited her and applied for it on 5th May.   She got the job the following day and resigned on 7th May giving two weeks’ notice which she was unable to work due to being sick. On 8th May she received a letter from Mr A concerning the grievance process and her resignation to which she replied the same day detailing her case and confirming her availability to meet with the independent investigator.   There were further exchanges of letters on 16th and 20th May.

The complainant alleges that she was “intimidated and bullied” by her former employer (Mr A) and his wife, proprietors of the respondent Hotel, and is claiming constructive dismissal due to this. The Respondent submits that the Complainant was not in any way intimidated or bullied at any point throughout her employment and voluntarily decided to terminate her own employment.

The Complainant commenced employment in the Respondent Hotel as an Accounts/Payroll Administrator on 23rd March 2015. On 25th January 2019 the Complainant commenced a period of certified sick leave. By letter to the Respondent dated 5th February 2019 the Complainant lodged a formal letter of grievance alleging that she had been harassed and bullied by Mr. A and his wife Jackie. The Complainant remained on certified sick leave at this point and never returned to work thereafter.

Mr. A responded to the Complainant’s grievance by letter dated 15th February 2019. As a result, an independent investigator, Ms. P, was engaged to carry out an impartial and independent investigation into the matter. The Respondent also sought a certificate of fitness for the Complainant to engage in the matter as she remained out on certified sick leave.

The Complainant subsequently contacted Ms. P by e-mail of 15th March 2019 directing that her doctor had advised her “not to attend this meeting at this stage” and that she would be seeing her “again in a week or so”. Ms P responded by stating; “Just let me know when it suits you to meet and we can arrange something”.

Following this the Complainant by e-mail dated 3rd April 2019 contacted Ms. P seeking to arrange the meeting on a Saturday to enable her to bring someone with her. On the same date Ms. P responded stating that a Saturday should be fine and that she would respond further to organise a Saturday that suited both of them.

Two days later on 5th April 2019 Ms. P contacted the Complainant asking what dates would suit her to meet and also seeking the name of the person who would be accompanying her to the meeting. The Complainant responded by e-mail of 6th April 2019 suggesting a meeting time of Friday 12th April 2019 at approximately 5pm, and also that the Complainant’s husband or friend, would be in attendance with her.

That same day, 6th April 2019, Ms. P replied to the Complainant’s email and asked her if it was okay if she could confirm the date for the meeting on Monday 8th April 2019, to which the Complainant agreed. As agreed, Ms. P replied to the Complainant on Monday 8th April 2019. Ms. P stated that it was not in accordance with company policy for either of the individuals suggested by the Complainant to attend the grievance hearing with her and attached a copy of the company policy regarding this issue within the e-mail. Ms. P also suggested a different hotel as the meeting location, confirming her availability for Friday 12th April 2019. The Complainant replied that evening, cancelling the meeting on Friday 12th April 2019 as she believed “the hotel is unwilling to be flexible” by upholding their policies through not allowing the Complainant to bring any individuals she desired to attend the meeting.

On the 10th April 2019, Ms. P replied to the Complainant’s e-mail from 8th April 2019, reaffirming the Respondents position on the matter and requesting her attendance at an investigation meeting in order to proceed with the process in a timely fashion. The Complainant replied to this e-mail, stating once again that she would not be in attendance on Friday 12th April 2019.

On the 15th April 2019, the Complainant sent an e-mail to Ms. P illustrating her awareness of the company policies and stated that her doctor did not want her to attend a grievance meeting on her own and also advised that she had forwarded all correspondence to her solicitor and awaited his reply. The Complainant also provided that she would be in contact further should the situation with her doctor change.

Two days later on 17th April 2019, Ms. P sent an e-mail to the Complainant once again reaffirming the company’s position in relation to not engaging with third parties that are not associated with the Company. Ms. P also stated in the email she will be in further contact with the Complainant with respect to progressing the matter if she could provide confirmation from her doctor that she was unable to attend the investigation meeting without the third parties previously mentioned.

The Complainant responded the next day, 18th April 2019, stating that she had spoken with her doctor and that she had also joined a union. The union official would be in attendance with the Complainant. The Complainant also suggested a new meeting date of 29th April 2019.

On 23rd April Ms. P contacted the Complainant and explained that she had been taken by ambulance to casualty and would need to postpone their meeting and suggested rescheduling for the 1st week in May. A meeting was then scheduled for 1st May.

On 30th April there was a series of text messages between Mr. A and the union official. Ms. P the investigator was unable to conduct the meeting on 1st May due to unforeseen circumstances given her mother had taken ill.

The union official, in the course of these text messages suggested that someone from the WRC could conduct the investigation to which Mr. A agreed. The union official subsequently confirmed that he had contacted Mr D from the WRC to act in the capacity of investigator and a meeting date was to be agreed.

On the 7th May 2019, the Complainant submitted her letter of resignation to Mr. A after obtaining another job in another hotel. Within the letter she offered two weeks’ notice but stated that as she was on certified leave, she would not be in a position to return to work in order to work out her notice.

The Respondent replied to the Complainants letter of resignation by letter dated 8th May 2019 expressing his surprise at her decision to resign in circumstances where it was arranged to have her grievance heard by Mr. D from the WRC and also in the presence of her Union official. The Respondent also confirmed that it was imperative to have her grievance heard and confirmed that she should continue to liaise with her union official to arrange for same. On the same day 8th May 2019 the Complainant responded by letter confirming that she was still more than happy to meet with the WRC to have the matter heard.

On 16th May the Respondent replied by letter confirming that Mr. D remained available to hear her grievance. The Respondent also confirmed that he had been contacted by the Complainants Trade Union official who provided that he was not in a position to facilitate the grievance on her behalf since she had resigned from her position.

Company Position

The Complainant was not dismissed from her employment by the Respondent. The Complainant voluntarily left her position putting an end to her contract of employment.

Constructive dismissal is defined in Section 1 of the Unfair Dismissals Act, 1977 as;

“the termination by the employee of his contract of employment with his employer whether prior notice of 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 given prior notice of the termination to the employer”.

The Employment Appeals Tribunal has set a particularly high standard of proof for an employee to quit his/her employment without notice of termination to his/her employer. The two tests assigned to these are as follows;

1) The contractual/entitlement test. In applying this test, the Tribunal has determined that an employee is entitled to terminate the contract of employment only where the employer is guilty of conduct which is either a significant breach going to the root of the contract, or which shows that the employer no longer intends to be bound by one or more of the core terms of the contract.

2) The reasonableness test. When applying the reasonableness test, the Tribunal has held that an employee can argue that the employer’s conduct was such that it was reasonable for the employee to resign from his or her employment.

In terms of the entitlement test, the breach of contract being alleged by the Complainant must be either a significant breach either going to the root of the contract or one which shows the employer no longer intended to be bound by one or more of the essential terms of the contract of employment. In this particular case, no such entitlement occurred as the Respondent at no point breached any of the terms and conditions of employment of the Complainant, which would have entitled her to quit her position. The Complainant in this instance further fails to satisfy the reasonableness test as it was not reasonable for her to terminate her contract of employment particularly in circumstances where the Complainant herself frustrated the process in respect to having her grievance dealt with and subsequently only resigned after retaining a different job.

The Complainant is not entitled to rely on the “contractual entitlement test” due to the fact that there was no significant breach going to the root of the contract, or which showed that the employer no longer intended to be bound by one or more of the core terms of the contract. The Complainant was at all times during her employment afforded her rights under her contract of employment and also afforded her rights under natural justice and fair procedures. Furthermore, there was no conduct on the part of the Complainants employer that was such that it was reasonable for her to voluntarily leave her employment particularly in circumstances where she did not exhaust all internal company procedures.

The Complainant by her own actions failed to exhaust the Respondents Grievance Procedure in an effort to resolve any grievance she felt she might have. The Employment Appeals Tribunal in Barry v Quinn Insurance Limited UD 1775/2010 determined that:

‘Except in very limited situations an employee must exhaust all avenues for dealing with his/her grievances before resigning.’

As such, the Respondent holds the Complainant neither was entitled to unilaterally or voluntarily leave her position nor was it reasonable for her to leave her position and claim a case of constructive dismissal. It would appear that the Complainants intentions were clear as she was obviously seeking alternative employment and when same was obtained it was only at that point that she handed in her resignation in circumstances where an agreed process was in place to have her grievance heard.

The Respondent made every effort to process the Complainant’s grievance from the date that it was lodged, and an independent investigator was engaged at the outset to conduct the process. The Respondent has clear procedures of which the Complainant was fully aware regarding the hearing of such grievance.

The initial delay in having the grievance heard and investigated was wholly attributable to the Complainant herself. The Respondent set up the process and communicated this to the Complainant on 15th February 2019 asking her to provide confirmation from her doctor that she was fit to engage in the process given that she was on sick leave and by also putting her in contact with the investigator, Ms P. The Complainant never provided any such confirmation from her doctor nor did she engage with the investigator until 12th March 2019 which was almost a month later.

On 15th March 2019 she informed the investigator that her doctor advised that she should not engage in any meeting at that stage. It was only on 3rd April 2019 that she advised the investigator that her doctor had given her the approval to engage in the process. This was some two months after she had lodged her grievance.

The delay which then ensued can also be attributable to the Complainant herself as she sought to have the investigation meeting on a Saturday. Once a date had been agreed, being 12th April 2019, thereafter cancelled after being reminded of the company policy regarding representation.

It is not a matter for an employee to simply fail in their obligation to engage in the company’s processes particularly in circumstances where they have not put the employer in possession of all the facts which they seek to rely on and to allow the investigator to fully establish what the issues were in conducting an investigation. The Respondent had sought medical opinion from the Complainant on two occasions, firstly that she was fit to engage in the process from the outset and later on when she alleged that her doctor had advised not to attend in the absence of her chosen representative. The Complainant failed to provide such medical information on both occasions.

Furthermore, the Complainant was in receipt of professional legal advice and should have been aware of her obligations to firstly exhaust all internal company Policies and Procedures prior to voluntarily leaving her job and lodging a case for constructive dismissal. It is also the case that based on the correspondence exchanged between the parties that the Complainant was well aware of her obligations in this regard.

It is a well-established precedent in Irish law that this failure will mean that any subsequent complaint/claim for constructive dismissal cannot be sustained or upheld. In constructive dismissal cases it is incumbent on the Complainant to utilise all internal remedies and procedures made available to him/her which in this case had not happened.

The Employment Appeals Tribunal in Julianne Kirwan v Primark UD 270/2003 refers to Dr. Mary Redmond’s book ‘Dismissal Law in Ireland’ and determined that:

“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 to an employee should invoke the employer’s grievance procedure in an effort to resolve his grievance. The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster Bank Ltd. In Conway the EAT considered that the Complainant did not act reasonably in resigning without first having “substantially utilised the grievance procedure” to attempt to remedy her complaints”.

Where constructive dismissal is claimed the initial burden is on the complainant to show that a dismissal actually took place. There are two tests, either or both of which may be invoked by an employee.

In the first test - the “contract” test - the employee may argue entitlement to terminate the contract. The second test – the “reasonableness” test - applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

Not every breach of contract will give rise to a justified repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the 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 conducts 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. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.

In this case the context is one where the relationships between members of two families soured and much of what followed was in my view as a consequence of that unfortunate development.

The complainant contends that she was constructively dismissed. It is therefore necessary to consider whether the conduct of the respondent amounted to a breach of an essential term of the contract and secondly, whether the conduct of the respondent was so unreasonable that the Complainant had no alternative but to tender her resignation. There is no suggestion that the respondent was in breach of an essential term of the contract and therefore the focus must be on whether or not the conduct of the respondent met the test of being so unreasonable that the complainant had no alternative but to resign. In this regard the extent to which appropriate grievance procedures were available to the complainant, and used to resolve her issues is a key question in determining whether or not the respondent behaved unreasonably.

It is clear that a grievance procedure existed within the respondent’s organisation and that the complainant was aware of this procedure. The next question is whether the manner in which these procedures were used rendered them ineffectual. The complainant has argued that the delays in addressing her grievances meant that this was the case. In examining this question I note that some of the delays in processing the grievance were due to the unavailability of the complainant. Secondly, in relation to the issue of who could accompany her to the hearing, the complainant sought a derogation from the normal procedure outlined in Employee Handbook, on the basis of medical advice. However, it is noteworthy that despite being requested to do so, she did not submit the evidence of her doctor that she could not attend without her husband and/or friend, in a timely fashion.

The delays due to the unfortunate occurrences with the independent investigator Ms P were unavoidable and not caused by the respondent. The issue about the venue at which the hearing was to be held was resolved and the hearing was scheduled to be held in the union office.

The union official was acting on behalf of the complainant at her request. It was his suggestion that an alternative investigator to Ms P be identified and it is of particular note that the new investigator suggested by the union official, on behalf of the complainant, was agreed to by the respondent. Any delays in that regard could therefore not be laid at the door of the respondent.

I therefore conclude that the respondent provided the complainant with adequate opportunity to process her grievance. However, she resigned in advance of that process being concluded. Whether or not her grievances could have been eventually resolved through the grievance procedure is a moot point as the complainant decided to avail of a new opportunity in a different employment.

The complainant, therefore, has failed to show that a dismissal occurred and was not unfairly dismissed.

The complainant was not unfairly dismissed

Constructive dismissal and use of grievance procedures.