Complainant

Respondent

Anonymised Parties

Reservations and Customer Services Manager

Travel Agency

Representatives

Self

Edward Dwyer BL instructed by Fabian Cadden & Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033440-001

24/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033440-002

24/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033440-003

24/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033440-004

24/12/2019

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

CA-00033440-005

24/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00033440-006

24/12/2019

The Respondent is a Travel Agency. The Complainant was employed by the Respondent from 2nd February 2018 until 13th December 2019 as a Reservations and Customer Services Manager on an annual salary of €34,000. She has submitted a number of complaints under the Organisation of Working Time Act, 1997 relating to the periods she spent on call. She has also submitted a complaint of constructive dismissal under the Unfair Dismissals Act, 1977 and a complaint of bullying and harassment under the Industrial Relations Act, 1969.

The Complainant submits as follows:

The Respondent offers a service to its customers whereby they have access to an emergency phone helpline while on holidays on a 24/7 basis. The Respondent’s staff, including the Complainant, were rostered to provide this service. The Complainant contends that she did not have a choice whether or not to take the emergency phone. The Complainant provided details of the time she spent on-call during the cognisable period of this complaint. The Complainant said that when she was on-call she could get up to three emergency calls per week.

The Complainant contends that she could not leave her house when she was responsible for the emergency phone as the phone had to be answered as soon as it rang.

The Complainant maintains that the time she was on-call must be considered to be working time.     Accordingly, the Complainant contends that the Respondent has committed multiple breaches of the Organisation of Working Time Act. She is seeking compensation under a number of provisions of the Act for an additional 123 hours which she contends she worked during each full week that she was on-call.

The Complainant submits that on 25th July 2019 she met with the Managing Direction and sought compensation amounting to €100 per week in respect of the on-call duty.   The Complainant submits that the Respondent rejected her request and, instead, offered an additional 2 days of annual leave as compensation.  

The Respondent submits as follows:

The emergency phone service is a courtesy which it extends to its customers. The Respondent contends that most issues which customers have while on holiday were dealt with by the Reps in the resorts and that the emergency phone service is only used once or twice per month.

The Respondent submits that it did not require staff to remain at home when they were on-call.

The Respondent submits that in July 2019 the service was changed to a text service and that the member of staff who had the emergency phone would phone the client after they received a text.

The Respondent submits that all staff are paid from 9am to 6pm each day but were only required to be in the office by 9.15 each morning. This extra 15 minutes was to compensate for on-call duties. The Respondent also submits that staff who worked on Saturdays were paid for an additional two hours to compensate for on-call duties. The Respondent further submits that staff who were required to answer the emergency phone while on call were permitted to come to work later than normal the next day as compensation.

The Respondent also submits that all staff received an extra week’s leave in November or December to compensate for their on-call obligations.

The Respondent contends that the Complainant was not obliged to do emergency on-call if she did not wish to do so.

Summary of evidence

One of the Respondent’s current employees provided evidence that she was on the emergency phone rota up to two years ago. She said that when she was on-call she usually received one or two calls per month.   She said that she was not required to remain at home while on-call and that she could go wherever she wanted and that she could continue to live her everyday life.

One of the Respondent’s former employees gave evidence that she could lead her normal life while she was on-call. She said that emergency calls were infrequent – usually one to three calls per month. She said that emergency calls could normally be dealt within 30 minutes.

Cognisable Period

Pursuant to Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint.

This complaint was submitted to the Workplace Relations Commission on 24th December 2019 and therefore the period to be taken into account when investigating this complaint is the six-month period from 25th May 2019 until 24th December 2019.

Definitions of Working Time

Article 2(1) of Directive 2003/88/EC defines working time as follows:

“working time” means any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice.

Working time is defined by section 2(1) of the Organisation of Working Time Act, 1997 as follows:

““working time” means any time that the employee is—

(a) at his or her place of work or at his or her employer’s disposal, and

( b) carrying on or performing the activities or duties of his or her work,”

With regards to working time, the Court of Justice of the European Union (CJEU) has given specific definition in relation to this in the CJEU cases of Sindicato de Medicos de Asistencia Publica (SIMAP) v Constelleria de Sandidad ey Consumo de la Generalidad Valenciana [2000] IRLR 845and Landesshauptstadt Keil v Jaeger [2003] IRLR 804("the SIMAP and Jaeger cases"). The CJEU held that the time spent on-call by workers is to be regarded in its entirety as working time within the meaning of the Directive if they are required to be present at the workplace and that by contrast, where workers must be reachable at all times but are not required to remain at a place determined by the employer only the time linked to the actual provision of services must be regarded as working time.

The CJEU revisited this issue in its decision in Case C-518/15 Ville de Nivelles v Rudy Matzak ECLI:EU:C: 2017: 619 where it found as follows:

“Finally, it must be observed that the situation is different where the worker performs a stand-by duty according to a stand-by system which requires that the worker be permanently accessible without being required to be present at the place of work. Even if he is at the disposal of his employer, since it must be possible to contact him, in that situation the worker may manage his time with fewer constraints and pursue his own interests. In those circumstances, only time linked to the actual provision of services must be regarded as 'working time', within the meaning of Directive 2003/88 (see, to that effect, judgment of 9 September 2003, Jaeger, C-151/02, EU:C:2003:437, paragraph 65 and the case-law cited).”

The Complainant has stated that the Respondent has committed multiple breaches of the Organisation of Working Time Act, 1997 in respect of the time she spent on-call. The alleged breaches lack specifics but are based on the Complainant’s assertions that all time spent on on-call should be regarded as working time. On that basis, the Complainant contends that she worked an additional 123 hours per week when she was on-call and that the breaches of the legislation occurred as a result of the level of hours worked.

Based on the totality of the evidence presented, I find that the Complainant was not required to remain at a location determined by her employer for the period that she was on-call and that she was free to lead her normal life during those times. I further find that the Complainant was not engaged in carrying out work for the Respondent for the entirety of the time that she was on call.   Accordingly, I find that that the Complainant’s periods of on-call do not fall with the definition of working time as provided for under the Organisation of Working Time Act, 1997 and as clarified by the CJEU.

Given my findings that the Complainant’s entire periods of on-call do not fall with the definition of working time as provided for under the Organisation of Working Time Act, 1997, I find that that the following complaints, as submitted, are not well founded:

CA-00033449-001, CA-00033449-002, CA-00033449-003 and CA-00033449-004.

The Complainant contends that her resignation on 16th December 2019 was forced upon her and that it was not voluntary.

The Complainant submits as follows:

In mid-August 2019 the HR Manager, who is also the Managing Director’s wife, addressed the Complainant’s team very abruptly regarding the level of service they had provided to a drop-in customer. The Complainant believes that she had assisted the customer as much as she possibly could when she took the customer’s details and forwarded them to a colleague in another branch who subsequently secured a sale. The Complainant got the impression that the HR Manager expected the Complainant to provide the customer with whatever information the customer required and to conclude the sale herself. The Complainant felt unable to do so as she was not trained to deal with front office and was not familiar with the systems and processes that were in place.

Following on from this incident, things in the office changed significantly. According to the Complainant, the Managing Director was very stand-offish with her and no longer called her into his office for meetings as he would have done in the past.

The Complainant referred to an email from the HR Manager dated 5th September 2019 asking why 3 managers were going on a business trip to Dubai which had been organised by the Respondent. The Complainant felt that this was directed at her and she felt that she was begrudged the trip. The Complainant replied to say that she would not be going on the trip.

In mid-September 2019, the Complainant took two weeks’ leave. On the day that she was due to fly home, she got caught up in three hour tailback due to a road traffic accident and missed her flight. After much effort, she secured an alternative flight which departed a number of days after her missed flight with the result that she was 2 days late returning to work.

The Complainant submits that when she texted the Managing Director to let him know that she would be late returning from her holiday, she received a nasty text from him in reply saying that she was setting a bad example to the team.

The Complainant refers to a Head Office meeting which took place on 15th October 2019 at which 10 people (including the Complainant) were in attendance. The Complainant asserts that when the agenda item “Front Desk Cover” was being discussed, the Managing Director singled her out and said that she was “negative, negative, negative”. The Complainant felt that this arose as a result of the HR Manager’s outburst in August.

The Complainant maintains that later on that evening at approximately 6.15pm the Managing Director called her into his office when all other staff had left. The Managing Director asked her to close the door.   The Complainant submits that she told him that she was tired and hungry and that it probably wasn’t the best time for a meeting.

The Managing Director, however, continued with the meeting and grilled her on what had happened at the staff meeting earlier that day and about her late return from holidays which she maintains was outside her control.

The Complainant mentioned to the Managing Director that he had been off with her in recent weeks and asked if she had done something to upset him. The Managing Director replied that he was happy with her performance. The Complainant replied that it was clear that something wasn’t right and suggested that if the Managing Director wanted to terminate her employment, then she was giving him the opportunity to do so.

The Complainant maintains that the Managing Director got really angry and shouted at her: “You decide if you want to stay or go and you have 24 hours to do it”.

When the Complainant pleaded with the Managing Director not to tie her to a time, he replied “24 hours” and followed with drumming his fingers on his temples and through clenched teeth said “you want to get your brain fixed”.

The Complainant left the office and had to sit in her car for a few minutes as she was shaking.   The Complainant feels very strongly that she should not have been in the office on her own with the Managing Director.

The Complainant submits that she continued to work for the Respondent for a week or so after this meeting but that she felt stressed and experienced panic attacks. She went to her doctor who signed her out of work due to stress. She resigned when her sick cert expired.

The Complainant feels that the Managing Director made it impossible for her to continue working for the Respondent.

In cross examination, the Complainant was asked why she did not invoke the Grievance and Disciplinary Procedures outlined in her contract which provides as follows:

“If you have any grievance which you consider to be genuine in respect of any aspect of your employment, you have the right to a hearing by your immediate superior. If you are unhappy with the outcome of the hearing you may appeal to the Managing Director or to the HR Advisor to the company.”

The Complaint responded that she did not know the identity of the external HR Advisor as the Respondent did not have an Employee Handbook at that time.

In cross examination the Complainant was also asked why she did not take up the Respondent’s offer of external mediation which was extended to her on 21st October 2019.

The Complainant said that she went out on sick leave due to workplace stress on 24th October 2019. She did not know how mediation would resolve the humiliation she felt as a result of the Managing Director sitting in front of her tapping his fingers on his temples. She felt that she had been abused in the Managing Director’s office and she did not know how that abuse was going to be fixed.

The Complainant submits that she emailed the Managing Director, the HR Manager and another Director as follows on 2nd December 2019 to inform them that she felt that the Managing Director’s actions had made it impossible for her to return to the office:

“Following on from my current period of stress leave, at this moment in time I feel you have made it impossible for me to return to the office.

You have caused me so much stress and anxiety by humiliating me in front of my colleagues that I would have to manage on the floor, let alone insinuating there was something wrong with my mental health. Now to add insult to injury my sensitive situation is a common talking point between the [Respondent] branches.”

The Complainant submits that she did not receive any response to her email until 16th December 2019 at 2.13pm when the HR Manager emailed the Complainant and invited her to a meeting to discuss her absence and advised that a colleague could accompany her at the meeting.

The Complainant responded to the Respondent’s email at 7.49pm and tendered her resignation due to the delay in Respondent’s response to her:

“In reference to my email on the 2nd December and in light of non-response, I am resigning on the grounds of constructive dismissal.”

The Complainant submits the HR Manager sent her a subsequent email on 17th December 2019 asking her to reconsider her decision. In response, the Complainant emailed the HR Manager on the same day to say that she would not be reconsidering her decision to resign:

“It took me quite some time to come to this decision due to my state of anxiety as a result of being humiliated by [the Managing Director] in front of yourself; HR manager and 8 other head office staff members; accounts team, web and marketing team, front office staff and of course my own [named] team.

…

If I was a valued member of staff [the Managing Director] would not have harassed me in the aggressive manner he did. he wouldn't have insinuated there was something untoward with my mental health white drumming his fingers against his temples and clenching his teeth, this image alone deters me from coming back to work for your company. If I was valued, [the Managing Director] wouldn't have singled me out in the head office meeting pointing at me down the table in front of alt the departments saying 3 times I was 'negative', and if you thought I was valued or not you should have intervened as HR manager, I felt utterly humiliated and embarrassed by being made so little of. Furthermore, [the Managing Director] has been the only person to date whom I advised I was on stress leave, I spoke with no other person in relation to this matter and yet this exact statement 'stress leave' has been circulated between the staff in the branches. How did the [Respondent’s] staff get this statement 'stress leave'? Would it not have been more professional and respectful to say I was taking UPL or just sick leave instead of confirming to everyone 'stress'.

Under no circumstances is my personal business, my health or my sensitive situation to be discussed within [the Respondent organisation] or any person / agent outside of [the Respondent organisation], enough damage has been caused with loose tongues.

I did email both yourself and 2 directors on the 2nd December to which same was ignored, unfortunately. This was the point where there was an opportunity to sit down, discuss and resolve the situation, however you all chose to ignore it.

Taking all the above into consideration and not forgetting the nasty text from [the Managing Director] on the day I missed my flight home from holidays due to a road traffic accident.

…

Thank you and I hope the above clarifies my reasons for resigning and I will not be reconsidering.”

The next morning, the HR Manager emailed the Complainant to apologise for the delay in responding to her email of 2nd December and restating her offer to meet with the Complainant to discuss her grievance.

Shortly afterwards the Complainant responded to indicate that she would not be engaging further with the Respondent.

The Respondent contends that the Complainant was not dismissed by the Respondent but that she resigned voluntary from her position with the Respondent.

The Respondent submits as follows:

The Respondent was not critical of the Complainant’s work and did not subject her to a regime of bullying and harassment. Neither did the Respondent seek the Complainant’s resignation. The Complainant was a valued member of staff and the Respondent wished for her employment to continue. The Respondent also specifically denies that it sought to begrudge the Complainant the trip to Dubai or any trips.

It is acknowledged by the Respondent that there were issues with both the Complainant’s failure to return on time from a personal holiday in Turkey and the manner in which she and her team dealt with an individual customer in mid-August, 2019. The Respondent views these events as relatively minor issues which did not demonstrate a diminution of the Respondent's trust and confidence in the Complainant as an employee. The Managing Director raised the said issues at two meetings with the Complainant on or about 15th August, 2019. The first meeting was a general meeting with managers, including the Complainant, and the second meeting, later in the day, was a bilateral meeting between the Managing Director and the Complainant to clear the air.

The first meeting was business-like and was focused on finding on practical solutions to problems — including the issue of the front desk. Each manger present was asked for an input in respect of the front desk issue — not just the Complainant — but the Complainant reacted negatively. The meeting was low-key and non-confrontational as far as the Managing Director was concerned.

In the Managing Director’s view, the second meeting was designed as a catch-up chat and was not confrontational.

Subsequent to the said meetings the Complainant went out on sick leave and did not invoke, or attempt to invoke, the grievance procedures set out in her contract of employment.

On Monday 21st October 2019, the HR Manager emailed the Complainant as follows suggesting independent mediation as follows:

“At this stage it seems you have a lot of grievances so it’s probably best for us to bring in an independent mediator to discuss them with you.

Alternatively let me know what we can do for you going forward as in general we always try to ensure everyone is happy in their workplace so it’s disappointing to hear you aren’t.”

This was followed up by an email from the HR Manager to the Complainant dated 22nd October giving details of mediator which the Respondent proposed to engage.   In the email, the HR Manager indicated that the Managing Director was on leave and that the proposed mediation would not take place until his return. The HR Manager indicated that she would try to get a date for the week beginning 11th November 2019.

The Complainant resigned by email on or about 17th December, 2019 having previously advised in an earlier email dated 21st October. 2019 that she did not intend to resign. It appears that her resignation was in response to an email from the HR manager regarding the Complainant’s proposed resignation and suggesting that she invoke the grievance procedures.

The Respondent contends that there is no basis for a claim of constructive dismissal in this case. The Complainant’s contract of employment was not repudiated by the Respondent or by its conduct such that it no longer considered itself bound by the contract. While there were some difficulties these were relatively minor, were once-off and, as the Respondent wished, could be dealt by discussion or mediation. Neither did the Complainant act reasonably in resigning in the manner in which she did. Her resignation was a first rather than a last resort and, in the aftermath of the two meetings on 15th October, 2019, she had indicated that she was not resigning. It is generally accepted in constructive dismissal cases that the employee should invoke the grievance procedures where same are provided for in the contract of employment. It is clear that grievance procedures existed in this employment and the Respondent advised the Complainant to invoke same. The Respondent submits that by failing to invoke the said grievance procedures the Complainant has acted unreasonably.

Summary of the Managing Director’s direct evidence

The Managing Director said that he had never wanted the Complainant to leave and that he felt that she was a fantastic employee.

The Managing Director said that the Respondent employs 57 staff and he didn’t want the Complainant’s delayed return from her holidays to set a precedent.

The Managing Director said that he was disappointed that the Complainant made her own travel arrangements to return from her holiday in Turkey when she missed her flight. He felt that if she had contacted him, he would have been able to get her back the day after she was due home.

The Managing Director said that all managers in the business went on a foreign trip each year.   The 2019 trip was due to take place in Dubai at the end of the September. He had wanted the Complainant to go on the trip and was disappointed that she was not there. He was aware that the trip to Dubai overlapped with the end of the Complainant’s holiday in Turkey and offered to pay for flights for her to travel from Turkey to Dubai. He felt that the Complainant’s reaction to the email about the trip to Dubai had been blown out of all proportion. He said that the Complainant herself did not tell him that she would not be going to Dubai but that he heard from another manager.

With regard to the morning meeting on the 15th October 2019, the Managing Director said that there were eight staff present and the purpose of the meeting was to galvanise and encourage them. He had asked them all to be positive. He had asked all those who were present at the meeting if they knew more than the customers.  He said that he had asked all the staff who were present at the meeting about how the front desk should be managed. He wanted to ensure that all customers were looked after. He said that he had met the customer with whom the Complainant had interacted at a local shop after she had left the Respondent’s business and he did not feel that she felt look after.

The Managing Director accepted that he said that the Complainant was negative.

With regard to the meeting that took place on the evening of the 15th October 2019, the Managing Director said that he asked the Complainant to come into his office for 5 minutes as he wanted to clear the air.

According to the Managing Director, the first thing the Complainant said was that she was resigning.   He was shocked by this. He did not want her to leave and it was a body blow when she resigned.

The Managing Director said that he suggested that the Complainant “fix her brain on what she wanted to do”. He said that this was figure of speech and was in no way a comment on her mental health. He said that he did not clench his teeth.

The Managing Director said that he emailed the Complainant after the meeting on 17th October 2019) in response to an email from her dated 16th October 2019 to explain his comments as follows:

“I was not insulting your mental health I was addressing our conversation and my terminology was regarding the issue of you wanting to resign or not. That was what I meant by go and fix your brain on what you wanted to do stay or go.

You have misunderstood completely what I was saying and getting at.”

The Managing Director said that he never disclosed any details of the Complainant’s health to other members of staff.

Summary of the HR Manager’s direct evidence

The HR Manager accepted that there was no Employee Handbook in place during the course of the Complainant’s employment with the Respondent.

The HR Manager said that she took two weeks to reply to the Complainant’s email of 2nd December 2019. She accepted that she should have replied earlier.

The Respondent cites the following precedents in support of its position: Western Excavating (ECC) Ltd v Sharp [1978] ICT 221; Joyce v Brothers of Charity Services [2009] ELR 328; ADJ-00004851 An Employee v An Employer.

As the Complainant is claiming constructive dismissal, the burden of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Unfair Dismissals Act which provides that:

““dismissal”, in relation to an employee, means—

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp. It comprises of two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

According to the Supreme Court in Berber -v- Dunnes Stores [2009] ELR 61: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment.

I do not doubt that the Complainant felt that she had been harshly treated by the Respondent and that this had led to her resignation. However, it is generally accepted that employees who claim that they have been constructively dismissed must show that they have substantially utilised the grievance procedure before resigning from their employment. Whilst there are exceptions to this, such exceptions are extremely rare.

The requirement on a Complainant to exhaust the Respondent’s grievance procedure has been emphasised repeatedly by the Employment Appeals Tribunal (EAT) and the Labour Court. The most relevant case in this regard is Conway v Ulster Bank Ltd (UD 474/1981) where the EAT found 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 Employment Appeals Tribunal 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.”

Desmond Ryan aptly describes the onus on employees in this respect in Redmond on Dismissal Law (2017) at paragraph 19.14: “There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignations. Where grievance procedures exist they should be followed: Conway -v- Ulster Bank Ltd UD474/1981. In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints.’”

In the herein case the Complainant has partially ascribed her failure to exhaust the internal procedures to fact that the Respondent did not have an employee handbook in place.   However, it is clear that the Complainant’s contract of employment contained the following provision in relation to a grievance and disciplinary procedure:

“If you have any grievance which you consider to be genuine in respect of any aspect of your employment, you have the right to a hearing by your immediate superior. If you are unhappy with the outcome of the hearing you may appeal to the Managing Director or to the HR Advisor to the company.”

I note that in her evidence, the Complainant said that she was deterred from raising a grievance in line with this procedure as she did not know the identity of the Respondent’s HR Advisor. Whilst this may have been the case, I am of the view that the Complainant could have sought this information from the HR Manager.

On 21st October 2019, the Respondent emailed the Complainant to acknowledge that she had a number of workplace grievances and to suggest that the services of an independent mediator would be retained to discuss them with her.

The Complainant went on sick leave shortly afterwards and this suggestion was not pursued.

I note that, in her submission, the Complainant expressed the opinion that she did not see how mediation would address the humiliation she felt as a result of the Managing Director’s actions.

I am of the view that it was incumbent on the Complainant to engage with the mediation process and only if it was unsuccessful, could she then contend that it did not serve to address her grievances.

The Complainant emailed the Managing Director on 2nd December 2019 to say that she felt that he had made it impossible for her to return to the office and proposing that he make a financial settlement to her to terminate her employment. She indicated that, in the absence of a settlement, she would proceed with a constructive dismissal case.

The Complainant did not receive a response to her email until 16th December 2019 when the Respondent extended an invitation to the Complainant to attend a meeting to discuss her absence and said that she could be accompanied by a fellow employee.

The Complainant declined this invitation due to a “non-response” to her email of 2nd December 2019.

The Respondent then emailed the Complainant in reply apologising for its late response and restating its offer of a meeting to try to resolve the issues between them.

A number of further emails were exchanged between the parties in which the Respondent continued to offer the Complainant a meeting to discuss her grievances and the Complainant restated her decision to resign.

Whilst it is regrettable that the Respondent took two weeks to reply to the Complainant’s email of 2nd December 2019 and did not even send her an acknowledgment, it is clear that, in its email of 16th December 2019, the Respondent offered the Complainant the opportunity to attend a meeting to discuss her grievances and continued to extend this offer in subsequent emails.

I find that the Complainant’s rejection of the Respondent’s offer of a meeting was fatal to her claim of constructive dismissal and similarly to the EAT’s finding in Conway v Ulster Bank Ltd (UD 474/1981), I find that the Complainant “did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

In light of my findings above, I find that this complaint is not well founded.

The Worker submits that she was verbally harassed by the Managing Director on 15th October 2019 when he publicly humiliated her in front of her colleagues by berating her for responding in a truthful manner. The Worker viewed this as a bullying tactic to set her apart from the group.

The Worker submits that the Managing Director’s treatment of her was demeaning and derogatory.

The Worker submits that she made a complaint of bullying and harassment in an email to the Managing Director dated 16th October 2019 in which she took issue with his treatment of her on the previous day.  

The Employer rejects the Worker’s complaint of bullying and harassment and said that the only time she raised the issue of bullying was in an email dated 17th December 2019 after she had resigned.

In Geoghegan T/A Taps v a Worker INT 1014 the Labour Court held that “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.” It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted.

I do not find that the Worker raised a complaint of bullying and harassment with the Respondent during the course of her employment.

I do not recommend in favour of the Worker.

Definition of Working Time; Constructive Dismissal; Bullying and Harassment