Complainant

Respondent

Parties

Alexandra  Dunne

Queen B's Creche

Representatives

Fiona Egan, 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-00045198-001

13/07/2021

The Complainant commenced her employment as a Childcare Practitioner with the Respondent on 21 May 2019 and was paid €1,656 per month. She stated that she was left with no alternative but to resign from her employment on 12 February 2021 because of the Respondent’s unreasonable behaviour in their interactions on 3 and 4 February 2021.

The Complainant stated in evidence that both she and her colleagues were updating the children’s workbooks on 3 February 2021 when they realised that a previous worker had not kept her books up to date. Having been made aware of this, the Complainant told the manager of the premises and was informed that it would be brought to the attention of the Directors. Shortly after, one of the directors, Bernadette Hill asked the Complainant and her two colleagues why she had not been made aware of the issue before then. The Complainant’s co- worker informed Ms Hill that it was not their responsibility and that the work should have been completed by the person who had responsibility for it at the time. The Complainant stated that Ms Hill then became very angry and confronted her co-workers before then directing her anger at her stating that it was her responsibility to keep the workbooks up to date. The Complainant stated that she calmly informed Ms Hill that they were only bringing this to her attention so that she was aware of it. Ms Hill then informed the Complainant to go into the classroom where she then spoke to her privately. The Complainant stated that Ms Hill then proceeded to admonish her in respect of a number of issues, namely her phone and uniform use as well as her alleged lack of confidentiality. The Complainant stated that she became very upset as a result of this admonishment which she believed was unwarranted and also highlighted that another colleague intervened on her behalf stating that the way she was spoken to by Ms Hill was unfair. As a result of her emotional state, the Complainant asked the manager if she could go home early but was refused permission to do so. Ms Hill then spoke with her again and told her that she felt that she could not talk to her young staff anymore because they cried when she did so.  She also refused the Complainant permission to leave early.  The Complainant stated that she was still very upset after returning home and asked her grandfather Paul Dunne if he could contact her workplace and make them aware that she would not be going into work the following day.

Mr Dunne stated in his evidence that he called the manager of the creche on 4 February 2021 to inform her that the Complainant would not be attending work and instructed that any further communication from the Respondent should be directed through him. Mr Dunne stated that he was subsequently contacted by Ms Hill who informed him that any time she spoke with the Complainant she turned on the tears. Mr Dunne stated that he was subsequently called by Mr Derek Hill, a Director of the Respondent, who informed him that the Complainant couldn’t handle constructive criticism and that she had family problems at home which she was bringing to work. Mr Dunne also stated that Mr Hill added if the Complainant could not come to work then she should resign.

The Complainant stated that in her evidence that this revelation of her alleged family problems by Mr Hill to her grandfather caused her additional stress and as a result of everything that had happened left her with no choice but to tender her resignation.

The Complainant was employed as a Childcare Practitioner when she commenced employment on 21 May 2019 in a floating capacity. When another member of staff commenced her maternity leave in October 2020, the Complainant took over her role and was stationed in a room with two other members of staff.

The Respondent’s Director, Ms Hill, stated in evidence that she always had a very good relationship with the Complainant up until 3 February 2021, when she (Ms Hill) went into the garden where the Complainant was minding children with two colleagues and asked the Room Leader why all of the workbooks were not up to date. Ms Hill stated that the Complainant appeared very defensive and wouldn’t allow the Room Leader to answer Ms. Hill’s question. Specifically, Ms Hill stated the Complainant continued to speak over her, broke down in tears, appeared overwhelmed and informed her that she wanted to go home. Ms Hill then suggested that the Complainant take some time out, have a cup of tea in the canteen and offered the Complainant the opportunity to call the Employee Assistance helpline provided to all staff.

Ms Hill then spoke to the Complainant at the reception area of the creche and in her office in the presence of the Manager with the door open. She explained the rationale and the need for the workbooks to be updated, as well as the need to wear a uniform and the importance of not being on the phone whilst working. Ms Hill stated that the Complainant then appeared to calm down and informed the Respondent that she was having problems coping at home and was finding college too much but stated that she was happy in work. Having been assured by Ms Hill that she would have the full support of her employer and that they would help her in any way they could with her course work, the Complainant returned to her room to help look after the children.

Ms Hill stated that on the following day, 4 February 2022 the Complainant did not present for work as scheduled. The Complainant’s grandfather telephoned and stating that she would not be in work and requested that the Respondent liaise with himself going forward. He also indicated that the Complainant would be attending a GP appointment and that the matter would be proceeding legally. Ms Hill stated in her evidence that Mr Paul Dunne was very abusive to her in the phone call and that she couldn’t deal with him. She also stated that he informed her that he was recording the telephone conversation. Mr Derek Hill stated that he contacted Mr Paul Dunne on 4 February 2022 further to the abusive phone call to his wife, Ms Bernie Hill. He agreed that he highlighted to her grandfather that the Complainant had family problems but denied that he suggested the Complainant should resign.

Further to these telephone conversations, on 4 February 2021, the Respondent wrote to the Complainant and asked her to update her on her position. On 5 February 2021 a sick cert was provided to the Respondent on her behalf. The Complainant did not return to work and resigned on the 12 February 2021.

The Law

The Act at Section 1(b) defines constructive dismissal in the following manner

“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,”

Analysis

It is for the Complainant to establish that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act at Section 1 above. That section of the Act, and the case law since its enactment, has established two circumstances where an employee is entitled, or it would be reasonable, to terminate the employment relationship.

Contract Test

Firstly, in circumstances where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee is entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”. It was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332as 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 discharged from any further performance”.

In plain English, this means that where an employer makes a fundamental breach of an essential term of the contract of employment, the employee may consider him or herself to be constructively dismissed. In the instant case there was no evidence presented to suggest that the Respondent breached the contract test and attempted not to be bound by one or more of the terms of the contract of employment

Reasonableness Test

Secondly, an unlawful constructive dismissal may arise where an employer’s behaviour is so unreasonable as to mean that the employee is left with no reasonable alternative but to terminate his or her employment. This test of reasonableness, when applied to the within matter, asks whether the employer conducted its affairs in relation to the Complainant so unreasonably that he could not fairly be expected to put up with it any longer. In this context, the Complainant must establish that she also conducted herself reasonably in terms of affording the employer the opportunity to address the issues which ultimately led to the termination of the employment.

In terms of the reasonableness of the Respondent’s behaviour, I note the Complainant’s assertion that Ms Hill’s behaviour towards her was unreasonable on 3 February 2021 and that Mr Derek Hill should not have alleged that the Complainant had family problems in a telephone conversation with her grandfather on 4 February 2021. Even if the Directors of Respondent acted unreasonably in their interactions with the Complainant and her grandfather on 3 February and 4 February, which for the avoidance of doubt I do not accept,  I must also have regard to the reasonableness of the Complainant’s behaviour and note that she did not raise a formal grievance in respect of the actions of the Respondent on either 3 or 4 February 2021, in accordance with the grievance procedure in her contract of employment.

The requirement on a Complainant to exhaust the Respondent’s grievance procedure prior to a resignation in order to succeed in a claim of unfair dismissal 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 Complainant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the Complainant’s case. In constructive dismissal cases it is incumbent for a Complainant 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 BL also set out 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”

In light of all of the foregoing, I find that there was no breach of the contract test and that the Complainant acted unreasonably in deciding to terminate her contract of employment.

I find that the Complainant was not unfairly dismissed for the reasons set out above.