Complainant

Respondent

Parties

Anne Marie Fahey

Co. Wexford Community Workshop (New Ross) Clg Cumas New Ross

Representatives

Ger Malone SIPTU

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-00039801-002

14/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00039801-003

14/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00039801-004

14/09/2020

The Complainant alleges that she was constructively dismissed from her employment. She further alleges that her annual leave entitlements and public holiday entitlements were calculated on her basic rate of pay and not her normal rate of pay.

Ms. Fahy commenced employment with the Respondent on September 16th 2000. She worked approximately 70 hours per fortnight as a residential coordinator. She was a manager in a residential centre for adults with intellectual disabilities. On the 15th of May 2020 she was called to a meeting with Ms. Keenan the CEO. She was informed that the purpose of the meeting was to sign her annual leave application form. When she got to the meeting, she was informed that they had received two complaints against her. One relevant to the Dignity at Work Policy and the other relevant to a Protected Disclosure. She made enquiries as to who had made the complaints and what the nature of them were. She was informed that they had been made by a former colleague and that the complaints would be gone through in detail in due course.

The Complainant made an enquiry on the 19th of May in relation to what was happening to the complaints. She was informed that within 24-hours she would have a copy of the complaint. She was also asked if she had a copy of the dignity at work policy, which she did have.

On May 20th the complainant attended with her GP suffering from severe stress related symptoms. She was on that date, certified unfit for work.

On May 21st she received a hand delivered letter from Mr O'Dowd, administration coordinator, informing her that the preliminary screening outcome had found that the alleged behaviour fell within the definition outlined within the dignity at work policy and that the matter would be going forward to a formal investigation. She was provided with the terms of reference for that investigation.

On June 3rd the Complainant wrote to Mr O'Dowd stating that there was no provision within the dignity at work policy for screening nor did the policy provide a definition of bullying and harassment or set out a procedure for investigation and that the policy did not provide for complaints from former members of staff. She raised some concerns about the level of redaction within the complaint itself.  She questioned the page numbering and stated that she did not consider it a coincidence that two complaints were filed by two former staff members and that she suspected collusion was at play.

She outlined that within the first complaint there was no specific allegation made against her and stated that she was entitled to specific details of the allegations being made. She repeated those concerns in relation to the second complaint.

By letter dated June 14th the Complainant outlined her concerns that the Respondent had taken what the author of the complaint had said, as fact, without addressing the issues with her first. She also notified the Respondent that she did not consider that the HSE dignity at work policy actually formed part of her terms and conditions of employment. She formally requested that any minutes of meetings or discussions had with others in relation to her, be sent to her.

By letter dated June 23rd she was invited to an investigation meeting which was to be held on June 30th.

On June 25th the Complainant sent a data request for any and all data held on her, specifically in relation to the complaints. The complainant informed the Respondent that she would not be attending the investigation meeting.

By letter dated June 25th on behalf of the complainant SIPTU raised a formal grievance in relation to how the complaints were being dealt with.

By letter dated July 6th the Respondent responded by stating that as they were funded by the HSE they were obliged to follow their HSE robust procedures. As a result, the investigation needed to proceed.

By letter dated July 9th the Complainant’s GP he wrote to the Respondent setting out that the Complainant was suffering from stress related symptoms as a result of what was happening in the workplace.

By letter dated July 13th SIPTU responded to Ms Keenan’s letter dated July 6th by saying that the complainant was entitled to have her grievance dealt with under the grievance procedures and that the Respondents suggestion that the grievance be amalgamated with the investigation was absurd.

By letter dated July 15th the Respondent enquired as to whether the Complainant was fit to engage in their internal procedures, so that the matter could be dealt with quickly.

By letter dated July 17th SIPTU received a letter from Ms. Keenan, wherein she set out that in her opinion the position adopted by the Complainant and her Union was not helpful in relation to getting the matters resolved for the Complainant.

By letter dated July 28th the Complainant’s Union wrote to the Respondent again setting out that the Complainant was entitled to have her grievance processed.

The complainant returned to work on July 27th.

By email dated 27th of July to the Complainant set out that it was her grievance that was the source of distress and that she was concerned that there was an inference that her formal grievances were in some way a tactical manipulation on her part to deflect or influence any part of the upcoming investigation.

By email dated July 31st Ms. Keenan responded stating that she was very anxious to have the matter dealt with. She outlined that the investigation would precede and would run parallel to her grievance.

My letter dated August 4th the complainant resigned.

By letter dated August 6th Ms. Keenan wrote to the Complainant stating that she believed the complainants resignation was made in haste and that her position was still available to her. She reiterated that the sole purpose of the investigation was to establish the facts and that her grievance would run parallel to that investigation.

By letter dated August 12th Ms. Keenan again set out that the complainants position was still available. The Complainant responded by stating that she would not attend and the meeting with Mr. Gogarty.

By letter dated August 14th the Complainant was informed by Ms. Keenan that the investigation was going to commence, and it was her decision as to whether she intended to co-operate or not.

Mr. Gogarty wrote to the Complainant in relation to the investigation and the Complainant responded by stating that she wanted her grievances to be dealt with prior to any investigation.

After the August 27th the Complainant did not hear anything further from the Respondent. 

Organisation of Working Time Act CA 39801-003 and 004

The Complainant worked for the Respondent for 20 years and as a result was entitled to 25 days annual leave and 9 public holidays. Her normal week included working on a Saturday and Sunday on alternate weeks as she did night shift work. She was paid a Saturday allowance of €17.60  and a Sunday allowance of double time and a night allowance of 25%. When she got her holiday pay she was paid her basic rate only. Instead of public holidays she was given 9 additional days annual leave so payments for public holidays were the same as annual leave basic pay only. The Complainant alleges that only paying her basic pay is in breach of the Respondent of working time act and contrary to European case law. The Complainant has set out various case law in her written submissions filed with the WRC.

The Complainant relies on SI 475 of 1997 stating that in relation to her annual leave payments that they should be based on normal weekly pay and that the public holidays should be based on one fifth of normal weekly pay.

The complainant calculates her loss as follows:

Gross Basic pay € 1,927.80.Gross normal pay = € 2,538.62. Shortfall per week = €305.41.

€305.41 per week x5 for annual leave = € 1,527,05 per annum.

€549.00 shortfall for 9 public holidays = € 2,076.00 per annum x 20 years = € 41,521.00

Ms Anne Keenan gave evidence on behalf of the Respondent. She took the affirmation prior to giving evidence.

On 8th and 11th of May 2020, the Respondent received complaints from two personnel that contained allegations against Ms Fahey. Upon receipt of the complaints, Ms Keenan asked them how they wished to proceed with the matter, and they indicated that they wish the matter to be dealt with through the formal procedure

The Respondent has an obligation to investigate all complaints that it receives in line with their Complaint Policy, and this case was no different.

On the 14th May, Ms Fahey was advised that complaints had been received and that preliminary screening in line with the HSE Dignity At Work Policy was going to be conducted and that they would let her know the outcome of the screening. During this meeting Ms Keenan had a copy of the HSE policy on her desk and offered the policy to Ms Fahey, however she declined stating that she had the policy. Later that day Ms Fahey called Ms Keenan to confirm if allegations were going to be taken under “The Trust in Care Policy” or the “Dignity at work Policy”. It was confirmed that it was going to be completed in line with the Dignity at Work Policy. As per the HSE Dignity at work Policy, the Respondent initially completed “Preliminary Screening” and it was deemed that the alleged behaviours fell into the definition of  Bullying and Harassment. The complaints were presented to Ms Fahey by letter dated 21st May 2021. This letter was hand delivered to Ms Fahey’s address. The Respondent did redact one of the statements on the ground of confidentially and privacy. The Respondent received an email from Ms Fahey on June 3rd raising concerns about allegations. Mr O’Dowd responded to Ms Fahey on the 10th of June 2020 and attached a copy of the HSE Dignity at Work Policy to the email. Ms Fahey responded to Mr O’Dowd on the 14th June 2020 stating that “it is very disconcerting that you are referring to something that someone else said” and that “At no stage during the past 20 years has the HSE Dignity at Work Policy formed part of my conditions of employment and can’t see how it has any relevance or applicability to me”.

In the interest to all parties and to try and conclude the issues as quickly as possible the Respondent invited MS Fahey to a meeting as per the letter sent on the 22nd of June 2020.

On June 30th the Respondent received a letter from the Complainant Union raising a formal grievance. In the letter they set out that she was objecting to the unilateral appointment of the investigator and was rejecting the terms of reference. The majority of the Complainant grievances overlapped with the allegations that were presented to her. By letter dated July 6th the Complainant was informed that her grievance would be taken seriously ,and that Mr Gogarty would address those as part of the investigation in parallel. The Respondent felt that it was not appropriate for it to address all of the grievance is raised in the complaint letter as it may have been deemed to be interfering with the process as they related directly to the complaints that the Respondent had received however it was communicated to the complainant that these will be dealt with by Mr Gogarty in parallel.

By letter dated July 13th the Complainant's Union wrote stating that the complainant was entitled to have her grievance dealt with first and that the company was causing their member some distress and that they were not legally allowed to import another organization's policies. They demanded that the grievance be dealt with first and stated that they would not be engaging in the process and objected to the appointment of the investigator.

On July 14th the Respondent received an email from the Complainant’s doctor setting out that she was suffering from work related stress.

By a letter dated July 17th the Respondent to wrote to the Complainant's Union reconfirming that it was their wish to conclude the matter as quickly as possible to avoid any further stress and anxiety on the Complainant. It stated “we confirmed that the investigation was going to be carried out independently” and that the respondent had “no interest in pre determining the outcome of the investigation”. At that juncture the Respondent had received a fit to engage medical certificate for the Complainant and they informed the Complainant’s union of that.

By letter dated 28th of July the Complainant’s Union wrote to the Respondent again outlining their objections, further delaying the investigation from commencing. The Union also outlined that at this juncture they did not object to having the grievance heard by any objective person that the Respondent wished to nominate.

On July 27th the Complainant returned to work. On July 28th she asked that her grievance be dealt with as quickly as possible. On July 31st the Complainant was informed that it was the Respondent’s intention to deal with the grievance as quickly as possible but that would be done in parallel with the allegations made against her.

By letter dated August 4th the complainant resigned her position.

By letter dated August 6th Ms. Keenan wrote to the Complainant stating that her resignation was made in haste and told her that her role was still available to her. She urged her to take part in the investigation and grievance process.

By letter dated July 12th the Complainant wrote to the Respondent stating that she would not participate in the meeting with Mr Gogarty and that her Union would be in touch. The Respondent did not receive any further correspondence from the Complainant’s Union.

Organisation of Working Time Act.

 CA-00039801-003 and 004

 An email was sent to Ms Fahey on the 20th of January 2020 in consultation with her that her holiday allowance was going to change from “hours” to “days”, that of 42 days annual leave per annum which included her entitlement to public holidays.  The Respondent unfortunately did not get an opportunity to issue the formal letter, as the pandemic hit in early 2020. However, she had been met with in advance and it had been mutually agreed as it was of a greater benefit to Ms Fahey.

The Complainant over utilised her annual leave from 2019 by 2 days and so she commenced the year with 40 days of annual leave (including Public Holidays). Ms Fahey had accrued 24.5 days of annual leave up to the 4 th of August 2020. A final payment was made on 4 September 2020 which included a payment of €2,988.09 for outstanding annual leave which was a total of 15.5 days and this was communicated to Ms Fahey on an email to her on the 2nd September 2020. This was on Ms Fahey’s payslip. The annual leave payment was based on Ms Fahey’s rate of pay. The Respondent reviewed the hours that Ms Fahey worked on the 13 weeks prior to her sick leave, and her average weekly pay was €1,259.90, and daily rate of pay of €251.90. Following a review, the Respondent realised that they did leave Ms Fahey short €916.36. They offered to pay her that amount.

In relation to CA-00039801-004, as mentioned above, Ms Fahey’s public holiday allowance was incorporated into her annual leave allowance for the year. This was paid to Ms Fahey as stated previously. The Respondent believes that a total sum of €916.36 should be paid to Ms Fahey for CA-00039801-003 and CA-00039801-004 combined.

CA 00039801 -002

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“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 the 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”

7.—(1)

Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before  his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The burden of proof, which is a very high one, lies on the complainant. She must show that her resignation was not voluntary.  As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is an “and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“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 further performance”

If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“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 employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair.

The complainant in this case resigned her position on the 4th August before the investigation into her grievance had even begun. It is evident both from the Complainant’s submissions and the Respondent’s that the Complainant did obstruct the commencement of both her grievance and the investigation into the allegations being made against her. She demanded, without merit, that her grievance be dealt with first and in isolation from the investigation. The Respondent did notify the Complainant that the issues would be dealt with accordance with their policies and that both the grievance and the investigation would run parallel to one and other. When the Complainant’s robust attempt to prevent this happening failed, she resigned. There is in law an obligation on the Complainant to exhaust the internal process prior to bringing the matter to a third party for adjudication. The only real exception to that is where the Complainant can show that the employers conduct was so unreasonable that to continue in the employment would be intolerable. Having very carefully considered all of the evidence and documentation produced I can find no evidence that could amount to unreasonable behaviour by the Respondent. The Respondent did everything in their power to proceed with the grievance and the complaints. Due to the nature of the complaints and the type of business they run, they did have an obligation to investigate those with some haste.  Not pandering to the Complainant’s demands does not make their actions unreasonable. Even after the Complainant had resigned the Respondent made efforts to change her mind. I find that the Complainant in conjunction with her Union put obstacles in the way of the Respondent at every opportunity and all in an attempt to prevent the investigation into the complaints made against the Complainant from being investigated. The Respondent waited until the Complainant was certified fit to participate before they attempted to do so. The Complainant should have allowed the Respondent deal with her grievance and the investigation. She could have, if adverse findings were made, dealt with those in the normal way in line with the Respondent’s procedures.

In all of the circumstances I find that the complaint is not well founded and accordingly fails.

CA 39801- 003 and 004

I note that the Complainant’s public holidays were given to the Complainant as additional days annual leave. I will therefore deal with both these claims together.

The Complainant was entitled to 42 days annual leave. The Complainant argues that her annual leave pay related entitlements were calculated on her “basic pay” and not her “normal pay”. The Act clearly states that pay in respect of annual leave shall be calculated based on the “ normal weekly rate”.

Section 20  (2) The pay in respect of an employee’s annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the    normal weekly rate, and

(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

Neither party addressed the specifics of the claim in any great details. Payslips were submitted and based on that limited information I conclude that the Complainant’s holiday pay was calculated on her normal weekly pay and not on her basic. I also note that this claim was filed under the Organisation of Working time Act. As the claim is specifically in relation to pay and there is no conflict between the parties in relation to actual holiday entitlements or bank holiday leave the matter should have more properly been filed under the Payment of Wages Act. However, that would have limited the Complainant’s claim to six months from the date of the claim.

Even if I accepted the Complainant’s argument, the figures produced by the Complainant are her most up to date figures. They do not take into account her salary increases over the years, inflation, varying tax liabilities over the years, changes in her leave days, additional annual bank holidays since her commencement and so on. To simply take the most recent figures, work out the alleged shortfall and multiply that figure by twenty years amounts to a grossly exaggerated figure.

I note that the Respondent has admitted that there was an error made in relation to the calculations done and have agreed to pay to the Complainant the sum of € 916.36. If that payment has not been paid to the Complainant I award that sum, € 916.36 to the Complainant and direct that it should be paid within two weeks from the date of this decision. 

CA 39801 – 002 The complaint is not well founded and accordingly fails.

CA 39801 – 003  and 004  The Respondent, if it has not already done so, is to pay to the Complainant the sum of  € 916.36. The sum is to be paid within two weeks from the date of this decision.

Constructive Dismissal. Dignity at Work. Protected Disclosure. Annual Leave. Normal rate of pay. Basic rate of pay.