Complainant

Respondent

Parties

Ms. Breda  Broughall - a Financial Services Administrator

Murray Spelman (Financial Services) Limited

Complainant

Respondent

Representatives

Mr. D Geoghegan BL instructed by Gerard F. Burns of Burns Nowlan Solicitors

Mr. Alastair Purdy, Solicitor of  Alastair Purdy & 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-00040816-001

04/11/2020

The complaint refers to a claim of alleged Constructive Dismissal of the Complainant by the Respondent Employer.

The employment commenced on the 25th May 2018 and ended on the 13th October 2020.

The Complainant was employed as a Financial Services Administrator at a salary of €2,500 Gross per month for a four-day 32-hour week.

The Complainant gave written evidence supported by Oral testimony.

In summary on or about the 27th March 2020 she was advised that she was being laid off temporarily for a limited period. She was later advised that the Respondent was not availing of the Government COVID wage subsidy scheme and that she should avail of the PUP Payment to take family time with her children and or look for another job. Around the start of July, she was advised not to return to work as other employees, who had come back, were working short weeks.  She was subsequently contacted and advised to take part in a ZOOM call. The Responded business was down by 30% and she was invited to make suggestions as to how the business might save costs and generate extra income. The Complainant e mailed the Respondent on the 21st September with her suggestions and was replied to on the 22nd of September. A further ZOOM meeting was suggested to go through her proposals. The Complainant became aware that the Respondent was now availing of the Government Wage Subsidy Scheme and suggested (e-mail of the 27th September) that she could now go back to work. On the 4th October 2020 she wrote again by e-mail seeking clarification as to the Respondent’s intentions as to her position. She noted that all other employees were now back at work, but she remained laid off.

At this stage and in complete frustration with the Respondent she engaged her Solicitors, Burns Nowlan. They wrote to the Respondent on the 13th October 2020 stating the Complainant’s grievances and informing the Respondent that the Complainant was now constructively resigning.

It was stated that the Respondent had actually breached the Contract of Employment and had behaved Unreasonably towards the Complainant. A complaint under the UD Act,1977 for Constructive Dismissal was completely justified.

The Respondent made a written submission and supported this by Oral testimony.

In summary in late March 2020 the business faced a very tough period due to COVID and were reluctantly forced to lay off a large number of staff. In late July a number came back on reduced hours, but it was not possible on a business basis to immediately let the Complainant resume work.

She was telephoned on the 23rd July by Director, Mr. AMcL, to appraise her of the overall situation. On the 16th September Mr. AMcL, e-mailed the Complainant to arrange a ZOOM meeting for the 18th September. Following this meeting the Complainant made a number of business suggestions which were welcomed. The Complainant wrote again by email on the 27th September expressing surprise that she had not been included in the Government Wage Subsidy Scheme. Mr. AMcL replied on the 2nd October to suggest a further ZOOM meeting for the 7th October 2020. The Complainant replied that the date did not suit her and stated that she was being treated “differently to her other colleagues”. This was emphatically denied.

The Respondent, Mr. AMcL, made numerous efforts in early October to contact the Complainant by phone and e-mail but without success. The next communication was the Solicitors letter of the 13th October- received on the 20th October notifying the Constructive Resignation.

Financial figures submitted by the Respondent demonstrated the dramatic fall off in business Revenue during the initial COVID period and the fact that the Business was now facing a significant trading loss.

The layoff of the Complainant was a very regrettable business necessity to help the Company survive. It was never the Respondent intention to end the Complainant’s employment and once the business situation allowed she would have been welcomed back to work. The Respondent Mr. AMcL was trying to establish communication with the Complainant in early October to no avail.

In the Cross examination of the Complainant it was clearly established that she had not vailed of any Grievance or other employee redress procedures prior to the letter of the 13th October from Burns Nowlan.

In Legal submission the Respondent pointed to the standard Constructive Dismissal tests of Reasonableness and Breach of Contract as well as the generally accepted necessity to avail of employee Grievance procedures prior to a “Constructive” resignation. On all of these grounds the Complainant’s complaint falls far short of the required Legal standards. Case law was quoted including a recent Labour Court decision UDD1910 Ryan, Cannon and Kirk Accounting Services v Violeta Kneite

The Resignation was completely unnecessary, and any claim of a Constructive Dismissal is without any proper foundation.

3:1        The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 “For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “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,…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was 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. It summarised the ‘contract test’ 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.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, a certain degree of Legal caution is required here.

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

 She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The Tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

 “the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.

In a more recent case UDD1910 Ryan, Cannon and Kirk Accounting Services v Violeta Kneite the Labour Court has re- emphasised the need for an employee to make every “Reasonable Effort” to resolve their grievances before resigning.

In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a Constructive Dismissal.

However, notwithstanding the above Legal discussion all cases rest on their own particular evidence and factual context and these have to be considered below.

3:2         Consideration of Evidence both Oral Testimony and Written presented.

All evidence which was given under Oath /Affirmation was subject to full cross examination by the Legal representatives of both parties.

As this is a case of Constructive Dismissal it is useful to consider matters following the accepted Legal tests referred to above.

3:2:1         First Constructive Dismissal Legal Test – Breach of Employment Contract.

As set out above the Breach of the Employment contract has to be “fundamental” and going to the “very heart” of the contract.

The Contract and supporting Handbook was presented as part of the Respondent written evidence. Clause 2.10 of the Handbook “Lay Off/Short Time” allows for employee lay off especially in situations “Outside the Company’s control.”. Clearly COVID 19 and its business impact was “outside the Company’s control”. There was no legal Breach of Contract in the Layoff per say.

A key contested question in this case was the duration of the Lay Off. The Complainant felt by the start of October her lay off had been unnecessarily prolonged (27 weeks) and by the fact that the Respondent was not availing of the Government subsidy scheme, in her case, unlike some other colleagues, was a less than subtle subterfuge to end her employment.

However, evidence pointed to various efforts to establish contacts between the parties during the month of October with the Complainant being unavailable for a number of suggested dates. Mr. AMcL was himself hospitalised for a period in late September/early October.

Mr. AMcL stated in an email of the 22nd October 2020 quoted by the Complainant’s Solicitors

“for the avoidance of any doubt at no stage was it our intention not to have Breda back to work”.

In review and bearing in mind it was a time of unprecedented uncertainty for most business the evidence did not demonstrate a “fundamental” breach of the Employment Contract of a grievousness such as to qualify for a constructive Dismissal claim on the first Contract Test.

3:2:2          Second Constructive Dismissal Legal Test: Unreasonable Behaviours / Employer /Employee

In the Legal precedents a Constructive Dismissal complaint has to be based on “Unreasonable Behaviours” of a very serious nature. Generally, the Courts have identified issues such as Theft/Assault, Non-Payment of Wages, Serious Harassment etc as issues that would normally qualify.

Reviewing the evidence both written and in the Oral Testimony of the Parties the only real issues were the delay in bringing the Complainant back to work, the return dates of other colleagues before her and the various, particularly in October 2020, abortive efforts at Communications by ZOOM or otherwise. The Complainant felt that over the Summer she had been effectively ignored.

The alleged comments in March from the Employer/Respondent regarding “jobs in Aldi” seemed more of a general comment as to how the Complainant could maintain her earnings if she was not on the PUP. From the evidence it did not appear to be a “Dismissal” type of comment from the Employer.

In summary the delays and issues raised were unfortunate but in a time of Covid 19 and great business uncertainty the actions of the Employer cannot be seen as so Unreasonable as to qualify as justification for a Constructive Dismissal resignation.

The Unreasonable Behaviour Ground does not really support the Complainant in this case.

3:2:3         Third issue – use/non-use of Employee Grievance /Complaint procedures.

The contract of Employment and supporting Handbook was presented in Respondent evidence. Section 3.1 refers to Grievances and Grievance Procedure. It was accepted that this Clause had not been availed of by the Complainant. The Respondent referred to Labour Court UDD1910 -Ryan, Cannon and Kirk Accounting Services Limited v Violeta Kneite for supporting Precedent to establish the fact that an employee should make every reasonable effort to resolve grievances before resigning.

In this case the situation was complicated by the Covid situation and the Complainant could legitimately argue that she had made numerous efforts especially in September/October 2020 to engage with the Respondent.

On balance the evidence did not point to an absolute unreasonable position on the part of the Complainant in the midst of a Covid situation.

3:3           Final Summary – Constructive Dismissal Tests

The Legal precedents from both the Higher Courts and the Labour Court /EAT and latterly the WRC all refer to the “Bar being High” “for a successful Constructive Dismissal complaint.

In this case having reviewed all the evidence, both Written Submission and Oral testimony, the Adjudication decision has to be that the Complainant failed to satisfy the legal Breach of Contract or the Unreasonable Behaviours tests.

Accordingly, the claim for a Constructive Dismissal fails.

Under the Unfair Dismissals Act,1977 there was no Constructive Dismissal.

Constructive Dismissal, Covid 19, Communications.