Complainant

Respondent

Parties

Emma Burke

The Teresian School

Representatives

McInnes Dunne Solicitors

Rosemary Mallon BL instructed by Mason Hayes & Curran 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-00046554-001

06/10/2021

The complainant worked as a Montessori teacher for the respondent between 2003 and 2021. She asserts that she was constructively dismissed, a complaint denied by the respondent.

The complainant outlined that her employment commenced in 2003 and there were no issues until 2019, when the respondent sought to alter her terms of employment. She was subject to a whispering campaign. The complainant availed of a career break and made the bullying complaint on the 25th February 2021. A mediation process did not resolve the matter, and the complainant sought that this be addressed formally. There was a delay in preparing the terms of reference for the formal investigation and there were serious deficiencies in the draft. There were complaints about the respondent witnesses, but the terms of reference envisaged that the investigation report would be provided to them in order to decide what to do with the completed report. The meeting with the investigator scheduled for the 8th July 2021 could not proceed.

The complainant raised these issues in email correspondence and there was no response to her final email of the 26th July 2021. The complainant resigned on the 20th August 2021, and after this, the respondent provided amended terms of reference and a timeline. The complainant outlined that she had lost trust and confidence in the respondent and this later correspondence could not be taken into account. The complainant had exercised extraordinary patience and the respondent had failed to comply with its contractual and statutory duties.

In reply to the respondent, the complainant outlined that the delay illustrated that the respondent was clearly dragging its feet. The complainant had sought to get her complaint investigated from June to mid-August and was due to return to work on the 1st September 2021.

The respondent outlined that the complainant had to show that the employer had acted so unreasonably and that the breach was so egregious that the employee had to leave. The respondent distinguished ATR Restoration v Zalewski as there was no response at all from the employer in that case. It was submitted that looking at the respondent’s total response, it was not reasonable for the complainant to resign. An investigator was appointed in March, and this evolved into a mediation. The respondent appointed another investigator in June and the issues raised regarding the terms of reference meant that the 8th July meeting did not happen. While there was a delay of one month, this was over the school holidays. The respondent sent revised terms of reference on the 25th August and the investigation was then ready to go. There was no specified period and parties had to act reasonably.

Constructive dismissal – burden of proof

The definition of ‘dismissal’ in section 1 of the Unfair Dismissals Act sets out that dismissal includes ‘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.’

This definition sets out two circumstances in which an employee might consider themselves to have been dismissed by the ‘conduct’ of the employer, i.e., where they were ‘entitled’ to terminate their contract or where it was ‘reasonable’ for them to do so.

An employee is ‘entitled’ to consider themselves to have been dismissed when the employer has repudiated the contract of employment. It is ‘reasonable’ for the employee to consider that they have been dismissed when they can no longer be expected to put up with the ‘conduct’ in question.

Berber v Dunnes Stores

In a claim of (constructive) wrongful dismissal, the Supreme Court in Berber v Dunnes Stores (12th February 2009) held: ‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’

Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence:

‘1. The test is objective.

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

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

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 Berber, the Supreme Court held that the employer had committed a repudiatory breach that went to the root of the contract of employment through ‘oppressive conduct’ in the light of the employee’s precarious physical and psychological health.

ATR Restoration v Zalewski UDD1818

The complainant relied on ATR Restoration v Zalewski, a decision of the Labour Court. This related to a claim of constructive dismissal where the employer did not investigate complaints of bullying and harassment made by the employee. Complaints were raised in April and May 2015 and the employee resigned on the 10th June 2015. The Labour Court did not have regard to steps taken by the employer after the resignation. It concluded that the respondent’s failure to initiate the policies in place between the 10th April and the 10th June 2015 constituted behaviour that it was reasonable for the employee to terminate his employment. 

Application of the law to the facts

I appreciate that the complainant has many years of service with the respondent. She was an established pre-school educator. Matters took a turn, and the complainant availed of a career break. The complainant made a formal bullying complaint in early 2021. The first investigation process became a mediation which did not resolve issues. There was discussion in June and July 2021 regarding a new investigation and its terms of reference. The possibility of the complainant resigning was mentioned in the email of the 20th July 2021 and the complainant then resigned on the 20th August 2021.

I agree that regard should only be had to events that preceded the 20th August 2021. The question is whether the complainant could consider herself to have been constructively dismissed as of that date, on either of the grounds set out above. If the complainant establishes that she was constructively dismissed on the 20th August 2021, she was unfairly dismissed per the Act.

Taking the complainant’s evidence at its height, I find that the complainant cannot establish that she was constructively dismissed on the 20th August 2021. I appreciate that the complainant had made the bullying complaint in February 2021 and for one reason and another, the investigation had not formally commenced by the summer. The respondent should have been quicker to address the complainant’s points raised in the June and July correspondence. It is important to note that there was engagement by the respondent, distinguishing it from ATR Restoration v Zalewski. Even if the respondent ought to have replied earlier, this delay does not, of itself, amount to a repudiation of contract and nor was it reasonable for the complainant to resign because of it. It is striking that there was so little discussion between the parties regarding whether the complainant would continue on career break on the 1st September 2021 or was she returning to the classroom. Either way, the next step was for the terms of reference to be finalised and for the investigation to commence. In the circumstances, it was reasonable on the 20th August 2021 to expect the complainant to again raise the issue of finalising the terms of reference before taking the quite drastic step of resigning. It follows that the complainant was not constructively or unfairly dismissed, and I, therefore, dismiss the complaint pursuant to the Unfair Dismissals Act.

CA-00046554-001

For the reasons set out above, I dismiss the complaint pursuant to the Unfair Dismissals Act.

Unfair Dismissals Act / constructive dismissal