Complainant

Respondent

Parties

Tabisa  Agbaje

Lloyds Pharmacy Ireland Limited

Representatives

Eoin McGuigan McGuigan Solicitors

Brendan McCarthy Stratis Consulting

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-00032567-001

28/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00032567-002

28/11/2019

On Nov. 28th, 2019 Ms. Tabisa Agbaje lodged 2 complaints against Lloyds Pharmacy. Ms. Agbaje had worked as a Pharmaceutical Technician with the organisation from Jan. 16th, 2017 to Sept. 27th, 2019, at the Neilstown branch in Clondalkin. Her hourly pay was €16.40 and she worked 28 hours per week. Ms. Agbaje’s first complaint (CA-00032567-001) is one of constructive dismissal (see below). At hearing, Ms. Agbaje formally withdrew her second complaint (i.e. CA-00032567-002).

Attempts to secure a resolution of the issue(s) under the auspices of the W.R.C. via mediation (prior to hearing) were unsuccessful.

Notably, Ms. Agbaje was successful in securing new employment at the start of November 2019.

At the outset of the hearing both parties were provided with all relevant information in line with the WRC’s guidance in respect of virtual/online hearings and arising from the Supreme Court’s Zalewski judgement (e.g. public hearings, oath).

Issue 1: It is alleged that in July 2018 the complainant was subjected to verbal abuse by a co-worker

Ms. Niamh Maxwell, in respect of incomplete prescriptions. Apparently, the situation escalated with Ms. Maxwell becoming increasingly angry and calling the complainant ‘a lazy shite’.  Ms. Agbaje was shocked by this remark and distressed by the overall interaction, which she felt was entirely unnecessary and unwarranted. She complained to her manager, Ms. Bridget Darcy. Ms Darcy decided to deal with the matter immediately and informally. Arising therefrom, Ms. Maxwell apologised (to the complainant) for her behaviour and this apology was accepted.

Issue 2: In October 2018 it is alleged that the complainant was again subjected to verbal abuse and

threatening behaviour from Ms. Maxwell, re. stock ordering and other general duties. The manager on duty (Ms. Jenny Byrne) called a meeting that day to address these issues. During this meeting, Ms. Maxwell lost her temper and shouted at Ms. Agbaje in an intimidating manner, telling her to ‘Keep [your f*king mouth shut’. Ms. Agbaje was highly distressed and upset by the intimidation and abusive behaviour, as well as the oppressive atmosphere in the pharmacy. She was further aggrieved as she believed the manager on duty had failed to deal with the situation appropriately. Hence, she initiated the grievance procedure. The investigation and grievance procedure proceeded in accord with the respondent's policy. It concluded with a decision that Ms. Maxwell be given a cautionary warning. Ms. Agbaje was dissatisfied with the outcome.

Issue 3: Ms. Maxwell was subsequently transferred to another branch. However, in February 2019 Ms. Agbaje was informed (by a colleague) that Ms. Maxwell would be returning. This decision was made without any consultation with or prior warning to the complainant - who was highly apprehensive upon hearing this news.

Issue 4: In March 2019 the respondent appointed a new manager to the Neilstown store, Ms Elizabeth MacDonald. Over the course of the following months, Ms. MacDonald's management style fostered an increasingly oppressive atmosphere (e.g. raising her voice to shout at staff, openly criticising them in front of others, taking Ms. Agbaje aside for impromptu ‘performance reviews’). Ms. Agbaje decided against making an official complaint.

Issue 5: Another incident of inappropriate behaviour occurred in June 2019. On this occasion, an issue arose over the completion of paperwork, resulting in Ms. Agbaje being ‘ganged-up’ on by Ms. MacDonald and Ms. Maxwell. Ms. Agbaje felt humiliated. Later that day she attended a meeting with Ms. Aine Martin, Regional Manager. Ms. MacDonald and Ms. Maxwell were already present at the meeting and had evidently made a complaint to Ms. Martin about Ms. Agbaje. Ms. Agbaje asked Ms. Martin if Ms. MacDonald had told her how she dealt with the situation earlier and explained how she felt she had been mistreated. This was ignored by Ms. Martin and (to Ms. Agbaje’s shock) the meeting concluded with Ms. Martin informing her that she needed to improve her performance. As a result, the following day Ms. Agbaje resolved to confront Ms. MacDonald about her behaviour towards her. Ms. MacDonald rejected her complaints. Subsequently, in the course of a prescription query with Ms. Agbaje, Ms. MacDonald lost her temper and ‘stormed off’, whilst continuing to shout at Ms. Agbaje. She was advised later that Ms. MacDonald had left the premises and the company. Shortly thereafter she was informed that Ms. Martin was on the phone and wished to talk with her.

Ms. Agbaje was shocked by Ms. Martin’s response, as she felt that it was insinuated that it was her

behaviour that was the caused Ms. MacDonald to leave. Subsequently, a colleague informed Ms. Agbaje that she had overheard Ms. MacDonald say that she was going to have her head (i.e. Ms. Agbaje’s head) ‘chopped off' – thus greatly exacerbating Ms. Agbaje’s stress and anxiety. The complainant advised management accordingly. As an aside, it was also noted that the complainant was prescribed medication for treatment of specified symptoms and certified unfit for work. In the course of a subsequent conversation with her Manager, Ms. Bridget Darcy, Ms. Agbaje informed her about the threats. However, Ms. Agbaje was upset upon hearing that Ms. Darcy was aware of the threats, had not informed her or done anything about the matter. Ms. Agbaje remained unfit for work over the following weeks and was diagnosed with adjustment disorder caused by stress, precipitated by bullying in the workplace. She was distraught at the idea of returning to work.

With regard to Issues 1-5 above, Ms. Agbaje believes that the respondent failed in its duty to provide a safe and humane workplace and had not dealt with her complaints effectively. As a result of these incidents – and the respondent’s failure to adhere to their own anti-bullying policy - she had no alternative but to terminate her employment.

Legal Considerations - Unfair/Constructive Dismissal: In support of the claim, it is also relevant that Section 1 of the Unfair Dismissals Act 1977 (as amended) defines constructive dismissal as: ‘The termination of 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’.

Accordingly, the complainant contends that the respondent’s actions constitute a significant breach, showing that they no longer intended to be bound the contract's essential terms, thus entitling the complainant to terminate the contract as the aforementioned behaviour rendered her constructively dismissed.

As this is a constructive dismissal case, the onus of proof is on the complainant. Accordingly, it is relevant that the claimant did not exhaust internal procedures and the respondent did not alter the fundamentals of the employment contract in a manner that can be deemed to have left the complainant with no other option but to resign. By and large, both parties are in agreement that the case facts are not in dispute. However, differences do arise in respect of their interpretation.

Issue No. 1: Reference is made to an incident that occurred in July 2018. The matter was dealt with informally and the complainant accepted an apology from her work colleague. The matter was then deemed closed.

Issue No. 2: Reference is made to a formal complaint relating to an incident in October 2018. This

incident was investigated in accord with the respondent company’s policies and procedures. The complaint was well founded and the person complained of received a formal caution. No further communication was received from the complainant in respect of this issue and the matter was deemed closed.

Issue No. 3: Notably, the offending and sanctioned employee was not moved out of the store as a sanction. However, she did move to another store, before subsequently returning to the Neilstown store. The complainant did not raise any issue with regard to this staff member returning to the store.

Issue No. 4: Reference is made to the general atmosphere within the store, staff performance and the style of the new manager (i.e. Ms. McDonald). The complainant did not raise this as an issue with anyone, nor did she initiate any formal procedure.

Issue No. 5: The complainant made a formal complaint in June 2019 relating to an alleged incident concerning the shop manager, Ms. McDonald. This concerned an issue where the complainant did not properly complete a prescription. This manager left the respondent’s employment 10 days before Ms. Agbaje submitted a complaint in respect of their interaction. Ms. Agbaje also claimed that another member of staff ‘instructed’ her that she overheard Ms. McDonald making a verbal threat against her (i.e. Ms. Agbaje), with regard to carrying out a serious physical assault. A meeting took place with the HR department toward the end of June, but the claimant went on sick leave

the next day. With reference to this issue, it is notable that the complainant was advised by the respondent that if she had concerns relating to this alleged threat that she should report it to the Gardai. Furthermore, given her colleague’s resignation, it would be unreasonable to have expected the company to have taken action in respect of the alleged incident. It is also relevant that the respondent subsequently wrote to the complainant, confirming the information the company had in respect of the alleged incident and again suggesting that she should keep the Gardai updated on the matter. The complainant did not participate in any standard procedural process and did not communicate with the company during this time. Furthermore, it is pertinent that the HR Dept. offered the complainant support and counselling - to be paid for by the company

In conclusion and summary of the case facts, it is the respondent’s position that without recourse to any procedures or engagement with the company, the complainant - through her solicitors - terminated her own employment contract. Notably, the company did make attempts to ask her to reconsider, though these were completely ignored. As the internal procedures were not exhausted and the company committed no fundamental breach of the contract of employment that would warrant resignation, this claim should fail (see associated legal arguments/precedents below).

Legal Considerations - Unfair/Constructive Dismissal: The onus of proof in on the complainant to establish that they exhausted all internal procedures, in a genuine attempt to reach resolution, prior to taking the decision to resign. Having gone through all procedures they must then establish that the employer committed a fundamental breach of the contract of employment. In other words, they had no other option available to them but to resign. The cases listed below support this argument:

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.

Kirwan –v- Primark (UD270/2003): Going through the grievance procedure must be a genuine

attempt rather than simply going through it as a process.

Barry -v- HSE Trading as HSE Northwest (2016 27E.L.R. 268): The Tribunal finds that the claimant

did not give her employer an opportunity to deal with her complaint.

Zabiello –v- Ashgrove Facility Management Limited (UD1106/2008): For a claim of constructive

dismissal to succeed the claimant needs to satisfy the Tribunal that her working conditions were

such that she had no choice but to resign …. The Tribunal is satisfied that the claimant did not

exhaust the grievance procedures before she resigned. Accordingly, the Tribunal finds that the

claimant was not constructively dismissed.

ADJ3817 (W.R.C. Adjudication Officer Decision): The employee must prove it was reasonable for him to terminate his own employment due to a significant breach by the employer of a fundamental term of his employment contract or because of the nature and extent of the employers conduct and the circumstances in which the employee was expected to work it was reasonable to do so.

UK Courts of Appeal in Western Excavating (EEC Ltd.–v- Sharp I.R.L.R. 72): There are two relevant tests, referred to as the contract and the reasonableness tests. It summarised the contract’s test as one where 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 the conduct itself or the affairs are so unreasonable that the employee

cannot fairly be expected to put up with it any longer and if so the employee is justified in leaving.

Notably, both parties agree that the facts in this case (as summarised above) are not in dispute. However, the interpretation thereof is. With reference to the five ‘issues’ outlined above, it is pertinent that:

Issue No. 1: It was dealt with informally, the complainant accepted an apology from her work colleague and the matter was deemed to be closed. Notably, at hearing the complainant’s rep. was asked what was expected of management in this scenario, to which the reply was: ‘I don’t have a straight answer’.

Issue No. 2: Further to a formal complaint, the incident was investigated in accord with the respondent company’s policies and procedures, culminating in the person complained of receiving a formal caution. No further communication was received from the complainant in respect of this issue and the matter was deemed closed. Notably, at hearing the complainant’s rep. was asked what was expected of management in this scenario, to which the reply was: ‘The employee felt that she wasn’t taken seriously’. However, it is pertinent that (as outlined above) the employer’s response was in line with their procedure, giving rise to a formal caution.

Issue No. 3: No evidence was presented by the complainant indicating that she raised any issue with regard to the relevant staff member returning to the store. Indeed, it may be concluded that such staff location decisions constitute a management prerogative. Notably, at hearing the complainant’s rep. was asked to confirm that there was neither a formal nor an informal complaint made in respect of this issue, to which the reply was: ‘that’s correct’. In response to the complainant’s rep.’s suggestion in respect of the stress associated with complaining about one’s direct manager, the complainant’s rep. was asked if the complainant had approached the H.R. Dept. (as per the company policy). No evidence in respect of this route was presented.

Issue No. 4: No evidence was presented by the complainant to indicate that she raised this as an issue with management via an appropriate informal or formal procedure.

Issue No. 5: It is notable that the claimant was advised by the respondent that if she had concerns relating to this issue that she should report it to the Gardai. Furthermore, given her colleague’s resignation, it may have been unreasonable to have expected the company to have taken action. It is also relevant that the respondent subsequently wrote to the complainant, confirming the information the company had in respect of the alleged incident and again suggesting that she should keep the Gardai updated. Furthermore, it is pertinent that the H.R. Dept. offered the complainant support and counselling - to be paid for by the company

In summary, in this case it is pertinent that the facts are not in dispute, the relevant procedures were not exhausted, and the respondent did endeavour to engage with the complainant.

Given the consensus between the parties that the contention in this case arises in respect of its ‘constructive dismissal’ classification or status, it is appropriate to review pertinent precedents. In practice, constructive dismissal claims tend to arise where there is:

• A serious breach of contract (such as not paying or demoting an employee without reason);
• Forcing one to accept unreasonable changes to employment conditions (e.g. changing one’s shift pattern);
• Allowing bullying or harassment behaviour to go unchecked;
• Making one work in dangerous conditions;
• Making false accusations, such as fraud or misconduct.

The key precedent for such scenarios dates back to 1978, when the UK Court of Appeal (in Western Excavating EEC Ltd. v Sharp I.R.L.R. 72) based its determination on the ‘contract’ and the ‘reasonableness’ tests. The ‘contract test’ is one where the employer’s conduct constitutes 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 that contract. The ‘reasonableness test’ assesses the conduct of the employer and whether the conduct is so unreasonable that the employee cannot fairly be expected to tolerate it and is justified in leaving.

The application of these tests to constructive dismissal claims is now standard fare. For example, in 2018 the Labour Court (in Cedarglade Ltd. v Hliban – UDD1843) confirmed these criteria when determining whether a resignation constituted a constructive dismissal:

(i) The ‘contract test’ focused on whether the employer’s conduct amounted to a repudiatory breach of the contract of employment, showing that the employer ‘no longer intends to be bound by one or more of the essential terms of the contract’. Accordingly, the Court concluded that it was ‘being asked to consider that the conduct of the Respondent was so reprehensible .. that it goes to the root of the contract of employment and/ or shows that the Respondent no longer intended to be bound by one or more of the essential terms of her contract of employment. The Court cannot accept this contention.There was no evidence to suggest that there was an undermining of the relationship of trust and confidence between the parties’.

(ii) The ‘reasonableness test’ focused on whether the employer ‘conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, she is justified in leaving’. Yet again, in this case the Court concluded that it failed ‘to see how any of the assertions made meets the standard of reasonableness required to substantiate a claim of constructive dismissal. From the evidence tendered by the Complainant, the Court has found no evidence to indicate that she made reasonable efforts to address her grievances before resigning’. 

In contrast with standard unfair dismissal claims, case precedent confirms that in a constructive dismissal case, the employee bears the burden of proof. This can be a high threshold to meet. For example, not only must one show that the employer's behaviour was unreasonable, but one must also show that their decision to resign was a reasonable one in the circumstances. This was evident from the (seminal and frequently relied upon) Berber v Dunnes Stores (2009 E.L.R. 61) Supreme Court judgement, where it was held that the conduct of the employer 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. Summarising the scenario as to whether the employer breached the implied term of mutual trust and confidence in the employment contract, it noted that: ‘1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at. 4. 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.”

Related thereto, it is normally - but not always – expected that for a claim to succeed the employee must have exhausted internal procedures prior to resigning. For example, in Conway v Ulster Bank (UD474/1981), 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. An elaborate grievance procedure existed but the claimant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her but it is possible’. This requirement subsequently featured in many Tribunal determinations (i.e. that the claimant’s failure to explore resolutions under the grievance procedure contributed to her claim not being well founded – see Zabiello v Ashbrook Facility Management Ltd. UD1106/2008; An Employee v An Employer UD1421/2008). It was also emphasised in Travers v MBNA Ireland Ltd (UD720/2006), where the Tribunal held that: ‘the claimant did not exhaust the 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’. A decade on, in Barry v HSE (2016 27E.L.R. 268), the Tribunal was still emphasising this point, when its decision focused on the fact that the claimant did not give her employer an opportunity to deal with her complaint.

Likewise, in Workplace Relations Commission (WRC) decisions, this consideration is still proving consequential. For example, in 2017 an Adjudication Officer held that ‘prior to an involuntary resignation/departure an employee must exhaust all reasonable attempts to resolve their complaints and grievances with their employer. As an initial step an employee must inform their employer of the issues causing those complaints and grievances. Making the employer aware of them allows the respondent to address those concerns. There is no evidence that this initial step was undertaken in any real way by the complainant prior to his departure, despite the existence of a formal Grievance Policy, known to the Complainant (ADJ-00003817). More recently, in 2020, a WRC Adjudication Officer held that a Chartered Physiotherapist ‘did not take the time to formalise a grievance prior to her departure’. Hence, it was adjudged that ‘it was unreasonable for her to leave’ (ADJ-00023518). However, where the procedure is invoked, the employer’s obligation to activate it is an imperative. For example, in 2020 the Labour Court found that the employer failed to follow its own procedure in dealing with a complaint and concluded that it undermined an explicitly stated core element of the contract of employment, amounting to a repudiatory breach of that contract and an unfair (constructive) dismissal (G4S Secure Solutions v Charana UDD2022). Shortly thereafter, the Court endorsed this requirement, in the Rehab Group v Roberts (UDD2026) case, finding it ‘clear that the behaviour of the Respondent in not dealing with a complaint by the Complainant was unreasonable behaviour such that it was reasonable for the Complainant to resign from her employment’.

However, the complexity associated with constructive dismissal scenarios is apparent from the fact that such claims don’t necessarily fail because one doesn’t use the grievance procedure. That is, each case must be assessed on its own facts (see Allen v Independent Newspapers 2002 13 ELR 84; Moy v Moog Ltd. 2002] 13 ELR 261; Monaghan v Sherry Bros. 2003 14 ELR 293). Related thereto, in 2020 the Labour Court pointed out that in constructive dismissal cases it must examine the conduct of both parties and in normal circumstances a complainant invoking the ‘reasonableness test’ in furtherance of a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. That is: ‘they must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning’ (Office and Industrial Cleaners v Connolly UDD2015). Notably, in this case the Court considered the decision in the aforementioned Allen v Independent Newspapers case, where it was held that it was reasonable for the complainant in the (Allen) case not to have faith in her employer’s ability to effectively address her grievances. However, in the UDD2015 case, the Court was not satisfied that there were factors present which might have led the complainant to believe she would not be afforded fair procedure by the respondent. Serving to reinforce this consideration (also in 2020) the Labour Court’s assessment in Tesco v Maher (UDD201) concluded that it was: ‘not satisfied that there were factors present which might have led the Complainant to believe that she would not be afforded fair procedure by the Respondent in terms of the investigation and disciplinary procedure’.

In this case the respondent also contends that the complainant has not provided evidence in support of the assertion that it was it was reasonable for her to terminate her contract. The aforementioned endorsements of this precedent by the Labour Court (see also Paris Bakery & Pastry Limited -v- Mrzljak DWT1468) and by the UK Court of Appeal (see the aforementioned Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713) are notable. As outlined above, the relevant ‘reasonableness’ test assesses the conduct of the employer and whether he/she ‘... 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.’ Furthermore, according to the Supreme Court (as noted above, 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. In this case it is the respondent’s contention that the claimant has provided no evidence to prove that her ‘resignation was justified in all the circumstances’.

Hence, the respondent contends that the legal authorities have made it clear in a series of decisions that the use of company procedures to address a grievance is a necessity. Furthermore, the respondent has shown that when the claimant raised issues they were addressed (in so far as was possible/appropriate) in line with organisational procedure. Notably, with reference to some issues (see above) no procedure was initiated or grievance lodged by the complainant with the respondent. Where a procedure was initiated, it was given effect by the respondent.

As noted above, on a broader – though arguably relevant note – the Labour Court has pointed out that in constructive dismissal cases, it must examine the conduct of both parties. In normal circumstances, a complainant who seeks to invoke the reasonableness test in furtherance of a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. That is, as noted abover, ‘They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning’ ((UDD2015). As in this case, the Court did consider the decision in the aforementioned Allen v Independent Newspapers case, where it was held that it was reasonable for the complainant in that case not to have faith in her employer’s ability to effectively address her grievances.
However, in the aforementioned UDD2015 case, the Court was not satisfied that there were factors present which might have led the complainant to believe she would not be afforded fair procedure by the respondent. Indeed, this may be evident from the manner in which ‘Issues 1 and 2’ (see above) were dealt with.


Notwithstanding same, the respondent will be aware that the manner in which the complainant and her issues were ‘managed’ might not be widely or entirely viewed as proactive and completely in line with any assertion to have a ‘history of progressive HR practices and direct engagement with colleagues’.

Not applicable – claim withdrawn.

Not applicable – claim withdrawn.

Not applicable – claim withdrawn.

CA – 00032567-001: The claim is not well founded.

CA - 00032567-002: Not Applicable – Claim Withdrawn.

Constructive dismissal