Complainant

Respondent

Parties

Sinead  Daly-Dillon

Sue Ryder Foundation CLG

Representatives

Jack Hickey BL instructed by  James O'Brien & Co. Solicitors

 Gavin Reed CEO

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-00043834-001

30/04/2021

The Complainant alleged she was constructively dismissed as a result of the actions of the Respondent.

The Complainant stated Constructive dismissal: was 'when you're forced to leave your job against your will because of your employer's conduct".

The Complainant worked for the Respondent as the Manager of the Nenagh Centre from day one, for a period of 10 years. She stated she loved her job and got great satisfaction from helping the residents and seeing first-hand the joy that continuing to live independently in a safe and supported environment, brought them. The Nenagh scheme was a very happy place for both residents and staff. There were no complaints or investigations against the Complainant nor did she have any sick leave during this period.

The Complainant outlined a number of issues/incidents which she claimed made her continued employment untenable; They were;

The Complainant began to notice her situation deteriorating when the former CEO Liam Keane, (October 2014 - March 2017), left. Liam Keane conducted himself in a very professional manner. They had monthly managers meetings, consultation and discussion on all matters leading to a full suite of policies and procedures being prepared and sent to the Board for approval prior to Liam's departure but subsequently these were never forwarded as was discussed. The Complainant submitted in evidence that when Mr. Gavin Reid was appointed CEO in July 2017 that there was no notification from the board of this appointment, management meetings were cut, that all staff were asked to attend a meeting where they were given a presentation called "Adapt or Die” and asked to come up with ideas for cost cuttings measures and  were told that staff cuts would have to be applied particularly to the night supervisors, who would be replaced by Tunstall monitoring system. This was the last managers meeting.

The Complainant was already feeling segregated & isolated at this point. Some of the issues that the Complainant tried to raise with Mr. Reid and the manner in which that information was received and subsequently handled, left her in a state of trepidation.

Mr. Reid requested that all staff sign a Health & Safety statement and a vulnerable adult questionnaire in October 2018. The Complainant raised numerous concerns in relation to signing the Health & Safety statement and queried the personnel that the Complainant felt was needed to be employed to implement and monitor the Respondents safety obligations. Mr Reid advised in e-mail that he was working on a new statement but this was never delivered nor were any health and safety personnel ever appointed.

The Complainant raised the issue of her salary with Mr. Reid in an e-mail on the 11th October 2017 and in it requested clarification as to why her colleagues were on a higher salary than she was.  The Complainant queries on her salary were never dealt with.

The Complainant alleged she received numerous aggressive phone calls from Mr. Reid. He called her in relation to an arranged visit of managers to the Nenagh scheme and he  was very angry and accused her of being underhanded because he had not been informed. She alleged Mr. Reid called her pedantic.

The Complainant was put under immense pressure to cut staff hours after a meeting on the 12th March 2020 which was attended by the Complainant, Mr Reid CEO and Mr Richard Connolly CFO. Subsequent to e-mails in relation to this meeting, Mr Reid phoned her and took an aggressive tone during this call, over the proposal the Complainant had made for the requested cuts to staff hours.

The Complainant queried Mr Reid's query on bereavement leave that the Complainant granted to a staff member.

 The subsequent promise of an updated staff handbook in an e-mail on the 25th July 2019 and again in the Memo he sent to all employees on the 24th July 2019 again stating "the handbook would be issued shortly together with contracts of employment which had been revised in line with the employment Act 2019", which never materialised.

Salesforce (a new Data Management System (which was not replacing existing systems) which Mr Reid was implementing without consultation or training (induction day was held 26th August 2019). The Complainant stated she received a negative e-mail, two days after the induction day for not logging into this system. The Complainant informed Mr. Reid in this communication that the Complainant was disappointed with the content of his e-mail. Mr Reid was introducing this system but staff were expected to continue updating house data & rent management system, along with updating the accounts department weekly for their systems which they had diligently worked on updating in 2018. Staff received additional e-mails through chatter (salesforce's communication system) in December asking for more data to be imputed. The Complainant requested administrative help and was told by the Office Manager that Mr. Reid told her that she was not to help her. The Office Manager subsequently told the Complainant in June 2020 that u she was leaving the organisation because she was concerned for her mental health as she felt bullied by Mr. Reid”. (No collaboration of this issue was supplied to the Hearing so therefore it is hearsay).  Staff were then informed by Mr Reid that his son Adam was going to assist with some of the Office Managers administrative duties.

The Complainant stated Mr Reid's e-mail on the 13th October 2019 questioned why a person couldn't access the building when he called unannounced. The Complainant responded clearly setting out the time line after studying the CCTV- The Complainant received no response to same.

The Complainant alleged her request to send a memo to the residents re: a fall detector that was demonstrated to her by Tunstall staff and the negative response to same contributed to her decision to resign.

The Complainant alleged she received criticism from Mr. Reid on the historic practise of rounding the rents, on the  11th December 2019. The Complainant believed this e-mail was only sent to her, even though this practice was in existence at the other houses, together with a commitment to having new leases for the residents with new guidelines, which never happened.

The redundancy process for the night supervisors was a very difficult task. The staff involved believed there was an element of a vendetta against them because they had taken the Respondent to the WRC- The Complainant believe Mary Vaughan HR Consultant was contracted in to deal with this. When the Complainant queried whether the Complainant would have to attend these redundancy meetings. The Complainant was told in no uncertain terms, that the Complainant had to attend. The Complainant raised concerns about her personal/emotional ability to deal with such a matter and to be able to remain impartial to the colleagues the Complainant had worked with for the past 10 years, The Complainant was told she was the manager and it was expected of her and she must be seen to implement this decision. Concerns were raised by the night supervising staff during these meetings in relation to issues they could foresee in the event there was no supervision in the building at night. The Complainant discussed concerns that the Complainant had privately with the HR Consultant and she questioned whether the Complainant had communicated these concerns to the CEO. The Complainant believed she had at every opportunity as had other managers (at the initial meeting 10th July 2018) but felt these concerns were never listened to. A zoom meeting was called between the CEO, the CFO, Mary Vaughan HR and the Complainant to discuss progress on the redundancies and the system that was to replace them. The CFO was unable to participate in this call. The Complainant was again uncomfortable and felt she was being talked at and was not being afforded the opportunity to speak freely. Subsequent to that call the Complainant asked for the minutes of this zoom meeting from Mary. The Complainant subsequently made notes to the minutes and returned them. The Complainant was told to retract the comments the Complainant had added to the minutes, a number of times, which the Complainant did not do.

The cutting of staff hours following a meeting of the CEO, CFO and the Complainant in Nenagh on the 12/1 1/2019 and as previously mentioned the unsupported way that was dealt with. At this time, the Complainant questioned the CFO that if all of these cuts were implemented what would stop the Respondent going into financial difficulties again.

The formal complaint made to the Respondent in relation to fire safety which was never dealt with and the subsequent visit from the Fire and Safety experts to Nenagh 28th July 2020 which was arranged by Mr. Gavin Reid but there was no follow-up from that.

The Complainants request for parental leave in January 2020 and how that was handled. Mr. Reid informing her that he would arrange her cover.  Subsequent to this original request the Corona Virus Pandemic restrictions were being implemented at government level and the Complaints focus switched to managing this ever-changing situation. During the redundancy meetings in May, the Complainant again raised her parental leave request with the HR consultant and sent through an application for leave to her on the 19th May. She sent it on to Mr Reid who on the 28th May replied looking for her proposal as to how the Complainant proposed to take the leave after previously been told by Mr Reid on the 20th March that "as a manager the Complainant' focus on cover, she just need to provide him with the specifics on your leave request" The Complainant was verbally told by Mr. Reid her parental leave was granted but the Complainant ran into difficulty with cover for these proposed days, as the Complainant had advised, due to staff depletion. On the 8th August the Complainant applied for her entitlement for her second child's parental leave in a continuous block, which was not responded to.

Redundancies and cuts to the elderly residents' services resulted in the residents having major anxieties and concerns. Their requests for further information and requests for consultations with the CEO were not given, even though the initial plan was for the CEO to "arrange residents briefing & Tunstall installation". The CEO failed to hold the residents briefing and as a result ail concerns from residents, their families and public representatives, came back on her as she was the only channel that remained open to them. It was at this point, the Complainant believed, a number of residents contacted SAGE advocacy organisation.

The e-mail from Mr Reid on the 26th May 2020 re a patient which the Complainant felt had an accusing tone in which Mr Reid seemed to suggest the Complainant was giving information to different sources.

The zoom call between Mr.Reid, HR Consultant and the Complainant , on the 22nd July 2020 prior to which the Complainant requested an agenda before going on the call, as the Complainant sensed something was amiss. The HR consultant said it was not necessary as it was only going to be an informal chat. Mr.Reid began by questioning the Complainant repeatedly as to whether the Complainant knew a particular person. The Complainant told him she did not, the CEO continued to question her in an accusing tone and alluded to the fact that the Complainant was divulging information to the named person. He advised the Complainant that her photo was on the SAGE website, which the Complainant checked, the Complainant again reaffirmed that the Complainant did not know her. The Complainant was absolutely floored by these allegations and the manner in which Mr. Reid conducted himself on this call. The Complainant made the HR consultant who was also on this call fully aware of her distress. When the Complainant followed up via email, on the 7th Aug 2020 during her parental leave, as to whether there was any update on the SAGE incident, Mr Reid said the named person was being evasive. The Complainant contacted the named person and asked why she was being evasive. She denied same and forwarded the Complainant her response to Mr Reid which she had sent on the 31 st of July 2020 which in her opinion was very clear.

The Complainant felt that the Respondent throughout her employment has been a reactive organisation. She felt it tends to wait for something to be a problem before addressing it, if at all.  The Complainant felt for some time that the Respondent thought her problematic in the way the Complainant questioned matters that the Complainant thought were not right. The Complainant had no problem taking correction or direction but the Complainant had a problem with how that correction was communicated or whether that direction was supported or not.

Finally, the Complainant alleged her work environment became an environment whereby the Complainant felt she had been deliberately isolated from the other managers and left unsupported in order to weaken her resolve and break her spirit. The Complainant felt she could not speak freely as she was constantly dreading the negative or the aggressive backlash/communication from the CEO. The Complainant just kept on going, hoping things would improve but unfortunately, they did not. The Complainant felt there were no impartial channels available for her to bring her concerns or complaints to at a higher level. The CEO was the son of the vice-chairman and felt the Board was non functioning. There was no HR or Health and Safety personnel within the organisation. Mr. Reid began working with HR consultants but as a manager the Complainant was never advised as to what was the remit for this consultant.

After the last zoom call and the lack of follow up from Mr. Reid, the Complainant felt this was an attack on her integrity. The Complainant was concerned for her own health and decided to seek help and submitted a medical certificate to support this claim.  The Complainant went on sick leave on the 1st September 2020. The Complainant consulted her solicitor who made numerous attempts to communicate with the Respondent on her behalf. They never responded to his letters. The Complainant received a registered letter on the Friday 13th November 2020 to her home, the contents of which left her distressed. The Complainants solicitor again wrote to the Respondent asking them to engage with him and again they failed to do so. Mr Reid sent a second letter to her home on the 26th February, and on this occasion included the letter to her solicitor which she stated left her traumatised.

Ultimately, the Complainant was left with no option but to leave her employment arising out of the facts and matters set out above.

The Complainant has alleged a constructive dismissal complaint. The Respondent stated is was both difficult to comprehend the numerous inaccuracies in the complaint presented by the Complainant and to understand the level of emotion and feeling that the Complainant communicated externally first without ever having highlighting that she had any notable work-related concerns of this nature through the avenue available to her internally on any day at work in the lead up to her planned and employer approved parental leave (for 2nd September 2020).

The Complainant presented as a consistently competent manager in her role to her colleagues on site in the area of communication with them and also the Complainant displayed her ability to engage in communication with fellow managers off-site or external colleagues' parties prior in the many months prior to the timeframe approaching September that she was due off on approved leave. Nor did the Complainant raise any alert to work related issues or concerns either when she went on sickness absence from 31 st august 2020, only 2 days prior to her confirmed parental leave commencing.

The Complainant stated in the claim to the WRC on 30th April 2021 that she would not be willing to engage in mediation services to facilitate the resolution of her complaint. As her employer, the Respondents approach was very different prior to hearing anything from the WRC with a complaint alert.

On the occasion that the Respondent received the first solicitor letter in October 2020, the Respondent were dismayed and completely shocked and confused yet also supportive to ensure they could understand and resolve. The Complainant was offered internal procedures and/or investigation as applicable at a time convenient either during or post sickness leave or later in March 2021 after her parental leave would be expected to finish was the thinking at the time. At this point, the Complainant had not cancelled her parental leave. A solicitor informed the Respondent that she had work concerns of a concerning nature, making a threat in advance of constructive dismissal and being forced to leave. The Respondent policy is to engage with their employees directly and remind them of internal processes available.

As her employer and manager, it didn't enter the CEO’s mind that the arranged parental leave would be cancelled by the Complainant as she had explained in detail some of the challenges she was having and how anxious and worrying it was for her so her priority need was to be at home with her Son to support him during the upcoming school year. The anxiety and worry that she explained around this was understood and empathised with by the CEO instantly. The Complainant had been supported wholeheartedly on her request from the outset by Mary Vaughan, external HR Consultant and instantly also by the CEO.  The Respondent had gone through many supportive conversations for planning the best cover for the business during the Complainants absence. This was all done and completed prior to July 2021 when the Complainant was reminded not to forget again to complete her form for this leave by her employer. The Complainant completed the form after her employer's reminder of the request thereby finalising her dates to the Respondent on 8th August 2021. All three people involved knew everything was already confirmed and cover would be arranged by the CEO without issue had the Complainant not managed to arrange cover prior to August when she was on her other parental leave dates, holidays and shorter work weeks requested as normal earlier in the year, similar also to the year prior so nothing felt out of the ordinary. The Respondent had no issue with approving these annually at the Complainant 's request, the Complainant was aware and received her support first hand and directly as the Respondent do what they can for a colleague with younger children especially and relayed this in our workplace.

The CEO was being supportive and it was a natural approach for the CEO. The Complainant understand that his style may be different than previous CEO's however the CEO was always supportive and clear in his direction regarding work. Equally, the CEO was always patient for outcomes never placing undue pressure within the workplace or expecting anything outside of capabilities of any individual. The Complainant was never placed in any individual performance improvement plans/sessions or investigation or disciplinary procedures.  The Respondents work culture is to support and develop performance rather than to engage in corrective action unless this is necessary. When necessary, the Respondent encourage the support of a human resources specialist to ensure people are treated professionally. The CEOs style is not to micro-manage and the Respondent prefer to afford managers the freedom to do their work, communicate clearly and follow-up as an when needed. Internal supports are in place as are procedures with managers responsible for their residential schemes. The CEO was always only a phone call away and if unavailable the CEO would reply same day where possible or within a very respectable timeframe otherwise.

The Complainant was with Respondent for almost 10 years back in August 2021. The Complainant was not explicit in her detail to the WRC about this parental leave not being very supported wholeheartedly and the Respondent has supported such leave in the past wholeheartedly.

To this date, the Complainant has never resigned from her job. As a result, her employment position remains secure and protected. No dismissal has taken place initiated by her employer and no resignation with or without notice has been received directly from the Complainant.  The Complainant never raised work related medical concerns to her employer directly, the Complainant  did stop sending her sickness certs on 4th January 2021. This was during her parental leave so a lenient and supportive approach was taken. The Complainant then never returned from parental leave in March 2021.   Having never resigned from her position as Scheme Manager of Nenagh on 1/1/21 - despite this being stated in her communication with WRC - as an employer the Respondent must highlight that we have protected her employment position to this current date, remaining open and supportive to seeking to understand her concerns and allegations. The Complainant is an employee of 10 years, options to engage in company work procedures was given to ensure support. This happened in a similar manner on two occasions that year then the Complainant raised the discussion of having an interest in redundancy despite it not being extended or offered or requested by the employer for the Complainant 's position.

It is unfortunate, surprising and simply confusing to the Respondent as to why the Complainant decided to keep her employer in the dark or uninformed on specific details on all or some of her work concerns when at work or on leave. The Complainant declined to engage by inaction on any internal process reminded to her. As the scheme manager, the Complainant is aware of the internal grievance procedure and responsible for ensuring all the employees who reported directly to her have access to both the company handbook through her access and distribution/explanation of same and also given a proper induction regarding these procedures and health and safety in general.

The system the Complainant describes, Salesforce, was her go to place in recent years as with all managers and it had improved communication for all managers and the Complainant equally agreed being in touch and up to date in the moment. The Complainant received Salesforce training on 28th August 2019. The handbook was loaded on the system prior to this on 14th August 2019. Regardless of which version of the handbook used, both included the procedures that the Complainant failed to engage on with her employer regarding grievance procedures. The Respondent ensured the Complainant was reminded of these procedures once the Respondent was alerted by someone other than the Complainant (the Complainants Solicitor). The Complainant also had fellow managers to support her if she felt any discomfort and needed to ask for help or raise a flag of concern to have it addressed. the Complainant was familiar with and known by board members due to her length of service and previous communications with them. The Complainant had the unique advantage of having a fellow co-manager working one day per week to cover for the Complainant 's extra day off weekly. Both based in Tipperary, the communication door was readily available on the Complainant's four working days. The Complainant also had the support of her employees and all were trained on "Dignity at Work" organised in Nenagh via the Complainant in 2018. This indicates that the Complainant was aware of the importance of this. Ruth Campbell, payroll/finance and Richard Connolly, head of finance in addition to Mary Vaughan, external human resources consultant, were all readily available and accessible for the Complainant to contact should she need support with anything work related also. The Respondents approach is to care and resolve, not to wait for things to become problems as the Complainant stated in her perception. The Respondent carry a resolution approach as the CEO does and her colleagues internally, other managers, employees, and board members carry this same approach. A lot of work has been achieved in the past few years with this approach being refined and adapted to focus on the many conflicting priorities that exist in such a workplace and environment. It appears to the Respondent that in reviewing the Complainant 's complaint detail that she may have felt it a challenge to get used to the CEO’s style of management citing it to be different. The CEO is from a commercial background.The Respondent handle the residents and employees work environment with care and professionalism, have been supportive to all team members who have required anything or answers and the Respondent have equally had to say no on occasions in general at times.

On this last day in August, the Complainant 's first illness absence from work in 2020 began.. On this day she failed to contact the CEO as her direct manager to raise a concern that her absence was work related, or to look at cover options as any manager or employee normally would with their manager if they cannot make it to work. In a work environment such as independent living, the priority is to always connect and to ensure cover. Regardless, cover is always discussed in advance of illness absence by scheme managers with the CEO and responsibility is always taken by all employees equally to contact their manager. The complainant did not communicate to her direct manager at the time of illness starting. Not being on-site, the Complainant knew the CEO cannot see what's happening until informed. Trust is important and the CEO have always been transparent when relevant and appropriate to upkeep this. The Complainant never directly informed her employer that her sickness absence was work related in 2020 or 2021. Her employer knew her absence was due to 'medical illness' as per her doctor's certificates.  This was the only communication that continued from the Complainant on her medical notes. The Complainant was not normally on-site in Nenagh, so without any information from her directly the Respondent may not be aware of a sick note. It would need to be communicated to the CEO by the direct report that is sick. The Complainant 's sick pay was processed efficiently via payroll.

The Complainant did not resign nor was she dismissed. The Complainant detached herself and was not isolated by other colleagues or the CEO. The Complainant believed she was a lower paid manager. As scheme managers, she is aware that she is not. It has been explained to the Complainant that additional duties are included in another colleagues package rather than just one scheme managers duties similar to the Complainant 's position. The Complainant worked a 4 day week and was given management support with her scheme on the 5th day for effective management cover. In her absence she does not get called into work on her days off as the Respondent respect days off. The Respondent equally respect out of hours space and the Complainant 's right to disconnect hence not harbouring her due to sick leave or parental leave.

The CEO and the Complainant always had open communication to his knowledge and the CEO was professional and always fair and supportive in any dealings with the Complainant and always acknowledged any requests. In fact, most requests were accommodated or at least supported willingly where feasible and explained or follow-up on when not possible. This was very occasional. In the previous 4 years prior to making this WRC complaint, the Respondent had many changes in the workplace as did all managers. To name a few, there was financial constraints and a transition in the CEO position again and in the year prior to leaving, there was a re-structure plans which led to redundancies being proposed and happening for financial and health and safety improvement reasons and other labour requirements to meet budgetary requirements. The proper support was offered with this for all managers including the Complainant and the Respondent actively planned and prepared for this change and it was a challenging time due to the nature of the work and to the change happening within the work environment. The other dynamic change at work was working in a pandemic environment in 2020. The Complainant, like all managers was given time by others with anything she required or flagged workwise. The Complainant was also given ample time to achieve any business results and never placed under undue pressure or time constraints for outcomes. the Complainant always had the offer of a support system or displayed the ability to ask for things she required. The Complainant did not express difficulties outside of her capabilities within anything happening in the work environment. The Complainant always said in meetings that she understood the need for any change and when she raised a request, it was addressed and followed-up on — e.g. — to have a member of employees present past 5pm on weekdays in Nenagh despite the board proposal being different. As manager, the Complainant was listened to by the CEO. The Respondent  supported the Nenagh residents retaining an employee on-site after 5pm on weekdays. They had social activities and the Respondent listened to the Complainant and refined proposals prior to final decisions which the board also accepted.

The Complainant also raised her pension issue a few years ago and this was resolved. This was the only term or her employment that needed to be addressed and this was addressed. No other term of the Complainant 's employment was broken by her employer to their knowledge since. As the Complainant ' s employer, the CEO was unaware of any action or inaction that made a situation so intolerable for the Complainant at work that she had to resign. The Complainant was never forced to leave her job as she attempts to convey based on her employer's conduct. The Complainant checked out redundancy potential once as a sounding board, mentioned that she'd like it to someone else shortly afterwards and clearly said that she was not looking for it and that it was only a remark at the time and having thought it through was not wanting to request it. It has become evident from her complaint that the Complainant 's internal thoughts may have been different than what she was expressing or communicating.

There was HR support available to ensure as a team within the Respondent we were being connected on the one page especially after complaints had been raised and detailed by the agency, Sage. This was explained to the HR Consultant and the Complainant equally. This conversation was clear and helpful and the Complainant was supported internally and trusted. The other option was not to have the conversation and have the question and feedback from Sage not handled transparently and directly together. There was no internal issue raised thereafter by the CEO and the Complainant was not mistreated by the CEO in this conversation or by others. The Complainant never raised an internal issue at the time but rather an external one. The Respondent had her trust and support at all stages and this was communicated to her.

The Respondent had left every door open for the Complainant and reminded her to engage internally in investigation and resolution. Her solicitor was responded to and she herself reminded to engage in internal mechanisms to resolve any concerns. The Respondent shown no desire for her to leave her employment and never treated her in such a manner as indicated by her descriptions. The Respondent always spoke openly during verbal face to face and phone discussions on various work topics - always open, fair and respectful. The Complainant displayed both the ability to engage and ask questions and also to converse on all levels with ease and confidence. Nothing out of the ordinary was experienced by her fellow colleague managers or by external human resources at the time. Nothing was reported by the Complainant or others on her behalf that was personally affecting her work related.

Given that the Complainant has not resigned, the Respondent continue to pay her pension and hold open her position for a return to work. The Respondent do not foresee an entitlement to compensation given the facts of this employee complaint and the case at hand. The Respondent have been informed recently via her colleagues that there was a media announcement in 2021 in a local Tipperary paper to state that the Complainant has started working again in the real estate/property sector.

The applicable law

Section 1 of the Act 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,”

Section 6(1) of the Act states

“ 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”.

The Respondent submitted its Company Handbook and on Page 49 it dealt with grievances and the relevant parts are as follows;

“Stage 2 lf your grievance cannot be resolved to your satisfaction by your Manager you can refer the matter directly to The Managing Director. The Managing Director will attempt to resolve the grievance within 10 working days. Stage 3 It your grievance cannot be resolved to your satisfaction by the Managing Director you can refer the matter directly to an external arbitrator for mediation. The external arbitrator will attempt to resolve the grievance within 5 working days.”

“ lf you have a grievance you must exhaust each stage of the procedure before proceeding to the next stage. A grievance will not be escalated to the next stage until the preceding stage has been exhausted”  and “lf your grievance relates to your Manager, you can refer the matter directly to stage two of the procedure.”

In evidence the Complainant she felt she had started to be undermined, there was cut backs on all fronts, the environment had become hostile, she was accused of giving information to at third party,

her parental leave was not handled well, operational issues which she had difficulty with and gave further detail of her summary outlined above. Mr Reid CEO gave evidence the Complainant had not been dismissed and he received no letter of resignation, how he had supported the Complainant with operational issues, that he had no issue with the Complainants performance, that the Complainant had not expressed concerns or being uncomfortable. Mr. Reid was cross examined on his evidence by Mr. Hickey for the Complainant in particular regarding the relentless pressure the Complainant was put under, no salary increase for 10 years, the issue of a H&S report not been given to the Complainant, issues around the system of work which he questioned made it impossible for the Complainant to work, issues around the” Adapt or Die” meeting and how it made the Complainant feel undermined. Ms. Vaughan gave evidence that most of her dealings were with the redundancies, different HR projects from time to time and that she understood the Complainant was happy at work. She stated she did not see the Complainant uncomfortable in the redundancy meetings and that the Complainant never said she did not want to be in the meetings about the redundancies. Ms. Vaughan outlined her role in the Parental Leave issue and that she had to pursue the Complainant to get the form signed and that the parental leave had been approved by the CEO which she understood to be from September 2nd 2020 to March 3rd 2021. She stated that the Complainant never verbalised any issues to her and never cancelled her paternity leave and that the Solicitors letter was the first indication she had there were issues. On cross examination by Mr. Hickey who asked had the Complainant to provide cover for herself during time of/paternity leave Ms. Vaughan replied cover was always provided from the Holycross facility. In response to query from Mr. Hickey the witness denied there was a race to the bottom with the changes being implemented. Mr. Connolly gave evidence of the financial needs of the Respondent and the solution put in place to the Complainants pension issue.

Issues for Consideration

As dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”. InWestern Excavating (ECC) Ltd v Sharp[1978] IRL 332 it was held that to meet the “contract test”

an employer must be “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 further performance”.

Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted their affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, he/she is justified in leaving. The Complainant in this case is relying on the conduct/reasonableness test of the Respondent’s behaviour.

Findings

The Complainant submitted that her situation became so unsustainable arising out of a series of events which she claimed made her continuing employment impossible.  The Complainant neither resigned directly or was dismissed. A letter stating she would “be forced to resign and submit a claim for constructive dismissal….unless proper and adequate provision is afforded to our client to enable her to operate. In an effective and  safe manner ” was sent to the Respondent by the Complainants solicitor on Sept 25th 2020. The Respondent made a number of attempts through correspondence with the Complainant and her Solicitor to “go behind” the request in this letter and received little or no clarification from the Complainant as to what was required to allow the Complainant continue at work. The Respondent stated that as the Complainant was on paternity leave and or sick leave it did not feel it appropriate to phone the Complainant.

The issue for the Adjudicator to consider is whether, it was reasonable for the Complainant to terminate her employment because of the Respondent’s conduct. The conduct being relied on is the Complainant’s unhappiness with a series of events as outlined above and elaborated upon in her evidence. My conclusion is none of the events in their own right justify the Complainant leaving her employment and even if taken in the round the Complainant did not adequately set out her issues, what was required to resolve them and failed to engage in finding a solution to same.  In constructive dismissal cases, the Adjudicator must examine the conduct of both parties.

In normal circumstances a Complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning.

In this case it is clear from the evidence of the Complainant that she did not raise a formal grievance at any stage and the issue of the grievance procedure to be followed was in dispute. However, it is clear from the Company hand book what the grievance steps were.  Leaving aside this issue, while recognising that the Complainants operational changes caused her personal difficulties, this may well be that she had got used to operating a particular way and the found it difficult to accept both the operational and redundancy changes that the Respondent had to implement due to its changed financial situation. I also note the Medical Certificate states the Complainant advised the Doctor her illness was due to work-related stress rather than being evaluated and concluded by the Doctor themselves.

On the facts of this case the Adjudicator cannot see how it could realistically be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle her to terminate her employment without having sought to ventilate and resolve whatever grievance that she had through the internal procedures. Once the Complainant stated she could be forced to resign the Respondent tried to engage with the Complainant (who was on paternity/sick leave at the time) to no avail. The Complainant had a duty to set out clearly what changes she needed to continue to stay employed and to engage in the grievance procedure, up to and including external third party mediation or adjudication on any issue she felt was a dispute. She failed to do so.

In summary, the fact of dismissal is in dispute, the Complainant never resigned directly, had engaged a Solicitor prior to resigning, refused mediation, never initiated the grievance procedure, the Respondent held open her post and continued to do so at the date of the Hearing, continued to pay pension contributions, tried to engage on what issues were at play and the solutions required and at no stage implemented any disciplinary action against the Complainant. Finally, I note the Complainant secured employment fairly quickly in her husband’s business and was unclear about her income from that source saying it was “similar”. She also advised she was not in a position to seek employment in the intervening period. These issue alone would severely mitigate any possible compensation if the Complainant had been successful in her compliant.

Having found that the Complainant has not established that there was a significant breach going to the root of the contract and that the Respondent’s conduct was not unreasonable or could justify the Complainant’s terminating her employment by way of constructive dismissal, I find that the Complainant’s employment did not come to an end by way of dismissal.

I find that the Complainant was not unfairly dismissed.

Constructive dismissal