Complainant

Respondent

Parties

Caroline Loughlin

Ability West CLG

Representatives

Deirdre Canty SIPTU

Aisling McDevitt IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00039412-001

28/08/2020

The Complainant was employed by the Respondent company, as a School Nurse from 1 September 2015 until 5 April 2020. She worked in a Special School. She was paid €968 per 35-hour week. She is claiming constructive dismissal under the Unfair Dismissals Act, 1977.

Submission on behalf of the Complainant

On 19 June 2019, the Complainant issued a written complaint of bullying at work to the Respondent including a complaint about an alleged assault at work on 22 May 2019.

On 24 June, the Respondent’s Director of Human Resources, Cathal Esler, spoke to the Complainant by phone. The Complainant met with the HR Director on 17 September 2019 and sought a transfer, which was refused. On 19 September she was informed that an investigation had commenced. The Complainant was on sick leave for the next seven weeks.

 On 12 November 2019, the Complainant informed the Garda Síochána of the alleged assault of 22 May. The HR Director and the Complainant’s manager were apprised of this. Another request for redeployment was refused by the HR Director on 20 January 2020.  A further episode of sick leave occurred from 25 November 2019 to 20 January 2020. On 4 February, the Complainant’s doctor in a report to the Occupational Health Department of the HSE, stated that it was his opinion the Complainant’s ‘stress related illness’ was ‘entirely related to specific circumstances pertaining to the particular employment’.

The Complainant gave notice of intention to terminate her contract on 6 March 2020.

 Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. First, where the employer’s conduct was of such a nature as to entitle the employee to terminate his employment; in essence that the conduct of the employer amounted to a repudiatory breach of the contract of employment such that the employee would be entitled to regard himself or herself as having been dismissed (the ‘contract test’).

In the English Court of Appeal case of Western Excavating (ECC) Ltd v Sharp [1977] EWCA Civ 165, which has been referred to frequently by the Labour Court and the Employment Appeals Tribunal (EAT) in this jurisdiction, 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 thecontract’.

Secondly, the Labour Court in the case of Waterford Senior Care Ltd & Tabb UDD1938 (July 2019) stated that —

“the Act at Section 1 addresses the issue of reasonableness. It is settled law that the Court, in considering a complaint of constructive dismissal, must consider this issue either as an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, he is justified in leaving”

The Complainant’s contract of employment incorporates a bullying and harassment policy, which requires a complaint to be made in writing and provides for the appointment of investigators, the establishment of terms of reference, the holding of interviews and for findings to be submitted to management.

 It should be common ground that none of these steps were taken. It should be noted that the policy requires that the investigation be completed ‘not later than four weeks after receipt of written complaint’: in this case, that date was 17 July 2019.

The policy refers to the ‘right to dignity at work’ and claims that ‘This policy protects employees from bullying’. Moreover, it is an implied term of this and all contracts of employment that both the employer and the employee will maintain mutual trust and confidence.

It is the Complainant’s case that the Respondent, by ignoring her complaint of bullying, breached these essential terms of the contract, and she contends that he was entitled to leave the employment and behaved reasonably in doing so.

Furthermore, a statutory duty is imposed upon the Respondent by s 8(1) of the Safety, Health and Welfare at Work 2005 Act ‘to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees’, which is

expressly extended by s 8(2)(b) to ‘managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health and welfare at work of his or her employees at risk’. We say that the failure to implement the bullying policy was therefore a breach of duty under the 2005 Act and the breach of an implied contractual term.

 The Supreme Court held in the case of Ruffley v Board of Management of St. Anne’s School [2017] IESC 33 that bullying was an ‘obnoxious perversion of the ordinary human duty of give and take’. It should be quite apparent therefore that an employer which takes the decision to ignore a written complaint of bullying, despite its contractual duties express and implied and its duties under statute, is demonstrating a repudiation of the contract.

In Rehab Group & Roberts UDD2026 (September 2020), a constructive dismissal case with many factual similarities to the instant case, the Labour Court found that —

“It is axiomatic that the Court would expect an employer to operate its own procedures for dealing with complaints. In the instant case, the Respondent has a first class procedure for dealing with complaints of bullying. The concern of the Court is that it was not operated… The Court is clear that the behaviour of the Respondent in not dealing with a complaint by the Complainant was unreasonable behaviour such that it was reasonable for the Complainant to resign from her employment. The Court determines that this is a case of constructive dismissal.”

The Complainant contends that the failure of the Respondent to deal with her complaint of bullying meant that it was reasonable for her to leave the employment. She had brought her complaint to the attention of the Respondent and it had done nothing. In the case of Allen v Independent Newspapers UD641/2000, in response to an argument from the employer that it had been incumbent on the worker to use the internal grievance procedure agreed with the National Union of Journalists (NUJ), the EAT concluded that—

“the objective of utilising the NUJ grievance procedure would have been to bring the claimant’s grievances to the attention of the Respondent. The Tribunal is however satisfied that at various stages throughout her employment and more particularly in September 2000 Ms Allen brought her complaints to senior management level … “

In conclusion, the Adjudication Officer was asked to find that the termination by the Complainant of her contract of employment constituted dismissal within the meaning of section 1 of the 1977 Act. It would follow from that finding that the Respondent has the burden of showing that the dismissal was fair.

Caroline Loughlin (Affirmation) evidence

The Complainant said that she worked as a nurse in a school for children with special needs. The management of the school changed in September 2018 and after this she began to notice inappropriate behaviour of staff towards her. Staff made comments about the food she ate, her weigh and personal appearance. The VP made a comment about the school not needing a nurse. On the day of the school holidays the children went home at 11am, and all the staff went for lunch in the local café, she was not invited. One of SNA’s blanked her when she tried to sympathise with her on the death of one of the children and a relative of hers. She said that she was so shocked at the treatment she had to leave the building.

The Complainant said that she met with the Principal and the Assistant Principal and she complained to them about being left out for months and was going to her GP. She said that they told her that she was too sensitive and talked her out of taking sick leave.  She said that her complaints were not taken seriously.

She said that she was at a multi-disciplinary meeting in the HQ in Galway with the SNA and the A.P. After the meeting the AP and the SNA went for lunch together and did not invite her. She said that she saw their car outside the pub, but the AP denied they went for lunch on the 25th February. The Complainant said that when she went into the classroom the SNA stood with her back to her until she left the room. She said that the SNA blanked her everytime she met her in the corridor. The AP also failed to give her medical information about a child before telling her to telephone the child’s mother. At a meeting with the principal, the class teacher and the SNA she said that the SNA was aggressive to her.

On the 25 May 2019, she said that she was assaulted in the office by one of the SNA’s. She said that she was in the office at an open filing cabinet when the SNS pushed past her throwing her forward against the open filing cabinet.  She reported this incident to the Principal, but nothing was done about it. On the 11th June 2019 the CEO was in the school and the Complainant spoke to her and she said that she told her about the way she was being treated. She told her about the procedures and she subsequently emailed her the procedures and cc the Complainants line manager and the HR Director.

The Complainant said that she spoke to the HR Director and he said that the matter had to be sorted internally in the school. She lodged a letter of complaint with her line manager on the 19th June 2019 and contacted SIPTU.

On the 24th June she had a telephone meeting with the Director of HR and the Principal of the school where she was told that a support contact person would be in touch with her.  She said that she met with the support person on the 18th July 2019.  `She said that she did not hear anything about an investigation into her complaint, but the support person told her that the two SNA’ about whom she had complained were on holidays and would not be contactable until September. She said that the support person and HR were in touch with her about mediation.

The Complainant said that when she went back to the school in September the VP said that they didn’t need a nurse as one of the pupils had left. One of the SNA’s gave her dirty looks and the other SNA blanked her. She said that she felt hounded isolated and belittled. On the 17th September she had a meeting off site and she got a call from the AP hounding over why she was not in the school. She went to see the HR Director and told him everything and that she felt bullied and victimised and undermined and she felt physically sick going into work. She asked for a transfer which was refused.  Her line manager telephoned on the 19th September to say an investigation had commenced. She went on sick leave on 19th September and returned for about 7 days in November and was out sick again until January. On the 11th November she reported the alleged assault to the Gardaí. 

The Complainant returned to work on the 28th January. The HR Director advised her to meet with the support person. She was advised that a mediation was being arranged but asked that it be deferred because the anniversary of the death of the pupil who died, a relative of the SNA, was coming up.

The mediation was then set for the beginning of March.  In early March she handed in her resignation. She said for the sake of her health she had to leave as nothing was being done about her complaint. At the end of December 2019, she was interviewed for a job and was successful. On return from sick leave on the 20th January she told the Principal that she was successful in getting another job.  On the 9th of March she gave notice to her line manager.

In cross examination the Complainant accepted that the Respondent had policy and procedures in place and that she was given a copy. She accepted that her line manager was willing to assist her and that she went to him on the 19th of June with her complaint and that the school holidays started on 28th June 2019. She accepted that her written complaint related to two SNAs (SNA A and SNA B).

The Complainant accepted that she met with the support person on 18th July and that she explained the formal and informal procedures in the policy for the investigation of complaints and that mediation was one of the options in the policy. She accepted that she agreed to mediation as it was her preference to resolve the complaint by mediation. She accepted she asked the HR Director for a transfer on 17th September. It was put to the Complainant that the Respondent has 4 schools and one nurse in each school and he had no vacancy for her and she accepted that this was discussed.

The Complainant said that she was on sick leave from 19th September to 8th November and accepted that the mediation session was arranged for the 12th November 2019 and it did not take place. The Complainant said that she was not able to go to work that day and went on sick leave on the 12th and 13thof November. She said that she emailed the HR Director to say she had reported the assault to the Gardaí. She went on sick leave on the 25th Novembr2019 and returned to work on the 20th January. She agreed that the support person contacted her shortly afterwards about mediation.

A mediation was arranged for 12th March with one of the SNA’s conducted by an independent mediator. She accepted that there was a mediated agreement reached but she said she was not happy with the mediation. She accepted that she did not tell the Respondent that she wanted an investigation instead of mediation.

Eithne Ní Chonghaile (Affirmation) Witness for Complainant

She said that she was an employee of the Department of Education and worked in the school from October 2018 until June 2019. She said that shortly after starting she was in the office and heard the AP saying that she wanted the Complainant gone and she also heard one of the SNA’s say that she wanted the Complainant gone. She also said that the VP told her to monitor the Complainant and to note here she was and what was she doing.

In cross examination she said that she left the employment on the 19th June 2019 the day the Complainant made her complaint. She said she discussed bullying with the Principal and the VP and contacted her union but decided not to go forward with a complaint.

Submission on behalf of the Respondent

The Respondent provides residential and respite care services to intellectually disabled children and adults in the west of Ireland. The Respondent provides a wide range of high-quality, community based services for people with intellectual disability and autism including day services, residential, and short break respite services. It is a patron of four special schools in Galway. The ethos of service provision is to enable people with intellectual disability to reach their full potential and have the rightful place in society and realise their goals and ambitions. The Respondent is funded predominantly the HSE with a small amount of funding from the Department of Education. It also conducts a number of fundraising activities throughout the year to fund capital projects. It has approximately 630 employees and 580 service users.

The Complainant was employed by the Respondent as a nurse in one of the schools on the 17th of September 2015 and left the employment of the 20th of March 2020 at her own request moving to a nursing role in the HSE. 

The Complainant submitted a written document to her line manager on the 19th of June 2019, which was brought to the attention of the HR Director in the following days. The letter referred to several alleged incidents between the period the 15th of February to the 22nd of May 2019, including a staff member stating “not today” to the Complainant, two staff member spending their lunch breaks together without the Complainant and a staff member crashing into the Complainant while she was working. Initial confusion existed about elements of the letter. It was necessary to determine whether or not the Complainant required that her case would be dealt with through the formal procedures under the Respondent’s Dignity, Respect and Equality in the Workplace Policy as it was not marked a formal complaint and she did not submit the letter to her operational line manager, the school Principal, in line with the policy. It is the objective of the policy to progress such complaints through the informal process wherever possible and reasonable to do so. Clarification was also needed and how many staff the Complainant was actually complaining about.  Furthermore, it was noted that the Complainant‘s last line and the letter read on the 24th – everybody is talking to me, an apparent indication that our relationship with colleagues had improved by the time the letter was submitted.

In the days following receipt of the complaints the line manager engaged with the Complainant to seek this clarification and same was provided.  The Respondent then followed the Dignity, Respect and Equality in the Workplace Policy and identifying to the Complainant that the matter may be possible to resolve informally at local level, with the Principal directly involved. In her dealings during that week in late June 2019 with her line manager the Complainant seemed content that the company had acknowledged her written complaint and she indicated that she was open to a constructive way forward by the informal process, of which the Principal was aware. The school closed for summer holidays the week of the 28th of June 2019 and did not return until September. Therefore, sustained progress beyond the end of the 2018 /2019 school year was not feasible.

The Respondent was conscious of its obligations to the Complainant under the Dignity, Respect and Equality in the Workplace Policy, the HR Director assigned one of its trained support contact persons (SCP) to support the Complainant in the process. When the school reopened on the 29th of August 2019, the SCP engaged directly with the Complainant a number of times to support her. On the 18th of September 2019, the SCP reported to the Respondent’s HR Director that the Complainant understood the informal and formal complaint options available to her and had chosen to pursue the mediation route, with an independent external mediator. 

On the 17th of September 2019 the Complainant called to see the Director of HR without appointment. He met the Complainant without hesitation. She enquired about a transfer from the school which the Director advised her was not possible to accommodate as there are no suitable vacancies available. The Respondent is patron for 4 special schools in the county and employs a school nurse in each and all these posts were occupied at the time.

As a complaint had expressed a desire to voluntary entry into a mediation process, the HR director set about putting this in place. The Respondent sought the agreement of the persons complained off to participate in mediation and thereafter secured the services of an independent external mediator. In the meantime, the Complainant had gone on sick leave from work from the 19th of September 2019 and didn’t return to work until the 8th of September 2019. The mediation could not be organised until the Complainant was fit to return to work. The Complainant has alleged that she had been informed on the 19th of September that an investigation had commenced into a complaint, but this is not correct. It is not a custom of the Respondent to escalate matters to a formal investigation while the informal stage has been invoked. However, had the informal process not been successful the Respondent would have been happy to invoke the formal press process at that juncture. 

While on sick leave the Complainant got in touch with the Director of HR on the 9th of October 2019, to enquire if a complaint was being discussed at the next board meeting. It was confirmed to her that matters of this nature are strictly confidential between the parties directly involved and it was not on the agenda. 

The Complainant was due to return from her sick leave on the 8th of November 2019 and mediation was organised for the 12th of November 2019 and all the parties were informed. On the morning of the mediation the Complainant commenced a period off uncertified sick leave, she was absent for the 12th and 13th of November 2019, and therefore did not participate in the mediation as scheduled.

The Complainant emailed her line manager on the 12th of November 2019 to tell him that she had referred her complaint to An Garda Síochána as an 'assault’. The HR Director acknowledged the Complainant‘s correspondence that evening and recounted to her the steps the Respondent had taken to support her and process her complaint which the Complainant acknowledged by email on the 13th of November 2019. The Respondent informed the Complainant in this email that it would suspend its involvement in her complaint to facilitate the Garda investigation. The Complainant returned to work for four days and commenced sick leave again from the 25th of November 2019 to the 20th of January 2020. The Respondent said they were unable to progress the matters while the Complainant was unfit for work.

On the 31st of December 2019, the Complainant contacted her line manager to inform him that she had applied for another role and was looking for an employment reference. A reference was supplied by the Respondent to the prospective new employer and it appears that the Complainant was selected for employment. 

The Complainant returned to work on the 20th of January and worked at the school until her departure on the 20th of March 2020. During that period the Respondent successfully pursued the mediation process which one of the two SNAs complained off. The mediation took place on the 12th of March facilitated by an independent external mediator and it was successful. It was not possible to involve the other SNA in the mediation process as an alleged offence was under investigation by an Garda Síochána

The Complainant submitted her resignation to her line manager on the 6th of March 2020 which was effective from the 1st of April 2020. It was agreed between the Complainant and the Respondent that her employment would terminate on the 20th of March 2020.

The alleged assault complaint to the Gardaí against one of the SNA’s was due to come before the district court in late April 2020. It is the Respondents understanding that the DPP reviewed the file in early April 2020 and determined that there was no case to answer.

The Respondent submits that it acted in accordance with its own Dignity, Respect and Equality in the Workplace Policy in attempting to deal with the Complainant‘s complaint. The handling of this complaint provided more challenges than the Respondent normally meets in matters of this nature. They included having to determine exactly how the Complainant wished to have the complaint handled; navigation the summer school closure period; observing extended periods of the Complainant’s sick leave; pursuing a mediation intervention; and respecting the Complainant’s right to refer a matter to an Garda Síochána against one SNA whereupon the Respondent found itself unable to progress the particular complaint further. However, with respect to the complaint against the other SNA, a mediated agreement was reached at the earliest opportunity taking her into account the Complainant’s period of sickness absence.

The Respondent acted in good faith at all times when dealing with a complaint about a matter which had caused the Complainant upset. Communication channels were open and clear at all time; she received expert support of a trained support contact person; and the company employee assistance policy was available to her throughout. and a satisfactory outcome for the Complainant was reached with one of two people complained of by way of the 12th of March mediation agreement.

Legal Submission

Section 1 of the Unfair Dismissals Act 1977 as amended defines dismissal in relation to an employee as, inter alia:

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

In light of this definition, and established principles adopted by the Tribunal and the Courts, there “exists a burden on the employee to demonstrate that:

The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or

The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employer to resign.

It is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. It is the Respondents position that neither criterion has been met. 

Contract Test

The Respondent at all times operated within the terms of the contract of employment between the parties and no contractual violation occurred. The Respondent refers to the explanation of the contractual test for constructive dismissal set out in Conway v Ulster Bank UD474/1981 to confirm this position and that the Respondent submits that it did not violate any terms of the contract or the organisation’s policies express or otherwise. The Respondent’s actions were in no manner

 ”a repudiation of the contract of employment” and it did not demonstrate “that the Respondent no longer intended to be bound by the contract”. No change occurred in the contract to make it “so radically different from what was before” as per Conway v Ulster Bank cited above.

The Respondent followed its procedures and arranged for the mediation between the Complainant and one SNA to take place at the earliest opportunity taking into account the Complainant‘s period of sick leave and the summer break. With respect to the Complainant‘s complaint against the second SNA, at no point did the Respondent indicate that it would no longer engage with the Complainant in relation to same. Rather the Respondent corresponded with the Complainant to inform her that he would suspend its involvement pending the Garda investigation. Naturally the Respondent would have continued to engage with the Complainant thereafter and at no point did the Complainant inform the Respondent that such a suspension of its involvement was unacceptable to her. It is the Respondents position that the termination of employment fails on a contractual test to be a constructive dismissal.

In respect to reasonableness, it is the Respondents position that there exists two interwoven factors to be considered (a) did the employer act unreasonably so to render the relationship intolerable, and (b) did the employee act reasonably in resigning, particularly in respect of exercising internal grievance procedures. This is in accordance with establish approaches as expressed by the Tribunal, in McCormack v Dunnes Stores UD1421/2008, where the Tribunal stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employers conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

It is the Respondents position that it acted reasonably and fairly at all times in accordance with its policies, best practice, and appropriate conduct. The Respondent’s policy allows for complaints of bullying to be dealt with in an informal manner and the Complainant had asserted her agreement to avail of the informal process, specifically mediation. While this was delayed during the Complainant’s absence, this mediation ultimately produced a positive outcome between the Complainant and one of the SNA complained off.

 In the case of Duane v Masonry Fixed Services Ltd, heard in 2016, the EAT determined that:

“It is incumbent on an employee in a constructive dismissal scenario to act fairly towards his employer, just as he is entitled to expect to be treated fairly by his employer. Part of this is that he will sufficiently notify his employer of any grievance and allow the employer a reasonable opportunity to resolve this. The claimant did not do so. He resigned before allowing the Respondent a reasonable opportunity to resolve his grievances.”

In the case of Jabczuga v Ryanair Ltd, the EAT states:

“The claimant in this case failed to fully engage with an exhaustive grievance procedure available to her. In resigning in circumstances that a claimant asserts amount to constructive dismissal, such claimant must act reasonably. This includes affording her employer an adequate and reasonable opportunity to address and remedy any grievance. By resigning before the grievance procedure had run its course the claimant did not afford this opportunity to the Respondent and the Tribunal is satisfied that she did not act reasonably in so doing. Accordingly, this claim pursuant to the Unfair Dismissals Act 1977 to 2007 fails.”

The Respondent submits that in this case to the Complainant failed to fully engage with an exhaust the procedures available to her. Had it been her preference to have the matter formally investigated rather than engaging in mediation, this ought to have been notified to the Respondent in writing. Furthermore, had she been dissatisfied with the procedures, the matter ought to have been escalated through the procedure to management. Finally, the matter could have been submitted to the Adjudication Service of the WRC for adjudication under the Industrial Relations Acts, none of these steps were taken.

In conclusion it is the Respondent strong contention is that the Complainant cannot discharge the high burden of proof associated with claims of constructive dismissal. The Respondent has not acted in a manner which could be said to constitute a repudiation of the contract. The Respondent had not acted in a manner which could be said to be unreasonable as to render the continued employment of the Complainant inviable. The Respondent has acted reasonably in acting on and resolving matters raised to the best of its ability in the circumstances. The Complainant acted unreasonably in tendering her resignation without further escalation her complaints through the mechanism available to her. 

Witness Cathal Ester (Affirmation) Director of HR

He said that he became aware in late June that the Complainant had submitted a complaint to her line manager and he received the written a few days later.  It was a 6/7 page written document and he went through to understand the nature of the complaint. He said he had to go back to the Complainant through her line manager to seek clarification about who the complaints were being made against. He also needed to ensure the Complainant was supported.  He said that the Respondent has a panel of support persons and he assigned one to contact the Complainant.

Within a week he had got the clarification and he understood the Complainant was complaining about 2 SNAs. He decided that the complaint would be addressed through the Equality Policy.  He said that he was confident that the Complainant would get the support she needed to navigate the process from the support person.

It was the last couple of days before the end of the school year and this elongated the commencing of the investigation. In September he learned that mediation was the route the Complainant wanted to go.  He said his preferred choice was to have an external mediator and there were a number of mediators in the area and he was happy to deploy one of them.

In September the Complainant came to see him at the Respondent’s HQ without an appointment. He said it was unusual for her to be there but she had business in the town. She was upset and looking for a transfer. He said they have only 4 nurses employed across the service although they have 600 employees in total. They have 4 special schools with a nurse in each and there were no vacancies. Therefore, he could not facilitate the Complainant with a transfer. On 19th September the Complainant went on sick leave and returned to work on the 8th November 2019. On the 6th October she contacted him and asked if her complaint was being discussed at the next board meeting and he responded telling her it was not being discussed at the board.

He said that he was anxious to get the mediation organised and he could not do so until the Complainant returned from sick leave. When he learned that she was returning on the 8th November he set up mediation for the 12th November at an offsite location. The mediation did not take place as the Complainant was out of work on the 12th and 13th November on uncertified sick leave. She then commenced a period of sick leave on the 25th November until January 2020.

The mediation was suspended. The Complainant emailed him on the 12 of November to say she had referred her complaint for investigation by the Gardaí. He said that this was unforeseen and he contacted a solicitor for advice. He was advised to write to an Garda Síochána, which he did, and he was advised that the matter was under investigation, but he got no details of the complaint.  The Complainant returned to work on the 20th January. He learned from one of the two SNAs that she had been reported to the Gardaí and she was very upset.

He learned from the Complainant on her return from sick leave that only one of the SNAs had been reported to the Gardaí. He said that he sought to progress the mediation when the Complainant returned in January. He learned through the support person that the Complainant was open to mediation with the SNA not under investigation. He was exploring dates and he was asked to reschedule the mediation until March.  The mediation took place on the 12th March and he got a report from the mediator that they reached a resolution. He said that he was surprised to hear that the Complainant was not happy with the mediation. He said that she could have opted to go straight to investigation.

He said that he knew from the Complainant’s line manager that she has asked him for a reference as she had applied for another job. The Complainant tendered her resignation on the 6th of March to expire on the 5th of April and by agreement she finished work on the 20th March.

In cross examination the HR Director said that he became aware through the Complainant’s line manager and the support person that she was open to mediation.  He became aware in September on return from the Summer holidays.

He accepted that the Complainant was upset when she called to see him.  She asked for a transfer, but he could not facilitate it because he had no vacancies and he has an obligation to have medical support in the schools.

He accepted that he did not send the Complainant to the OH when she was out sick. He said it would not be usual to refer an employee for an absence of that length. 

In response to a question, he said that he was happy the Complainant was informed about the mediation by the school Principal.

Witness Niamh Whyte (Affirmation) Contact Support Person.

She said that she is a senior clinical psychologist working with adults and has been a support person since 2004. She arranged to meet the Complainant on 18th July 2019.  She brought 2 copies of the Dignity at work policy with her to the meeting and gave the Complainant one copy. She said that her role was to explain the policy and the options available to her to pursue her complaint.  She explained the formal and informal process. She clarified the mediation process within the workplace and told her that it involved the manager in the school mediating.  The Complainant was not comfortable with that and said she would be happier with an external mediator. She also explained the details of the employee assistant programme. She informed HR that the Complainant was open to mediation.

On the 28th January 2020 she spoke to the Complainant again and she confirmed that she was still interested in mediation.

In cross examination the witness confirmed that she informed HR on the 18th July that the Complainant was open to mediation. She then spoke her to in January 2020 and the Complainant informed her she was still open to mediation.  She said that she had only one face to face with the Complainant and when she saw her in the HQ office, she did not bring her in to an office for a meeting.  

The matter I must consider is whether the Complainant was constructively dismissed as she resigned from the employment.

The Complainant put forward a number of incidents of alleged bullying, outlined above in her evidence, which occurred in 2019 and she reported these incidents in writing to the Respondent on the 19th of June 2019. It was submitted that the Respondent failed to investigate the complaint in accordance with the Dignity at Work Policy which requires an investigation to be completed no later than 4 weeks of receipt of a written complaint and this did not happen. It was submitted that the Respondent by ignoring the complaint of bullying breached a fundamental implied term of her contract i.e., the employee and employer will maintain mutual trust and confidence, and in such circumstances, she was entitled to resign. It was submitted by the Respondent that the Complainant failed to exhaust the procedures before she resigned. She has failed to establish the high burden of proof to maintain a claim of constructive dismissal. 

Section 1(b) of the Unfair Dismissals Act 1977 as amended defines dismissal as:

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

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

In relation to a breach of the contract of employment the judgment in Berber v Dunnes Stores Limited [2009] IESC 10 is the authority.  The Supreme Court held that the test for whether the conduct had breached the implied term of mutual trust and confidence in a contract of employment is an objective one.  Finnegan J. held:

“1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at.”

The Labour Court in the case of Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, endorsed the legal test in respect of constructive dismissal as set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests.  The ‘contract test’ is set out 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 of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.”

The Labour Court went on to say: “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.

….. the definition deals with a situation in which the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. 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 there and then.

The Supreme Court judgement in Berber cited above 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 to determine if it is such that the employee cannot be expected to put up with it.”  

It places the burden of proof on the Complainant to show that her resignation was justified in all the circumstances.

I note that the Complainant made the complaint on the 19th of June 2019 and the school holidays commenced on the 28th of June. The HR Director said that, before he could commence processing the complaint, he had to seek clarification about who was being complained about and he got the information within a week. The Respondent then appointed a support person to speak to the Complainant and to explain the process under the Dignity at Work Policy and it was at this meeting on the 18th July that the Complainant opted for mediation. The Complainant said in evidence that she wanted the matter investigated, but she accepted at the hearing that she told the Support Person that she would like it resolved by mediation. I note that the Complainant said that she was told at this meeting that the 2 SNAs about whom she was complaining were on their school holidays. I note that the Respondent’s Dignity at Work Policy provides that complaints of bullying are investigated within 4 weeks after receipt of the complaint except where exceptional circumstances apply e.g., annual leave. I am satisfied in the circumstances that it was reasonable to postpone the mediation until after the school in September.

However, the HR Director was not proactive in organising the mediation during the school holidays so that a mediator was in place on the return to school in September. This was certainly a missed opportunity to deal with the complaint in a timely manner. I note that the Complainant called to see the HR Director on the 17th September 2019. It was accepted in evidence that the Complainant was upset and was seeking a transfer, which the HR Director could not accommodate. The Complainant went on sick leave on the 19th September and was on sick leave until 8th November.  I note that the HR Director did not discuss the complaint with the Complainant at this meeting and inform her of the progress of the process to deal with her complaint. Neither did the Respondent contact the Complainant while she was on sick leave to assure her that the mediation would be arranged as soon as she was medically fit to take part. 

The question is did the delay by the Respondent and the less than a satisfactory response to the Complainant’s complaint amount to a repudiation of the contract of employment as per the caselaw cited above.  I note that the Complainant did not consider it a repudiation of her contract at this stage and she continued in the employment until she gave notice on the 6th March.  

The Complainant returned from sick leave on the 8th November and the mediation was arranged for the 12th November and on the morning of the mediation the Complainant informed the Respondent she was sick and would not be attending. She was on 2 days sick leave and returned to work and about 7 days later she went on certified sick leave again and returned to work on the 20th January.  On the 12th November the Complainant emailed the Respondent notifying him that she had referred her complaint to an Garda Síochána. In response, the HR Director emailed the Complainant listing the actions they had taken since she made the complaint and telling her that as the matter was now the subject of a Garda complaint, he would suspend the Respondent’s involvement until the conclusion of the Garda investigation. The Complainant acknowledged this communication.

I accept that the making of the complaint to the Gardaí complicated the matter and the Respondent had to clarify if the two SNAs were subject to the Garda investigation. I note the Complainant stated in her email of the 12th November she was available to come to see the HR Director to discuss the matter. However, there is no evidence that the HR Director contacted the Complainant directly either while she was at work or on sick leave to seek the clarifications needed.  The Complainant put into evidence a medical report dated 4th February 2020, which was provided to the OH Department of her new employer, in relation to her sick leave absences stating that she was suffering from a stress related illness due to the reporting of bullying. I accept that this report or no other such report was provided to the Respondent during her sick leave absence.  I note that the Respondent did not refer the Complainant to an OH doctor for a medical report and provided no evidence that any enquiry was made about the Complainant’s medical fitness to take part in mediation or if she wished to postpone it until her return to work. I believe it is incumbent on an employer to inform themselves fully about the options available particularly in circumstances where an employee goes on sick leave following the reporting of a complaint under the Dignity of Work Policy.

I note that in January when the Complainant spoke to the support person, she asked for the mediation be deferred for a period because the anniversary of the child’s death was approaching. The mediation with one of the SNA’s took place on the 12th March as the other SNA was the subject of a Garda complaint by the Complainant.

I note that the Complainant applied for a job in December and was successful at the interview and handed in her notice on the 6th March effective from the 1st April. The Complainant said that she handed in her notice because nothing was being done about her complaint. As I have stated above, the Respondent was not proactive during the summer period and there were delays and deficiencies in getting the mediation arranged, however on the 6th of March a mediation was arranged for the 12th of March, so I cannot accept the Complainant’s submission that her complaint was not being processed. I also note that the Complainant could not attend the mediation scheduled for the 12th of November and had asked for the mediation being scheduled for January/February to be postponed. I am satisfied that it was not reasonable for the Complainant to resign in circumstances where the mediation of her complaint was under way.

 This case can be differentiated from the Labour Court decision in the case of Rehab v Roberts quoted above by the Complainant’s representative. The Respondent in this case had arranged the mediation at the time the Complainant resigned, whereas in that case, the Labour Court found that no action had been taken by the Respondent to deal with the complaint, between its reception and the resignation of the employee, despite the employee telling the respondent all she wanted was for someone to speak to the perpetrator of the bullying about their behaviour.  

I am satisfied that there was no basis at the time the Complainant resigned for her claim that there was “nothing being done” about her complaint and that the conduct of the employer was so unreasonable that it entitled her to resign. In applying the jurisprudence of the Labour Court in the case of Paris Bakery cited above the Labour Court in considering conduct said: “be regarded as so unreasonable as to justify the employee in leaving there and then.”

I cannot accept that the Respondent was guilty of conduct which “is a significant breach going to the root of the contract of employment” applying the test in Paris Bakery cited above

In McCormack v Dunnes Stores cited above I note that the EAT held that the employee had to demonstrate that he “had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers.”

 The Complainant resigned before the mediation took place and thereby failed to exhaust the procedures and give the Respondent an opportunity to resolve issues between them. The Complainant resigned to take up another job.  I find that the Complainant was not constructively dismissed.

 I find that the Complainant was not constructively dismissed pursuant to the Section 1 of the Unfair Dismissals Act, 1977-2015.

Unfair Dismissals Act 1977-2015, Constructive Dismissal.