Complainant

Respondent

Parties

Teresa  Quinn

Cora Systems Limited

Representatives

Conor Maguire Conor Maguire & Co Solicitors

Sinead Finnerty Peninsula

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-00025343-001

28/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00025344-001

28/01/2019

 The complainant’s complaint was initially lodged under the Industrial Relations Act  on the 28th. January 2019 – the complainant sought at the first hearing of the matter to amend her complaint to have it considered under the Unfair Dismissals Acts 1977-2015.Submissions on this request were invited from the parties and the following decision issued to the parties  from the undersigned on the 6th.January 2020.

“Further to previous correspondence and submissions in relation to the request by the claimant to amend her complaint to have the complaint considered under the Unfair Dismissals Acts 1977-2015  I write to confirm that I have considered the submissions made and authorities relied upon by the parties. I have also considered the chronology of events leading up to the referral of the complaint.

The claimant’s complaint was received by the WRC on the 28th.January 2019.In the complaint form  the claimant asserted that she was employed by the respondent company from the 17th.Jan. 2008 to the 31st.July 2018.She also complained that she was constructively dismissed and that “ I do not have at least 12months service”.

In the body of the complaint form , the claimant referred to a chronology of events that arose in the course of her employment over a period ranging from 2008/2009 – 31st.July 2018.

I note that  the WRC complaint forms are not prescribed. I further accept the claimant’s representative’s  contention that in ticking the incorrect box regarding her service with the respondent , the form automatically defaulted to the Industrial Relations Acts.

In light of the fact that the respondent company were aware that the claimant had in excess of 10 years service , I cannot accept that the respondent would be prejudiced by acceding to the request to amend the form to reclassify it as a complaint under the Unfair Dismissals Acts

Given the foregoing ,  I am confirming my agreement to the claimant’s request to have the complaint considered under the Unfair Dismissals Acts 1977-2015.I believe this is consistent with the findings of the High Court in County Louth VEC-V-Equality Tribunal [2009]IEHC 370 where it was determined that “ If it is permissible in court proceedings to amend pleadings where the justice of the case requires it , then , a fortiori , it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal , so long as the general nature of the complaint remains the same”.

The WRC will contact the parties in due course with a date for a hearing.”

Background to the Complaint

The claimant submitted that she was employed  from the 17.01.2008 initially as Group Financial Officer and subsequently in 2014  as Chief Financial Officer with the respondent to the 31st.July 2018 when she maintains she was constructively dismissed. The respondent refuted the allegation of constructive dismissal , contended that the claimant had other avenues open to her to pursue her grievances  and submitted that the respondent did all that could be reasonably expected and fully discharged their duty to their employee.

The claimant’s representative  submitted comprehensive written submissions on behalf of the complainant  to the WRC on the 31st.March 2021- the submissions are available for perusal on the CAS file.

He chronicled the claimant’s employment history with the respondent and pointed to the positive commendations the complainant received about the quality of her work . The complainant was promoted to Chief Financial Officer in 2014.He asserted that unknown to the claimant Mr.M and the Management Team actively commenced sourcing a new CFO in 2016 .In 2015 a skills review was undertaken by HR Company Y. The representative asserted the complainant was set up to fail. The outcome of the review which was not disclosed to the complainant was that she had little or no potential to progress to top team level. The representative gave a chronological account of the ensuing grievances submitted by the claimant and the processing of same by way of an external investigation. He alleged repudiatory conduct by the employer following the invocation of the grievance procedure ultimately leading to the complainant’s resignation. The representative argued that the respondent had repudiated the implied terms of trust and confidence in the complainant’s contract of employment and invoked a number of authorities in support of these assertions.

Summary of Pertinent Evidence of Complainant:

The complainant set out a chronology of her career since qualifying as an accountant and gave an overview of the various industries she had worked with including international companies and institutes such as the Irish Taxation Institute. She applied to work with the respondent in January 2008 and was appointed Finance Manager – she also had a legal and HR brief. She stated that when the downturn in the economy hit in 2008/2009 the company were presented with huge challenges – the CEO had expressed doubt about the survival of the company in the face of the economic crisis and the curtailment of public services. She stated that this was a very difficult time but after reviewing the business model , the company did recover and started regrowth and set up a company in India. Some of the original staff were rehired and employment numbers returned to 35/40 staff .The complainant stated that she had not had any performance reviews or appraisals while in the employment of the respondent. She said that she had been commended on her work by the management team  and referenced very positive references from  the  Chief Technical Officer and the HR Manager.

In September 2013 , the claimant secured a salary increase,  was designated as Financial Controller  and was asked to take up the position of Chief Financial Officer in Sept. 2014.At this point she stated she was already an attendee at  advisory Board meetings – she brought a financial matrix and commentary to the Board as well as financial forecasting .In April 2015 , the CEO appointed company Y  to conduct a skills analysis of the Senior Management Team. The claimant said she was very busy at the time and she was caring for her ill mother .When  the HR company Y was  recruited there were rumours in the company that arising from their  analysis , everyone would have to apply for their own jobs. She said she was unnerved  and did not have the time or the workspace to participate , she was unable to complete the exercise  and put the paperwork in the recycling bin. She described how the company proceeded to analyse the discarded paperwork and issued  a negative finding - she felt she was being pushed out. The complainant referred to the finding that “ she had little or no potential to be at the Top Table “.

The witness confirmed that the Investigator who had been appointed to hear her grievance found that the claimant should have been provided with the Y company  report. The witness did not know who had been furnished with the report. The witness said she was not seen as CFO material. The complainant asserted that when the subject of a mentor came up in her discussions with the CEO , she suggested a name but contended  it was not followed up by the CEO. The complainant repeatedly denied that she was given training or mentoring .She said she told the CEO that she did not want to be demoted  and described her experience of networking with strategic growth leaders and advising the CEO of the requests she had received to speak on Tax Law. She said that the CEO advised her that she was no longer required to attend at Board meetings .She felt isolated and did not know what was going on. She asserted that Mr.B 1 came on board at this time as Chief Operations Officer. Board members were asking her why there were no financial guidelines or forecasts being looked at. The complainant said she had no idea of the contents  of the company Y  report .The complainant stated that she was asked in Nov. 2016 which role she wanted – she stated she had no interest in Group Financial Controller .She asserted the CEO told her he would “ have to go formal”. The witness repeated that she did not want to be demoted. She referenced the very positive references by the HR Manager and Chief Technical Officer and charted the progression of salary increases since her appointment  when she received a salary increase of €10,000.

The witness stated that she did not know that a retrospective review of her performance was within the remit of the Investigator – Ms.X -  who was appointed to look into  her grievance .

The complainant described attending an EI conference in Sept. 2017 – when she arrived she found the CEO introducing Ms.S  as CFO ; she asserted that at this time she did not even know the company had been recruiting  - she said her duties had never changed. The complainant asserted that the CEO had told her that he  would stop by her office every day to get her to sign the contract .The witness said she went to see  the HR manager several  times- they were friends and she confided in her .The HR manager told her she knew nothing about the recruitment of Ms.S as CFO. The witness said the HR manager retracted her reference. The witness said the HR manager was in an awkward position. The witness asserted that when she went off sick the HR manager said she would help her and would tell the truth.

The witness said she did email Mr.M to challenge him in relation to the appointment of a CFO .She said she never consented to Mr.M reading her personal documents . When Mr.M alleged that she failed to provide passwords she responded that Mr.M and Mr.B1 had access and refuted their allegations about restricting access to the passwords. The witness described the interviews with Investigator X – her sister attended with her – when her sister started to take minutes of the exchanges , the investigator said she would need a copy of the minutes but later declined them when they were offered to  her. The witness said the matter of sabotage and deletion of company accounts was not  within the investigators terms of reference. The witness described her response to the investigators report – she said the case was going on for so long - - she learned she had been performance reviewed – everything was negative. Her working time was being questioned. She  was working remotely at the time. The witness said her second grievance was submitted in June regarding the references to the Revenue audit. The witness said she found it very difficult to read the investigators report and looked at her husband when she read its contents .In response to Mr.M’s allegations of deleting emails she said she did not accept the bank passwords were unique and asserted that no company files were deleted .She was asked if she had been sacked then and she replied no. She confirmed that no complaint had been initiated by the company to say she had deleted files .The witness said it was clear she wanted to come back to work. She and Mr.M had been very close up to 2016 but returning after all the accusations made by the company had to be considered – she said “ you couldn’t work with somebody who did not trust you” .The claimant said when she resigned in 2018 there was no communication and the company never tried to get her back.

The witness said she was unemployed from January to July and then secured a contract for 3 months as a consultant .She got a job in  Athenry which was an hour and a half away from her home.

 Under cross examination the claimant confirmed she had enjoyed a positive relationship with Mr.M for 5- 6 years but relationships began to deteriorate in 2015 .She referenced the exchanges with Mr.M on the appointment of a CFO and had suggested that Ms.S be appointed as Investment Relations Manager .She said that Mr.M said in late October 2017 – I am not hiring her unless you are happy. The witness said Ms.S  - the newly appointed CFO -started the day of her mother’s funeral. The claimant was asked if she drafted her own contract and was referred to the revised contract of 2014 where the title was changed to CFO. The witness said she was not sure if she drafted that contract – she said if she had it would have been under instruction .She said she enjoyed a positive relationship with Mr.M at that time – they all worked together – when the chief Operations Officer came on board no job change occurred. She was questioned on what was different with the CFO role and she replied she was never given a job description. She said she was brought into a room , was told she had the job and happily accepted it. The witness said she never had a job spec  for CFO.

The witness said she was working at a strategic level within the company and participated at Board level. She was asked if Mr.M had a conversation with her in Quarter 1  of 2016 about the CFO role. The witness said she was offered job sharing when Mr.B1  was brought in – there were conversations about which role she wanted from mid 2015 onwards.

The witness said the availability of a mentor became an issue – she said she wanted to have someone  - she referred to emails between Mr.M and Mr.BB – she stated that she was advised to find someone .She spoke to a number of people about acting as mentor. She asserted that everytime she was making progress there was references made to a partnership and the CFO would be the first person to go. The witness asserted the communication about mentoring  took place between Mr.M and Mr.BB and not with her.

The witness asserted that she did not do what she was told – she was reprimanded for taking a grievance and slandered and he – Mr.M- broke trust. She asserted that slander was contained in the investigators report and the HR manager had advised her that it was referenced at Board meetings. The witness was questioned as to her reply when it came up  at Board meetings about finalising a decision  about taking the CFO , the claimant said she did not know – she stated  that she was already in the CFO role. When it was put to her that this was not an aggressive approach , the witness said it was quite heated and she was pushed and shoved. It was put to the claimant that Mr.M had told her he was under financial pressure the witness  replied that both she and Mr.M had sought investors and accepted that that was part of the role of CFO “ and others”. The witness said she was trying to secure investors not as CFO but through family and friends .She said the company performance was not good.

The witness said  when she was drafting the contract for Group Financial Controller , Mr.M told her to insert the flexible time off arrangements she had heretofore .She confirmed that she retained the same salary. She felt that they could revisit the matter again .She drafted the GFC contract in June – she said she did not want to sign it – she said I was pushed into that. After  signing it he shook hands – she said that she said at the time I never wanted this – that it was under duress. The witness was asked if she raised a grievance about it . The witness said she told HR but the HR manager could not do anything about it.

It was put to the witness that she never really thought she wasn’t CFO – the witness replied I signed under duress – eventually I could nt take it .It was put to her that she was approached in Nov.2016 by Mr.M and told she needed to decide and he and she needed to work on it  and that 7 months later she decided to step down – 3 months later the new CFO Ms.S was introduced to her . It was put to the witness that from June – September Mr.M was of the opinion that the witness was no longer CFO – she was asked what did she sign herself as – the witness replied I hired HR company P – she said “ I still believed I was CFO” .She said nothing changed – she was still acting as CFO – the duties did not change until the new CFO came in. It was put to the witness that in  2017 , Mr.M was still mindful of her feelings – she replied I don’t know – he was keeping the position open – she suggested an Investment Manager role for the new appointee .

The witness said she engaged in the Y process at the psychometric testing stage .She asserted the process was employed to remove her from the CFO role .At the time the speculation was that everyone would have to reapply for their jobs. It was put to her that Mr.M said later – that wont happen – correct ? The claimant replied at this point I had been removed from Board meetings – Mr.P  had huge influence . She said she was not adequately prepared for the process .She was upset by the change of dates .The witness was asked if she had 3 weeks to prepare – she replied she did not know. She said it was very busy at work . She said she was not in agreement with the process. The witness said she was set up to fail – she asserted that behind the scenes it was all planned. When it was put to the witness that the same process was rolled out for everyone else – she said I did not have the space – her mother was ill and this was not taken into account. It was put to the claimant that the investigator had concluded that the witness was aware of her developmental needs. The witness said she engaged in the process to the level she could – she had no training plan. She put her work in the bin. She said she would have been willing to work with the outcome and could have benefited but she was under too much pressure. The witness did not agree that the process identified areas the witness was not strong on.

When the witness was referred to the company handbook and the company right of access to electronic data – the witness said she had headed up HR – she had signed the handbook a long time ago. She reaffirmed that the passwords were available to others and the fob was not handed in because other managers had their own access that was personal to the user. When it was put to the witness that personal information should not have been put on the company computer , the witness responded that it was crossing the line to open up personal documents.

The witness said Mr.F had told her of the discussions about the Revenue audit .The witness said that as far as she was concerned Mr.M did not support her. She secured employment in December and had to leave her local area .Her career was completely changed – there were no equivalent positions in the West of Ireland.

 The claimant was asked if she responded to the Investigators report and she replied she  could not remember – it had been a long investigation – the performance review had knocked her .

On redirect  the claimant said she spoke to the HR manager about the process for deciding roles – spoke to Mr.M – it was all verbal she said .She stated that she was advised by the HR manager to get a legal view – the claimant said she thought she was being bullied and she went to a solicitor.  She said she wasn’t bringing a case against the company and she told the HR manager she wanted to work it out. .She said she asked Mr.M to stop it. She  felt under pressure – she was getting mixed messages and was never told she wasn’t performing .The company was under financial strain and it was very busy. The witness said she just wanted legal advice and help on what to do. The witness was adamant that she asked the HR manager for help.  She  reiterated she did not want to go down the legal route. She said  she was in a predicament .She went  to Mr.M herself to try and deal with it on a one to one basis but nothing came of it. She  said by June 2017 she was under increasing pressure – she stated that  Mr.M said I will drop by your office everyday …..until the contract is signed. The witness referenced the exchanges about Revenue and asked someone to confirm the speculation that she was being blamed but said they would not do so. The witness said the performance review should not have happened .She asserted the criticisms of her were unfair and this was confirmed by Ms.S the newly appointed CFO who took up the position and found everything in order. The witness disputed that she was responsible for the debt funding challenges. The witness said she replied in writing to the criticisms that were set out in Appendix IV of the investigators report. The witness referenced the Grant Thornton report .The witness said she was not in a position to rebut the performance deficits set out in Appendix IV as at this point she did not have access to a computer. The claimant’s representative asserted that the company had not invoked the disciplinary procedure ; that the company had responded to the claimant’s grievance by undertaking a performance review ; that the claimant did not have the support – technical or otherwise  to rebut the criticisms contained in Appendix IV .

The claimant’s representative  submitted comprehensive written submissions on behalf of the complainant  to the WRC on the 31st.March 2021- the submissions are available for perusal on the CAS file.

The respondent chronicled the complainant’ s employment history with the respondent and gave an overview of the documentation exchanged between the complainant’s legal representatives and the respondent from the 13th.December 2017-  covering the period of the submission of a grievance by the complainant , the ensuing investigation  and ultimately to the complainant’s resignation on the 31st.July 2018.

It was submitted that the burden of proof rested on the complainant to establish that she had no alternative but to resign. It was submitted that the grievance was heard  and issued in an efficient and professional manner. It was submitted that Mr.M did not consider the relationship between him and the complainant to be irretrievably broken and it was argued that the complainant’s  selective interpretation  of the investigator’s report  was disingenuous .It was submitted that ultimately the complainant’s grievances were not upheld. It was argued that the complainant had made allegations of bullying and harassment against Mr.M  that potentially could have had serious personal and professional consequences and that he was entitled to defend himself in the manner he deemed appropriate. It was contended that the complainant had made allegations about a meeting that she did not attend and that she failed to provide any supporting evidence to substantiate the allegations. It was submitted that the complainant had alternatives open to her – accepting the outcome of the grievance process or in the alternative raising an additional grievance. It was submitted that the respondent did all that could reasonably be expected and fully discharged their duty to their employee.

 Summary of Pertinent Evidence of Investigator Ms.X

The witness confirmed she had no previous dealings with the respondent prior to her appointment to conduct the investigation into the complainant’s grievances. The witness said the claimant identified 6-7 grievances – she raised the grievance re the references to the revenue audit and the witness said it could not be dealt with in the context of the investigation as it had not been substantiated by Mr.F. She confirmed she took notes as did the complainant’s sister . She said the exchanges were very amiable. She had no recollection of any tension but she knew the complainant was finding everything difficult. She indicated the investigation took place between the 24th.May and the 29th.June and denied that she was rushing towards the end of the process. She confirmed the complainant responded to her with respect to the witness statements .She explained that she went back and forth between the parties having heard the allegations and responses to same  and elaborated on the methodology used by her . She offered no comment to the question as to whether the CEOs statement about stopping by the office every day was threatening .She said that the complainant did not believe the appointment of a CFO would proceed – she said the complainant thought it had gone away and this was unrealistic. The witness said the Croke Park incident was very difficult for the claimant.

The witness referenced Mr.M’s request to the complainant to make a decision about the CFO position- she said that the complainant was asked to write her own contract and it was signed off by the complainant and the HR manager. The witness referenced the lunch organised by Mr.M for the complainant and the newly appointed CFO – she said he did not want the situation to be difficult. He was conscious of their respective feelings.

The witness referred to the reduction in numbers attending Board meetings – she said 5 people had been told they would be called upon as needed and this did not indicate anything special.

The witness said  the claimant did not believe in the Company Y process – she thought it was a way of getting rid of people .The witness said it was an error for the company not to have disclosed that the complainants’ discarded paperwork had been retrieved from the bin and that they had used it. She said while the complainant should not have discarded the paperwork , she should have been told everything – the witness said it is better to be forthright and upfront. The witness said the complainant viewed the process as a waste of money and unrealistic. The witness said the process was well tested and was used by many companies. The witness said the complainant did not find it easy to accept criticism.

The witness said the HR manager advised that  she was aware of the issues between the complainant and the CEO with respect to the CFO position and offered to both parties that she would formalise the matter  but both parties had declined as they hoped to settle the matter directly between themselves. The witness asserted that when the HR manager was asked to act , she did so.

The witness said that the complainant’s reservations about the company Y process were dealt with by Mr.M . She advised that  the complainant had signed off on a new contract to take up the new position of Group Financial Controller.

The witness said she found the complainant was fairly  treated with respect to sick pay – she had been paid for longer  than anyone else. The witness said she  did not believe the relationship had irretrievably  broken down – the CEO had expressed great sadness and distress .The witness believed there was scope for reconciliation.

Under cross examination , the witness was asked about the complainant’s fear that trust  had gone  and what could have undermined trust and confidence , the investigator replied that was not what she was investigating. She said the allegations made with respect to deletion of emails was not in the terms of reference. She said that anything the company gave her was shared with the complainant. The witness said the company did not file a complaint in relation to the deletion of emails or withholding of passwords. It was put to the witness that the company response to these allegations was wholly disproportionate  and was inappropriately sent to her . It was put to the witness that it was outside of her remit and she replied I did not include it.

The witness said the allegations of sabotage and alleged deletions were never part of her brief. The witness did not respond when questioned on the impact of trust and confidence of allegations of sabotage. She said that the  matter of sabotage being the subject of a company investigation was not discussed with her. It was put to her that the company response should have been to follow the company’s disciplinary procedure. The witness said these matters were not in the radius of what she was investigating. The witness was asked if a job remained available to the complainant given the loss of trust and confidence , the witness replied that it  did – no action had been taken and the complainant was still employed. The witness was questioned on the alleged withholding of passwords and whether Mr.M was questioned on the deletion of emails and she replied these matters and misconduct did not form part of her investigation. When asked if this was prejudicial information , the witness responded” it did not sway me”. The witness confirmed that the complainant  was upset about the allegations being made against her – she was asked if she was surprised by the aggressive response from the company she replied – she was not surprised. She stated that the matters being raised about trust and confidence and constitutional rights of employees  were not relevant to the grievances she was investigating. It was put to the witness that the company handbook references to IT policy suggested personal use of equipment was permitted.

The witness was questioned on the complainant’s grievances about allegedly triggering the  Revenue audit  and she replied that as Mr.F had failed to substantiate it , she told the complainant that it would not form part of her report. She said all she could do was close it off. When asked if she discussed this allegation re the Revenue audit with Mr.M – she said she may or may not have done so. She  advised I put the question to Mr.F and he said no. She said she did not probe what  might have been  meant by “ it is possible”. It was put to her that she should have provided weight and commentary on the evidence she got. The witness was questioned if she questioned Mr.M on Ms.S’s response about the complainant’s competence  and the Revenue Audit issue – it was suggested to the witness that it was unreasonable for her to have excluded these – she replied it was not unreasonable. The witness said Mr.F had an opportunity to clarify “ it was non verbal “ – she said he had an opportunity to do this but did not.

The witness was questioned on the complainant’s denial that performance issues were raised with her – she said Mr.M had sympathy for the pressure the claimant was under and did not conduct a performance review – she said the complainant did not engage with the company Y process.

The witness was asked about Mr.M’s reference “ T was a trusted employee” and questioned on the relevance of the past tense. She responded that Mr.M was very disappointed and very upset – he had had a solid history with the complainant. The  witness advised that the complainant never raised the issue of access to a computer and it  disadvantaging  her.

The witness was referred to the performance  deficits set out in Appendix 4 of her report and how she provided reasonings for her conclusions and drew inferences from the evidence presented. The witness referred to taking her own witness statements – it was put to her that Mr.B1 presented the clarifications on behalf of the respondent. The witness confirmed she did receive evidence in relation to the GT reports. It was put to her that she had dismissed the Revenue Audit allegations because they were not corroborated by Mr.F but did not pursue this with Mr.M.

It was submitted by the complainant’s representative  that Mr.M was unhappy with the CFO and decided to take alternative steps. Mr.M and Mr. B1 had spoken to her about her developmental needs .It was submitted by the claimant’s representative that the complainant was receiving mixed messages. The witness was asked if she believed the relationship between the complainant and Mr.M was broken down and she replied “I would have said no”.

It was put to the witness that she should have dealt with the Revenue audit grievance in her report rather than dismiss it on the basis of hearsay and that this was an error. The witness replied that she told the complainant she could have brought forward other witnesses. It was put to the witness that she did not cross reference the evidence of the differing parties  and that issues were arising that were beyond the claimant’s control. She did not accept this. She referenced the attempts to bring in new money and investment being unsuccessful. It was put to her that shareholding was a matter for Mr.M while the complainant was being condemned for not raising funds. This was multifaceted it was suggested and a matter for the Board.The witness responded if that was the case why did the complainant not tell her that.

The witness was asked if she asked Mr.M about Ms.S’s assessment or about the allegations of the complainant not giving sufficient information to the Board  .

The witness said the complainant did not raise the issues of passwords or deletion of emails as a grievance with her – she stated she would have made a note of it if she had.

The witness indicated that when the complainant received feedback following the company Y analysis the feedback was limited – the view was that it would be crushing for her. The complainant’s representative continued with criticisms of the  methodology  of witness interviews and alleged failures to probe matters with the respondent’s witnesses as well as Mr.F. The witness responded that she relied on the witness statements she took herself on the day of the interviews. It was put to her that the independence of the investigation was compromised .

The witness accepted that the compilation by Mr.B 1 of a response to the allegations on behalf of the employer through engagement with the various witnesses was questionable.

Summary of pertinent evidence of Mr.M CEO

The CEO set out his career development since joining the company and referred to the challenges of 2009.He said many companies were going through a rough patch at the time – a 20% pay cut was introduced for everybody – he said  we promised to restore it as quickly as possible. He referred to a workforce of 110 people today. He identified fundraising as a significant feature of the CFO role. He  asserted that a lot of the CFO role was not being done. The appointment of company Y to carry out the skills analysis was suggested  and designed to improve efficiency and make the SMT more effective.

 He  set out the process undertaken by Company Y  and said there were varying results – he stated it was a way of improving together and identifying weaknesses together. He denied that the claimant was set up to fail and said everyone was treated the same – interviews were brought forward – it was based on the knowledge already in your head. Mr.M was unsure who retrieved the paperwork from the bin .He said the claimant’s results were not great – the strategic piece was not strong. He believed the process had delivered. He said the complainant worked well on the operational side and when asked about the decision not to give the complainant the full report he responded that some things had to be done softly – there was a way of giving feedback to her and he wanted to do it gently.  He said the report was  critical of all parties- the report gave feedback on stuff like  fundraising  and he relied upon it – it was a wake up call for him. There were areas where Ms.Q needed to develop and they could be worked on. He stated that the difference between CFO and GFO  were identified. He asserted that  Ms.Q was treated the same as everyone else and that he thought she believed she had done a poor job and  had had an unprofessional interaction with  the manager of the assessment process.

 He said Ms.Q did not take criticism easily but they had good conversations. He said we looked after each other and he had to go and tell her  what improvements were needed. He said he had high level conversations with her between Jan 2016 -Jan 2017 when they agreed goals and set objectives. In relation to performance reviews the witness said , Ms.Q met the SMT weekly and they also met on particular topics e.g. the new  Financial System – he said our communication was good and  we were good friends.

He said Ms.Q was involved in the Grant Thornton review from Day 1.He said they criticised stuff she could have developed with the right mentoring and support. They were engaged in the first quarter of 2017.They were recruited as we needed to up our game – improvements weren’t happening as quickly as they should. Ms.Q’s pay rise in 2015 was referenced and the witness said that  she was CFO and there were no issues with her performance at that time. Reports to Board meetings needed to change and  she was provided a template which Ms. Q adopted and the second issue was fundraising – we were approaching banks – we got paid yearly in advance – he said a CFO would have understood this piece.  The witness said he did not want Ms.Q to leave – he wanted her to be CFO. He had a mentor in mind ; there might be travel issues – he said Ms.Q did not engage with the mentor he proposed -  Mr.BB – that was a disappointment to the witness .Mr.BB had made the journey to CFO that Ms.Q would be making . He said Ms.Q said she had found a  mentor of her own but the concept of engaging with the mentor did not happen. The witness said he spoke with Ms.Q 3 X times about CFO and wrote the letter in Nov. 2016 saying he was not trying to influence her. 

 Mr. M said Ms.Q had a lot going on and he did not want to pressurise  her it wasn’t his style – he said we had been talking about it for 1.5 years. He had to write it down. He did not accept that his engagement was threatening . She drafted the contract  for GFO and he told her to reference the continuation of flexibility around starting time. When asked if she said I’ve decided to step down , he replied she told me she was going to take it and signed off with the HR manager. He did not believe there was any outstanding issues.  He did not have a conversation with her about things settling down . She was still signing herself as CFO – his approach was softly  softly and it will happen. He confirmed  he started looking for a CFO when Ms.Q signed the contract. He spoke of the credentials of Ms.S and said that reporting to Ms.S would not appeal to Ms.Q .  When asked if Ms.Q was supposed to attend the Conference attended by the witness and Ms.S ,the witness replied T and I are very close – if she felt she should be there he said he was happy. He asserted the last thing he would have done was to upset Ms.Q.  He arranged   an informal lunch with the 2 of them in Leitrim – he said you could cut the atmosphere with a knife – he did not speak to Ms.Q about this as her mother was ill. He was not aware if the complainant had raised a grievance at this stage.

The witness was referred to the HR managers efforts to resolve the conflict between  him  and the complainant , the CEO had said that things were fine. He had a great relationship with the complainant and they would work it out. Things were not always documented and he said that emails don’t always build relationships. He described the challenges when the complainant went off sick – he said the complainant was   the single point of contact for the banks – the company did not use a payroll system – their system had a unique address on the lap  top and they were unable to access it. The witness said he rang Ms.Q 3-4 times – he needed access to the stand alone system and it  looked like he would have to pay people from his own account. He said we scoured the computers for passwords and found other documents – he was extremely disappointed to discover that the claimant had been corresponding with a solicitor about her grievance. He said he opened a word document that commenced “Dear Philip”- he assumed it was what they had been looking for.

The witness referred to the exchanges regarding the revenue audit and said he was not surprised as their business partners had also had a revenue audit . He said Mr.F put 2 and 2 together to make 8.  Mr.M said he did not believe Ms.Q contacted Revenue –“ absolutely not”. He  said I knew she would not do it. He said he could not stop speculation when it was suggested that that it was possible that managers concluded it was Ms.Q .The  witness said honesty and integrity are at the core of what we do.

The witness said that while discovering the grievance was  such a big disappointment there was no break down in trust – it was a difficult patch and he and the complainant had a really good relationship. He said he still feels they could have a good relationship. He took issue with her going to a solicitor without giving the company a chance to help her.

With reference to GT , the witness said Ms.Q had been involved from the outset and had been totally involved.  It was clear what needed to happen – fundraising was required. There was  lack of good financial reporting to the Board- he said we had 2 licensing systems -Sage had not been set up correctly and when he asked Ms.Q what specification are we working from , she replied “None”. He said he delegated the decision to Ms. Q  and they replaced Sage. When asked if she was on  notice of the systems issues, the witness said yes she was – there had been discussions with GT and at SMT meetings. The  witness said  that everything in Appendix 4 of the investigation report would have been known to Ms.Q.  He asserted Ms.Q had not advised him of the incomplete filing. He said US tax returns were difficult with each individual state dealing with its own returns. He asserted all of these issues would have been presented to her ahead of her grievance and the witness replied she would have known all this – it was not new information – she would have known what to do.

Under cross examination when questioned about Ms.S ‘s statement that Ms.Q did a good job , the witness said this was cherry picked and Ms.Q was not  doing part of the CFO role .He referenced attempts by he and Ms.Q to raise funds – he said Mr.B1 did things and Ms.Q did not and he referred to Mr.B 1s success in securing a .5m loan within  a matter of weeks- the witness  said Mr.B1 had a very strong process background.

The witness asserted that  the complainant struggled with detail at Board meetings – Mr.P devised a programme to help her. He said they discovered they were not investment ready -following the appointment of Ms.S they went from .5m to 10/15m with Ms.S on board.  Mr.M chronicled the growth of the company since the appointment of Ms. S as CFO. It was put to the witness that it was not Ms.Q ‘s  fault that the company were not investment ready . Mr.M replied that they had raised 1.8m last year towards the end of Ms.S’s time. He said Mr.F had said they were cash challenged after 1 year but  the CFO did not happen overnight. The witness was  questioned  on the IT system and if it was centrally managed – Mr.M said the complainant  had software to allow her remote access. He said they were not sure which passwords they did not have. They  had to take  custody of the lap top which had software unique to it and they  had to go to the bank to get the passwords set up .He said the passwords  were issued 2-3 years previously and he trusted  the complainant totally .When questioned on the deletion of emails , the witness said he did not know – he could not find the file to transfer funds – he said we managed to find a way of doing things.  They managed to access some files stored on the drive but could n’t access some others. He asserted the file to allow upload for payroll was deleted .When asked why he did not invoke the disciplinary procedure to investigate the allegations and allow the claimant respond to them , the witness replied we moved on in the business and found our way round it. It was put to the witness that he could not tell what files were deleted  and did he accept that this undermined trust and confidence he replied No .He indicated that the lap top looked like it was cleared ; he expected a lot more information. He indicated he did not contact the complainant about the CFO vacancy in the middle of the process and asserted that he was amenable to the complainant coming back.

It was put to the witness  that the correspondence between the complainant and her solicitor  was privileged and confidential -  and that to have opened it was a fundamental breach of trust and confidence between an employer and an employee. The witness replied that it was a company lap top and the handbook provided for  access  to and  opening  a letter addressed to him. It was acknowledged that fobs were issued to staff and it was put to the witness that he had his own fob to access data. The witness said he referenced the information about data access as there was a duty of care not to use company computers.

The witness denied he implied anything with respect to Ms.Q being responsible for the revenue audit – he said there was a logical reason for it as business partners outside of the respondent company  had an audit. The witness referred to the items that were the subject of the audit and was questioned as to his reference to “ not a coincidence “ in his witness statement. It was put to him that it was possible that he was the cause of the audit  rumour  and he replied he would 100% refute that. It was put to him that he undermined the claimant’s trust and confidence by the way in which he had responded to her grievance and that the allegations made against her should have been the subject of a disciplinary process .It was put to the witness that he declared a lack of trust and confidence – in referencing the discovery of her grievance as the biggest disappointment .The witness said it was a very emotional time. When reference was made to the past tense by the witness , he responded Ms.Q was a trusted employee but the lack of trust was the biggest disappointment of his personal career .He said we  were in the middle of upheaval and to take the statement out of context was unfair – he said “ I had full trust”.

Mr.M was asked was the response of the company inferring massive criticism unfair  – he replied no it was not – if rectified she (the complainant ) would have made a great CFO. It was put to the witness that in not disclosing the Company Y results the witness had denied information crucial to the complainant’s development .  It suggested that the witness never engaged proactively with the complainant , did not forward information re the Strategic Leadership programme – he replied it was difficult for her because she had a lot of personal challenges. The incident with his proposed mentor Mr.BB was according to the witness the start of the non engagement.

It was put to the witness that as an employer he had acted unreasonably in his conduct and  in his response to the investigation to the extent that the complainant was entitled not to put up with it any longer and was entitled to resign.

The claimant’s representative asserted that the conduct of the claimant was entirely reasonable , - the employers response had undermined her trust and confidence ,that there was no pathway back when disciplinary procedures were not invoked following the allegations made against her. The witness responded – you have to put it in context – the company had lots of problems to deal with  “ we needed to move on – it would have slowed us down” .The witness said that nothing she raised were incapable of being solved.

At the final hearing ,  Mr.M said he believed the Company Y analysis to be correct. He thought it was accurate and everyone had been through it. He said he knew how the complainant operates and that conversational feedback would be the best approach. He learned that the claimant’s  paperwork had been recovered 2-3 months after the interviews were closed off. He asserted that every effort was made to communicate what was expected of you ; the complainant had got a lot of indicators – the issues around information at Board meetings , the fact that fund raising did not happen ; the criticisms of  GT , her non engagement with mentor Mr.BB. Mr.M  asserted the complainant knew the options available to her in terms of mentorship and further training. He denied that the claimant signed the CFO contract under duress- he said the key point was that the complainant had the choice. He wanted her to be CFO but she did not have all the skills. They had a long conversation in Quarter 1 of 2016 – looking at what needed to develop. It was put to him that Ms.S had found the complainant had performed well – he replied that was as Group Financial Controller and that  Ms.S had taken up the fundraising  role. He agreed the complainant performed very well as  Group Financial Controller. He repeated his difficulty with the passwords and access to the banks and went on to say that he and the complainant had a lot of parallels. His own father was ill , they had discussed nursing homes – he was very sympathetic and it was not a time to be tough with someone when they were going through that. He said they were very close and it was about minding Ms.Q. The witness repeated his previous accounts of events regarding the revenue audit.

The witness said that Mr.B1 led the compilation of  Appendix 4 of the Investigators report .He said he did not believe the complainant was able to do CFO and she needed to broaden her skill set. He said the outcome of the analysis showed that the complainant was not CFO material at that stage. He said he confronted the complainant about this in Quarter 1 and Quarter 4 of 2016.He said he needed her to develop and she was aware of that.

The respondent’s representative referenced the onus on the claimant to demonstrate that she had no alternative but to resign  and asserted that it was open to the claimant to pursue  a fresh  grievance  following the outcome of the investigation but did not do so.

I have reviewed the submissions of the parties , the evidence presented at the hearings , the authorities invoked by the parties and the voluminous documentation presented by the parties   - including the report and appendices compiled by the investigator X .

The definition of constructive dismissal under the Act and the authorities on its application to cases taken provide 2 tests , either or both of which may be invoked by an employee:- the first test is the contract test where the worker argues an entitlement to terminate the contract  - described by Lord Denning in Western Excavating (ECC) Ltd v Sharp [1978]I.R.L.R.332 as follows :

“ If the employer is guilty of conduct which is a significant  breach going to the root of the contract of employment , or which shows that the employer no longer intends to be bound by one or more essential terms of the contact , then the employee is entitled to treat himself discharged from any further performance”.

In such circumstances , where an employer commits a repudiatory breach of contract , the employee is entitled to accept the repudiation and consider him or herself dismissed .However, not every breach of contract will give rise to repudiation .It must be a breach of an essential term which goes to the root of the contract – a stringent test which can be difficult to invoke. Ref-EED0410

As determined by the Labour Court  in Mr.O v An Employer [2005] 16 E.L.R. 132  an  additional reasonableness test  may be relied upon as either an alternative to the contract test or in combination with that test. This  test asks whether the employer conducts his or her affairs in relation to the employee , so unreasonably that the employee cannot be fairly expected to put up with it any longer. Thus an employer’s conduct may not amount to a breach of contract but could nonetheless  be regarded as so unreasonable as to justify the employee in leaving.

 It is settled law that every contract of employment contains an implied term that the parties will maintain mutual trust and confidence in their working relations with each other.

There is little dispute of fact  between the parties in relation to the time line of events leading up to the termination of employment.

In her letter of grievance to the CEO – Mr.M -the complainant reflects on her contribution to the company when it was financially struggling in 2008/2009 – she characterises the working  relationship  as one of friendship .She referenced her promotion in September 2014 with a salary increase and advised that she was never in fact furnished with a job description for Chief Financial Officer .It was not disputed by the respondent that at that time she was commended on her work by the Management Team and the CEO .As far as she was concerned she was delivering expectations. According to the complainant , Mr.B1 was brought into the company in mid 2015 “ to take over the finance function”. She set out her reservations about the Y assessment – at this point she was unaware that her discarded presentation had been retrieved from a recycling  bin and assessed by Y company. She expressed the view that she was set up to fail. The complainant went on to chronicle her ensuing exchanges with Mr.M  who she argues  was talking her out of the CFO role .She was convinced she was being edged out of her job. She asserted that in order to stop the CEO pressurising her and to enable her to concentrate on the reality of the business she signed the contract for Group Financial Controller in June 2017.Notwithstanding this she thought things would settle down and she continued to function as CFO and retained the title . In a later discussion with the CEO about the hiring of Ms.S as CFO , the complainant submitted that she told the CEO she was not happy with the proposed appointment , that she was still technically  the CFO and that she had signed the Group Financial Controller contract under duress. She described how Ms.S’s appointment coincided with the death of her mother and referenced the commencement of a period of sick leave for work related stress. In a further letter of  April 2017  the complainant characterised the behaviour of the CEO as constituting bullying and harassment.

 I found the evidence of the claimant about the pressure she was under in  2015 -2016  from a work perspective and a personal perspective to be compelling and convincing – I accept  her evidence that she felt pressured to sign the Group Financial Controller  contract and note her own evidence that she remained convinced that the appointment of a CFO would not happen .Notwithstanding this  I acknowledge  the respondent’s assertion that he engaged frequently with the complainant on the change of role – by his own admission he was taking a soflty  soflty approach – no evidence hpwever  was advanced of any  formal  engagement  by way of a performance review or a P.I.P on the matter of the alleged performance deficits. In  the company submission to the investigator Mr.M asserts as follows :” at no stage did I pressurise TQ in to picking the role. The letter she mentions on the 1st.November – was actually sent on the 23rd.November .It clearly shows that I was very much on side with Teresa being CFO , if she went through a development programme to address the issues highlighted.”

Mr.M acknowledged the life events and stresses the claimant was under in his submission to the Investigator and in his direct evidence  –“ in the first half of 2015 she had surgery for a potentially life threatening ailment ; she and her husband undertook a major renovation of their family home; her mother’s dementia became gradually worse – the outcome of which was that through 2016 T was spending an average of 6 nights plus some days and weekends each month in her mother’s house as a primary carer”.I find that other than the softly softly approach in his exchanges with the complainant about the CFO position  and the offer of part time work ,  few  allowances were made for the impact these external pressures  must have been having on the complainant and her performance  as she continued to work under pressure throughout that year – convinced that her employer was trying to edge her out.

I accept the evidence of the claimant that she felt pressurised by Mr.M in their exchanges about the CFO role- no doubt this strained environment was exacerbated by the series of challenging life events Ms.Q was going through at this time  – however I cannot uphold her contention that she signed off on the position of Group Financial Controller   under duress in circumstances where the complainant was already in receipt of legal advice at this time  and in circumstances where the complainant had undertaken a HR role for the company and consequently must have been aware of the significance of signing off on the Group Financial Controller Position.

In the CEO’s submission to the investigator he states that the complainant was given a pay rise of €10,000 in September of 2015 “ which is an indication that at that point in time I did not have any major issues with T’s performance and demonstrates that the company did not have any intent to reduce Teresa’s responsibilities”.  Notwithstanding this , within a short time frame- Quarter 1 of 2016 , by his own admission the CEO was indicating reservations about the claimant’s performance as CFO.  The outcome of the Y  assessment process which determined that the complainant had little or no potential to make it to a top leadership position emerged during this time line. Additionally , notwithstanding the CEOs assertion that he had no issue with the claimant’s performance in 2015 , he later asserts in his submission to the Investigator that “ In early 2015 Cora Systems decided to raise growth finance .When I went to T it became very apparent , very quickly that she did not have the wherewithal to draw down such finance .We met with local bank officials in our offices in Carrick. We were refused for a growth loan and also because of the nature of our upfront payments from our clients we were not suitable for invoice discounting as a source of growth funding .These were the only two funding options which Teresa identified or pursued.” These contradictory  submissions by Mr M are inconsistent and support the complainant’s view that she was being given mixed messages  which convinced her that she  was being edged out. It would be difficult not to accept that the CEO’s perspective on the complainant’s performance were significantly influenced by the damning  assessment of the  company Y Process.

 The  abject failure to disclose to the complainant that her paperwork was retrieved and was being used to assess her developmental areas was entirely inappropriate  and unfair to the claimant.  I note  Mr.M’s assertion that he did not disclose these matters in deference to the personal pressures the complainant was under at the time  and I  acknowledge that an employer is entitled to the co-operation of staff in introducing an assessment process to identify developmental needs. However  the appropriate course of action would have been to have full disclosure about the retrieval of the paperwork and engage with the complainant on the consequences of a  decision to opt out of the process.  Mr.M  in his evidence stated that  there was a way of giving feedback to  the complainant  and he wanted to do it gently. While Mr.M’s intentions may have been altruistic , this failure to disclose the retrieval of the complainant’s discarded paperwork  and to utilise it to assess her developmental needs  was   unfair to the complainant  and undoubtedly reinforced her perception of being set up to fail and edged out of her job.

The company’s response  to the claimant’s formal grievance was to set up an investigation by an external party – the scope of the investigation was

“To investigate the grievance as set out by TQ as per the company grievance procedure and to deliver a finding .All parties will have the opportunity to present their case in writing and in person to the investigator and may call witnesses.”

Detailed and extensive evidence has been submitted in relation to the investigation process. It is clear from the evidence presented and the documentation submitted that the company ‘s response was to present the investigator with a very damaging picture of the complainant wherein she is accused of sabotage of company property , deletion of documents , withholding of crucial passwords .It is noteworthy that there was a paucity of evidence presented to validate these allegations which were vehemently refuted by the claimant. In the course of the hearing , the respondent’s witness  Mr.M was unable to convincingly explain why these allegations were not followed up on or dealt with in accordance with the companies disciplinary procedure.

The respondent presented  an extensive  litany of performance deficits as set out in appendix IV of the investigators report. It is noteworthy that the respondent at no time sought to invoke the disciplinary procedure to investigate these allegations or set in place a performance improvement plan. It is apparent from Mr.M’s oral and documentary evidence that the respondent’s witnesses  for the investigation – led by Mr.B1– collaborated in preparing their defence and went to extensive lengths to conduct a retrospective review of the complainants’ performance including an analysis of the complainant’s attendance records , referencing the complainant’s personal finances as well as numerous performance shortcomings  – painting a picture of gross incompetence on the part of the complainant. I note that in  referencing the external GT report  as supportive of the alleged performance deficits only 3 pages of the 45 page  report were submitted to the Investigator.

 Having reviewed the Investigation Report and the evidence of the witnesses   I am obliged to conclude that it is fundamentally flawed by virtue of the methodology used – the methodology permitted extensive collaboration between the respondent’s witnesses – this undermines the credibility of evidence and allows for contamination and conflation of evidence and should not have been allowed .The complainant refuted the allegations – it appears that the complainant did make submissions to the Investigator in response to these allegations. On the basis of the evidence presented by both parties I have concluded that the principles of thoroughness , objectivity and confidentiality – which are fundamental to a workplace investigation and set out in the respondent’s handbook  - were not observed.

  In the instant case , there was a  failure on the part of the respondent to observe the  principles set out in the company  handbook under “Job Changes “ .In this section of their handbook  , the company acknowledges that “ during your employment with us your capability or competence to carry out your duties may deteriorate .This can be for a number of reasons  , the most common ones being that either the job changes over a period of time and you fail to keep pace with the changes , or you change ( most commonly because of health reasons ) and you can no longer cope with the work”. A step by step procedure is set out in the ensuing paragraphs. No  cogent explanation was offered by the respondent for failing to observe these provisions other than the continuous references to a softly softly approach in deference to the claimant’s personal challenges. Furthermore I accept the submissions of the complainant’s representative that entire responsibility was left at the complainant’s door for shortcomings in the finance area with no acknowledgement of any sense of shared responsibility amongst the other members of the management team. Allied to this was the failure of the respondent to furnish the claimant with a Job Specification when she took on the CFO role in 2014.

Ms.S  the newly appointed  CFO gave evidence  to the  investigator but unlike the other respondent’s witnesses  does not appear to have been in collaboration    with Mr.B1 in relation to the company response to the complainant’s grievances. In her evidence to the investigator she described the complainant as follows :”Teresa Quinn did a good job everything  there was  tidy ……I have seen nothing wrong with her (TQ) work.”This is completely at variance with the litany of alleged performance deficits submitted by the company in appendix IV of the investigators report. I note that in one of the documents prepared  by Mr.B1 for the investigator – he comments as follows on Ms.S’s evidence to the investigator :

“S’s comments relate to maintenance of records and quality of paper based filing systems , both of which would normally be the operational responsibility of financial controller .This is a further demonstration that TQ was operating in this role rather than as CFO.” Based on the evidence presented at the hearing and the documentation referenced by the Investigator ,  I am satisfied that the assessment of the complainant’s work by the CFO was more  credible and objective than the very negative assessments  presented by Mr.M , Mr.B1 and/or  the witnesses with whom he collaborated.

In his submission to the investigator about the mentor he identified  for the complainant Mr.M describes the complainant as a trusted employee “ and at that time I would have trusted Teresa with my life “.To have that trust broken in the fashion it has been is probably the biggest disappointment of my professional career….Again Teresa fails to see the bigger picture here. Trusting someone totally (which I did) and their ability to do  a specific job are 2 completely different things…Were T to come back to work today , I would still request that she goes on a development course to develop her strategically”.

Mr.M  further asserts in his statements to the investigator “ To learn that T was talking to a solicitor in 2016 and building a case against Cora is a huge disappointment to me”.  Mr.M  sets out  an account of a meeting with the complainant in November 2017  following her mother’s death  when the complainant was on compassionate leave.The submission references a discussion about Ms.S starting as CFO and asserts that the complainant said she would have to consider her position- he stated  “ and when I asked her what she meant by that , she was unable to articulate any facts to back it up. I now realise Teresa was attempting to build a case against Cora since 2016 – based on emails that were on her laptop”.

These statements  suggest that Mr.M was characterising   the discovery that the complainant was seeking advice on her grievance about Mr.M’s proposal to demote/ edge her out  of the post of CFO as a betrayal of him and the company .I have concluded that this reflects negatively  upon  Mr.M’s perspective  on the complainant’s right and entitlement to pursue a grievance against her employe. The discovery of the complainant’s letter to her solicitor on her lap top   appears to have triggered Mr.M   to focus   on mounting a defensive response  to her grievance complaint. The company’s response to her grievance- which does not appear to have been the subject of scrutiny or challenge during the investigation -  as captured in Appendix IV  of the Investigation Report   undermined  the complainant’s    standing within the organisation  and damaged  her  professional reputation .These were not the actions of a reasonable employer .

In the course of his evidence , Mr.M asserted that employees had a duty of care not to use a company computer for personal use – I note that the company handbook references “excessive use of the Email/internet system for personal use” and consequently do not accept that the complainant was guilty of infringements of the company IT policies.

When it was put to Mr.M in cross examination that his version of events did not stack up in terms of his continuous assertions that with developmental training the complainant would grow into the strategical role while at  the same time  presenting an extremely negative portrayal of her competencies , he responded that he had no difficulty with her performance as Group Financial Controller .This is inconsistent with his submissions and evidence to the investigator  as well as the submissions and evidence of  Mr.B1 who by the respondent’s own admission at the hearings ,  coordinated the submissions and evidence of the respondent’s witnesses to the investigation.

Having regard to

1.       the respondent’s management of the Y  assessment process without disclosing the use of the complainant’s discarded presentation ,

2.        the respondent’s engagement in a flawed investigatory process that failed to meet standards of thoroughness ,  objectivity and confidentiality ,

3.        the respondent’s compilation of  a  damning and  retrospective performance review in response to her grievance -  which was never part of the terms of reference of the investigation  and failed to take account of the fact that the  complainant was not furnished with a job specification when she was appointed Chief Financial Officer ,

4.        the respondent’s failure to observe their own handbook with respect to   “Job Changes “,

5.       the failure to make allowances – other than a softly softly approach  to engagement with the complainant  and an offer of part time work – for the significant personal challenges the complainant  was facing in 2015 -  2016 ,

6.         and the characterisation of the complainant’s grievance as “ building a case against “ the respondent ,

I find the respondent conducted itself in relation to the complainant  in a manner which was destructive of a relationship of mutual trust and confidence and accordingly I am upholding the complaint of constructive dismissal.

 I find I must concur with the claimant’s representative that no pathway back was offered to the complainant . I do not accept that the suggestion of the respondent’s representative that the complainant could have pursued a further grievance about the outcome of the investigation and any other matter to be   a meritorious proposal in circumstances where the claimant had lost confidence in the  process  .

I find that in all of the circumstances the complainant had no option but to resign and accordingly  I find  in favour of the complainant.

I have considered the submissions of the parties in relation to the matter of mitigation of loss.I do not accept the respondent’s contention that loss must be limited to a 2 year time frame and in this regard find the deliberations  of the EAT in Allen v Independent Newspapers [2002]E.L.R.84 pertinent   in this regard.

I am taking account both of the respondent’s conduct and the impact of that conduct on the claimant in determining a   compensatory payment of €45,000 – which I consider to be just , equitable and dissuasive .

Cosntructive Dismissal / Reasonableness Test /Destructive Conduct  Employer