FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : KILLINARDEN FAMILY RESOURCE CENTRE COMPANY LIMITED BY GUARANTEE (REPRESENTED BY COLLIER BRODERICK) - AND - MS SABRINA BYRNE (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No: ADJ-00023309 CA-00029865-001. This is an appeal by Ms Sabina Byrne (hereafter the Complainant) against an Adjudication Officer’s Decision ADJ-00023309 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that she was unfairly constructively dismissed by her former employer, Killinarden Family Resource Centre Company (hereafter the Respondent) . The Adjudication officer dismissed the claim on the basis that it was not reasonable for the Complainant to terminate her contract of employment Background The Complainant commenced employment with the Respondent in June 2006 as an Outreach Development Worker. In 2012 when a new manager was appointed the Complainant started experiencing issues with the new manager. The Complainant felt her concerns were not being addressed. On the 21st January 2019, she handed in her resignation, giving the Respondent two weeks’ notice. It is the Complainant’s case that she had no option but to resign. Complainant’s case The Complainant in her submission set out that she had started having issues with her manager in 2012. When she raised her concerns, these had been addressed but in 2016 she started having issues again. In her evidence to the Court the Complainant stated that on the 21st February 2018 at her request she had a supervisory and support meeting with Ms Scully who at the time was Chairperson of the Board of Management. It was her evidence that at that meeting she made a complaint about the inappropriate behaviour of her manager. Ms Scully assured her that her concerns would be addressed and that she would get back to her. It was the Complainant’s evidence that no action was taken in respect of that Complaint. Due to medical issues the Complainant was absent from work sporadically from June to the middle of November 2018. During the month of October, the Complainant sought from her line manager a copy of the Respondent’s grievance procedure but was not provided with same until sometime in January 2019. On the 5th December she had a meeting with her manager in relation to annual leave that she had booked, a Board member was also in attendance. An issue arose in respect of the Complainant’s pay for annual leave the following week. She had worked extra hours so she could take some time off for a family trip. In the course of the meeting it transpired that the failure to pay her for the annual leave had been an error. It was confirmed to the Complainant that the error would be rectified, and it was rectified immediately. It was the Complainant’s evidence that she again raised the fact that she was having issues with her manager. It was the Complainant’s evidence that she was never given copies of any notes or minutes taken at any meetings she attended. The Resource centre closed for two weeks at Christmas and immediately after the holidays the Complainant was absent for two weeks as she had to have an operation. The 21st of January 2019 was her first day back in the office. It was her evidence that she arrived at the office at nine o clock, at a minute passed nine the line manager came into her office and said I want to see you. She then reappeared at 9.02am and 9.04 am, asked the Complainant to step into the managers office as she wanted to see her. It was the Complainant’s evidence that this upset her as she was only in the door. She sat down, typed up her resignation letter, printed off a copy for her manager and a separate copy for the Board then put the letters into envelopes addressed to the parties and at 9.15 am she went into her managers office and handed in her resignation. When she handed the letter to the Manager the manager opened the letter and asked her to come back at 11 for a meeting. The Complainant went back to the Managers office at 11 a member of the board was present and the meeting went ahead. She was informed that the meeting was to discuss her resignation. It was the Complainant’s evidence that she again raised the issues that she was having with her manager and the response was if that was the way she felt they would accept her resignation. In response to a question in the course of cross examination the Complainant confirmed that she had signed the record sheet for the support and supervision meeting on the 21st February 2018. She accepted that under “Any issues to be fed back to Management Committee” none was noted and under “Any issues to be fed back to other staff” none was also noted. Under actions to be taken by supervisee she accepted that it stated: “Talking to Mary B, continue talking and sharing, support from board”. She also confirmed that she was paid for sick absences over and above what her contractual entitlement was and that the centre had facilitated her during working time in attending courses that would assist her. In respect of her letter of resignation she accepted that it did not say she was resigning because of issues with her manager or because she felt she had to and that it requested that she be provided with a reference by the end of the day if possible. The Complainant confirmed that she worked her notice period and that she never sought to retract her resignation. In response to a question from the Court the Complainant confirmed that at the time of writing her letter of resignation, she had received a copy of the grievance procedure from the Respondent. Respondent’s case The Respondent in their submission set out a history of its dealing with the Complainant including supports it had put in place and examples of how it had facilitated the Complainant in respect of issues that arose for her from time to time. Ms Bolger the Complainants line manager in her evidence to the Court confirmed that there were staff handbooks which contained the grievance procedure in her office and in the office where the Complainant worked. She also confirmed that she had sent a copy of same to the Complainant in January 2019 but could offer no reasonable explanation as to why it had taken three months for her to do so. It was her evidence that on the morning of the 21st 2019 she came into work as normal. She went down the corridor to get a glass of water saw the Complainant in her own office and said good morning to her. A short time later the Complainant came into her office and gave her two envelopes one for herself and one for the Board. When she opened the one addressed to her she saw it was letter of resignation. She advised the Complainant that she would arrange a meeting to discuss the letter once she could get some else to attend the meeting as well. The meeting went ahead at 11.00am the Complainant made allegations against her and at that point she indicated to the Complainant that she was accepting her resignation. The second witness for the Respondent was Ms Scully the Chairperson of the Board of Management. It was her evidence that at the meeting of the 21st February 2018 the Complainant did raise issues about her line manager. However, based on what the Complainant said to her she was satisfied that what was being described was not bullying but in fact the manager doing her job and she explained that to the Complainant. It was her evidence that she was trying to arrange a meeting with the Complainant from December 2018 but because the Complainant was absent the meeting could not be scheduled. It was her evidence that the Complainant was aware that she was trying to schedule a meeting. Ms Scully could not recall precisely when she saw the letter of resignation but confirmed that it was discussed at the Board meeting and that the Board wrote to the Complainant on the 25th January acknowledging receipt of her letter and wishing her well in the future. The applicable law Section 1 of the Act defines constructive dismissal in the following manner “ 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,” Section 6(1) of the Act states “ Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”. Issues for the Court As dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act. Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test” an employer must be “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”. Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so he is justified in leaving. The Representative of the Complainant submitted to the Court that they were relying on the contract and the reasonableness test. Discussion In respect of the contract test it is the Complainants submission that failure to investigate her complaint was a significant breach going to the root of the contract. The Court having carefully considered the submissions made and the evidence before the Court cannot accept that there was a significant breach of the employment contract such that would meet the test set out in Western Excavating referenced earlier. In respect of the second test the question that arises for decision in this case is whether, it was reasonable for the Complainant to terminate her employment because of the Respondent’s conduct. The Complainant is seeking to rely on the failure of the Respondent to investigate her issues concerning her Manager and the manner in which the Manager interacted with her as being the unreasonable conduct. However, in her evidence she accepted that she signed the form after the February 2018 meeting although there was nothing recorded on it to reflect her issues with her Manager. The Complainant also accepted that the issue that arose in December was a genuine error and was rectified once it was identified. Findings The net issue for consideration is whether the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1 of the Act. In reaching its conclusion on that question the Court has carefully evaluated the evidence adduced in the course of the appeal and it has taken full account of the written submission made by the parties In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a Complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (see Conway v Ulster Bank Limited UDA474/1981). In Beatty v Bayside Supermarkets UD142/1987, in referring to the need to utilise grievance procedures, Employment Appeals Tribunal held:- “The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”. On the other hand, in Allen v Independent Newspapers (Ireland) Limited [2002] ELR 84 the Employment Appeals Tribunal held that it was reasonable on the facts of that case for the complainant not to have faith in the employer’s ability to properly or effectively address her grievances. However, in the instant case, the Court is not satisfied that there were factors present which might excuse the Complainant’s failure to formally complain to the Respondent before resigning. The Respondent had a grievance procedure in place and the Complainant was aware of its existence. On the facts of this case the Court cannot see how it could realistically be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle her to terminate her employment without having sought to ventilate and resolve whatever grievance that she had through the internal procedures. Particularly, in circumstances where the Complainant had sought and been provided with a copy of the grievance procedure. The fact that she failed to do so negates any possible basis upon which her subsequent decision to resign could be regarded as a reasonable response to the situation then pertaining. Determination In all the circumstances, the Court cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating her employment by way of constructive dismissal nor was such as to show that the respondent no longer intended to be bound by one or more of the essential terms of her contract of employment. Accordingly, the Court must hold that the Complainant’s employment did not come to an end by dismissal. The Court determines that the Complainant’s complaint is not well founded. The appeal is rejected. The decision of the Adjudication Officer is affirmed. The Court so Determines.
NOTE Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary. |
