Complainant

Respondent

Anonymised Parties

Shop Assistant

Supermarket

Representatives

  Self

Siobhan McGowan Alastair Purdy & Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030849-001

11/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Acts, 1977-2015

CA-00030849-002

11/09/2019

The employee commenced employment as a shop assistant/deli worker on 12 June 2018.  She worked a forty-hour week and her gross pay per week was €390.96.  The dispute concerns the employer’s bullying and harassment procedures.  The employee made complaints to the employer about the behaviour of another employee.  The employee left her employment on 03 August 2019.  She alleges she was constructively dismissed due to the conduct of the employer.  The complaint form was received by the Workplace Relations Commission on 11 September 2019.

The employee asserts that she was subjected to abuse by another employee when she worked in the ‘deli’ section of the supermarket.  She made complaints because she felt unsafe working with someone she alleges displayed threatening and unacceptable behaviour towards her.

The employee alleges that the other member of staff, on many occasions, shouted at her in front of customers, used abusive language and intimidated members of her family when they came into the supermarket.

The employee complained to her manager, but she felt she was not taken seriously.  When she asked to be moved out of the ‘deli’ she was told there were no available positions.  As her request to move was not facilitated by management she had no choice but to continue working in an environment where she felt unsafe and uncomfortable.  Working in that environment caused the complainant a great deal of stress and anxiety.

The employee made numerous complaints to her local managers about the behaviour of the other employee.  The complaints were not investigated or taken seriously.  The employee made another complainant about a manager who she believed made statements to other staff members about the employee’s mother’s mental health.  This complaint was not investigated.  The employee was subjected to physical and verbal abuse, and various activities that come within the definition of bullying as contained in the employer’s staff handbook.  By failing to investigate her complaints the employer failed in its duty of care to her as an employee in relation to her wellbeing and safety.

The employee handed in her resignation because her concerns for her safety in the workplace had not been dealt with in a satisfactory or professional manner.  The employee claims constructive dismissal due to the conduct of the employer.

The employee commenced employment as a general assistant on 12 June 2018.  On 26 February 2019 the employee contacted the Fresh Foods Manager (Ms A) in the store where she worked.  The employee told the manager that she could no longer work that day and she was going home.  Ms A contacted the Store Manager (Ms B) to report this unusual conversation with the employee.

Ms B contacted the employee and asked to meet with her.  The employee related an alleged incident that occurred on Friday 22 February 2019.  A customer had queried the price of a product and the employee alleged that a colleague had passed comment on the employees handling of the situation.  The employee then told Ms B that relations between her and her colleague had deteriorated following the incident.

Ms B subsequently spoke with the employee’s colleague.  The colleague stated she felt intimidated by actions of the employee’s family when they attended the supermarket premises.  The colleague stated she wished to make a complaint about matters.

Due to the unrest between the two employees the employer arranged for the Company Fresh Food Manager (Mr C) to meet the employees.  On 02 March 2019 Mr C, in the company of Ms B, met with the employee.  This was an informal exploratory meeting.  The employee put forward her issues and was advised of the avenues open to her.  The employee elected for the matter to be dealt with informally.

Mr C met with the employee’s colleague, Ms X, on 11 March 2019.  Mr C explained the avenues open to the colleague and she elected to use the formal route of complaint.  However, Ms X did not commence a formal complaint until July 2019.

As the employee had elected to have matters dealt with informally the employer attempted to rearrange the working patterns of the employee and her colleague.  Between 11 March and 26 June 2019, the employee and her colleague worked the same full shift on 6 occasions.

On 22 May 2019 the employee asked if she could change from full-time work to part-time from 04 July 2019.  The employee was told to put her request in writing and it would be considered.

Events of June/July 2019

The employee approached Ms A on 20 June 2019 and stated she was uncomfortable working in the ‘deli’ area as no one was talking to her.  Ms A decided to inform Ms B of this development but before she could the employee handed her a letter of resignation.  Ms A offered to re-locate the employee to another area of the store, but the employee declined this offer.  Ms B informed the employee that the employer’s HR Consultant (Ms D) would meet with her the following week to discuss her concerns.  The employee accepted this arrangement and continued her shift in the ‘deli’.

The following week the employee met with Ms D and Ms B.  She was informed that at that stage the employer was merely seeking to ascertain the issues involved.  The employee read a prepared statement setting out her issues.  The employee confirmed that she wished to continue working in the store and Ms D offered her other areas of work.  Ms D then informed the employee that her colleague, about whom she had complained, was now making a formal complaint about her.  Ms D explained the investigation process to the employee.  Ms D enquired as to whether the employee now wished to formalise her complaint about her colleague.  The employee confirmed she did now want to make a formal complaint against her colleague.  A plan was then put in place to immediately relocate the employee.  Before the meeting ended the employee was told the matters were being taken seriously and Ms D would look at all the issues.  The employee was again asked to put her request for part-time work in writing.

The employee appeared to engage positively with Ms D but subsequently she informed Ms B that she had taken advice and she was leaving her employment.

Ms D tried to dissuade the employee from resigning and offered her paid leave while the investigation was in process.  This offer was made twice but was rejected by the employee.  Ms D wrote to the employee on 03 July 2019 asking her to reconsider her decision to resign and inviting her to participate in the investigation of her complaints.  The employee was informed that if she changed her mind about resignation, she could return to work immediately, without loss of service and benefits and she could re-locate to another store.  The employee was asked to revert by 10 July 2019.

The employee replied to Ms D by e-mail on 03 July 2019 stating she would love to return to work as soon as possible.  Ms D replied the following day and arranged to meet with the employee in the store on Saturday, 06 July 2019 at a time to be confirmed later that day.  Following the meeting on 06 July 2019 the employee, Ms D and Ms B exchanged e-mails.  Ms B confirmed on 11 July 2019 that she had spoken with the employee and she would be coming in for training on checkouts the following Saturday and Monday.  Ms D and the employee exchanged further e-mails in an attempt to arrange another date to meet in relation to the employee’s complaint.  The employee was unavailable on several dates and Ms D was on annual leave until 31 July 2091.  Ms D committed to contacting the employee when she returned from leave.

Towards the end of July 2019, the employee’s colleague, Ms X submitted formal complaint.  On 24 July 2019 the owner/director of the respondent, Ms E, notified the employee in writing that a formal complaint had been made about her and that an investigation of this complaint would be undertaken.  Ms E provided the employee with the complaint, the investigation procedure and proposed meeting on 02 August 2019.  On 26 July 2019 the employee returned her uniform and key to the store and e-mailed Ms E stating she was taking a constructive dismissal case against the respondent.  Ms E replied and asked the employee to reconsider her resignation.  The employee replied on 30 July setting out reasons for taking a constructive dismissal case.  Ms E asked the employee to attend the meeting arranged for 02 August 2019, but the employee refused.  In further correspondence the employee was again given the opportunity to re-consider her decision to resign and to engage in the investigation process.  The employee refused to re-consider her resignation.  The employee submitted a complaint to the Workplace Relations Commission on 11 September 2019, under section 13 of the Industrial Relations Act, 1969.

Legal Submission

The employer asserts it earnestly endeavoured to deal with the employee’s complaint.  The employee handbook provided by the employer follows the guidelines contained in SI 146/2000 and SI 17/2002.  However, the employee decided to resign from her employment without engaging in the process.  The respondent contends that it is not possible for a party to decide not to allow the person they are accusing to have their right of reply and instead to leave their employment.  The employee’s actions removed the right of the employer to deal with the complaints.

The complaint submitted to the Workplace Relations Commission was brought under the Industrial Relations Act, 1969.  The employee, in December 2020, sought to amend her complaint to include a complaint of constructive dismissal.  The employer contends that the employee is statute barred from progressing a constructive dismissal claim and it would prejudice the employer if such an amendment is allowed.  The employer strongly objects to the complaint being changed to one of constructive dismissal.

Constructive dismissal is defined in section 2 of the Unfair Dismissals Act, 1977.  The definition contains two tests, either or both of which may be invoked by the employee.  The first test is the ‘contract’ test whereby the employee claims to be entitled to terminate the employment contract because the employer significantly breached the contract demonstrating they no longer intended to be bound by one or more of the essential terms of the contract.  The second is the ‘reasonableness’ test where an employer’s conduct is so unreasonable that an employee cannot be expected to accept the conduct and is justified in leaving.

In a claim of constructive the burden of proof, which is a very high one, lies with the employee.  The employer relies on all the following decisions in support its argument that the employee cannot sustain a claim of constructive dismissal: Byrne v RHM Foods (Ireland) Ltd UD 69/1979, Cosgrave v Kavanagh Meat Products 6/1988, Conway v Ulster Bank Limited UD474/1981, Kaydee Cosmetics v Blake UDD 1849, Berber v Dunnes Stores Limited [2009] 20 E.L.R. 61, Feely v Fresenius Medical Care UD 758/2008, Keogh v JTM Jump Starters Limited UD 1090/2008, Ranchin v Allianz Worldwide Cares S.A. UDD 1636 and A Solicitor v A Solicitor’s Firm ADJ-00011116.

The employer submits that not only did they seek to fully investigate the employee’s complaints, but they actively tried to dissuade her resignation pending the resolution of the process.  The employee roundly rejected the employer’s attempts to investigate the complaints and she denied the employer the opportunity to remedy the situation.  If the employee has the right to take a constructive dismissal claim the employer contends that she has no argument in this regard.

Section 13 of the Industrial Relations Act, 1969 was enacted to deal with “trade disputes” between employers and employees.  Taking account of the procedures in the employee handbook and the fact that the employee gave the employer no opportunity to deal with the allegation she had raised the employer contends that this is not the type of action envisaged by this section of the legislation and with due respect it is outside the scope of the Adjudicator in this regard.

The employer seeks that the claim shall duly fail.

Preliminary Issue

The preliminary issue concerns what dispute and or complaint is validly before me for adjudication.

The employee, who was not represented, submitted an online complaint form to the Workplace Relations Commission on 11 September 2019.   She selected from the drop-down list ‘Industrial Relations Issues Type - Bullying and Harassment Procedures’ seeking adjudication under section 13 of the Industrial Relations Act, 1969.  At the beginning of the narrative section the employee wrote “For the following reasons, I believe I will not be afforded a fair hearing and therefore I am taking constructive dismissal against (Employer Name)”.  The employee, in December 2020, requested by e-mail that her complaint be changed to constructive dismissal as this was why she had to leave.

The employer submits that section 13 of the Industrial Relations Act, 1969 was enacted to deal with “trade disputes” between employers and employees and taking account of the employer’s procedures this is not the type of action envisaged by this section and it is outside the scope of the Adjudicator.  The employer further submits that a complaint of constructive dismissal is statute barred, being submitted in December 2020, and it would prejudice the employer if an amendment to the complaint was allowed.

Section 9 of the Workplace Relations Act, 2015 provides:

(9) (a) A complaint to which this section applies shall be presented to the Director General under subsection (1) by giving notice thereof in writing to the Director General and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

(b) A dispute to which this section applies shall be referred to the Director General under subsection (2) by giving notice thereof in writing to the Director General and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

(c) The Director General shall cause a copy of the notice under paragraph (a) or

(b) to be given to the other party to the complaint or dispute concerned.

As yet there are no regulations as referred to in (a) and (b) but the Workplace Relations Commission has published a guide which states that a complaint or dispute should be made using the complaint form.  The complaint form is not a statutory form and is intended to set out the nature of the complaint.  The circumstances in which a complainant can amend a complaint was considered by the High Court in County Louth Vocational Education Committee v The Equality Tribunal [2009] IEHC 370.  McGovern J held: “I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint.  If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint remains the same.”   While a referral of an industrial relations dispute and a complaint of constructive dismissal are entirely different this situation that arises here is that the complaint form submitted 11 September 2019 contains references to both a dispute under the Industrial Relations Act, 1969 and a complaint of constructive dismissal. 

The Labour Court in Department of Foreign Affairs v Cullen EDA116 held that a complaint of victimisation was properly before the Court in circumstances where the complaint arose in correspondence between the complainant and the Equality Tribunal.  The original complaint was of discrimination and during the investigation of that complaint the complainant alleged she was victimised for bring the original complaint.  The allegation of victimisation was made in a letter and not on the usual complaint form.  The Court stated: “although not formally referred in those terms, the Court is satisfied that the facts alleged in this letter are capable of being understood as an allegation of victimisation within the meaning of s, 74(2) of the Acts.”  The respondent was on notice of the allegation as the Equality Tribunal had copied the letter to them. 

Taking note of the above decisions I am satisfied that the complaint form submitted by the employee on 11 September 2019 contains two issues that are properly before me for adjudication, a dispute under the Industrial Relations Act, 1969 and a complaint of constructive dismissal under the Unfair Dismissals Act, 1977.  The employer cannot be said to be prejudiced as the complaint form was copied to it on 13 September 2019 and was on notice of both issues from that date.  The employer has presented a detailed submission dealing with both the industrial relations dispute and the complaint of constructive dismissal.

CA-00030849-001

Dispute referred under Section 13 of the Industrial Relations Act, 1969.

Investigation of trade dispute as provided for in the Act:

13.—[...]

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

A trade dispute is defined in s 3 of the Industrial Relations Act, 1946 (as amended by s 40 of the Industrial Relations (Amendment) Act 2015) as:

the expression “trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person and includes any such dispute or difference between employers and workers where the employment has ceased,

The employer contends that taking account of the procedures laid out in the employer’s handbook and the fact that the employee gave the employer no opportunity to deal with the allegations that she had raised, that this is not the type of action envisaged by this section and that it is outside the scope of the Adjudicator.

I am satisfied that legislation quoted above provides for individual disputes about terms and conditions of employment between employees and employers, including where the employment has ceased, to be investigated and for an Adjudication Officer to make a recommendation setting out their opinion on the merits of the dispute.  I am satisfied that the employee has referred a dispute to the Workplace Relations Commission and that I have jurisdiction to investigate that dispute and make a recommendation.

The employee’s dispute with her employer is about how complaints she made about other colleagues were dealt with.  The employee claims she was subjected to abuse, threatening behaviour and she felt unsafe at her place of work.  The employee made a verbal complaint to her local managers in February 2019 about a colleague, Ms X.  The employer arranged for another manager, Mr C, to meet both employees.  Mr C met with the employee and her colleague Ms X separately.  Ms X made a verbal complaint about the employee and indicated she would make a formal complaint.  Ms X did not make a formal complaint until July 2019. The employee’s complaint was dealt with informally, as she had indicated, and arrangements were made to rearrange work patterns so that between 11 March and 26 June 2019, the employee and her colleague worked the same full shift on 6 occasions. 

On 20 June 2019 the employee submitted a letter of resignation stating her concerns for her safety in the workplace had not been dealt with in a satisfactory or professional manner.  The employer by return asked if the employee really wanted to resign, referred the employee to the grievance procedure in the employee handbook, stated that if she wished to raise a formal issue she should do so in writing and if she wished to reconsider her decision to resign she should do so within six working days.  An external HR consultant, Ms D was appointed to investigate the employee’s complaint.

The employee met with Ms D on 27 June 2019 and provided a written complaint.  Ms D wrote to the employee on 03 July stating that the employer would now formally investigate her complaints.  Ms D, on behalf of the employer, asked the employee to reconsider her decision to resign and if she did so she could return to work immediately without loss of service or service-related benefits.  The employee agreed to return to work and was provided with training on tills.  The employee returned to work.  Ms D was to continue her investigation on her return from leave in early August 2019.

In July 2019 the employee was notified that a complaint had been made against her by the colleague Ms X, whom she had complained about.  The colleague had indicated in March 2019 that she would make a complaint but did not lodge a formal complaint until July 2019.  Ms E was to investigate Ms X’s complaint.  On being informed of the complaint against her the employee resigned.  On 27 July 2019 Ms E requested the employee to retract her resignation, return to work and give the employer the opportunity to conclude the investigations.  The employee did not retract her resignation and the employer confirmed her resignation was accepted and her employment terminated on 03 August 2019.

Having considered the submissions presented and the oral evidence I am satisfied that the employee made a verbal complaint in February 2019 about her colleague, Ms X.  The employer appointed Mr C to investigate and try to resolve the matter.  Given the efforts by the employer to re-arrange work shifts and the fact that the employee and Ms X worked only 6 full shifts together between March and the end of June I am satisfied that the employer dealt with the complaint informally.  However, the issues between the employee and Ms X were not resolved but were avoided by the re-arrangement of shifts.  The employee and Ms X took no further steps with their complaints between March and June 2019.

The unresolved issues resurfaced in June 2019 when the employee made a further verbal complaint about her concerns for her safety and resigned.  I have reviewed the documents provided, copies of letters and e-mails and I am satisfied that between the end of June and the beginning of August 2019 the employer made repeated efforts to resolve matters.   An external HR consultant, Ms D, was appointed to investigate the complaint.  The employee engaged with the external HR consultant, Ms D, and returned to work. 

In or around 24 July 2019 the employee was provided with a copy of the complaint about her, made by Ms X.  That complaint was to be investigated by Ms E.  The employee refused to participate in the investigation of this separate complaint against her.  She again submitted her resignation and disengaged from the investigation of her own complaint by Ms D.

I have reviewed the e-mails and letters submitted to me and I am satisfied that the employer again asked the employee to withdraw her resignation and allow the employer to complete an investigation of her complaint.

The employee initially agreed to have her complaint dealt with informally.  The employer implement a new shift arrangement to reduce the time the employee and Ms X were required to work the same shift.  This arrangement appeared to work for some months however, the underlying problems had not been resolved.  When the employee made a formal complaint, the employer appointed an external HR consultant to investigate her complaint.  The employee engaged with that investigation until Ms X made a formal complaint against her.  The employee then resigned and refused to participate in both the investigation of her own complaint and the complaint made against her.

Informal Procedure

The employer has in place a grievance procedure.  I am satisfied that the informal procedure was followed.  However, in my opinion the informal process did not resolve the underlying problem.  I recommend the employer to review their procedure and consider the use of workplace mediation as a more effective method of resolving problems between colleagues who continue to work together. 

Formal Procedure

I am satisfied that the formal complaint procedure was followed, and that employer made every effort to fully investigate the formal complaint.  The employee withdrew from the formal investigation process at an early stage.  Based on the submissions and documents provided, I am satisfied that the employer, on two occasions, tried to dissuade the employee from resigning.  The employee by withdrawing from the investigation of her own complaint by Ms D and resigning prevented her complaint being fully investigated.  In my opinion the employer followed procedure and acted reasonably in its efforts to have a full investigation of the employee’s formal complaint.

CA-00030849-002

Complaint submitted under section 8 of the Unfair Dismissals Acts, 1977-2015

The complainant resigned from her employment with effect from 03 August 2019.  She submitted her complaint to the Workplace Relations Commission on 11 September 2019.  In the complaint the complainant stated she believed she would not be afforded a fair hearing and therefore she was taking a constructive dismissal claim against the respondent employer.

Section 1 of the Act contains the following definition of dismissal:

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

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

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

or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise

ascertainment), the cesser of the purpose;

Burden of Proof

Section 6 provides the following:

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Where a complainant has been dismissed by a respondent the burden of proof is on the respondent to justify the dismissal.  Where a complainant has resigned the burden of proof is reversed. 

A constructive dismissal may occur where the complainant terminates the contract of employment in circumstances in which, because of the employer’s conduct, either the complainant was entitled to terminate the contract without notice or it was reasonable for the employee to terminate the contract. 

An employee is entitled to terminate the contract only where the employer is guilty of conduct which is either, a significant breach going to the root of the contract or which shows the employer no longer intends to be bound by one or more of the essential terms of the contract.  Even if the employee is not legally entitled to terminate the contract of employment there may still be a constructive dismissal where the employer has acted unreasonably. 

The complainant therefore must establish that the respondent’s conduct amounted to a fundamental breach of the contract and/or the respondent’s conduct was such that complainant could not reasonably be expected to accept it any longer.   

I have set out above under complaint CA-00030849-001 the history of the events leading up to the complainant’s resignation. 

The complainant made a verbal complaint to her local managers in February 2019 about her treatment by her colleague Ms X.  The respondent appointed a manager, Mr C, to deal with the matter.  Mr C met with the complainant and separately met with Ms X.  I am satisfied that the complainant agreed at that time to have her complaint dealt under the informal procedure provided for in the respondent’s grievance policy. 

The respondent implemented a change in shift patterns so that the complainant and Ms X worked very few full shifts together.  As no further issues were reported between March and June 2019 the informal procedure appeared to be working.  The underlying problem between the complainant and Ms X had not been resolved but in the circumstances, where no further issues were raised, it was not unreasonable for the respondent not to take any further steps at that time.

In June 2019 the complainant complained to her local manager that she was uncomfortable working in the ‘deli’ and she resigned.  Upon receipt of the letter of resignation the respondent wrote to the complainant referred her to the employee handbook and stated that if she wished to make a formal complaint she could do so within six days and if she wished to reconsider her resignation she could do so within six days.  The complainant agreed to continue at work.  The respondent arranged for the complainant to meet with its external HR consultant, Ms D.  When the complainant met with Ms D she indicated she wanted to formalise her complaint against Ms X.

Between 27 June 2019 and 03 July 2019 there was communication between the complainant and Ms D.  The complainant changed her mind about a return to work and then, following a letter from Ms D, dated 03 July 2019 she agreed to return.  The respondent accommodated her requests for training on tills and for part-time work.  Based on the letters and e-mails submitted to me I am satisfied that Ms D requested formal confirmation of the complainant’s complaint and the name of the employee being complained about.  Ms D remained in contact with the complainant until she went on annual leave.  Ms D informed the complainant, by e-mail dated 19 July 2019, that she would be on leave until 30 July 2019 and she would contact her to set up a meeting on her grievance on her return.  I am satisfied that, up to the time that Ms D went on leave, the complainant was engaging with her in commencing a formal investigation of her complainant.  Having carefully considered the submissions and the documents provided to me I am satisfied that the respondent intended to have a full investigation of the complainant’s formal complaint.

On 24 July 2019 the complainant was formally notified of a complaint against her brought by Ms X.  The respondent appointed Ms E to investigate that complaint.  Ms E sent a copy of the complaint and the terms of reference for the investigation to the complainant.  The complainant in an e-mail to Ms E, dated 26 July 2019, stated that she had been unfairly named as a respondent in a dispute, that her complaints against Ms X had not been investigated properly and therefore she had no option but take a constructive dismissal claim.

Having carefully considered the submissions, oral evidence and documents provided I find that the respondent’s conduct was not unreasonable.  I am satisfied that the respondent took the complainant’s complaints seriously.  The verbal complaint made in February 2019 was, with the agreement of the complainant, handled informally.  In response to the complainant’s initial resignation in June 2019 the respondent actively dissuaded the complainant from resigning and appointed an external HR consultant, Ms D, to investigate the complaint.  The respondent accommodated the complainant’s requests for part-time work and training in another section. 

The conduct of both the respondent and the complainant must be considered where the complainant claims constructive dismissal.  The complainant stated she resigned as she believed she would not be afforded a fair hearing.  The respondent had a grievance procedure in place, the complainant made a complaint but by her resignation she prevented the respondent from dealing with her complaint. 

In Conway v Ulster Bank Ltd UD 474/1981 the Employment Appeals Tribunal held that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.  I find that the complainant did not act reasonably in resigning before her complaint was investigated.

I am satisfied that the complainant resigned because Ms X submitted a complaint about her.  The respondent could not prevent another employee using the grievance procedure.  The respondent followed the correct procedure and appointed Ms E to investigate the complaint made by Ms X.  I find that the complainant did not act reasonably in resigning before the complaint against her was investigated.

I have carefully considered the written and oral submissions and I find that the respondent’s handling of the complainant’s complaint was not unreasonable.  I find the complainant did not act reasonably in resigning before fully utilising the grievance procedure.  I find that the complainant has failed to discharge the onus of proof required in a case of constructive dismissal.  I find the complainant was not unfairly dismissed.

CA-00030849-001

Dispute referred under Section 13 of the Industrial Relations Act, 1969.

The employer has in place a grievance procedure.  I am satisfied that the informal procedure was followed.  However, in my opinion the informal process did not resolve the underlying problem.  I recommend the employer to review their procedure and consider the use of workplace mediation as a more effective method of resolving problems between colleagues who continue to work together.

CA-00030849-002

Complaint submitted under section 8 of the Unfair Dismissals Acts, 1977-2015

I have carefully considered the written and oral submissions and I find that the respondent’s handling of the complainant’s complaints was not unreasonable.  I find the complainant did not act reasonably in resigning before fully utilising the grievance procedure.  I find that the complainant has failed to discharge the onus of proof required in a case of constructive dismissal.  I find the complainant was not unfairly dismissed.

Constructive Dismissal

Industrial Dispute

Grievance Procedure

Complaint Form