Complainant

Respondent

Parties

Margaret  Byrne

Ashthorn Ltd O'Donnell Motors

Representatives

  The claimant represented herself

Rachel Murrin Gallagher McCartney Solicitors

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-00044532-001

09/06/2021

The claimant lodged a complaint of constructive dismissal  under the Unfair Dismissals Acts .In her complaint form she submitted as follows under the Section of the Complaint form for complaints under the Industrial Relations Acts- “Bullying & Harassment Procedures”. At the commencement of the hearing , the claimant expressed reservations about proceeding without legal representation She was asked if she wished to apply for an adjournment and after due consideration expressed the wish to proceed without legal representation.

The claimant commenced employment in the Accounts Dept. of the respondent’s business on the 1st.October 2008.She submitted that she was compelled to resign from her employment on the 15thDec 2020– she asserts that she was constructively dismissed owing to the conduct of the employer.  The respondent refuted the allegations and asserted that there was no foundation to the complaint and that the claimant had failed to exhaust internal procedures to resolve the matter and that consequently the complaint of constructive dismissal must fail.

The claimant read her submission into the record and advised that a dispute arose with a colleague on the 28th.Sept.2020 - the claimant asserted that she was being wrongly blamed for problems with accounts and stock take and the issues were out of her hands. She submitted that she was constantly being given out to for this – the claimant alleged that she commenced employment with only 2 days of training and was expected to do the work of an accountant even though she was only receiving the minimum wage. She stated that when she sought a pay rise she was advised she was not entitled to a pay rise as she had company insurance and the use of a car as part of her terms of employment. She asserted that if she raised an issue she was told she was being ungrateful and was then ignored for days and made to feel degraded and humiliated. She alleged that many of the cars she drove were unsafe to drive for example without a handbrake and when she asked for it to be repaired it was put on the long finger. She detailed the row she had with her colleague about having correct figures on the Nominal ledger and alleged that her colleague came thundering into the office and attacked her about answering the phone and about how she looked at her colleague. She asserted that Mr. POD  could hear what was going on and could hear her ranting at the claimant. The claimant asserted that she cried herself to sleep that night and was still traumatised the following day. She alleged  that the abusive behaviour from her colleague continued and she raised the conflict with her Counsellor. The claimant said that when she challenged her colleague about this unacceptable behaviour that her colleague started shouting at her again and told her to “ cop on “ and “get a life”. She asserted that the row was overheard by the respondent’s witness Mr.KOD and that he turned on his heel and failed to intervene.

The claimant asserted that when she entered a room and encountered management and her colleague a silence would ensue. She asserted that her colleague  had filled management in on the row – told them it was 2 sided and had been dealt with. The claimant stated that nobody asked her about it, that she cried at her desk and was visibly upset. The claimant submitted that she had worked above and beyond the call of duty and was frequently contacted outside of work hours – she said if she didn’t answer the phone during those times , she would be given out to or would have to endure the silent treatment. When she raised the matter with Mr. SOD , he gave out to her – she decided she could not remain at work , made an appointment with her doctor and went off on sick leave. The claimant stated that she continued to be ignored with the only contact being about when she was returning to work and not how she was feeling.

The claimant recounted her exchanges in a phone conversation with Mr. KOD on the 20th.Nov. 2020 – she asserted that he was unwilling to accept that he should have intervened and instead insisted he had a duty of care to all of his staff. The claimant stated that she applied for other jobs while on sick leave and when she got one in Accounts she emailed her notice to the respondent on the 15th.Dec. 2020.The claimant submitted that she was making the complaint because she felt very strongly that nobody should be bullied at work.

In her direct evidence the claimant confirmed that her colleague with whom she was in conflict, was the same grade as her. The claimant accepted that she never made a written complaint about their interaction and that she did not follow the grievance procedures set out in her contract of employment. She asserted she did follow procedures with Mr. SOD.

Under cross examination, she confirmed she had been furnished with a written contract of employment. The claimant stated that she had made complaints to her employer about the inadequacy of training. She asserted that she should not have had to look for help from the Donegal Town garage. She accepted that she had received training from   a systems design company. She disputed that the cars she was offered were roadworthy and asserted that one had no handbrake.     She acknowledged that she had no evidence to prove that Mr.POD had overheard the row with her colleague. The claimant asserted that Mr.POD was aware she was attending counselling as she got time off to attend. The claimant contended that she told everything to Mr.SOD in conversation with him on the 8th.Oct. When asked if she went to the employer about the silent treatment the claimant replied that Mr.SOD would not listen to her and just gave out to her. While she accepted he was now an elderly gentlemen, she said he was active when she had been working with the respondent. She stated that if she returned to work, she would have been subjected to the same treatment. She confirmed that she complained to Mr. SOD that he was always ringing her and stated that she did not raise the matter of tasks with her employer .She continued to assert that management ignored her distress and the fact that she had been crying at her desk. While it was put to the claimant that she didn’t complain of bullying and harassment she stated that she told Mr.KOD that she felt she was being bullied at work. The claimant confirmed that she issued the contracts of employment to the workers in the respondent’s employment and accepted that she did not invoke either the grievance or bullying policy. The claimant confirmed she was off on disability leave from October 2020 and her losses accrued between the 16thDec. 2020 and the 3rd.Jan. 2021.The claimant said that she submitted sick certs by post – she said she never thought to utilise the grievance or bullying procedure – she said it was not going through her head. She said she wasn’t thinking straight when it came to the matter of procedures.

The claimant’s witness confirmed that she had worked for the company in the past and that lack of training was always a factor. She questioned the roadworthiness of cars and stated that she  had a severe accident on a roundabout.

Claims

1. “The Complainant “has lodged two complaints, the first pursuant to

the Unfair Dismissals Acts, 1977 – 2017 alleging constructive dismissal and the second

under the Industrial Relations Act 1969 seeking a recommendation.

2. The claims are denied.

3.The respondent operates a Car Garage and Dealership trading under the style and

name O’Donnell Motors from its premises at Mill Road Co. Donegal.

4. The Respondent is essentially a family run business having been established by Mr. SOD more than 40 years ago and now operated and managed by his children.

5. The Respondent is a small business employing 8 people.

Preliminary matter

6. An application is made to anonymise all parties in the written decision of this matter

on the basis that Section 13(8) of the Industrial Relations Act 1969 requires: -

“An investigation by a rights commissioner shall be conducted in private”.

7. The fact of the dismissal of the Respondent is very much in dispute. The burden of

proof falls on the Complainant to prove that she was unfairly dismissed. Matters

stated as fact in the Complainant’s submission are denied by the Respondent.

Background/Summary of Evidence to be adduced

8. It is accepted that the Complainant was employed by the Respondent commencing on

the 1st October 2008.

9. The Complainant was furnished with a Contract of Employment, a copy of which was enclosed.

10. The Complainant’s Contract of Employment contained the Respondent’s Grievance

policy. Furthermore, as part of her role with the Respondent, the Complainant had

responsibility for issuing contracts of employment to staff members and as such she

was familiar with the content of same and in particular the Grievance Policy.

11. The Respondent was unaware of the incident which the Complainant alleges occurred

on the 21st/28th September (both dates are stated in the Claim Form, however from

the narrative provided it would appear to relate to the one incident) 2020 between

her and her colleague, at that time.

12. Mr. SOD was made aware by the Complainant that she had had an issue

with her colleague regarding the stock take. Mr. SOD suggested that she

try to resolve the matter directly with her colleague and as he heard nothing further

from the Complainant on the matter, he took it that the issue was resolved. It should

be noted that at the time of the incident complained of, Mr. SOD who is

now 78, was not involved in the daily running of the business as by that time his sons

P and K were managing the business.

13. The Complainant states that Mr. KOD was on the premises “The following

Monday” and makes a case that he would have overheard an argument on this date.

Mr. KOD recalls being on the premises on this occasion and heard the

Complainant talking to her colleague but this talking stopped as he came into the

garage. Mr. KOD is aware that interpersonal issues can arise between

colleagues which mostly tend to be resolved between the parties directly. He was not

concerned about what he had heard and did not think it required his intervention.

14. Mr. KOD spoke with the Complainant on or about the 23rd November

2020 when matters were discussed regarding issues in the workplace, however MrKOD did not take from the discussion that the Complainant had a grievance

which required any action on the part of him or the Respondent.

15. The Complainant notified the Respondent by way of a text message on the 12th

October that she was certified as sick and would not be in. The Respondent received

two further text messages of a similar nature.

16. The Complainant resigned from her employment by way of email on the 15th

December 2020.

Unfair Dismissal (Constructive Dismissal) Claim

17. The Respondent denies that the Complainant was unfairly dismissed or that the

Complainant was justified in terminating her employment. 

18. The Respondent had a Grievance Policy of which the Respondent was both aware and

familiar with. The claimant failed to invoke and/or exhaust this procedure and had

she done so any grievance she had would have been dealt with in accordance with

the terms of the procedure/policy.

The Law on Constructive Dismissal

19. Given that Constructive Dismissal is alleged then the burden of proof lies with the

Complainant. It behoves the Complainant to prove that her dismissal was not

voluntary.

20. The test is broken into (i) The Contract Test; (ii) The Reasonableness Test.

1. In the Contract Test the Complainant must establish a breach of contract so

fundamental that it went to the root of the contract indicating that the employer no

longer intended to be bound thereby1.

22. It is submitted that on no account can it be stated that the Respondent has conducted

itself in such a fashion. It would appear that there were some interpersonal issues

between the Complainant and her colleague, which issues the Respondent was not

aware of or was not aware of the effect of same as regards the Complainant.

23. In terms of the Reasonableness Test, this essentially requires the Complainant to

prove that the conduct of the employer was such that it was reasonable for her to

resign.

24. It is submitted that the Respondent has demonstrated that it did not act

unreasonably towards the Complainant, rather it was unaware of the interpersonal

difficulties between the Complainant and her colleague and/or the effect of same as

regards the Complainant.

25. Moreover, in a claim for constructive dismissal, it is considered imperative that prior

to taking the terminal step of unilaterally terminating one’s employment relationship

(as the Respondent admits occurred) an aggrieved employee must, at a minimum,

invoke and exhaust her efforts to resolve the dispute, and prior to advancing a claim

under the Act2.

26. It was further stated in Murray v Rockabill Shellfish Ltd [2012] ELR 331, that “an

employee must act reasonably in terminating his or her contract of employment,

resignation must not be the first option taken by an employee and all other reasonable

options including the grievance procedure must be explored.”

27. In Harrold v St. Michael’s House [2008] ELR 1 at 41 the determination quoted from

Redmond, Dismissal Law in Ireland (2002 – as it the was): -

“There is something of a mirror image between ordinary dismissal and constructive

dismissal. Just as an employer for reasons of fairness and natural justice must go

through disciplinary procedures before dismissing, so too an employee should invoke

the employer’s grievance procedures in an effort to resolve his grievance. The duty is

an imperative in employee’s resignations.  

Loss

29. The Complainant is put on full proof of her loss and it is noted that the Complainant

obtained alternative employment on the 4th January 2021.

30. Section 7 (3) of the Unfair Dismissal Act prescribes that a Complainant may only

recover “Financial Loss” defined as: -

“(i) Any actual loss, and

(ii) Any estimated prospective loss of income attributable to the dismissal, and

(iii) The value of any loss or diminution, attributable to the dismissal of the rights

of the employee under the Redundancy Payments Acts, 1967 to 2003; or the value of

any loss or diminution in relation to superannuation.”

31. It is submitted that no findings or recommendations should be made in favour of the

Complainant on the basis of the facts and submissions, as outlined herein.

32. The Respondent reserves the right to make such further submissions both on the

facts and on the law or arising from any oral or further written submissions that may

be made by or on behalf of the Complaint

In his direct evidence the respondent’s witness stated that he was unaware of the claimant’s issues and asserted that the company provided adequate training and back up for staff. He refuted the allegations made by the claimant with respect to the roadworthiness of the cars used by the respondent, that the cars were all NCT tested and any faults were dealt with and addressed. He stated that he travelled between the company’s 2 premises during the day and did not spend a lot of time in either location. He asserted that he never noticed the claimant crying at her desk and the matter of tasks and duties was never raised with him. He asserted that he did not ignore the claimant – he knew that there had been a row between the claimant and her colleague – it was not unusual for there to be disagreements amongst staff.   During the phone call with the claimant on the 23rdNovember , he gathered the claimant was upset but she did not air any grievances with him. He thought the disagreement would resolve itself. He stated that he understood from the other party that the claimant and her colleague would sit down and sort the disagreement. The witness said he had no reason to believe that the claimant’s sick leave was work related.

In a follow up submission in response to the additional documentation submitted post hearing by the claimant, the respondent asserted as follows :

“ The complainant did not send a copy of the documents attached to your email directly to us as she was requested to do by the adjudication officer. Secondly, both documents attached to your email are dated the 20th of May 2022 and neither document is a medical certificate which the complainant alleged she submitted to the respondent. You will be aware that it was these medical certificates which the complainant was requested to submit. The respondent's position remains that it did not receive any medical certificates from the complainant during the period of time she was absent from work and notwithstanding the opportunity aforded to the complainant to furnish the medical certificates, she has failed to do so”.

The complainant is seeking compensation arising from her constructive dismissal from her employment with the respondent.

 I am obliged to establish if Section 1(b) of the Act of 1977 operates to validate this complaint of constructive dismissal.  Section 1(b) states:

“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 his contract of employment without giving prior notice of the termination to the employer.”

In cases of constructive dismissal,  the onus lies with the complainant to demonstrate that her resignation was justified.

In supporting her decision to terminate her employment the complainant will have to prove that the circumstances of her dismissal met the following test as set out by Lord Denning MR in Western Excavating (ECC) v Sharp (1978) IRL 332-:

“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 entitles to treat himself discharged from any further performance.”

And the reasonableness test which was expressed in the following terms:

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be expected to put up with it any longer, the employee is justified in leaving.”

The claimant advanced no compelling evidence of a significant breach of her contract. Furthermore by the complainant’s own admission, she did not invoke or utilise the company’s  bullying   or grievance procedure .    To meet the high threshold required to sustain a complaint of constructive dismissal,   an employee is expected to  exhaust internal procedures prior to resigning.    This principle is set out in Conway v Ulster Bank (UD474/1981) where the 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. 

In reviewing the “reasonableness test” the Supreme Court in Berber V Dunnes Stores [2009] E.L.R. 61 in considering the reasonableness test stated:

“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.”

 I accept the claimant’s evidence that she found herself in a stressful and difficult situation arising from the conflict between herself and her colleague. However, I find that her failure to invoke the company’s procedures is fatal to her case of constructive dismissal.   I further note that the medical reports submitted post the hearing were dated 20th.May 2022 and accordingly I find on the balance of probabilities  that the respondent did not receive the medical documentation as claimed by the complainant.

Based on the evidence of the complainant and the authorities cited, I find that the complainant has failed to meet the tests set out in Western Excavating (ECC) v Sharp 91978) IRL 332. Accordingly, I find against the claimant and do not uphold the complaint.

I find against the claimant and do not uphold the complaint of constructive dismissal.