UDD2145

1.Appeal of Adjudication Officer Decision No(S) ADJ-00019896 CA-00026351-001

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officerto the Labour Court in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place in a virtual setting on 6 May 2021. The following is the Determination of the Court:-




DETERMINATION:

This is an appeal by Cope Ltd T/A Cope Galway (the Appellant) against an Adjudication Officer’s Decision given under the Unfair Dismissals Acts 1977 to 2015 (the Acts) in a claim by Leigh Bell (the Complainant) that she was unfairly constructively dismissed by her former employer, the Appellant.

The Adjudication Officer decided that the complaint was well founded and awarded the Complainant the sum of €8,400 in compensation.

Background

The Complainant commenced employment with the Appellant in March 2013. The employment terminated following the submission by the Complainant of an email on 17^thOctober 2018 tendering her resignation with two weeks’ notice. The Complainant’s last day of employment was 30^thOctober 2018.

The Complainant contends that she was constructively dismissed from her employment. The Appellant contends that no dismissal took place at all and that the Complainant resigned her employment.

The fact of dismissal is consequently in dispute

Summary submission of the Complainant.

The Complainant submitted that she was constructively dismissed because of the treatment she received at work by a fellow member of staff and then subsequently by management and HR of the Respondent by failing in their duty of care to provide support or a safe and healthy working environment.

The Complainant alleged that an incident occurred in the employment on 17^thSeptember 2018 wherein a colleague was verbally aggressive towards her and extremely upsetting. When she tried to appeal to the other person she continued to name call her and make her feel extremely vulnerable.

The Appellant wrote to a HR manager of the Respondent by e-mail on 18^thSeptember to make him aware of the alleged event. She submitted that she dealt with and followed all available internal procedures as best she could to a level that was possible. It was management / HR who did not follow procedures correctly by not offering options and alternatives which are stated to be available in the relevant policies.

She submitted that she was aware of the grievance policies of the Respondent but that there was a definite wariness and confusion by staff around the procedures for making a complaint and such procedures were not followed by management. She was informed of the procedure in a meeting with management but she felt discouraged from making a formal complaint under the grievance procedures in place in the employment. In addition, the absence of her immediate manager and the fact that her line manager had left her post and not been replaced removed from her the ptyion of addressing the matter informally.

The Complainant drew the Court’s attention to its decision inParis Bakery Limited and Igor Mrzljak [DWT1468] wherein the Court noted with approval the description of Lord Denning M.R. inWestern Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332as 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 discharged from any further performance”.

  Where an employer commits a repudiatory breach of contract the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract.’

• “Where the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, nonetheless, be regarded as so unreasonable as to justify the employee in leaving there and then.”

She submitted that the Respondent’s behaviour was so unreasonable and had undermined the contract of employment to such a degree as to mean that she was entitled to regard herself as having no alternative to leaving her employment.

Summary submission of the Respondent.

The Respondent contended that no constructive dismissal had taken place.

On 18^thSeptember 2018 the Complainant sent an e-mail to a HR manager of the Appellant stating that an issue had arisen and that she felt that a staff member’s behaviour towards her had been aggressive and upsetting. The HR manager spoke with the Complainant and advised her of her right to make a written compliant. He also spoke of attempting to resolve the matter informally. She was also advised of the Employee Assistance Programme which is highlighted to all staff monthly.

The Complainant was unable, as a result of a certified absence, to attend for work in week commencing 24^thSeptember. In an e-mail to her team lead of that date she advised that, upon her return, she wished to discuss the behaviour of her colleague which she said had undermined her dignity at work. She further mailed her team lead and the Appellant’s assistant Chief Executive on 26^thSeptember advising of her absence due to feeling unwell. On that same date she again e-mailed the assistant Chief Executive enquiring about a transfer within the organisation which she had previously declined. On the 27^thSeptember, the assistant Chief Executive responded to advise the Complainant that the opportunity to transfer was no longer available because relevant cover had been secured for the post in question.

On 27^thSeptember also the HR manager e-mailed the Complainant to suggest that a meeting be convened involving the Complainant, the HR manager, the Complainant’s team lead and the other staff member allegedly involved in an incident with the Complainant. The Complainant confirmed on that date that she felt this would be a good idea.

The Complainant notified her team lead that she would be unable to attend for work from 2^ndto 9^thOctober 2018 and her text notification was passed the HR manager on the 1^stOctober. By that time the HR manager had already sent an e-mail to the Complainant inviting her to a meeting. On 2^ndOctober 2018 the Appellant confirmed that she would attend work and such a meeting that afternoon.

At that meeting, the HR manager advised the Complainant of her options in terms of advancing any grievance she might have. She confirmed that she was happy to continue to deal with matters on an informal basis. The HR manager advised the Complainant that his aim was to allow her to return to work into an environment where she felt comfortable and he explained that he would set up a meeting with the other party involved in the alleged incident.

The HR manager met with the other party and her account of events differed substantially from that of the Complainant. She returned to work on the 9^thOctober and met with the HR manager. With her consent the other party was, at a certain point, invited to join the meeting. The Complainant became distressed at that meeting on the arrival of the other party and the meeting ended. The HR manager facilitated her with two days of special leave from 9^thto 11^thOctober 2018.

The Complainant returned to work on 12^thOctober 2018 and was off thereafter until 16^thOctober. On 17^thOctober the Complainant submitted a letter giving two weeks’ notice of her resignation from her employment with her last day of employment occurring on 30^thOctober 2018.

The Appellant submitted that no breach of the contract of employment of the Complainant had occurred and no behaviour of the Respondent could be considered to be so unreasonable as to justify the termination by the Complainant of her employment. The Complainant cannot establish that the behaviour of the Appellant was such as to mean that the established ‘contract’ test or the test of ‘reasonableness’ has been satisfied.

This test of reasonableness has been clarified inConway v Ulster Bank LimitedUDA474/1981,where the Employment Appeals Tribunal stated that a claimant in a case of constructive dismissal is obliged to act reasonably by providing the employer with an opportunity to address whatever grievance she or she might have. In the within appeal, the Complainant has failed to utilise the established grievance procedure in the employment. The Tribunal inFeely v Fresenius Medical Care UD758/2008set out clearly that a failure to invoke the employer’s grievance procedure was fatal to the complaint of constructive unfair dismissal.

The Complainant in the within matter was present in the workplace for a very short period between the date of the alleged incident with a colleague of 18^thSeptember and date of her resignation letter which was 17^thOctober.

Relevant Law

The Act at Section 1(b) 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,”

Dismissal as a fact is in dispute and consequently it is for the Complainant to establish that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act at Section 1. that section of the Act and a line of authorities since its enactment has established two circumstances where an employee is entitled, or it would be reasonable for him or her to terminate the employment.

Firstly, in circumstances where the employer’s conduct amounts to a repudiatory breach of the contract of employment the employee would be entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”. It was described by Lord Denning M.R. inWestern Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332as 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 discharged from any further performance”.

Secondly, an unlawful constructive dismissal may arise where an employer’s behaviour is so unreasonable as to mean that the employee is left with no reasonable alternative but to terminate his or her employment. This test of reasonableness, when applied to the within matter, asks whether the employer conducted its affairs in relation to the employee so unreasonably that the Complainant could not fairly be expected to put up with it any longer.

In this context, it is trite law that the Complainant is under the burden of establishing that he or she also conducted themselves reasonably in terms of affording the employer the opportunity to address the issue which ultimately led to the termination of the employment.

InBeatty v Bayside Supermarkets UD 142/1987, the Employment Appeals Tribunal, in referring to the need to utilise grievance procedures, held as follows:-

• “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 UD 474/1981. 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”.

In the instant appeal, the Complainant alleges that an incident occurred involving a colleague which caused her significant distress and discomfort at work. She did bring that matter to the attention of the Appellant and, with her agreement, informal meetings took place with a HR manager and her team lead. She was absent from her employment through illness for considerable periods of time between the occurrence of the alleged event and the date of her letter of resignation

The Appellant asserts to the Court that the other party alleged to have been involved in an incident with the Complainant tendered an entirely different account of those alleged events to that offered to the Appellant by the Complainant.

The Complainant alleges that the Appellant, at a meeting, discouraged her from utilising the grievance procedure in place in the employment and that she consequently did not follow that route. She accepts that she was aware of the procedures but that she chose to resign her employment rather than exercise her right to raise a formal grievance.

The Court notes the level of engagement by the Appellant with the Complainant following the 18^thSeptember and in the short period of time she attended for work prior to her resignation from her employment. The Court notes also that the Complainant had the confidence to communicate with the assistant Chief Executive by -mail about certain matters during the material time.

The parties have disagreed as to the factual detail of certain of their interactions after 18^thSeptember. Neither party however tendered evidence under oath to the Court notwithstanding they disagreed for example as to whether the Appellant discouraged the Complainant from raising a formal grievance.

Having regard to all of the circumstances outlined to the Court and in particular the short period of time which was ultimately made available to the Appellant to address the matter where, it is submitted by the Appellant, two employees disputed the factual matrix of the incident raised by the Complainant, albeit not as a formal grievance under the procedure in place in the employment, the Court cannot be satisfied that the Complainant has met the high bar which must be met to sustain her complaint of constructive dismissal on the basis of unreasonable behaviour of the Appellant or behaviour of the Appellant which undermined a fundamental element of the contract of employment.

Applying the authorities outlined above, the Court considers that the fact the Complainant terminated her employment without having sought to ventilate and resolve whatever grievance(s) that she had through the established internal procedures removes the possibility that her subsequent decision to resign could be regarded as a reasonable response to the situation in which she found herself.

Decision

In all the circumstances, the Court concludes that the Complainant’s employment did not come to an end by reason of dismissal within the meaning of the Act at Section 1(b) and as a result the appeal must succeed.

The Decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
CO'R	______________________
June 2021	Kevin Foley