Complainant

Respondent

Anonymised Parties

Financial Administrator

Youth Service

Representatives

Self

Williams Solicitors

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-00040353-001

11/10/2020

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

CA-00040691-001

29/10/2020

The Respondent is an independent community-based youth service which provides non-formal education, individual and group work support in addition to a range of indoor and outdoor activities for deprived young people.

The Complainant commenced her employment as a part-time Financial Administrator with the Respondent on 27 April 2015.  The Complainant resigned on 9 September 2020.  The Complainant contends that she no choice but to leave a job she loved so much due to the toxic environment.  The Respondent, however, contends that the Complainant voluntarily resigned her employment and left the Respondent on good terms.

The Respondent submits that the Complainant has not identified the correct Respondent on the complaint form.

The Respondent submits that although a Rights Commissioner was empowered to correct any particulars on the complaint referral form under Section 39(4) of the Organisation of Working Time Act 1997, the power to do so was not transferred to the Workplace Relations Commission Adjudication Officers.

The Complainant submits that she used the incorrect name of the employer on the complaint referral form in error and asked that the complaint referral form be amended to reflect the correct name of the Respondent.

Following the first adjudication hearing, the Respondent’s solicitor wrote to me on 26 July 2021 querying my powers under subsection (4) of section 39 of the Organisation of the Working Time Act 1977.   This section confers power upon a relevant authority to allow an employee to make an application to that authority to amend the name of the employer in circumstances where a person has already initiated proceedings under a relevant enactment.  In her correspondence, the Respondent’s solicitor contended that that the definition of “relevant authority” in section 39 of the Act only applies to Rights Commissioners and not to Adjudication Officers of the WRC. 

In my response of 27 July 2021, I suggested that the solicitor’s assertion was an incorrect interpretation of section 39(4) of the Act and pointed out that the powers vested in a “relevant authority” within the meaning of Section 39 also apply to an Adjudication Officer of the WRC by virtue of the provisions of Section 40(9) of the Workplace Relations Act 2015 which provides that: “A reference in any enactment to a rights commissioner shall be construed as including a reference to an adjudication officer”.

At the second adjudication hearing, the Respondent’s solicitor did not object to the correct name of the Respondent being substituted for the incorrect name on the complaint referral form.

Accordingly, I have amended the name of the Respondent on the complaint referral form and used the amended name in my decision.

The Complainant submits as follows:

The Complainant asserts that her case relates to bullying in the workplace and that, despite her complaints about the alleged bully, the Respondent took no action.  The Complainant submits that she does not like confrontation.

The Complainant started working in the youth project in April 2015 as a Financial Administrator.  She was responsible for all the accounts, facilities and administration. AB was a youth worker at the time but was promoted to Project Manager.  The Complainant contends that they had a great working relationship from the start and that she absolutely loved her job.  The Complainant submits that she went above and beyond for them all the time and she felt that this was her perfect job.

BC joined the team as a youth worker in March 2017 and there was a clash of personalities immediately.  The Complainant contends that BC is extremely narcissistic and his attitude to women is quite sexist.  The Complainant submits that although it was stressful, they retained a professional relationship.  The Complainant contends that she found out that BC was undermining her authority as Financial Administrator and that he was spending the Respondent organisation’s funds without any permission.

The Complainant contends that AB and BC had regular heated arguments in work which usually resulted in BC doing what he wanted with no consequences.  The Complainant submits that BC was extremely rude, domineering and sometimes verbally abusive and that he was causing huge financial problems.

In July 2018 the Complainant took a month’s leave.  When she returned, she realised that a file containing petty cash receipts and several important financial documents was missing from her desk which would result in an incomplete set of accounts for 2018.  The Complainant also asserts that several members of staff had been sitting at her desk and using her PC in her absence.  The Complainant asserts that she expressed her concerns to AB and told him that she was extremely worried about the missing documents but AB didn’t seemed bothered at all which left her very anxious.

In September 2018, AB started taking Wednesdays off and by October he was taking Fridays off as well.  The Complainant submits that AB told her not to tell anyone that he was teaching youth work in a college but the staff found out so he had to come clean to the Board of Directors. AB increased the Complainant’s hours from 20 to 25 a week to cover the work that he was unable to complete.  The Complainant submits that some weeks she was actually working another extra 5 hours.  The Complainant submits that her workload doubled and that she was struggling to complete her own work as she was doing most of AB’s work as well.

The Complainant contends that, in addition to carrying most of AB’s workload, she was also having huge problems dealing with BC and that she submitted a written complaint to AB about BC’s unprofessional behaviour towards her. The Complainant contends that BC had started emailing and texting her out of hours and at weekends about work.  The Complainant asserts that BC would shout at her when he did not get his own way about purchases he wanted to make for his training programme.  The Complainant submits that BC acted in a bullying manner towards her.  The Complainant submits that AB spoke to BC but just in conversation and no grievance policy was ever implemented.

In February 2019, AB was approved to work a 3 day week by the Board of Directors but he started only coming in to work 1 or 2 days a week, and doing his course work when he actually showed up so it was left to her carry out his duties on top of her own. The Complainant submits that she rang the Chairperson and asked him to pop down to meet with her as she needed to discuss the situation with regards to AB and BC.  The Complainant submits that the Chairperson promised several times to come see her but that he was too busy.  The Complainant submits that she emailed the Chairperson with her concerns but that nothing at all was done to help her.

The Complainant submits that by May 2019 the project was struggling financially and the environment had become so toxic that she contacted other board members to discuss the problems and then informed the Respondent’s Grant Authority that she was concerned that the Respondent organisation wouldn’t even have enough money to cover the salaries.  The Complainant submits that the Respondent organisation was put under immediate investigation by its Grant Authority.

The Complainant submits that AB handed in his notice and went on 3 month’s sick leave until his departure date of the first week in September 2019.  The Complainant contends that she was professionally taken advantage of by AB who did not know how to do his job and that she was doing both jobs to keep the Respondent project afloat. The Complainant contends that the Board had no idea what had been going on at all as AB never disclosed any of the problems.  The Complainant submits that the Board was horrified when they found out she had been carrying out most of AB’s role pretty much from 2017 in addition to her own.  The Complainant contends that the Board knew nothing about the extent of the bullying and issues she was having with BC and the financial situation it had found itself in.  The Complainant submits that staff were instructed not to spend a penny and everything was to be approved by the Board and the Grant Authority.

The Complainant submits that she was struggling both emotionally and physically and that she was mentally drained; that she was not sleeping properly and that she was at breaking point.  The Complainant submits that matters were made worse when she was left on her own when two of her youth worker colleagues who she was close to left the Respondent organisation at that time – one resigned and the other went on maternity leave. The three remaining staff included BC and two other youth workers and because the Complainant wouldn’t let them spend any money, including fundraising money, BC started his hate campaign against her.  The Complainant contends that the other two colleagues stopped talking to her and that BC actually made a comment to her that he had gotten rid of AB and the youth worker who had resigned and that just left the Complainant and another colleague and that if he had his way they would be gone too.

The Complainant contends that BC was pestering her for information about what was going on, texting and ringing her non-stop out of work hours so much so that she had to block him and then he actually wrote a complaint about her as she wouldn’t let him spend any funds at all and he called into the Treasurer’s workplace to complain about her for doing what she was instructed to do.

The Complainant submits that the Respondent organisation was audited with only a day’s notice on 23 October 2019.  The Complainant contends that she was treated like a criminal, like she had done something wrong and that she was interrogated and blamed for the problems within the project.  The Complainant contends that the Board of Directors abandoned her and left her to deal with the project’s funders and auditors during the audit after AB had resigned. 

The Complainant submits that the Respondent’s liaison officer from its Grant Authority said that she had no knowledge of the audit and she didn’t pre-approve it and that she rang the Complainant to apologise when she realised what had happened and the pressure it put on the Complainant.   The Complainant submits that all the stress she was under took its toll on her and that she presented in A&E the next day after a suicide attempt which resulted in her having a nervous breakdown.

The Complainant submits that she rang the Chairperson on Monday 27 October 2019 to let him know what was going on with her and that she was signed off for three months with psychiatric care at home and regular Pieta House appointments.  She phoned the Chairperson and informed him that she would be out sick.  However, in the absence of a Project Manager, and due to the fact that nobody else that could do the finances, the Chairperson asked her if she could log into the bank from home and make any payments and keep checking her emails for urgent queries so she felt obliged to do it.  The Complainant returned to work on Monday 6 January 2020 and went straight back to her 25 hours per week.  The Chairperson came in to see her on her second week back but there was tension with BC and the two youth workers.  The Complainant contends that BC actually came into her office to complain to her that he was annoyed with her as it put pressure on him when she was out sick. The Complainant submits that with the project under huge scrutiny from its funders, the Board of Directors had to take charge of everything and she worked extremely closely with them in keeping to a strict financial budget.

Her colleague CD, who was on maternity leave, was promoted to Project Manager but as she was absent from the office, the Complainant was still doing both roles until CD returned in May 2020.  The Complainant contends that she worked non-stop from home during lockdown, sometimes until 10pm answering emails and getting the other staff up and running to work from home.  When CD returned in late May 2020, the Grant Authority hired an external consultant to help her transition into the new role and assist with cleaning up the mess that AB had left. The project was in breach of its service agreement so it was given six months to get financially solvent again or it was going to be closed down. The team had been having sessions too with an external counsellor and team builder.  CD suggested that the Complainant had some sessions with the external counsellor to help her let go of the problems with the past so she had a two hour session on Tuesday 9 June 2020.  The Complainant submits that it was really upsetting telling the external counsellor about everything that had happened to her and that she was left feeling mentally drained.  The external counsellor suggested mediation with BC to try help them get back to a good working relationship so an online session was organised for 11 June 2020.  Also that week, the Respondent’s staff were working back in the office after lockdown was over and the Complainant got to meet the external consultant for the first time.  The Complainant met with the external consultant and CD to discuss the changes she was proposing.  The auditor was also in the building to do his audit for 2019. Financially the Respondent organisation was  back on track though after all the changes the Complainant had implemented in January 2020.  The Complainant welcomed the external consultant as they had no proper leadership in place for years.

On the 11 June 2020, the Complainant had her online mediation with BC and it was a disaster.  BC had a huge list of things he wanted to pull her up on, he accused her of having affairs with AB and another colleague, said she was a thief, a liar, untrustworthy and tore her apart and the external mediator let it happen. The Complainant was  distraught, she told BC she thought he could be a bit of a bully sometimes with his behaviour towards her and he exploded and started shouting at her so she wanted the session to end. She was very upset when she went into work the following Monday.  She told CD about the mediation mess and emailed the external counsellor to complain about how she was treated.  The external consultant hit the roof when she found out that the mediation session had taken place as she didn’t approve it and didn’t think it was a good idea. 

As the week went on, the Complaint was mentally struggling and went back to see her GP who signed her off sick due to stress.  The Complainant returned to work on 13 July 2020 and had another meeting with CD and the external consultant.  The external consultant asked her lots of personal questions regarding her mental health.  The external consultant said that they were going to cut her hours back to 16 as AB had never given her an updated contract when he increased her hours to 25.  The Complaint submits that the external consultant said that she didn’t feel that the Complainant could continue working in finance with a mental health problem and that the Respondent was sending her to see a company doctor.  The Complainant asserts that all of her financial duties were taken off her including all banking and posting payments and it was clear the Respondent didn’t trust her anymore.

The following Monday she asked CD if she could use a day’s leave every Friday going forward until September to attend her online therapy sessions rather than cutting her hours down to 20 as financially she would struggle.  CD agreed and this continued for the remainder of the Complainant’s employment with the Respondent.

The Complainant took two week’s holidays over the August bank holiday.  She was  anxious returning to work and it was business as usual.  BC  wasn’t talking to her at all but she didn’t care. On Thursday 3 September 2020, CD handed her a new contract to be signed together with a new job description.  Her leave was cut from 25 days to 18, there were new terms and conditions highlighted in relation to being dismissed for misusing funds and a few more changes.  The Complainant asked CD why her contract was changed like this as the other staff didn’t have these changes in theirs.  CD simply said that all finance contracts have this in there for finance staff.  The Complainant asked a friend of hers who works in HR to have a look at her new contract. The Complainant’s friend said that she felt that it was unfair and illegal.  The Complainant then rang Citizens Information for advice and decided not to sign the new contract.  There was a big meeting due on Thursday 10 September 2020 with the Grant Authority regarding the improvements and performance progress the project had made and there was an urgency for the new contract to be returned before this as it was a requirement but the Complainant wasn’t happy with hers so she decided to hand in her notice and informed CD on Wednesday 9 September 2020.  CD seemed shocked but rang the Board straight away to let them know and then told the staff within minutes so the Complainant felt that they were delighted she was leaving. The Chairperson came down to chat with her and she was really upset.   She explained that she was leaving for several reasons and that they included the bullying from BC and that the Board did nothing to help her, that AB abused his role as manager and had her doing the majority of his role on top of her own, the lack of help from the Board when she needed them and leaving her to clean up the financial mess on her own and that the new contract was so insulting to her considering everything she did for the project and that it was a struggle to manage her mental health.  The Chairperson apologised for what happened to her. Then the external consultant and CD had a meeting with her and said that she could finish up her notice on Thursday 17 September 2020 instead of her proposed date of 2 October 2020.  The said that they would pay her till then as they didn’t want the other staff members finding out the real reasons why she was leaving. BC was not around at all during her last week except for her last day as they purposely kept him away from the project in case she confronted him. The Chairperson and incoming Chairperson conducted an exit interview with the Complainant where she gave her reasons for leaving.  The Chairperson apologised that the Board didn’t help her. The Complainant finished up and went home, no goodbyes from anyone.

The Complainant contends that she had to leave a job she loved so much due to the toxic environment. The Complainant felt really let down by the Board of Directors and she believes that she paid with her sanity for the mistakes that were made. The Complainant absolutely loved her job, so much so that she did anything that was asked of her.  She stayed late without taking toil for it, she did shopping and other duties on her time off and even drove the minibus with young people in it to events when needed so her heart was broken when she felt that she had no option but to leave.

Mitigation of Loss

The Complainant said that due to the toxicity of her working environment, she had started looking for other positions.  Her official finishing date with the Respondent was 2 October 2020 and she started a new job on 5 October 2020 which lasted until 1 February 2021.  She was then out of work until she started another job at the end of July 2021.  She now works full-time for the same salary that she received in her part-time position with the Respondent.

Direct Evidence of Complainant

The Complainant said that she did not invoke the grievance procedure because she wanted to avoid confrontation.

The Complainant said that the felt persecuted by the external consultant and she felt that the external consultant wanted her gone.  The Complainant said the wording of the new contract with all its “legal jargon” made her feel that she was not trusted by the Respondent.  She told the Project Manager that she was not happy with the contract, but the Project Manager said that it was fairly standard for someone working in financial administration.  

The Complainant disputes the Respondent’s notes of her exit interview.  She said that, at the exit interview, she mentioned that she was leaving because of BC.  The Complainant said that she regularly mentioned BC’s behaviour to the Project Manager but not nothing was done about it.

In response to questioning from the Respondent’s solicitor, the Complainant confirmed that she had no record of any messages or conversations from BC.  In response to a question about the contents of her resignation letter, the Complainant said that she wanted to write a kind, nice and professional letter so she didn’t mention BC’s behaviour or the toxic environment where some of her colleagues were not talking to her but were talking about her.

The Complainant said that she made a formal complaint in an email dated 3 September 2019 but nothing happened.  She didn’t pursue her complaint as she went on sick leave shortly afterwards.

The Complainant said that she didn’t raise a formal grievance in line with the grievance and disciplinary process as she was not confident that it would have been dealt with properly.  She didn’t think that the Board would do anything.  After all, despite everything, BC was still employed by the Respondent.

The Respondent submits as follows:

 February 2020-May 2020

The Complainant returned to work on 6 January 2020 following a prolonged period of absence. In March 2020 an audit of the service was carried out.  Around February or March of 2020, the Complainant began to complain about another employee, BC, a youth worker with the Respondent. The Complainant previously had difficulty with BC and the conflict resurfaced during an audit by the Grant Authority funding the Respondent. The Complainant had assumed some of the responsibilities of the Project Manager prior to the onset of the pandemic, however, following the return of CD from maternity leave in May 2020, the Complainant was relieved of these responsibilities and was provided with additional support in respect of her work as Financial Administrator.  During the first lockdown, the Complainant worked from home and had only telephone and email contact with the Board of Directors and work colleagues for the period March 2020 to June 2020. CD was promoted to Project Manager and the Grant Authority hired an external consultant to assist her in her new role. The Respondent was in financial difficulty and a realignment of the organisational structure was required following the departure of the previous project manager. The Treasurer was in constant contact with the Complainant between January and May 2020 by email and phone to specifically support her with budgeting and financial procedures and to offer general support to her in this period.

May 2020

The Respondent was sympathetic to the Complainant’s situation and asked the Complainant whether she wished to invoke the grievance procedure in May 2020. The Complainant declined to invoke the internal grievance procedure. The Respondent acted notwithstanding same and engaged a workplace mediator to hold a number of facilitation / mediation sessions to address the poor morale in the workplace. These sessions were attended by the Complainant, the Project Manager, BC and another employee. The Complainant attended the facilitation sessions however, communications between the Complainant and BC did not improve. The Project Manager recommended to the Complainant that she have a 1:1 session with the workplace mediator on 9 of June 2021 to assist her in processing some of the issues she had experienced in the past. The workplace mediator suggested to the Complainant that she undertake a mediation session with BC and this was duly arranged to take place by Zoom on 11 June 2021.  In her complaint forms, the Complainant narrates a subjectively different version of events to the other employee, BC of how the mediation session went. The Respondent became aware of the Complainant’s version of events and sought to verify matters with the workplace mediator who denied the Complainant’s claims.

June – August 2020

The Complainant returned to work on 20 July 2020 after sick leave.  The Respondent was both supportive and sympathetic to the Complainant during this time as evidenced by the correspondence exchanged between the parties. The Respondent organised a meeting with an external consultant on 23 July 2020 to discuss the Complainant’s return to work and her role. The Complainant spoke well of the support she received from the Board of Directors and the Project Manager.  It was suggested that the Complainant’s hours of work would be pared back to her original hours of work of 16 hours per week to help manage her stress levels and also to refer the Complainant to an occupational health practitioner.  The Respondent also endeavoured to reduce the Complainant’s workload.

The Complainant had a Support and Supervision meeting with the Project Manager in or around 20 August 2020 to assist her with her work and to monitor her wellbeing. The Complainant was permitted to take annual leave on Fridays to mitigate the financial impact of the reduced hours. The Complainant was furnished with a new Contract of Employment to reflect her streamlined duties and contracted hours of work. On 20 August 2020, the Respondent wrote to the Complainant to outline the meetings held with her and clarifying a number of matters including the contract update and the new roles and responsibilities which were designed to support her in her role, set parameters and establish a work life balance. The Complainant declined to sign the new contract notwithstanding the fact new contracts were issued to all staff members in line with the funder’s recommendations. On Wednesday 9 September 2021, the Complainant tendered her notice.  The Complainant acknowledges the support she received from the Respondent in her resignation letter and indicates her willingness to undertake an exit interview.

The Complainant participated in an exit interview and thanked both the Board and the Project Manager for their support during the past five years and in particular, the last eighteen months. The Respondent permitted the Complainant to finish up on 17 September and paid her until 2 October 2020. The Complainant was also paid her annual leave to the end of the financial year. The Complainant advised the Respondent on her departure that she had a number of jobs lined up. The Complainant was given a nice send-off by her work colleagues.

The Respondent submits that the fact of dismissal is in dispute. The Respondent asserts that the Complainant voluntarily resigned her employment and left the Respondent on good terms. 

The Respondent submits that it was extremely supportive and kind to the Complainant and that this was acknowledged by the Complainant during her exit interview on departing her employment. In so far as the Complainant reported work related stress to her employer, the Respondent could not have been more sympathetic or supportive and it engaged outside consultants and specialists where appropriate. The Respondent submits that the Complainant’s difficulties with her co-worker BC largely stemmed from a clash of personalities and there was no evidence that the Complainant was being bullied by any of her colleagues as alleged. 

In order to succeed in her claim, the Complainant must demonstrate that:

·         There was a fundamental breach of contract on the part of the employer such that the Complainant was entitled to repudiate the Contract of Employment

·         That the Complainant exhausted the internal grievance procedure

The Complainant in this case had handed in her notice in circumstances where she already had a new job lined up. She was invited to invoke the grievance procedure on a number of occasions by the Respondent but declined to do so.

The Complainant’s complaint stretches over the entire period of her employment.  The Complainant appears to argue that the cumulative effect of the demands of the role and conflicts with colleagues brought about workplace stress, however, the responsibilities of her role overwhelm her.  In so far as the Complainant will seek to portray the changes to her terms and conditions of employment as ‘the last straw’ it was held in Omilaju v Waltham Forest London Borough Council [2005] I.C.R. 481 that the quality that a ‘last straw’ had to possess was that it was an act in a series whose cumulative effect amounted to a breach of the implied term. The essential quality of that act was that, when taken in conjunction with the earlier acts on which an employee relied, it amounted to a breach of the implied term of trust and confidence.   The Respondent submits that this has not been demonstrated in the present case.

The Respondent relies on the following precedents in support of its position: Conway –v- Ulster Bank Limited UDA474/1981;  Ranchin –v- Allianz World Wide Care S.A. UDD1636 and Travers –v- NBNA Ireland Limited UD720/2006 and VAT Operations Manager -v- Manufacturer of Building and Construction Products [ADJ-00022491].

Mitigation of Loss

The Respondent contends that the Complainant’s claim is vexatious in circumstances where she has no loss of earnings. Although the Complainant’s employment terminated on 17 September 2020, she was paid up until Thursday 2 October 2020 and commenced working full-time in a new job on Monday 5 October 2020.  The Complainant’s salary increased on taking up new employment.

The Respondent relies on section 7 (1) (c) of the Unfair Dismissals Act 1977 which states that “where the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances”. 

Direct Evidence of the Former Chairperson

The former Chairperson said that during his 20 years in the position, he was always available to the project.  In 2019, the Complainant spoke to him and made it clear that things were not as they should have been. 

The former Chairperson said that in September 2019, three or four members of the Board agreed to make themselves available to the project on a reasonably consistent basis.  The Treasurer made it her business to meet the Complainant to get an idea of the financial situation. The Board tried to ensure that, in the absence of a Project Manager, the Complainant was not the answer to every question.  The Board also tried to recruit a new Project Manager.

In relation to the Complainant’s suggestion that he did not always turn up when he said that he would, he said that only happened when he could not take time away from his own employment.  The former Chairperson accepted that the Respondent organisation was in a poor state after AB’s departure and it became obvious that things were not as they should be. 

With regard to the report of the exit interview, the former Chairperson confirmed that he was happy with the note of the meeting and that he does not remember any specific discussion about BC. 

The former Chairperson said that he was stunned when the Complainant resigned as he felt that the Respondent organisation had turned a corner and a new Project Manager was in place.  In order to ensure that there was no recurrence of what had happened previously, the Grant Authority hired an external consultant to support the new Project Manager as this was her first time in such a role. 

Direct Evidence of the Project Manager

The Project Manager said that she had a good relationship with the Complainant before she became the Project Manager.  The Complainant would complain about BC.  The Project Manager felt that the Complainant was giving out rather than raising a formal complaint. 

On her return from maternity leave in May 2020 she commenced her role as Project Manager.  As part of this role, she became the Complainant’s Line Manager.  Prior to her return she had been made aware that issues had arisen in relation to the Respondent’s finances. 

The Complainant made her aware that her relationships in the organisation were toxic.  The Project Manager asked the Complainant if she wanted to engage in a one-to-one session with the external mediator.   The external mediator then suggested mediation between the Complainant and BC.  After the mediation session, the Project Manager spoke to the external mediator and the report she received was very different to the Complainant’s recollection of the session.

The Project Manager referred to the minutes of a Staff Support & Supervision meeting she had with the Complainant on 20 August 2020 which were included in the Respondent’s submission.  During the meeting, the Project Manager checked with the Complainant if it was still her position that she did not want to pursue a grievance through the grievance procedures and that she wanted to move forward.  The Complainant confirmed that this was the case.

The Project Manager said that the whole team were issued with new contracts.  She knew that the Complainant was not happy with her new contract.  The Project Manager was surprised when the Complainant handed in her notice as she felt that things were getting back on even keel.  She was genuinely sorry to see the Complainant leave her job.

The Project Manager confirmed that the Respondent had an employee handbook which contained a detailed grievance procedure.  The Project Manager said that if the Complainant had raised a formal grievance, she would have brought it to the Board. 

As the Complainant is claiming constructive dismissal, the burden of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Unfair Dismissals Act which provides that:

““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.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp. It comprises of two tests, 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 Supreme Court in Berber -v- Dunnes Stores [2009] ELR 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.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment. 

I do not doubt that the Complainant felt that she had been badly treated by the Respondent and its employees, especially BC, and that this had led to her resignation.  However, it is generally accepted that employees who claim that they have been constructively dismissed must show that they have substantially utilised the grievance procedure before resigning from their employment. Whilst there are exceptions to this, such exceptions are extremely rare.

In this case, even though the Complainant fully accepts that she had been issued with an employee handbook which, in fact, she had in her possession at the hearing, she did not utilise the grievance procedure contained therein.  From her evidence, it is clear that the Complainant was of the view that such an exercise would be pointless and that nothing would come of it.  I do not share her view. No evidence was adduced at the hearing which would suggest that the Board did not take its responsibilities seriously. In reaching this conclusion, I note that, even though the Respondent organisation operated on a very tight budget, it retained an external consultant to assist the new Project Manager in her role, to ensure that the mistakes of the past were not repeated.  I note that the Respondent also retained the services of an external mediator.

The requirement on a Complainant to exhaust the Respondent’s grievance procedure has been emphasised repeatedly by the Employment Appeals Tribunal (EAT) and the Labour Court.  The most relevant case in this regard is Conway v Ulster Bank Ltd (UD 474/1981) where the EAT found that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated:

“We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

Desmond Ryan aptly describes the onus on employees in this respect in Redmond on Dismissal Law (2017) at paragraph 19.14: “There is something of a mirror image between ordinary dismissal and constructive dismissal.  Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance.  The duty is an imperative almost always in employee resignations.  Where grievance procedures exist they should be followed: Conway -v- Ulster Bank Ltd UD474/1981.  In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints.’” 

I find that the Complainant’s failure to use the Respondent’s grievance procedure was fatal to her claim of constructive dismissal and similarly to the EAT’s finding in Conway v Ulster Bank Ltd (UD 474/1981),  I find that the Complainant “did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Having considered the submissions of both parties and all of the evidence adduced at the adjudication hearing, I decide that the complaint of alleged unfair dismissal is not well founded.

Constructive Dismissal – not well founded