Complainant

Respondent

Anonymised Parties

Financial Controller

Construction Company

Representatives

Barry Crushell Crushell & Co Solicitors

Eoin Haverty

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00032535-001

27/11/2019

The Complainant submitted her notice to the respondent on 18 April 2019 and alleged this was due to constructive dismissal because of the treatment she received. She worked until 2 May 2019 and was then placed on Garden Leave until 19 June 2019. The Complainant’s payslip indicated that her final day of employment was 19 June 2019. The Complainant made the complaint to the WRC on 27 November 2019. The Respondent stated she resigned from her employment and no dismissal occurred.

CA-00032535-001

The Complainant was employed by the respondent from 23 March 2017 in the role of Financial Controller. The Complainant’s rate of pay was €42,500 per annum, having started on €40,000 per annum. In September 2018, a colleague who also acted in a finance role, was due to begin maternity leave. The colleague was primarily a support to the Complainant, ordinarily focused on the UK offices. The Complainant then assumed all of the duties of the colleague as well as those she already had thereto.

The Complainant outlined during the hearing that she was under a significant amount of stress and anxiety owing to the increase in responsibilities and the absence of any ancillary supports. The Complainant noted that these increased responsibilities were severely impacting her physical and mental wellbeing.

The Complainant raised her concerns on numerous occasions, both verbally and in writing, with her direct superiors.

The Complainant alleged that a number of temporary, and ultimately insignificant, remedial measures were provided by the Respondent to support the Complainant in her duties but they had little impact.

The Complainant continued to repeatedly highlight the stress she was under and the need for additional supports.  At no point was the Complainant told that a full time equivalent to the colleague would be returned to the office to support her in her duties. The Complainant was not aware of any future plans with regard to recruiting or support that would provide her with any hope that the dire working conditions she was then suffering would improve.

The Complainant repeatedly made the Respondent aware of her concerns and having failed to obtain an adequate response or proposal, in order to protect her physical and mental wellbeing, she resigned her role, working until the 02 May 2019.

The Complainant stated she started working for the Respondent as a Financial Controller.  The Complainant stated a lot of accounts were incorrect and needed a lot of fixing as the employee she replaced had not done them correctly.  The Complainant confirmed there were two working in the administration/accounting department.  The PA to the Respondent also looked after all admin, HR, employee’s expenses, inputting new projects on software system, day to day running of the office and credit control for the UK offices which the Complainant looked after all the accounting for both UK and Irish offices (four in total). The Complainant stated she raised invoices, updated accounts, lodgements, accounts payable and receivable, credit control for Ireland, payroll for both UK and Irish, bank reconciliation, dealing with Revenue and HMRC etc. The Complainant stated it was her job to ensure there was enough money in the bank to pay all the outgoings. It became apparent very early on that the amount of work was enormous for herself and her colleague the PA and would often work through their lunch breaks in order to get the work done and out on time.  The Complainant stated often they would not get out on time and never took the 10 mins break from the VDU as stated in their contracts.  The Complainant stated they asked if the Respondent could get someone else in to help but while the workload was acknowledged nothing was done about getting help. The Complainant stated she didn’t mind doing the workload or doing the hours as she enjoyed working with her colleague, the PA and the rest of the employees.  The Complainant stated this all changed September 2018 when her colleague went on maternity leave and she had to deal with the Respondent directly.

The Complainant stated in April 2018 they began to ask the Respondent and other Directors to start interviewing for her colleague’s cover.  The Complainant stated the Respondent told them they would look at it but it didn’t happen until late July.  The position was advertised and they appointed someone as Office Manager who had no accounts experience.   The new employee started in September and received less than a week’s training.  She then went on holidays.  The Complainant stated that by the time she returned from holiday she had forgotten everything her colleague had shown her and the colleague had started her maternity leave.  The Complainant stated this put an enormous amount of pressure on her as not only was she trying to do her own job which she didn’t have enough time to do to begin with, she was now expected to retrain the Office Manager and cover her colleague’s job.  The Complainant stated it quickly became apparent that the Office Manager was not up to job as the workload was far more than she had anticipated.  The Complainant confirmed she said to the Respondent and the other Director numerous times that it wasn’t working and she was under a lot of pressure trying to keep everything going. The Complainant stated that not only was she working every lunch hour she was coming in early and staying late.  The Complainant stated the Respondent acknowledged this and said they would do something about it.  The Complainant stated that the Respondent’s answer to this was to just let the Office Manager go but confirmed if they did that, they would be worse off as she would have to answer the busy switchboard also. The Complainant confirmed that all calls came through Dublin and stated that the Respondent did not seem to get it as he was not in the Dublin office a lot of the time.  The Complainant stated that by the end of the first month the Office Manager and the Managers came to an agreement that it wasn’t working out.  The Office Manager stayed for an extra week to allow me time to get cover and the she stated she didn’t mind walking out on the company but she knew if she did, the Complainant would have a lot more work piling up.

The Complainant confirmed that on 18 October she managed to get a replacement from a temping agency, who turned out to be fantastic but again she needed to be trained in and had no accounts experience. The Complainant stated this meant she once again was expected to do the accounts for four offices, raise invoices, credit control for both UK and Ireland, payroll for UK and Ireland, answer emails, answer phones, train the new candidate and keep an eye on the running of the office. The Complainant stated that even though the candidate learned very quickly and she took some of the workload off her there was still too much work for one person. The Complainant stated that all the extra work and pressure meant she was still working early morning, late evenings, weekends, lunch breaks and didn’t take holidays as it wasn’t worth the amount of work she would have to catch up on when she returned to work.  The Complainant stated she would often work up to 60 hours a week.

The Complainant stated she once again said to the Respondent and Director and it was acknowledged but nothing was done about it. The Complainant confirmed that she even went to work over the Christmas break to catch up on things.

The Complainant stated that from around this time and from the time that her colleague went on maternity leave she felt the Respondent’s attitude towards her changed and he became very hostile and belittling towards her, he didn’t want to hear anything about the hours she was working or the amount of work she had to do or the fact they clearly needed someone in to help and that his attitude was just, get it done.

The Complainant stated that in October/November 2018 the Respondent asked her to raise an invoice for a UK client.  The Complainant confirmed that she made an error on the invoice as it had been entered into their system incorrectly (not by herself) due to overwork and the stress she was under. The Complainant confirmed that the invoice was sent to the Respondent for approval, was approved but the error was only noticed after the invoice was issued and paid by the client. The error was just a matter of wording.  The Complainant stated she explained to the Respondent that she was under pressure, working long hours and he had approved the invoice prior to it being issued. The Respondent’s email came back saying that was not an excuse and to pass all invoices in future to him or one of the other Directors to check before they were issued out.  The Complainant confirmed she was issuing between 100/120 invoices at month end and this meant an extra layer of for her. 

The Complainant confirmed that the Respondent Bcc’d a number of people on the email unknown to her at the time which she felt was very disrespectful and degrading to her.  The Complainant stated the Respondent would often blame her for the incorrect information uploaded to the project software even though this was not her job. It was the job of the Office Manager. 

The Complainant stated that on 18 December the company went out for their Christmas party and she was so upset at the way the Respondent had spoken to her the previous week and the way he was treating her that she didn’t go.  Everyone else knew why she didn’t go. The Complainant stated that the Respondent did not ask her if everything was OK.

The Complainant stated that on 19 January she finally felt there was light at the end of the tunnel as a new Financial Director was to start in January 2019.  The Complainant confirmed that there was a lot of secrecy around this and she wasn’t informed who or when this person was starting.  The Complainant commented that again she felt as Financial Controller she would be working directly with the new Financial Director and she should have been kept informed.  The Complainant stated however, she was happy as this would take some of the pressure off her. The first person that was offered the position declined the offer a few weeks before the due start date.  The Complainant confirmed she heard this through the grapevine.  The position was offered to the next person in line but this person could not start until 19 March 2019.  The Complainant confirmed that her colleague was due back from maternity leave in May but she still had a few half days since Christmas to give a hand out with UK credit control, do up contracts etc. The Complainant confirmed she had also got a candidate from their Accountants Practice to come in for one day every couple of weeks to input invoices.  The Complainant confirmed the new Financial Director started and everything looked as if it would work out. The Complainant confirmed that her colleague who returned from maternity leave wanted to go on a 3-day week and her new role would be Personal Assistant to the Respondent, admin and whatever else needed to be done. 

The Complainant stated that when she mentioned to the Financial Director, they needed someone else to help her, he agreed and said the Respondent had indicated that it would be enough for the Personal Assistant to help her. The Complainant commented that this would not solve the problem and she knew the Personal Assistant would be flat out and pulled in every direction and would have no time to help her. The Complainant stated that the Financial Director’s plan was to get a team in the accounts department but as they were moving office all the money was being spent on that and not on the admin/front of house/accounts team.  The Complainant confirmed she had asked for a Sit/Stand desk for the new office as her back was very painful from working long hours.  Her colleague was asked to do up an order/costing for new furniture and include the desk.  When the final order went through there was no desk on it. The Complainant stated that she was feeling very stressed and undervalued and this proved her point. 

The Complainant stated that on 19 March 2019 she asked the Respondent about transactions in the UK bank account as she was doing the bank reconciliation, had no invoices and needed to allocate payment to the correct ledgers.  The Complainant stated that the Respondent came back and said yes he knew what they were for and he would discuss it with the Financial Director. The Complainant commented that this made her feel undervalued and had her question her own ability. The Complainant stated that the Financial Director understood the stress she was under and tried to take some of the workload off her, but he was learning the business himself.

The Complainant stated that in April 2019 the Respondent tried to hold her accountable for a Tablet that was ordered because it was incompatible with some software the lads used for site. The Complainant stated that again, this was not her job to order Tablets or phones, it was ordered by a temp who was covering for her colleague when she was out sick.  Her colleague had instructed the temp to order it.  The Complainant stated that the Respondent again sent an email asking her to explain why this was ordered and why the correct procedures were not followed.  It seemed at times that the Respondent wanted her to be a Financial Controller when it suited him, other times would tell her to stop doing everything else and just concentrate on getting money in, but in order to get the money in she had to issue invoices.  The Complainant stated that the Respondent did not want to hear this.  The Complainant stated that other staff members commented on the way the Respondent spoke to her and the fact he Bcc’d people in on some of the emails he sent her.  The Complainant stated that she could see no way out and realised that if she stayed, nothing would change, and that she would still be expected to put in same number of hours to get her work done.  The Complainant stated that the situation was becoming unbearable and stressful.  She had no work life balance and felt very undermined by the Respondent.  The Complainant stated that it got to the stage that whenever the Respondent called, she thought – what had she done now, what is he going to blame her for? The Complainant stated that she was often on the verge of tears for most of his call and emails. The Complainant confirmed that she spoke to the Financial Director and he was very supportive and understanding.

The Complainant stated she was already working excessive hours and when her colleague went on Maternity Leave, she had triple the work to do. The Complainant stated she was working 12-hour days and weekends and was awake at night worried about work and stated that this caused her stress and anxiety.

The Complainant stated her family noticed her stress from work and everyone at work noticed also and often went home in tears. The Complainant stated she would have said this to her Managers and Directors via emails, calls and verbally.

The Complainant stated she was really worried about where she was going to get money in to pay people and stated all the Directors and Managing Director knew the issue was the case.

The Complainant stated her company policies were being done up and were there.  She remembered her colleague was doing them up but wasn’t aware of them in her role. The Complainant stated that in her opinion she had exhausted the process by telling these senior people about her difficulties. She emailed the Respondent and the new Financial Controller. The Respondent stated he understood but nothing was done.

The Complainant confirmed that in April 2019 she handed in her notice and gave the two months required. The Complainant stated that the Financial Director came back to her and said he was disappointed she was leaving but could understand.  The Complainant confirmed that the Respondent did not even acknowledge her notice but called his Personal Assistant who was still on Maternity Leave to tell her.

The Complainant confirmed she took a couple of days off for Easter and when she returned the Financial Director was in the Dublin office and called her in and told her she could finish up in the next day as they were putting her on Garden Leave and would pay her the full two months’ notice plus holidays owed.  The Complainant stated that she was shocked as no one had been put on gardening leave before and she felt that the Respondent could not wait to get rid of her.

The Complainant confirmed she finished out the week to get the accounts in some sort of order for whoever was replacing her.  The Complainant stated that all the staff members were shocked that they could let her go so easily and so quickly.

The Complainant stated that her colleague left for her maternity leave in September 2018. The Complainant left in June 2019.  The Complainant confirmed she handed in her notice around Easter and went on a few days holiday. She gave 2 months’ notice. The Complainant stated her Manager the Financial Controller came down saying he was really disappointed she was leaving.

The Complainant stated she did not resign with immediate effect as she didn’t want to leave anyone in the lurch and she was going to take holidays she had built up during this time. She also had two weeks’ notice per her contract. 

The Complainant stated that during her notice period she went back after her few days off and her Manager told her she could leave now if she would like. She said no as she had a handover to do. The Complainant confirmed she was then put on Garden Leave. 

The Complainant confirmed that when she left, she was replaced by 2/3 people and she wouldn’t have left if she had known that.

The Complainant confirmed that she got a job close to where she lived but had a €6,500 reduction in salary to get a role closer to home. She enjoyed the new job and worked normal hours. The Complainant confirmed she is treated like a valued member of staff but had to take a drop in salary and also had lost out on pension payments, death in service and sickness benefit which were all offered by the Respondent.

 The Complainant stated she did not regret her decision to leave due to the way she was treated at the end and the workload she did.

Under cross examination the Complainant confirmed that the system would not allow weekend hours to be recorded, nor would it allow you to put in extra hours. It only allowed you to put in a certain number of hours.

The Respondent representative stated that the Complainant made no formal grievance as she was saying it every day and they all acknowledged it and she also addressed it to the Respondent via email.

CA-00032535-001

The Respondent representative stated the Complainant was given help to assist the cover of her colleague’s maternity leave and to help with the workload.  The Representative stated that once the new Financial Director was appointed, he took extra work also.

The Representative stated that when the Complainant resigned, she was asked to reconsider same.  The Complainant then went on holiday for 2 weeks.

The Representative stated that when the Complainant returned from holidays and due to a new IT system, if she was leaving there was no point in training her and paid her instead in lieu.

The Representative stated the Complainant would not have wanted to work her notice if things were as bad as she alleged. The Representative stated that the Complainant also attended a party at the company that Summer. The Representative stated that at no stage did the Complainant use the grievance procedure or make a formal complaint.

A witness for the company, the Personal Assistant to the Respondent gave evidence. The Witness confirmed that during her maternity leave in September 2018 two months prior to her maternity leave, cover was brought in to help her.  The Witness confirmed she had been with the company for 10½ years.  The Witness stated she did the Complainant’s job before she did the job as Office Manager.

The Witness stated she agreed to return to a part-time role after returning from her maternity leave.  The Witness confirmed she came back to the office to help after 6 weeks into her maternity leave to assist in the role. The Witness stated it was recognised that the Complainant was under pressure in her role and stated it was a difficult role. The Witness confirmed they had a very good working relationship and that there was more support in the role when the Complainant did the role. The Witness stated she did both the Complainant’s job and her own before the Complainant joined.

The Witness stated that the company had grown since she joined and was doing very well.  The Witness confirmed that in 2015/2016 her own role was split from Accounts to Office Management. The Complainant then did the Accounts and they worked closely together.

The Witness stated it was a very busy office and was very busy at specific times. The Witness stated that she would have heard from the Complainant she was under pressure. The Witness stated that many of the Managers asked to help the Complainant as she was under pressure and that triggered her return from maternity leave early.  The Witness stated that it sounded like there was a patch work of support provided to the Complainant.

The Witness stated the company used a HR Consultancy to assist with Contract & Handbooks and remembered giving it to the Complainant. The Witness confirmed that the Complainant was very familiar with the HR folder on the system and was aware of the HR documents.

The Witness stated that it was very clear the Financial Director was employed to put structure in the Finance Department but the Complainant left 6 weeks later and felt the Complainant did not give it long enough.

This case involves an allegation that the employee had to leave her employment due to constructive dismissal as a result of the negative treatment by her employer in her role.  I am therefore going to consider the case in relation to the legislation relevant to this claim.

For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

“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.”

As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, 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 Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, I have considered the case of Harrold v St Michael’s House, [2008] E.L.R.

“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 employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

I will now address the evidence presented to best deal with this matter. I will look at the legal tests in a Constructive Dismissal case, these are essentially; Breach of Contract, Unreasonable Behaviour and Use of Internal Procedures.  In this case I find that the employer did not breach the employee’s contract.  They were in the middle of transition and employees leaving, being recruited and being absent due to maternity leave, even though this was not ideal and I appreciate it impacted on the Complainants job responsibilities and volume of work.  The employer and managers acknowledged and addressed this even though it did take time.  This does not result in a fundamental breach of her contract of employment as a result nor is it unreasonable behaviour.   I have also considered that the employee did not use the internal procedures which she was aware of and this is an important consideration prior to her resignation.  She also gave notice and was willing to work same.  She secured alternative employment closer to home, however, I appreciate it had less salary and benefits.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim and having considered all the evidence presented to me both oral and written I find that her claim for unfair dismissal is not upheld. I find in this case based on the evidence presented that a constructive dismissal case did not occur and accordingly her claim for unfair dismissal fails.