Complainant

Respondent

Parties

Bronagh  Whelan

Glana Controlled Hygiene Limited

Representatives

  Self

Terry Gorry, Terry Gorry & Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00038391-001

26/06/2020

The complainant was employed by the respondent in an administration role commencing in September 2016.  The respondent company distributed catering and hygiene products and employed about 12 members of staff.  In 2020 due to the Covid-19 pandemic the complainant was requested to work from home and within a couple of weeks the respondent reduced her hours to three-day working.  The complainant alleged that she had experienced a number of incidents of unacceptable behaviour on the part of the Managing Director (MD) of the respondent during her employment and that her workload and attendant duties had become intolerable.  The complainant resigned her position in a telephone conversation with the MD on 30 April 2020.  The complainant lodged a claim for constructive dismissal with the WRC on 26 June 2020.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020, which designates the WRC as a body empowered to hold remote hearings.

The complainant was pressurised by the MD into becoming a friend on social media.

The MD often shouted aggressively and swore at employees and showed little or no respect for his staff.

Some staff, including the complainant, were told that they would receive a bonus but the MD became aggressive when the complainant challenged the calculation of this payment and she was told by the MD that he could do as he liked in this regard.

The complainant sought a wage increase and for a number of weeks was led to believe that this would be granted.  The complainant was then summoned to a meeting and told that her request was refused.

The MD engaged in inappropriate behaviour by on one occasion physically lifting up the complainant in his arms and carrying her around the warehouse despite her demand to be put down.  On another occasion the MD slapped the complainant on the bottom as she leaned over a desk.  There were witnesses to both these incidents.

The MD engaged in unethical behaviour towards customers and suppliers.

With the onset of the Covid-19 emergency the complainant was asked to work from home and then told to work a 3-day week.  Her range of duties increased and when she tried to tell the MD about the pressure she felt under her concerns were abruptly dismissed. 

Because of the mental stress brought about by this situation and the lack of concern displayed by the MD the complainant felt that she had no option but to resign.

The respondent’s Grievance Procedure stated that issues should be addressed to the complainant’s immediate superior.  As the complainant’s superior was the MD there was no impartial person in the company to talk to and the complainant did not feel that the MD took employment law seriously.  The complainant therefore did not use the Grievance Procedure.

The respondent refutes the allegations as set out by the complainant.

The respondent was attempting to build up a social media presence and for that reason the complainant was sent a friend request but there is no requirement for an employee to respond to such a request.

Any bonus paid to employees is discretionary.  When the complainant made representations regarding the amount of the bonus it was increased from €850 to €1150.

A request by the complainant for a pay rise was considered but could not be acceded to at that time.  Some months later the complainant was given a rise.

In January 2020 the complainant advised the respondent that she wished to move to a 3-day week because of her domestic situation.  The respondent was considering this request when the Covid-19 situation arose and precipitated that decision.

The respondent acknowledges that management style in a small company can sometimes be rudimentary and plain.  The MD believes in straight talking. 

The respondent denies the allegations regarding the treatment of customers and always acted in the best interests of the company.  The MD still maintains good relationships with former staff members.

The MD denies any occurrence such as the slapping incident.

On the day of the resignation the MD was dealing with a complaint from a customer who had not got a quote that the complainant had been asked to supply.  The MD had queried the matter with the complainant and was shocked when she rang back after that and resigned.

The complainant had never utilised the Grievance Procedure with regard to any of the issues that she had raised in this complaint. 

It is accepted law that a complainant should exhaust all internal procedures before resigning and claiming constructive dismissal.  The complainant did not do this and her complaint therefore must fail.

All evidence from witnesses was heard under oath / affirmation.

The respondent is a distributor of catering and hygiene supplies to the domestic and commercial markets in Ireland.  The complainant joined the company in September 2016 initially as a Customer Service Accounts Administrator working on a full-time basis.  In her evidence the complainant stated that she felt uncomfortable with the working atmosphere which arose from the behaviour of the owner and Managing Director of the respondent (MD).

The first instance raised by the complainant was in regard to her receiving a friend request on social media from MD.  The complainant said that when she refused this request the MD taunted her in front of work colleagues to such an extent that she eventually accepted the request.  The complainant also referred to the abrupt departure of a female member of staff who, according to the complainant, had been reduced to tears by the actions of the MD.  The complainant said that she had expressed her concern on several occasions to the MD about the way that he spoke to employees.  Her experience was that his behaviour would improve for a short time and then would relapse back to him shouting and swearing.

The complainant referred to an issue that arose when the MD offered the complainant and two colleagues a small percentage share of the company’s annual profits.  The MD refused the complainant’s request that this offer be put in writing and later informed the employees that they would each receive €850.00.  The complainant queried this figure and it was increased to €1,150.00 without any basis for the calculation being provided.  The employees, however, were informed that if they were unhappy with that figure the MD would take the money as extra salary as he could do as he chose with it.

The MD promoted the complainant to the position of Office Manager but introduced her to visitors as “the girl who answers the phone”.  The complainant stated that she found the MD’s attitude to be intimidating and that he would make hurtful remarks.  The complainant was booked to attend a trade show in Amsterdam without any consultation or agreement on her part.  The complainant asked for a pay increase and for three weeks was led to believe by the MD that this would be granted.  The complainant was then summoned to a meeting with the MD and his wife, who was also a director of the respondent, and informed that the company could not afford to increase her wages at that time.  The complainant felt very disheartened by the MD’s actions in this regard.

During this time the complainant had witnessed the recruitment of another member of staff who, according to the complainant, was subjected to repeated inappropriate behaviour and remarks by the MD.  When the MD told the complainant that he was going to let the employee go she advised the MD to be careful as employees had rights.  His response was to the effect that he had ways and means of getting rid of people.  That employee found employment with another company and resigned from the respondent’s employment. 

The complainant also referenced two incidents of inappropriate physical behaviour on the part of the MD towards her.  In one instance the complainant said that the MD picked her up in his arms and carried her from the warehouse to the office despite her requests that she be put down.  This incident was witnessed by a colleague who gave evidence to that effect and who also stated that he had witnessed the second incident whereby the MD had slapped the complainant on the bottom as she leaned over a desk.  The complainant was asked why she had made no complaint at the time regarding these matters and she said that she did not do so as she wanted to keep her job.

The complainant further stated that she had become concerned about actions and decisions on the part of the MD which she considered to be unethical including the supply of out-of-date sanitiser.  These actions were directed at both employees and customers and according to the complainant she felt uncomfortable when directed to implement some of these as part of her administration duties.  In November 2019 the complainant’s wages were increased by €1,000.00 per annum but shortly afterwards she was asked to take on the responsibility of updating the company website, a task for which she had no qualifications or experience.

When the Covid-19 restrictions commenced in March 2020 the complainant said that she was happy when she was requested to work her normal hours from home.  On a couple of occasions in the following weeks there were phone calls with the MD in which, according to the complainant’s evidence, he shouted at the complainant.  On the first occasion the MD’s voice was so loud that her daughter could hear him shouting.  On the other occasion the complainant was forced to hang up the phone because of the MD’s attitude.

At the beginning of April, 2020, the MD reduced the complainant’s working hours to a 3-day week.  The complainant stated that she did not understand this action as the company were extremely busy because they were suppliers of products that were in demand as a result of the pandemic and an Office Assistant had been let go.  As a result of this decision, according to the complainant, she was working late many evenings trying to keep on top of the administration tasks. 

It is accepted by both parties that matters came to a head on 30 April.  There are different recollections as to what triggered the situation.  The complainant stated that she was being pressurised to put up new products on the website whilst the MD said that he phoned the complainant because a customer was complaining that he was waiting for a product quote which he should have received that day.  Whatever the cause the complainant complained that it was not possible for her to do all the tasks expected of her in the 3-day week.  According to the complainant the MD reacted aggressively to this concern.  The complainant said that when the call ended she felt shattered and that she could not tolerate that sort of behaviour any more.  After discussing the matter with her husband she phoned the MD and told him that she was resigning.  According to the complainant the only response that she got from the MD was that he was disappointed.   

As noted a number of ex-employees of the respondent gave evidence in support of the complainant.  Witness A was the witness who had observed the incidents of inappropriate physical interaction and he gave evidence to that effect.  He said that the Technical Director was a witness to the incident where the MD lifted the complainant up in his arms and carried her through the warehouse.  He also stated that the MD had a volatile humour.  He gave evidence regarding the distribution of out-of-date sanitiser to a nursing home and said that this was a factor in his decision to leave his employment with the respondent.

Witness B said that he also had been requested to become a friend on Facebook.  He agreed as he was not actually active on social media but could see that the complainant was uncomfortable with the request and reluctantly agreed.  The witness confirmed the complainant’s querying of the bonus payment but said that the issue did not affect him personally.  According to the witness the complainant was very organised and efficient but that there generally was too great a workload for her to cope with.  He had been made redundant by the respondent.

Witness C had worked for the respondent for approx. 2.5 years based in the office.  He gave evidence of the complainant telling the MD that she was overwhelmed with work to which the MD replied in an off-hand manner that so was he.  The witness further stated that the MD would shout at him and verbally insult him.  When this happened the complainant would get upset.  One such incident was when the witness was asked to operate a forklift in the warehouse even though the witness had no licence in that regard.  The witness said he found his term of employment with the respondent to be very stressful and that when he got another job he resigned.

The final witness for the complainant was her husband who gave evidence regarding what he observed when the complainant was working from home.  He stated that he had heard shouting on the phone when the complainant was contacted by the office and that the pressure that she was subjected to affected her mood and confidence.

The main witness for the respondent was the MD who stated that he had originally started the business in 2006.  He said that he knew the complainant’s husband prior to employing the complainant and he offered her employment after being asked by the husband if there were vacancies. The two families had socialised together on occasions.  He agreed that the complainant had been a very good employee.  The MD stated that the Facebook request had arisen after he had received advice that the respondent should build up a profile on social media such as Facebook.  There was no ulterior motive for the request. 

The MD denied the two allegations regarding inappropriate physical contact stating that he was sure that they did not happen.  He further stated that the first time that he became aware of the allegations was when he received documentation from the WRC in respect of the case.

With regard to the various other actions or events that the complainant and her witnesses had spoken about the MD stated that he had checked with the manufacturers regarding the safety of the sanitisers and had been assured that they could be used.  The MD denied actually making an employee pay for an expense which the respondent had not incurred but accepted that he gave the employee the impression that he would have to pay as the employee had not abided by the rules in this regard.  The MD said that a customer who had pre-paid for the supply of goods had been re-imbursed when the goods could not be supplied.  The MD stated that he would have instructed the complainant to seek more time for payment to suppliers.  With regard to the request by the complainant for a pay rise the MD accepted that he may have told the complainant that he would see what he could do but that when he and his wife, who looked after the accounts, examined the financial position it was realised that it was not possible to concede to the complainant’s request at that time.  He also said that he did not believe that he used swear words excessively.

The MD referred to an incident in October 2019 when he found the complainant crying.  According to the MD he had a discussion with her during which she told him that she had difficulties with childcare and that he suggested to her that she could do some of her work from home.  Arising from this the respondent purchased the necessary equipment to enable this to happen.  In January 2020 the complainant advised the MD that she would be working a 3-day week with effect from September due to childcare issues.  The Covid-19 restrictions were introduced in March at which point the complainant had the capability to work from home.  A lot of the complainant’s business was connected to the hospitality sector and the respondent’s business suffered as a result. There was a lot of uncertainty as regards the future for the business.  The MD denied instructing the complainant to work a 3-day week and submitted that it was her choice.

The MD did not recollect the phone call in late March during which the complainant claimed she had to hang up on him.  He recalled contacting her on 30 April as he had received a complaint from a customer with regard to an overdue quote.  The complainant asked him what did he expect as she was working a 3-day week.  Some time later that day, according to the MD, the complainant rang back and told him that she was resigning.  The MD said that he was surprised and hurt by the complainant’s action at that time.

There were two witnesses for the respondent.  The first witness was the Technical Director who said that his involvement with the respondent dated back to 2010.  He had left the company for a time due to personal issues and had returned in 2019.  The Director said that he had found the MD to be very supportive during a difficult time and that he was a friend of the MD.  He stated that the company was very busy.  He accepted that the complainant had spoken to him about work pressure and about the fact that she had an issue with the MD and his advice to her was that she should speak directly to the MD about it.  The Director said that he had not seen any of the incidents of inappropriate behaviour referred to by the complainant and her witness.  He stated that he had received some training in workplace procedures in the UK and if he had received a formal complaint he would have sought professional advice.  The Director said that he tried to contact the complainant on the day after her resignation but that she had not taken his call.

The other witness was the MD’s wife who was responsible for the respondent’s accounts.  The witness gave evidence regarding the complainant’s request for a pay rise stating that she and the MD had given careful thought to this but that it was not financially possible at that time.  She accepted that the complainant was disappointed by this response.  The witness had a full-time position with a large company and she said that if the complainant had brought forward allegations of inappropriate behaviour she knew that they would have to be treated very seriously.  The respondent had since this matter sought professional advice regarding HR matters.  The witness stated that the onset of the Covid-19 restrictions had caused enormous issues for the respondent as 80% of its customer base closed.  The reason that the company was able to keep going was due to them dealing with nursing homes.  The witness said that some socialising had taken place with the complainant’s family.

In reviewing the evidence it is clear that the termination of the complainant’s employment with the respondent occurred when the complainant verbally resigned from that employment.  Section 1 of the Unfair Dismissals Act, 1977, includes the following definition of dismissal;

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

Section 6(1) of the Act states:

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The respondent’s representative drew attention to a number of legal precedents where courts and tribunals had addressed the issue of the standard of proof required to be successful in a claim for constructive dismissal.  It is indeed a matter that has been given considerable attention.  The Labour Court in UDD1810 (2018), Tusla v Flynn, set out the requirements as follows:

“As the complainant is alleging constructive dismissal, the fact of dismissal is in dispute and the onus of proof rests with the complainant to establish facts to prove that the actions of the respondent were such as to justify her terminating her employment.

Section 1 of the Act envisages two circumstances in which a resignation will be considered a constructive dismissal.  This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to resign his position, often referred to as the “contract test”.  This requires that an employer be “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance” as held in Western Excavating (ECC) Ltd v Sharp(1978) IRL332.

Secondly there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test.  This test asks whether the employer conducted 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, if so she is justified in leaving.”

In this case the complainant has presented a number of reasons which in accumulation brought about her decision to resign.  As regards the “contract test” a question that arises is whether the reduction of hours from a 5-day week to a 3-day week could be interpreted as amounting to a fundamental breach of contract.  It is disputed, however, as to who instigated the 3-day week working.  The MD denied that he ever instructed the complainant to go on a reduced working week whilst the complainant stated that it was introduced at the beginning of April.

The other factors appear to come under the reasonableness test.  The respondent in their submission acknowledges that the management style could be viewed as “rudimentary and plain”.  The evidence of witnesses would support that assessment.  Evidence was given that the MD used abusive language on occasions about employees and one can only surmise at what he considered to be a “normal” level of the use of swear words.  When directed at employees the answer is, of course, that a zero level is the only acceptable standard to be employed by anyone in a senior management position.  The complainant said that she had spoken to the MD about his outbursts of anger and about how he spoke to employees.

There were also matters raised by the complainant regarding the ethics of the MD’s approach to business issues.  The MD provided explanations for these events but it is not part of my remit to decide whether such actions were correct or incorrect.  I do accept, however, that the complainant was concerned about these matters.  The other evidence of unreasonable behaviour is in regard to the incidents of unacceptable physical behaviour by the MD with the complainant.  It appears from the evidence that these occurred around October 2019.  Whilst the MD denies that these events happened the complainant’s evidence was corroborated by one of her work colleagues.  I accept, therefore, that inappropriate behaviour on the part of the MD happened.  I note that the complainant did not raise either event with the MD at the time or subsequently.  The complainant’s explanation in this regard was that she needed her job. 

A further issue of alleged unreasonable behaviour on the part of the respondent put forward by the complainant was the amount and type of work which the complainant was expected to perform.  This is an issue that the complainant did complain verbally about to the MD.  His response to these issues varied according to the complainant.  At times he would be nice for a period before reverting to being unapproachable.  At other times he responded by telling the complainant to prioritise her work or by stating that he was busy also.  The situation was exacerbated by the onset of the Covid-19 pandemic.  The pressure of her workload and of being required to perform tasks that she was not trained to do were such, according to the complainant, as to lead her to believe that she had no option but to resign with immediate effect.  The respondent’s witnesses gave evidence that the future of the company at that time was in question due to the closure of the businesses of 80% of their customer base.  Reviewing all these matters it is clear that the both parties were operating under considerable strain at that time.    

In the case of UDD1810 quoted above the Labour Court further stated:

“In constructive dismissal cases, where the complainant claims that the employer acted unreasonably the Court must examine the conduct of the parties.  In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.  They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited, UDA474/1981.”

The respondent did have a Grievance Procedure which was included as pert of the complainant’s contract of employment.  The relevant paragraph is as follows:

“If you have any grievance, which you consider genuine in respect of any aspect of your employment, you have a right to a hearing by your immediate superior or other management as circumstances warrant.  If you are unhappy with the outcome of a hearing you may appeal to more senior management.  You may be accompanied by a fellow employee or other representative to this appeal hearing.

In the event of the matter not being resolved internally the matter shall be referred through normal industrial relations procedures.”

The complainant stated that she did not invoke this procedure as the person that she had the complaint against was also her immediate superior and the MD of the respondent.  The complainant was specifically asked at the hearing why she did not consider contacting other directors and she replied that that would not be in accordance with the Grievance Procedure.  The Procedure does in fact allow for this to happen.  The complainant also expressed her view that the Procedure was “not sufficient”.  If a complainant is claiming that the reason that they did not invoke the use of a Grievance Procedure was because they believed it to be not fit for purpose then there is an onus on the complainant to put forward some proof in that regard.  This might arise from their own personal experience in attempting to utilise the procedure or the fact that they knew of some employee who had unsuccessfully attempted to utilise that procedure.  No evidence to that effect was presented at the hearing.  I cannot therefore accept it as a fact that the Grievance Procedure was “not sufficient” or defective.

The EAT in Reid v Oracle EMA Limited, UD1350/2014 stated:

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”

I must therefore conclude that, whilst there were aspects of the respondent’s behaviour that provided grounds for the complainant to believe it to be unreasonable, the action of the complainant in resigning without notice and not invoking the provisions of the Grievance Procedure was also unreasonable.

In Berber v Dunnes Stores (2009) IESC 10 the Supreme Court detailed a test that looked to consider the conduct of both employer and employee as a whole when assessing if constructive dismissal had in fact occurred.  There are 4 principles in this test:

“1.  The testis objective

 2.  The test requires that the conduct of both employer and employee be considered

 3.  The conduct of the parties as a whole and the accumulative effect must be looked at

 4.  The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

In applying these principles I have decided that the complainant has failed to satisfy the high burden of proof required to succeed in claiming that she had no alternative but to resign and therefore was constructively dismissed.  Consequently her claim under the Unfair Dismissals Act, 1977, fails.

Complaint No. CA-00038391-001:

For the reasons set out above I find that the complainant was not unfairly dismissed under the Provisions of the Unfair Dismissals Acts, 1977 – 20 15, and that her claim fails.

Unfair Dismissal Act 1977     Unreasonable Behaviour     Constructive Dismissal