Complainant

Respondent

Parties

Fiona  Chapman

Kilkenny/Carlow Area Supported Employment Services

Representatives

Andrea Cleere , SIPTU

Ellen Walsh,  Peninsula

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-00050650-001

17/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00050650-002

17/05/2022

The complainant took up employment as Job Coach with the respondence on 1st October 2010. She moved to part-time hours of 19.5 per week a few years ago and earns €2014.03 gross per month. She resigned by letter dated 25th November 2021 and is claiming constructive dismissal arising from events which took place from December 2019. These related to the way changes were proposed to her contract and the procedures followed by the board after she raised a grievance on 8th January 2020 and 2nd April 2020.

The complainant is also making a complaint in relation to her entitlement to minimum notice. Both complaints were received by the Workplace Relations Commission on 17th May 2022.

CA-00050650-001

Summary of Ms Chapman’s Evidence

The complainant gave evidence of events which commenced in December 2019.

She gave details of letters issued to all staff at a meeting on 16th December 2019. These letters outlined the new standardisation of terms and conditions of employment for all staff. These changes were an improvement in terms for all staff in the form of a reduction in weekly hours and an increase in annual leave. The complainant received the standard notice of new terms even though the contents of same were not relevant to her as she was on a different contract due to her length of service.

The changes to terms and conditions arose just prior to the staff Christmas lunch in December 2019. The complainant was so upset that she decided not to attend the lunch and gave her apologies.

On a separate issue, she had attended a meeting with the parent department in November 2019 and was marked down in her performance review due to her alleged failure to report back appropriately to the team. As she had normally obtained 10/10 in previous reviews, she was not satisfied that her review was downgraded. It emerged later that she had provided feedback to staff after the meeting, although her final review score was not clarified by her line manager.

On returning to the office on the morning of 6th January 2020, a discussion took place when her line manager raised an issue with her attendance sheets. The discussion turned to a heated argument and reference was also made by her line manager to the way she had objected to the standardisation of terms and conditions prior to Christmas. The initial discussion was solely between the complainant and her line manager in an open plan office. However, other staff members began to arrive at the office and witnessed the argument.

As the complainant was upset at what had transpired at this meeting, she arranged to meet with a board member on 8th January, 2020. She explained that this meeting was sought as per the company grievance procedure. Her intention was to raise these matters informally with a view to getting guidance and support from a board member. The meeting was brief and only lasted ten minutes due to the work commitments of the board member. The complainant left a document with the board member which included her grievances. After leaving the meeting, the complainant sent a text message to the board member asking him not to discuss with others. The board member responded by text that he had already shared the information with another board member.

The two board members then investigated the grievances and informed the complainant of progress in a letter of 15th January 2020 which included a timeframe of proposed actions by 24th January 2020. The complainant was stressed at this time and went on sick leave from 2nd February 2020.

The outcome and recommendations of the grievances issued on 12th February 2020. As the complainant had concerns with the handling of the grievance, her union wrote to the Chair of the Board on 21st February 2020 seeking a meeting.

In a letter of 27th February 2020, the board responded to the union letter, seeking clarification as to whether the complainant wished to make another formal complaint in writing.

The complainant then submitted two complaints on 2nd April 2020. One complaint in relation to the way she was treated by her line manager which included seven incidents. The second complaint related to the way the board members investigated her initial grievance.

The board decided at this juncture to commence an independent external investigation which began in October 2020 and concluded in May 2021. The outcome of the grievance against her line manager were that six of the seven complaints were upheld in full or in part.

The second grievance on how two board members handled her initial grievance was partially upheld. The report found that the board member was entitled to share the information and seek the assistance of a fellow board member. Her other grievance was upheld and set out the breaches of fair procedures which were not afforded to her in the initial investigation carried out by the two board members.

There was no communication from the board after the above findings in May 2021. The complainant’s union representative wrote seeking a meeting to discuss the findings. An online meeting took place on 24th November 2021.

As the complainant was not satisfied or confident that the respondent could facilitate a safe return to work, she sent a resignation letter of 25th November 2021 documenting the reasons why she was terminating her employment.

The board offered to provide mediation between her and her line manager in early December 2021. The complainant outlined that due to the stress of her previous dealings with her line manager that it would be too traumatic for her to attend mediation.

There was further correspondence on 9th February 2022 when the complainant sought and received a reference from the respondent.

The complainant was cross examined by the respondent representative as to her motives when she met the board member on 8th January 2020. She was also questioned on the way she handled the proposed changes to her contract of employment and contact with payroll staff at this time.

It was put to her that when the initial grievance investigation was ongoing, she did not take any steps to be interviewed and allowed the process to proceed without any objection.

The complainant was questioned on the assertions in her termination letter that she had been bullied and that this was not a finding in the external grievance report. The complainant was questioned on the options being put forward by her to resolve the grievance. These included a transfer request and the need for outside human resource expertise to deal with staff matters.

It was put to the complainant that she had voluntarily opted to resign from her post and that this was apparent from correspondence with the respondent.

Closing Submission

The complainant’s representative outlined the unfair treatment of the complainant who was denied fair procedures on the handling of her initial grievances by the two board members. The complainant and union representative had sought information throughout the period of her employment which was not forthcoming. Her union representative claimed that the respondents delayed progressing matters at every stage of the process.

It was submitted that the complainant had no option but to resign due to the unfair treatment. It was further claimed that the respondent did not take adequate and timely actions for her safe return to work.

It was submitted that this whole process has proved to be very stressful for the complainant, yet once she had terminated her employment, she did take steps to seek alternative work. Given her experience since she first raised her grievances, it was an ordeal for her to write to her former employer seeking a reference which she did within a reasonable timeframe.   

Summary of Mr Bass Evidence

Mr Bass outlined the board functions and his own involvement as part of the board. He was a member of a subcommittee formed to deal with the formal grievances submitted on 2nd April 2020. This was due to the unresolved grievances despite the earlier attempts of resolution. He acknowledged that due to the limited employment relations experience on the board, the subcommittee involved an outside independent investigator to examine the grievances of 2nd April 2020. He explained that it took some time to source an appropriate investigator. Further delays arose after the investigation report issued as there were findings, but no recommendations. There were also other pressures due to COVID over this period.

He outlined that the subcommittee gave due consideration to the report outcome and next steps. This included mediation between the parties. He explained that there was an openness as to who to engage as mediator and this was included in correspondence of 9th December 2021 to the complainant’s union representative. The subcommittee decided that the line manager would undertake an employment law course and a one -day training course for all staff on people management skills was discussed. He explained that the complainant could not be transferred to another area as each county had its own organisation with no scope for interchangeability.

Mr Bass was cross-examined by the complainant’s representative. He was questioned on the responsibility of the board to the welfare of staff despite the voluntary nature of the role. He was asked about the approach taken by the board to the initial grievance compared to the later grievance when the issues were predominantly the same.

He was questioned on why relevant information was not forwarded to the complainant and her union representative, despite repeated requests.

On the ‘Freedom of Information Request’ and the ‘Subject Access Request’, he was questioned why this task was assigned to the line manager who was directly involved in the complaints.

Summary of Ms Murphy Evidence

Ms Murphy explained her role as Co-ordinator and the nature of the work carried out by the respondent. She explained that due to a staffing compliment of 3.5 in Carlow and 4 in Kilkenny that it was not feasible to transfer staff. She outlined the challenges presented by COVID during this time. She confirmed that she had no direct involvement in the grievance complaint as her role did not overlap this period.

Closing Submission

The respondent’s representative stated that the two tests for constructive dismissal (contract and reasonableness) were not made out. It was submitted that the complainant opted to resign and move on. This was evidenced in correspondence by the complainant when she used the words ‘resignation’ and the ‘need to move on’ particularly when requesting a reference on 9th February 2022.

CA-00050650-001

The definition of a constructive dismissal under the Act is:

 “dismissal”, in relation to an employee, means—

(a) -

(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,…

Constructive Dismissal Tests

The established test on constructive dismissal is the ‘contract test’ and/or the ‘reasonableness test’.

It is clear from the case law, most notably, Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 and Conway v Ulster Bank UD474/1981, that there are two distinct tests for constructive dismissal. They are known as the ‘contract’ and the ‘reasonableness’ tests. Under both tests the onus falls on the employee to discharge the burden of proof.

As they are separate tests, I need to decide whether the employee has met either test. In practice, parties usually make submissions on one or other of the tests. While an employee may be able to show that they satisfy both tests, they are not required to meet both tests.

In this case, the complainant has not asserted that there has been a fundamental breach of her specific duties as per her contract per se, even though the fundamental relationship of trust inherent in all contracts is relevant. The contract of employment itself has not been included by either party in submissions nor was it referenced in any detail at the hearing. The complainant’s submissions are mainly concerned with the reasonableness test and the conduct of the respondent after she raised several grievances.

The reasonableness test allows for an objective assessment of the employer’s conduct and to a lesser extent, the employee’s conduct.

In Western Excavating Ltd v Sharp [1978] IRLR 332, Lord Denning described the test as asking whether the employer ‘conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, and if so, the employee is justified in leaving.’

Grievance Procedure

The test requires the complainant to have “substantially utilised the grievance procedure to attempt to remedy her complaints” [Conway v Ulster Bank UD474/1981]. The test requires an assessment of the employer’s conduct and the extent to which the employee sought to utilise procedures and raise her concerns.

The complainant has satisfied this part of the test in the she raised a grievance on 8th January 2020. In fact, she then raised a similar grievance on 2nd April 2020 after the board wrote to her representative stating ‘The board still require clarification whether Ms Chapman is making a formal complaint and again offer her the opportunity to do so. Please answer our query in this regard.’

The complainant duly followed up this request setting out her issues in the two complaints of 2nd April 2020. The external investigation of these grievances made more robust findings in support of the complainant than the earlier grievance investigated by two board members.

Respondent’s Conduct

The external investigator in his report of 12th May 2021 found that the initial grievance process fell short of the organisation’s grievance procedure and the rules of natural justice.

The report found a lack of involvement given to the complainant, as follows:

·         Once a formal approach was necessary, the rationale ought to have been explained to her.

·         Once commenced, she should have been formally met with.

·         She should have been informed that her grievance complaints would be shared with her line manager.

·         She should have been copied on statements and responses of other staff to her grievance.

·         She should have been informed of the right of appeal via stage 3 of the process.

The above discrepancies taken together are serious omissions, particularly when the board wrote to the claimant on 15th January 2020 and included the statement ‘’you raise a number of serious allegations against your line manager.”

Considering the voluntary nature and the acknowledged lack of employee relations skills on the board, once the external investigators report issued on 12th May 2021, an opportunity existed to remedy the situation. There was an onus on the board to re-evaluate matters particularly as most of the grievances were upheld. Also, the external investigation had found fault with the earlier investigation conducted by two board members. The board as the employer had responsibility and authority to offer some redress even to offset the losses accruing due to the employee having exhausted her sick leave entitlement.

Therefore, there was an onus on the board to take make strenuous efforts to address matters. Instead, no immediate steps were taken. It was the complainant’s representative who wrote on 21st June 2021 seeking a meeting. The onus though was on the board to acknowledge the validity of the grievances and its own shortcomings to date.

It is regrettable that a meeting did not take place until 24th November 2021, as the complainant had been off sick over this extended period. From her perspective, the inactions of the board at this juncture must have further damaged the relationship of trust with her employer.

Earlier in the process, on 21st February 2021, the complainant’s representative sought a meeting. The board again refrained from taking up this earlier opportunity to meet. Instead, their response was that the complainant should document her issues in writing. At this stage, the complainant was only a few weeks on sick leave, and there was certainly nothing to be lost by an engagement on matters as requested by her union representative.

It is not necessary for me to go through each of the grievances raised by the complainant to assess whether the respondent acted reasonably. The two reports from the external investigator already document in detail what occurred and these reports in themselves vindicate why the complainant raised her grievances.

Along with the missed opportunities to engage constructively with the complainant’s grievances, the following points are relevant:

·         The lack of acknowledgement by the board of the procedural flaws in handling the initial grievance.

·         The delays in responding to the complainant and her representative’s correspondence.

·         The refusal to grant the complainant or her representative copies of documents.

·         The assignment of the complainant’s line manager to the data access requests when there was an obvious conflict of interest.

·         The letter to the complainant’s line manager of 13th October 2021 to oversee the mediation process and training initiatives when there was a clear conflict of interest.        

Complainant’s Conduct

Turning to the complainant’s conduct during the process. When the issue of the changes to terms and conditions arose in December 2019, she was very pro-active in contacting payroll and others against the advice of her line manager. This can be explained though as the external investigator found that there should have been engagement earlier in the process with the complainant. Instead, she found herself in a meeting with colleagues who all received improved terms whilst she perceived her terms as being under threat. These matters were addressed subsequently although the external investigator found that ‘It was only when the changes were explored and challenged that this information was communicated to her’. Therefore, if she did not challenge the proposed changes, it may not have been clarified that the proposed changes to her contract were optional.

Before the outcome of her initial grievance, the complainant was on sick leave from 2nd February 2020. The earlier correspondence of 15th January 2020 from the respondent included the statement ‘’you raise a number of serious allegations against your line manager.” This was followed by correspondence of 27th March 2020 stating ‘The board still require clarification whether Ms Chapman is making a formal complaint and again offer her the opportunity to do so. Please answer our query in this regard.’  

The tone of this correspondence could not have been received well by the complainant. During the flawed investigation process she was being reminded that the matters were serious and were against her line manager. Even though the outcome of the ‘8th January 2020 grievance’ did not deal with the veracity of her complaints, she was then expected to ‘undertake mediation with your line manager when you return to work from sick leave.’ This could have been perceived by her that she was to blame for the breakdown in the relationship with her line manager.

Although the external report of May 2021 upheld most of her grievances, the delay and lack of follow-up action must have further eroded her trust and confidence with her employer.

Her experience to date included:

·         Possible unilateral changes to her terms and conditions which were handled badly.

·         Her performance review was downgraded with no final decision communicated on same.

·         The manner of engagement by her line manager on 6th January 2020 in the open plan office.

·         Her grievance complaints of 2nd April 2020 were not finalised until May 2021.

·         Despite the findings in May 2021, a meeting did not take place until November 2021.

Once the meeting finally took place on 24th November 2021 between her representative and the respondent, the complainant could only then decide on whether she had a future with the respondent.

Based on what she had experienced over the previous 23 months, she decided that she could not return.

I cannot see from the evidence that the complainant was at fault in contributing to the breakdown of trust with the respondent. Any fault of the complainant is minor and insignificant given what transpired over the period. She was cross-examined at the hearing on was her motives when seeking the initial meeting with the board member. I do not see any fault in her approach given that the company procedures allowed for such a meeting. I do agree with the external investigator though that it was not realistic for her to expect issues to be kept informal and confidential when she left a document with a list of her grievances.

The two board members though could have addressed and explained the way they would investigate the issues. They did not meet the complainant during the grievance investigation. They proceeded to decide on the grievances without involving the complainant other than the initial 10 minutes with the board member. I understand that the pandemic would have been causing serious challenges for the organisation at this time. However, an online engagement and the sharing of information related to her grievance was a requirement to ensure natural justice.

In November 2021, the complainant alleged in the termination letter that she had been bullied. This is not accurate as there was no such comment and although her grievance complaint referred to dignity at work, she had not pursued a specific bullying complaint nor was such a complaint investigated.

Any potential criticism of the complainant’s conduct occurred at the beginning (January 2020) and the end (November 2021) of the process. I do not find that she damaged the employment relationship in any fundamental way. The respondent dictated how her grievances were investigated and processed. As referred to earlier, the respondent had several opportunities to manage the grievance processes in a more meaningful and speedier manner. Due to the nature of the findings in May 2021, an offer of mediation was inadequate on its own without other measures to redress the issues which had been upheld.

Constructive Dismissal Finding

Having examined the submissions in detail there are sufficient and objective grounds to find that the complainant was constructively dismissed. The reason for my decision is that respondent’s conduct throughout the process included a series of flaws in how they handled the grievances. Whilst not every process has to be perfect, there is a requirement to keep in line with agreed procedures. This ensures that all parties are treated fairly and know where they stand. In essence, the respondent did not handle the grievance issues in a fair manner. There was a lack of due process afforded to the complainant.

Even after the delay in sourcing an external investigator, once the findings issued, the respondent again delayed and did not engage with the complainant until months later. I do not accept the respondent’s reason for the delay in acting from May 2021 to November 2021. Although only ‘findings’ and not ‘recommendations’ issued in May 2021, any reasonable employer would have accepted the findings at face value and would not have delayed with engaging with the complainant.

Even though the grievances were substantially upheld and given what had transpired during the earlier investigation, the respondent did not take adequate steps to reassure the complainant of a safe return to work. The steps outlined in the letter of 13th October 2021 and the meeting of 24th November 2021 did not offer a clear and well managed process for a return to work, particularly as these matters were to be arranged by the complainant’s line manager.   

Cumulatively, the behaviour of the respondent was so unreasonable that it undermined the mutual trust with the complainant. Given the complainant’s long service with the respondent she was obviously still holding out some hope that the meeting of 24th November 2021 would give her more detailed assurances for a safe return to work. It is unsurprising that she then wrote her termination letter the next day. On an objective assessment of what she had been through, she had no other option but to terminate her employment.

Redress

Both parties made submissions in relation to redress. The complainant started new employment on 22nd March 2022 working similar hours although earning €500 euro less per month.

She moved to other employment again two months later which got her back to her original salary.

The definition of ‘financial loss’ in section 7 of the Act provides that ‘… any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payment Acts, 1967 to 1973, or in relation to superannuation.’

In this case, the complainant had accrued over ten years’ service, which is relevant in the event of a redundancy situation arising. This service has effectively been lost arising from the constructive dismissal as she will now start her service again with a new employer. In recognition of this accrued right, I am awarding €2,500.  

The respondent stated that the complainant did not take adequate steps to mitigate her loss by seeking other alternative employment and referred to Bevins v Jamestown Manufacturing Limited ADJ 00037706. In that case, the complainant only mitigated her loss by seeking work within a restricted location and remuneration level. That case in turn was reliant on the Labour Court decision of Synergy Security Solutions v Paul Dusa UD/18/141 where the complainant did not appear to make any concerted effort to find alternative employment. I do not see that similar circumstances arise in this case, as the complainant found alternative employment within a reasonable timeframe and on a reduced salary.   

Having considered all these matters, I am making an award of €12,084, (inclusive of the accrued redundancy and her reduced pay in the new employment) which is roughly the equivalent of six month’s pay.

CA-00050650-002

Minimum Notice Complaint

It is well established that statutory notice is not payable to an employee who resigned, including when they have succeeded in showing that they were constructively dismissed.

CA-00050650-001 – Unfair Dismissal Complaint

I decide that the complainant was unfairly dismissed by the respondent and the respondent shall pay to the complainant redress of €12,084, (inclusive of the accrued redundancy and her reduced pay in the new employment) which is the equivalent of six month’s pay.

CA-00050650-002- Minimum Notice Complaint

I find that the complaint is not well founded.

Constructive Dismissal