ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00024206

Parties:

Complaint:

Date of Adjudication Hearing:  21st January 2020

Workplace Relations Commission Adjudication Officer:  Eugene Hanly

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

Summary of Complainant’s Case:

The Complainant stated in her legal submission that to find in favour of a complainant under constructive dismissal a number of conditions must be met. They must meet one of the two tests, either a breach of contract or the reasonableness test. She believes she has adequately and completely met the criteria for the second of these two tests; the reasonableness test. As outlined in Berber –v- Dunnes Stores 2009 ELR61 this requires that the actions of the employer be so unreasonable that the employee was left with no alternative but to leave employment. She has made a number of major accusations which include, but is certainly not limited to, being physically touched, being excluded, being unfairly treated in relation to time off and flexi-time, being cursed at, being treated aggressively and in a hostile manner and having her character defamed as well as being humiliated and belittled in front of other staff members, having no management support and being unfairly treated during the hiring process and then forced to continue to complete the work and train the person who had received the position she had not. All of these complaints were made by her during her employment and she held the belief that these complaints had been adequately logged and recorded. This is evident by the fact that she believed these complaints were being investigated by both internally and externally. When it became evident to her that the external investigator seemed unaware of these complaints she made him aware of them as soon as possible. This is proven by the emails between her and the external investigator and internal personnel in July 2019, previous to her complaint to the WRC, this is despite the College claiming in their submission that she had not informed them of these complaints.

Under constructive dismissal the burden of proof falls to the Complainant to prove these complaints occurred, on the balance of probabilities, and that they were unreasonable enough to warrant her resignation. She has provided numerous emails, dated and time stamped text messages and written statements by third parties attesting to this behaviour. She provided a time and date stamped text message to a third party which contradicts another claim that she did not curse at the Complainant, she has provided date and time stamped messages which attest having been unfairly blamed for a data breach caused by an employee, again which the employee denies. She has provided time and date stamped test messages that attest to her feelings of isolation and lack of managerial support, as well as her desire to leave the company for the sole reason of harassment and bullying. She has provided written third-party statements which attest to the culture of bullying and harassment in the College. She believes, on the balance of probabilities, she has adequately met this burden of proof. She has provided numerous documents to attest to her treatment throughout her time at the College. She also believes that she has adequately met the requirement to prove that the actions of the College were so unreasonable as to warrant her departure. She believes she has illustrated that she was unfairly targeted with a barrage of harassment and bullying. The second requirement which must be met, as was extensively outlined by the Adjudication Officer in ADJ 20041 is that she must have utilised the grievance procedures available to her. She has made it evident that she tried to work with the company to fix these issues, through her numerous complaints, and that she only left when the harassment and bullying became unbearable, evidenced by her deferral of her college course because of the financial hardship of leaving work and by her mental state in the time surrounding her departure. As well as this she informed the company of her desire to leave in September 2018, a desire she made when she logged a complaint. This complaint, when she made her need to leave because of the work environment evident to two named employees was her exhausting the complaints process, another requirement of constructive dismissal. The complaints made in this meeting were a direct reason for her departure and up until her departure she believed this complaint was still being investigated or that she would not receive an outcome as had always previously occurred. She held this belief as she had never previously received an official outcome from any of her complaints and never received one for this complaint. It became apparent to her that these complaints were not recorded, nor investigated, when she received her data request under GDPR and none of these were included. The external investigator also admitted to this occurring at least once prior to her departure, the complaint she logged when handing in her notice. This is also attested to by a third party written statement in which her sister documents her experience following a similar complaint. Her sister details harassment by managers following her complaint, as well as a similar experience to her of not receiving an outcome to her complaint. She also includes an email from a former member of senior management who states that it is their opinion that a named member of management buries complaints and her sister in return admits to feelings of hopelessness surrounding the complaints process, as well as feeling unsupported by senior management and the hostile work environment. She also details the culture of bullying and harassment present at the College and includes a correspondence with another employee in which they discuss their dislike for a named employee because of the harassment and bullying allowed to continue. These also includes an acknowledgment of the named member of management ignoring the issues within the company, which she believes led to a large loss of staff in 2017. She also includes another text message between her and another manager in which they detail the lack of support received by the manager when in conflict with a named employee. While she believes she has adequately met the requirement to exhaust the complaints process, even so far as going above the requirement and logging a second complaint, which coincided with her resignation, and escalating her complaint to the Colleges external HR company, she would also like it noted that on failure of acceptance of her previous point that she did exhaust the complaints process, which began with her complaint in September 2018, she believes she is an exception to this rule. This exception is detailed in UD1350/2014 M. Reid –v- Oracle EMEA Ltd and John Travers –v- MBNA Ireland Limited UD720/2006. In both instances it is stated that if an employee can establish that the grievance process was unfair than this creates an exception to this rule. She believes that she meets the requirements of this exception because the bullying and harassment she faced increased exponentially following a complaint she made against a named person in 2017. This complaint led to her departure from that role as well as her being too afraid to continue with a complaint against the named employee after she touched her at an open day. This is evidenced in an email with a named employee and her sister. Her sister also details this increased harassment following a complaint. She believes that she could not be reasonable be expected to stay at the College following the complaint which occurred at the same time of her resignation. Because of her mental health and the treatment, she faced she did not feel that she could face staying with the company for an additional month, while the complaint was investigated, nor could she face the inevitable lack of response. This belief was proven correct, as the College admits, she did not receive an official outcome. The named employee also admits to consciously and actively withholding the outcome of the complaint for her own gain as, she believes, it was her intention to ensure she finished out her notice. More notably she believes herself to be an exception to this rule because of the previous point. On the College’s own admission, the named employee withheld the outcome of her final complaint. Not providing her with the outcome of her complaint goes against the most basic of grievance procedures and makes the process inherently unfair. She believes that she has adequately met the requirements to meet unfair dismissal. She has illustrated, and provided a myriad of evidence to attest to, the systematic bullying and harassment she has faced. She has established that this is a cultural issue at the College and that others have left the company in the past for the same reason. It is her belief that a reasonable person, given the extensive evidence, would recognise the considerable mental health ramifications of continuing in her employment. She also believes a reasonable person would recognise that she had no choice but to resign. She also believes she has adequately met the requirement that she exhaust the internal grievance policy. She lodged a complaint in September 2018, which led to a meeting but no outcome. She believed she would not receive an outcome as she had not previously. She lodged a second complaint on her resignation. The College admits to not following their grievance policy and withholding the outcome of this complaint. Failing on this point she also believes she is an exception to this rule as she has highlighted the unfair treatment she would face on lodging a complaint and that the College would not have followed fair policy regardless, on their own admission. She is satisfied that she has met the tests required, that she was constructively dismissed and that she is seeking compensation.

Summary of Respondent’s Case:

The Claimant has brought a claim of constructive dismissal against the Respondent. The college has

developed a very successful model of education to allow professionals access high quality and flexible professional education and training.  The Claimant commenced employment with the college as a weekend and evening receptionist on a fixed term contract on 1 October 2016. This contract was zero hours contract. On or about 5 January 2017 the Claimant was appointed to the role of Sales Lead Qualifier in addition to the existing role that she carried out as a weekend and evening receptionist. On or about 13 January 2017 i.e. when she was approximately 8 days in the position of Sales Lead Qualifier, the Claimant resigned from this role. She worked out her notice period and her

work ended in the department on 14 February 2017. The Claimant remained working as a

weekend and evening receptionist. Within a matter of approximately a month the Claimant

applied for and commenced a new role with the Respondent. This role was that of Programme

Administrator in the Post-Primary Education Department. The Claimant's contract was a permanent contract of employment.  In or around November 2017 the Claimant applied for the role of Assessments and Awards Manager. The Claimant was unsuccessful in her application. In or around August 2018 the Claimant applied for and was interviewed for the position of School Placement Coordinator. She was also unsuccessful in relation to this application. She remained working in the role of Programme Administrator. By letter dated the 13 of March 2019 the Claimant resigned in writing from her position. It is noteworthy that the Claimant worked for most of her notice period up to and including the 5 of April 2019.  The Respondent has a Dignity at Work Policy, a Grievance Procedure and also provides all employees with an employment handbook. The various procedures are accessible on the Respondent’s internal intranet. The Claimant never raised a grievance, nor did she attempt to raise a grievance prior to her resignation in relation to the matters that she now complains of or indeed any matters. She was given an opportunity to withdraw her resignation and she refused. She was also offered the opportunity to raise a grievance at her exit interview and she only availed of this after her resignation took effect.  In relation to the Claimant's WRC complaint, it is noteworthy that the Claimant appears to be relying on alleged incidents dating back as far as 2017, she makes reference to new and/or altered complaints that were never raised in the investigation into her grievances (that took place after her resignation) and, furthermore, she makes a number of allegations against unnamed persons.

BACKGROUND FACTS

The Claimant attended a meeting on 13 March 2019. The purpose of this meeting was to review documentation for the assessment of post-primary students concerning their exam results. The Claimant was present at this meeting together with the Assessments and Awards Manager), the Claimant's Line Manager) and three other employees. There was a lot of confusion at this meeting in relation to the marking sheets used. This was ultimately resolved when it was discovered in the course of the meeting that the correct marking sheet/spread sheet was not being used by all those present. Once this matter was resolved all other outstanding issues were resolved and the meeting was completed.  It appears that the Claimant felt that she was treated in a hostile manner at this meeting. Others who were present at the meeting did not see the hostility alleged by the Claimant but did acknowledge that there was some frustration and confusion over the use of the correct spreadsheet/marking sheet. At the end of the meeting the Claimant ripped up the handouts in front of the participants at the meeting.  The Claimant then sent a letter of resignation by email to management. In that letter she stated: "Please find notification of resignation from my position of Programme Administrator in the College. I have decided, not easily, to cease my employment with the College. My final day of employment will be 10 April 2019 and my final day in the College will be 8 April 2019. I wish to thank the College for their employment over the last two years."

On receipt of the aforementioned email the Head of School of Education, met with the Claimant to discuss the reasons for her resignation. They wanted to understand the use of the wording in the letter of resignation of "decided, not easily". In the course of that discussion the Claimant informed management that the culture had changed in the organisation, other colleagues on the team had left and that she felt it was time to move on. Management had previously had conversations with the Claimant dating back as far as the autumn of 2018 where the Claimant had indicated that she was looking for other jobs. Management was therefore not greatly surprised at the decision of the Claimant to resign. In the course of this discussion on 13 March 2019 the Claimant also indicated that it was time for her, the Claimant to move on and gain new experiences. Management asked her if she was sure that she was doing the right thing by resigning and she indicated that she felt she was. In the course of that meeting a discussion took place about the meeting concerning the exam mark sheets which had upset the Claimant. Management indicated that she would look into the matter and ascertain if an apology was required. It is noteworthy that the Claimant gave no other indication to Management at that meeting that she had any other issues or grievances. The Claimant did not mention any dignity at work complaint, bullying and/or harassment complaint. She only made reference to the meeting of the 13th of March. She thanked Management for her support. The Claimant then proceeded to work out her notice. Her final day at work was scheduled to

be 8 April 2019. She met with the HR Manager for her exit interview on 2 April 2019 which was some six days before she was due to leave the company. A copy of the Claimant's exit interview form was presented.  In the course of that exit interview, the Claimant was asked for her reasons for leaving her role. As is recorded in the exit interview form, the Claimant stated that she was not happy in her role. The form records the following statement: "She says that the reasons for this are; she has had two different managers in a short period of time over past six months and also no manager for a period, she feels treated differently to colleagues for annual leave requests, she says she was not allowed to use up flexi leave, she had too much work and no progression opportunities, she says

she does not feel supported by her manager, and she identified poor communications and relations in the team. She says that a recent incident with a named work colleague pushed her decision to leave."

As reflected in the exit interview form, management explained to the Claimant the possibility of

raising a grievance in relation to any of the issues raised. The Claimant indicated that she might

consider raising one in relation to the incident with her work colleague. She said she had

discussed this issue with management and that they were following up on it. The Claimant

indicated she was still waiting to hear from management. The Claimant said that she would speak

to them again and consider the matter of a grievance at that stage. She also stated that she was considering whether to raise a grievance in relation to her manager and that she would like some time to think about this. The HR Manager indicated to her that she would follow up with her in the next few days and it was explained to the Claimant that she would be supported in raising her issues in a grievance procedure. The Claimant met with management on 5 April 2019. The Claimant discussed what her plans were after she left the Respondent and indicated that she was planning to do a course in marine biology.  She also indicated that she was going to take some holidays. In the course of that meeting, management apologised for the delay in coming back to the Claimant in relation to her issue about the meeting that had taken place on 13 March. Management explained that she had followed up with the people who were present at the meeting and she said that they had described the meeting as very much a fact-finding meeting to sort out some issues. Management further indicated that those who were present at the meeting did not feel

that the Claimant was due an apology and/or that same was required. The Claimant thanked

management for following up but said that she was shocked by this as she had given her notice on

the basis of the meeting. She stated that the meeting was aggressive and that things had been

brought up at that meeting that should not have been brought up. The HR Manager acknowledged what the Claimant was saying and explained to her that she had the opportunity to raise a grievance and have the issue investigated and that this was possible even if she had left the company. The HR Manager also pointed out to the Claimant that she could raise a grievance about her manager and reiterated that it was open to the Claimant to come back to her, i.e. the HR Manager if the Claimant wished to raise a grievance.

Friday the 5 of April 2019 was the Claimant's last day in the office. She cleared out her desk on that day and her colleagues arranged a goodbye get together and she was presented with some gifts. It is noteworthy that the Claimant alleges in her WRC claim form that on 8 April, her final day, she was "too riddled with anxiety to return to work and called in sick". The Claimant did call in sick on the 8th of April but her actions on the 5th of April suggest that she had no intention of returning to work on the following Monday.

By email dated 8 April 2019 the Claimant wrote to the HR Manager. In that email she stated inter alia: "I just wanted to follow up with you in regard to the meeting that occurred on Friday

5 April 2019. As you probably noticed, also through me mentioning it a number of times, I was not

satisfied with the outcome of the meeting. As mentioned, someone who has been with the company when their entire team leaves and is then responsible for looking after training and students, does not leave on a whim from a meeting. I do not believe the outcome of the meeting was satisfactory, as if I had not followed up with Mary I would not have been notified of its conclusion, as she mentioned. I also do not believe that X had the right to ask the questions as Y had the notes prior to this meeting as X was out. Also, the issue is not around the questions raised, the issue is around the way in which they were raised. The meeting was unprofessional and aggressive. Management also approached X’s

manager on a separate occasion in regard to a similar issue and nothing came about this. In regards to the mention of lack of support from my manager, whether my manager and I had a relationship that still does not excuse the lack of support that I received in recent months. I wish for the following grievances to be looked into further as I am unhappy with the process followed and the treatment I have received which left me to cease my employment with the College: The meeting that occurred which led to my departure. The investigation into it. Issues with movement in the company as I was informed my age and time in the company was the reason (even though I was covering the role and the person currently in the role came into the company after me), as mentioned in my exit interview.

Lack of support I received from my manager and the issues raised in the meeting about the accusation of lying about the GDPR issue that arose earlier this year."

The Claimant decided to raise a grievance for the first time on the 8 of April 2019. It is quite clear from the email of 8th April that the Claimant had four matters that she wished to be investigated as part of the grievance. It is noteworthy that the matters that she now raises before the WRC are significantly greater and different to those matters that she sought to be dealt with by way of her grievance. 20. By email dated 16 April 2019 the HR Manager sent the Claimant a letter. In that letter she confirmed that a grievance in relation to the four matters raised in the Claimant's email of 8th April would be dealt with in accordance with the company's grievance procedure. She enclosed a copy of that procedure with the letter. She also indicated that the Chief Financial Officer, was appointed as the investigator for the grievance. The letter went on to state: "I understand that in conversation with her line manager, that at the time you notified the company of your resignation, you indicated you were leaving because you felt the culture of the organisation had changed and it was time for you to move on and that you intended to pursue further study. However, your email of Monday 8 April states the issues, listed above contributed to your recent decision to resign from the company and so the company is happy to offer you the opportunity to reconsider your resignation. Please take some time to consider your position. If you have not confirmed to me by 5.00pm next Tuesday, 22 April 2019, that you wish to withdraw your resignation, the company will consider your resignation as final."

In the course of email correspondence, it became apparent that the Claimant objected to

Z investigating her grievance. Consequently, the Respondent appointed an external investigator to carry out an investigation into the grievances raised. By email dated 26 April 2019 the Claimant wrote to Z indicating inter alia that she did not want to reconsider her decision to leave the company. The Claimant also appeared to consider the offer that she reconsider her resignation as somewhat sinister as her letter went on to state: "Can you please confirm if this request to reconsider has come from the team or senior management and the reasoning behind this request. As you can probably imagine, I am somewhat confused by the mention of this as firstly this is the first to my knowledge that the College has asked a previous staff member to reconsider and I would like the reason as to why I have been asked. I find it unusual as of the grievances I have stated, I left with an impeccable work record and with good references due to this." By email dated 3 May 2019 Z responded to the Claimant noting that the Claimant was not willing to reconsider her resignation and stating: "The offer of reconsidering your resignation was one made by management. It was made on the basis of your email of Monday 8 April where you listed four issues that contributed to your decision to resign from the company."

The email of 3rd May further confirmed that the external investigator had been appointed as the investigator. The email included a link which provided further information in relation to him. It also noted that he had been provided with a copy of the Claimant's letter of resignation, a copy of her exit interview form, a copy of the email discussions between Z and the Claimant in relation to her grievances and a copy of Z's letter of 16th April.  By email dated 10 May 2019 the investigator wrote to the Claimant indicating that he was conducting an investigation into her grievances and attaching the terms of reference for the investigation. He suggested a meeting on the 16th May or 21st May. Ultimately, a meeting took place on 21st May. It is noteworthy that the Claimant never objected to the terms of reference and the scope of the investigation clearly sets out the four grievances raised by the Claimant. They were as follows:

1. i) The meeting that occurred on 13 March which led to the Claimant's departure.
2. ii) The investigation into it (which is understood to be the initial follow up by Z into the meeting).

iii) Issues with the Claimant’s request to move within the company.

1. iv) Lack of support received by the Claimant from her manager and issues raised in the meeting

about the accusation of lying with the GDPR issue which arose earlier this year.

The Claimant never suggested that the terms of reference were too narrow in relation to her

grievance. However, she is now attempting to raise many other issues and/or alleged complaints in the course of her claim before the WRC.

The investigation into the Claimant's grievances took place after her resignation and indeed

after she had left her employment with the company. Therefore, it is submitted that any alleged flaws in relation to this investigation are entirely irrelevant to the Claimant's constructive dismissal claim. However, strictly without prejudice to the foregoing, it is submitted that the investigation that was carried out by the external investigator was entirely in line with fair procedures and natural justice and was comprehensive and extremely detailed. He investigated the four allegations that were raised by the Claimant in her email of 8th April. He interviewed the Claimant and her former colleagues:  It is noteworthy that at the end of the investigation meeting with

the Claimant, he asked the Claimant whether there was "anything further that she

wished to say". The Claimant then had an opportunity to raise any other matters apart from

the four issues that she had already raised as part of her grievance. Despite being given this

carte blanche to raise any additional issues, she only raised a number of allegations in relation to her previous line manager.

He noted that the Claimant made a number of allegations against management which were not referenced in his report as they were simply not supported. It is simply extraordinary that the Claimant waited more than two years to raise these issues in a formal grievance in relation to her line management. It is submitted that whatever allegations she makes against her  cannot be considered to be part of the reasons for her resignation. Firstly, he did not find that management behaved inappropriately and secondly she was not her line manager at the time of her resignation.

In relation to the four matters that the Claimant raised as part of her grievance, he dealt with them in detail in his investigation report.  In relation to the meeting that occurred on 13th March which led to the Claimant's departure, he after meeting with the various personnel found that there was:

"… confusion in respect of the spreadsheet being used and understanding the particular cohort which was relevant. It was entirely sensible that a meeting would be arranged to resolve these issues prior to the presentation of the material to the Exam Board. Following this meeting, the Claimant submitted her resignation and it does appear that her resignation arose following the meeting. It is clear that her upset evidenced by the timing of the email of her resignation and the tearing up of documents at the end of the meeting. On her own evidence and that of others, she was the subject of

questioning which she perceived as being critical of her. …

Overall, I've been unable to find that the Claimant  was treated in a hostile manner by those at the meeting. I accept the rationale for calling the meeting. I accept that when people are at a meeting, acting on different information, confusion can result. However, the necessity for holding the meeting was validated by the discovery of the fact that the information being acted upon for the purposes of the Exam Board was not shared by both teams."

In relation to the second aspect of the Claimant's grievance, which concerned the investigation into the meeting of 13 March by Z, he made a number of findings. He noted that the complaint was largely based on the understanding of both the Claimant and Z about what was agreed at their meeting following the Claimant's decision to resign. He noted that the Claimant understood that Z was going to investigate the matter and revert to her and Z’s view was that if the Claimant was due an apology she would ensure that she would receive one. He found: "I find that a commitment was given to the Claimant to investigate the matter and revert to her. I understand the Claimant disappointment that this had not occurred prior to her exit interview. It was clear that the commitment to investigate was given based on the understanding that the Claimant was upset by what had occurred at the meeting. I find that matter was investigated as per Z’s commitment to do so. Z’s judgment that the Claimant disappointment with the outcome was a good reason not to communicate the outcome of her queries was not what should not have happened in the circumstances. Overall, I find that the commitment to investigate the matter was fulfilled and that the communication of the outcome was unfortunately delayed, which it should not have

been."

The third aspect of the Claimant's complaint related to her request to move within the company. He found that the Claimant did not progress in the manner she expected or wished within the college and he also noted that she believed she was not supported in progressing within the college. He found: "Notwithstanding her dissatisfaction with the two competitions, there was nothing in the evidence which she has put forward which would indicate that the competitions were conducted in a way which breached the procedures and standards required within the College for the appointment of staff. I cannot find that she was unfairly treated in respect of the most recent competition given that she did not compete for the position. Overall, I cannot find that she was unfairly treated in

respect of her requests to move within the College. Over her career she has held a number of roles within the College and while I appreciate that she is disappointed with what she perceives to be the support she received for her most recent development, there is also a responsibility upon her to progress her own development, particularly when her managers had indicated that they were open to supporting her."

The fourth aspect of the Claimant's complaint was the alleged lack of support received by her from her managers and issues that were raised in a meeting about the accusation of lying with the GDPR issue. In this regard, he made the following findings: R inadvertently gave access to a sensitive document to the wrong student. The matter was brought to the attention of the IT department and the Data Records Manager. It was investigated and found that R had given access to the wrong student inadvertently, but there was no data breach in the context of GDPR requirements. Her complaints relate to an allegation that she was forced against her better judgment to communicate with the student using an inappropriate methodology. She further alleges that R refused to accept responsibility for what occurred, seeking to place the blame upon her and further forcing her to communicate with the students involved. … I am unable to find, on the balance of probabilities, that she and R had the discussions relating to the responsibility for what occurred or forcing her  to use the system to engage with the students occurred in the way outlined by her.."

He made the following overall findings: "I find that she resigned from the College following a meeting with other colleagues during which there was confusion in respect of the shared understanding

between the two departments of the information they were working with. I appreciate that she was upset following the meeting to the extent that she submitted her resignation. I also appreciate that the meeting was not an easy one because of the confusion relating to the shared information.

However, I believe that the purpose of the meeting was validated by the discovery and resolution of the reason for the confusion and the preparation of accurate material for the Exam Board was a critical requirement of both departments. I find that the meeting was difficult and confusing, but also necessary to resolve important issues between the two departments. I do not find that, on the balance of probabilities, the meeting was hostile towards her. In respect of the review, which was committed to by Z, I find that while the commitment to review was fulfilled, the outcome was not communicated to her as it should have been. I can appreciate that she had ambitions to progress within the College and I believe that her experience and capabilities could have been better recognised by the College in the roles which she applied for and in the development which it could have given her to better prepare for her advancement. I do not find that the processes and procedures adopted by the College were flawed in the context of its responsibilities to have a professional and transparent competition for roles which it seeks to fill. I do not find that she was unreasonably treated during the email/GDPR concern. Nor do I find that she did anything wrong during this process. I remain unable to understand why the individual to whom Z  spoke to, a

number of years ago about her found it necessary to communicate the private conversation that she had to her in the last few weeks. I do not find any basis for upholding a complaint against Z in respect of this individual's disclosure. Overall, I find that while she did have concerns in respect of her employment, and that the College provided opportunities for her to withdraw her resignation,

formally offered her the opportunity to return to work and to have her concerns investigated while she remained in employment. I appreciate that she is unhappy following her employment with the College, but overall, I have not been able to find in her favour in respect of the complaints which

she has put forward for consideration."

By letter dated 13 August 2019 the Chief Executive Officer sent a copy of the investigation report to the Claimant. The Claimant then proceeded to issue the within claim by WRC Claim Form dated 13 September 2019.

LEGAL SUBMISSIONS

In a claim of constructive dismissal, the burden of proof is on the Claimant to establish that the actions of the Respondent were so unreasonable that she had no option but to resign and/or that a fundamental term of the contract of employment was breached. The Respondent respectfully submits that neither test is satisfied in the within proceedings. It is submitted that the Respondent did not breach a fundamental term of the Claimant's contract of employment; the Claimant must fail the contract test.

In a case in 20171 an Adjudication Officer set out the test of constructive dismissal as: "In such cases the critical issue is the behaviour of the employer, although the employee's behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the Claimant's resignation, and something that represents a repudiation of the contract of employment. … In effect, the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer's behaviour."

In that case the Adjudication Officer referred to the Supreme Court decision in Berber v. Dunnes Stores Ltd.2 The Supreme Court in the Berber case held: "That being the history of interaction between the Appellant and the Respondent and looking at each event individually and at the events cumulatively, I am satisfied that the conduct of the Appellant judged objectively was not such as to amount to a repudiation of the contract of employment. The conduct judged objectively did not

evidence an intention not to be bound by the contract of employment."

A General Operative versus a Religious Society ADJ – 00002814 [8 March 2017]. 2 [2009] IESC 10.

Lord Denning MR in the 1978 case of Western Excavating (ECC) Ltd v. Sharp 3 describes the

reasonableness test as the question as to whether the employer "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."

In relation to the reasonableness test, it is submitted that there was nothing unreasonable in the actions of the Respondent. It is submitted that the actions of the Claimant were in fact unreasonable in resigning prior to instituting a grievance. This is particularly the case given the fact that the Respondent has a Dignity at Work Policy and a Grievance Procedure. The case law in this jurisdiction since Conway v. Ulster Bank makes it clear that where there is a grievance procedure, same must be utilised by the employee prior to his or her resignation. Failure by an employee to engage in the grievance procedure will result in his or her claim of constructive dismissal failing. It is submitted that the Claimant in the within proceedings failed to engage at all in the grievance process and decided to resign a significant number of days before she instituted a formal grievance. Furthermore, the Claimant was afforded the opportunity to reconsider her resignation and continue in the employment with the Respondent. It is submitted that she could and should have withdrawn her resignation and awaited the outcome of her formal grievance.  It is submitted that the Claimant was not constructively dismissed. From the facts outlined above, the actions of the Respondent at all times were appropriate and reasonable. Furthermore, it is noteworthy that the Claimant now appears to be bringing a whole host of new allegations and/or significantly altered allegations before the WRC in relation to matters which in some cases date back to 2017. The Claimant was afforded an opportunity to have all of her issues dealt with by way of the grievance procedure. She was also afforded the opportunity by the external investigator to raise any further issues she wanted to during that investigation. However, the Claimant singularly failed to raise many of the issues that she now appears to be relying on in her WRC claim/submissions. It is submitted that in all of the circumstances it was entirely unreasonable for the Claimant to resign. It is noteworthy that the Claimant worked out effectively all of her notice period. She continued to work at the Respondent's offices up until 5th April. If the actions of the 3 [1978] 2 WLR 344.  UD 474/981, and see also for example Harrold v. St Michael's House [2008] ELR 1.  Respondent, its servants or agents were so unreasonable that she had no option but to resign, it is implausible that the Claimant would work out her notice period.

LOSS

Strictly without prejudice to the foregoing, if the Adjudication Officer finds that the Claimant was unfairly dismissed (which is denied) then it is submitted that the Claimant has a duty to mitigate her loss. It appears that the Claimant did intend to take some holidays and/or pursue further education. The Respondent believes that it is a possibility that the Claimant has failed to properly mitigate her loss. The Respondent reserves the right to raise further and better particulars of its defence concerning loss on hearing the Claimant's evidence in relation to same.

Final comments

Findings and Conclusions:

I note her position that the Complainant has stated that she tried to work with the Respondent to fix these issues, through her numerous complaints, and that she only left when the harassment and bullying became unbearable.

I note that she believed that she informed the Respondent of her intention to leave in September 2018, when she logged a complaint to two named employees, was her exhausting the complaints process, which she stated was another requirement of constructive dismissal.

I note that she stated that it became apparent to her that these complaints were not recorded, nor investigated, when she received her data request under GDPR, none of these were included.

I note that she believes she has adequately met the requirement to exhaust the complaints process, and additionally logging a second complaint, which coincided with her resignation, escalating her complaint to the Respondent’s external HR company, that she did exhaust the complaints process, which began with her complaint in September 2018.

I note that she further believes that the grievance process was unfair because the bullying and harassment she faced increased following a complaint she made against a named person in 2017. That complaint led to her departure from that role.

I note that she believes that she has established that this is a cultural issue by the Respondent and that others have left the company in the past for the same reason.

I note that she believes that a reasonable person would recognise the considerable mental health ramifications of continuing in that employment.

I note that she also believes a reasonable person would recognise that she had no choice but to resign.

I note the Respondent states that there is a Grievance Procedure and a Dignity at Work Policy in operation and available to all employees.

I note that the Respondent stated that no grievance was raised by the Complainant until after she had resigned.

I note that the Complainant was given the opportunity to withdraw her resignation.

I note that a meeting took place on 13th March 2019 assessing post primary students. It was discovered that the incorrect marking sheets were used. The Complainant felt that she was treated in a hostile manner, that she tore up a handbook in front of everyone at the end and she immediately gave her notice of resignation.

I note that the Head of the School met with her to discuss her resignation. She had indicated a desire to move on and she was asked if she was doing the right thing and she confirmed this.

I note that no complaint or grievance was raised at that meeting. She requested time to think about it. She did state that she was thinking about studying marine biology.

I note that management followed up on the 13th March meeting and it was decided that no apology to the Complainant was warranted. She responded by stating that that was why she had resigned.

I note that she was given the option of raising a grievance.

I note that on 5th April she cleared out her desk and she received farewell gifts from her colleagues. She did not attend work on 8th April, nor was she expected to as she had cleared out her desk, however she did phone in sick.

I note that the first formal grievance that she raised was on 8th April after she had left the employment. She raised four issues.

I note that the Respondent agreed to investigate the matter and after she objected to an internal person to do it an external person was appointed. She was interviewed on 21st May 2019. She raised more grievances than the original four named in the terms of reference. The external investigator did not find in her favour.

I note that she immediately lodged a claim with the Workplace Relations Commission (WRC). She expressed disquiet about alleged flaws in the process.

Specific findings

1) Requirement to exhaust the company’s internal grievance procedures in an effort to resolve her grievance prior to resigning and initiating a claim for unfair dismissal.

I note that In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

I note that in Tierney v DER Ireland Ltd UD866/1999 “central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”.

I note in the EAT case John Travers v MBNA Ireland Ltd [UD720/2006] it stated, “We find that the claimant did not exhaustthe 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”.

I find that from the above stated cases there is a very clear requirement for the Complainant to have exhausted the internal grievance procedure before she contemplated resigning her position or submitting a claim for unfair dismissal.

I find that there was no evidence produced by the Complainant to show that complaints or grievances were lodged prior to her resignation.

I find that the first formal grievance presented to the company was on 8th April 2019 after she had left her employment.

I find that the Complainant agreed to four issues to be investigated under the external investigator’s investigation, however she proceeded to add more when she met with him.

I find that none of her complaints were upheld and she proceeded to lodge a complaint with the WRC, which included more complaints/grievances not already aired.

I find that the actions of the Claimant were in fact unreasonable in resigning her position prior to raising a grievance.

I find that the Complainant had access to the Grievance Procedure and the Dignity at Work Policy but she did not adhere to them.

I find that the Complainant failed to utilise and exhaust the company’s grievance procedures and so has failed a fundamental test in establishing a constructive dismissal case.

2) Respondent Company’s conduct such that the Complainant had no option but to resign her position.

I note that in Berber v Dunnes Stores 2009 ELR 61 Finnegan J stated: “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 as such that the employee cannot be expected to put up with it”.

Also I note that in the Labour Court case UDD 1635 Mary Kirrane v Barncarroll Area Development Co Ltd it stated, “Where constructive dismissal is contended for it is for the person making the claim to establish that the behaviour of the employer was such as to leave the appellant no alternative but to terminate the employment or that the employer’s behaviour has fundamentally undermined the employment relationship. The person claiming constructive dismissal has an obligation to access available grievance procedures in a course of attempting to deal with whatever situation has led to consideration of termination of the employment”.

I find that the Complainant failed to engage in the grievance procedure and decided to resign a significant number of days before she instituted a formal grievance. Also, she was afforded the opportunity to reconsider her resignation and to continue in the employment with the Respondent, but she declined.

I find that she could and should have withdrawn her resignation and awaited the outcome of her formal grievance. 

I note that the Respondent utilised an external investigator to conduct an investigation into the Complainant’s grievances.

I find that the Respondent acted reasonably in the manner in which they conducted themselves.

I find that the Respondent’s actions could not be deemed to be such that the Complainant had no option but to resign.

I accept the Respondent’s position that any suggested flaws in their process is irrelevant in respect of this constructive dismissal case as the Complainant had already resigned her position before the grievances were lodged.

I find that the Complainant has failed to establish that the conduct or behaviour of the Respondent company was such as to cause her to resign her position.

Decision:

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.

For the above stated reasons, I have decided that this claim was not well founded and that it fails.

Dated:   14/07/2021

Workplace Relations Commission Adjudication Officer:  Eugene Hanly

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