ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00029324

Parties:

Complaint:

Date of Adjudication Hearing:  18/04/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint  to me by the Director General, I inquired into the complaint  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant contends that she was unfairly dismissed by way of constructive dismissal.

Summary of Complainant’s Case:

The following was submitted as a summary of facts:

1. The Complainant was an employee of the company since the 5/6th April 2018.
2. She had a clear disciplinary record when she commenced her maternity leave on the 2nd of September, 2019. An employee Ms F had been newly hired with the sole responsibility of covering the Maternity Leave of The Complainant.
3. At the end of October, The Complainant found out that Ms F had been promoted to Operations Manager. Despite the fact that she was on Maternity Leave, the Complainant requested information on this from her employers as she felt that she had not been informed of this opportunity for the simple fact that she was on maternity leave at the time.
4. The Complainant met with her employers in December, and was not given any opportunity or information to apply for or be considered for this role.
5. She submitted an internal grievance, which did not find fault with the process.
6. She returned to work, albeit working from home, and again was not heard in relation to her complaints about feeling discriminated against.
7. The Complainant submitted an Equal Status 1 form, stating that she felt discriminated against during her Maternity Leave. As a result of this form, internal procedures followed however did not come to any satisfied conclusion. The Complainant refused this offer and commenced sick leave due to the stress.
8. The Complainant later submitted her resignation under duress.
9. The Complainant opted for WRC mediation which did not resolve matters.
10. The role she had was difficult to come by. She chose a different route of career in 2021 when she took on a temping role via an agency at her local hospital. She is currently still job seeking, and her partner and her now reside in Canada with their young daughter.
11. The Complainant was discriminated against, and her concerns although listened to, were not heard and she ultimately ended up leaving that role. The temporary employee, who initially was hired to cover her role, is now a director with the company.

The Complainant gave sworn evidence summarised as follows:

She stated that her job was Project Co-ordinator and she got on well in the first 6 – 12 months and loved the job.  Prior to going on maternity leave she had discussed her performance and progress with her manager Ms H and she believed that she could eventually progress to Operations Manager.

She intended to build up her experience in Projects and build a team to fulfil her expectations.  She was not saying that she should have got the job but she should have been allowed to apply.   

In May 2019 she was involved in hiring Ms F who was to replace her while she was on maternity leave.  She was on sick leave June/July 2019 and then maternity leave.  She was shocked to see in October that Ms F who had been hired to replace her was promoted to Operations Manager.  Her first thought was ‘why was I not even told about this? Why was I not given a chance to apply for the job?’      She had a meeting in December 2019 with her manager and HR and she was told ‘the role evolved into Operations Manager’.  She was due back to work in April 2020.  She submitted a grievance.  She was told that nothing would change, that she would continue to report to her manager.  Then she was told two days before she returned that she was to report to Ms F.  So her reporting role changed and her responsibilities changed.  Mediation was arranged.  She was deeply disappointed about the way she was treated and felt due to the stress of the situation, and the broken promises of the company she had to resign.

In cross examination, the Complainant agreed that she had resigned before the mediation process concluded and stated that one of the reasons she did so because so many promises were broken by the employer.   She agreed that in her resignation letter she referred to being ‘overlooked for promotion’.  She also stated that it was never explained to her why she was not told about the job Ms F was promoted into.  She required an apology and at least a promise that she would secure the next promotion. 

Summary of Respondent’s Case:

The Respondent raised an objection to references in submissions regarding the content of a mediation process, which is a fundamental breach of the principals governing mediation which involve strict confidentiality.

The Complainant was employed as a Project Co-ordinator from 5th April 2018.  She was on maternity leave from 2nd September 2019 to 27th April 2020.  Ms F had been hired to cover the period.  Ms H was Operations Manager and also took on the role of Chief Operations Officer.  As it was not feasible for Ms H to continue to juggle the two roles Ms F was appointed as Operations Manager on 1st October 2019.  She was considered suitable for the role on the basis of her managerial experience and qualifications.  The Respondent hired another employee (Ms P) to cover the maternity leave absence.  The Complainant had a meeting with her manager and HR in December 2019 at which she was assured that the appointment of Ms F had no connection with her role covering the maternity leave period and that there would be no significant changes including to the reporting relationship on her return to work.   The Complainant was not satisfied and invoked the grievance procedure.  Meetings were held with the Complainant and by letter dated 27th February 2020 which was essentially the grievance outcome letter, the Complainant was assured that she would return to work as Project Co-ordinator and that no changes were being made to her role.  The Complainant appears to have accepted this as she did not appeal and she did return to work in April 2020.  Just before the Complainant was due to return to work in April 2020, Ms H became critically ill and went on long term sick leave.  Mr B took over COO role and It became necessary for the Complainant to report to Ms F.  The Complainant submitted an ES1 form (relevant to Equal Status Legislation) in May 2020.  The HR Director wrote to her expressing concern and seeking a meeting.  The Complainant refused a meeting.  The HR Director then arranged for the services of a professional Mediator to be engaged.  All mediation engagements are private and confidential processes.  The Complainant has simply refused to respect the confidentiality of the process.

While the mediation process was ongoing, the Complainant resigned.  The resignation letter contains information from the mediation process which is against the strict rule of confidentiality governing mediation.  The only comment the Respondent makes in relation to the resignation letter is that it was not the Respondent who sought an exit package, it was the Complainant.         The HR Director wrote to the Complainant following her resignation expressing her surprise and asking her to re-engage with mediation.  She clarified a number of matters including that as far as she was aware it was the Complainant who sought and exit, not the company.  The Complainant did not respond save to say that she was referring the matter to the WRC.

The law as it applies to the facts in relation to the unfair dismissal claim

Section 1 of the Act defines constructive dismissal:

“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”.

For a claim of constructive dismissal to be successful, the employee must demonstrate that there has been a fundamental breach of contract by the employer and/or that the conduct of the employer was so unreasonable that he/she had no option but to resign. 

Case law in respect of the “contract test” and “reasonableness test” was cited as Cedarglade Limited v Tina Hliben UDD 1843, and Western Excavation (ECC) Ltd v Sharp [1978] WLR 344.

Reference was made to Des Ryan in “Redmond on Dismissal Law 2017” where he refers to the mirror image in ordinary dismissal claims and constructive dismissal claims.  Just as an employer has to utilise disciplinary procedures before dismissal, an employee must utilise the grievance procedure.    In Conway v Ulster Bank the EAT considered that the claimant did not act reasonably in resigning without substantially utilising the grievance procedure to attempt to remedy her complaints.

The Complainant must demonstrate that her resignation was not voluntary i.e. that she had no alternative but to resign.  The Complainant bears the burden to prove that the Respondent’s conduct was such that it was reasonable for her to resign.

In the circumstances where the Complainant did not fully utilise the grievance procedure, and then resigned in mid mediation process, it is argued her complaint must fail.  

Sworn evidence was given by HR Director Ms D summarised as follows:

When she met with the Complainant, the main issue seemed to be about reporting to Ms F.  However, this could not be helped as the manager Ms H had to go on long term sick leave and this necessitated the Complainant reporting to Ms F.  The Complainant did not suggest any solutions although she was asked on many occasions what she wanted.  It was intended that when she came back from maternity leave the Complainant would report to Ms H but that was not possible in the circumstances where Ms H was on long term sick leave. So the only ’promise’ the company could not fulfil was that of the reporting issue.

Sworn evidence was given by Chief Operations Officer, Ms H summarised as follows:

She stated that she performed the roles of both Operations Manager and COO when she was promoted to COO in April 2019.  The Complainant reported to her when she was Operations Manager.  Ms F came in to cover the maternity leave of the Complainant.  She had the qualifications and experience to take on the role of Operations Manager.  There was no consideration that the Complainant would be suitable for that role at the time.  There had been a review of performance with the Complainant before she went on maternity leave.  Goal setting was in the are of project management and she needed more experience of this. There was no question of ‘demoting’ the Complainant as she saw it.  The Complainant’s job as Project Co-ordinator was still responsible for administrative of projects, travel arrangements etc.  In or around September 2019 it was obvious that as the manager could not continue to carry the roles that the Operations Manager role would be ideally suited to Ms F who had the qualifications and experience.  There was no intention to offend or upset the Complainant.    

Findings and Conclusions:

I note and accept the Respondent’s point about disclosure of information in the confidential process of mediation being completely inacceptable.  It is long established that mediation is a confidential process and is even enshrined in the Workplace Relations Act 2015 in relation to mediation secured through their services, where Section 39 (8) provides that all records and notes from a mediation process shall be confidential and shall not be disclosed in any proceedings before a court, save in certain circumstances.  It is regrettable that information from the mediation process was divulged by the Complainant.

In relation to the substantive issue in this case, the definition of constructive dismissal as provided for in the Unfair Dismissals Act 1977 (as amended) is:

“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”.

There are two ‘tests’ referred to in case law in relation to constructive dismissals claims.  One is the ‘contract test’ and the other the ‘reasonableness’ test.

Whichever test is applied, as was observed by the Employment Appeals Tribunal in one of its last constructive unfair dismissal determinations, ‘the bar for constructive dismissal is very high’         (Nicola Coffey v Connect Family Resource Centre UDD 1126/2014)

In Ryan’s “Redmond on Dismissal Law” (2017), the contract test is covered :

“The breach of contract being alleged must be either a significant breach going to the root of the contract or one which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.  In Higgins v Donnelly Mirrors Ltd  it was argued that a contract of service includes an implied obligation of mutual respect which might be broken by abusive or unreasonable treatment by the employer. However the EAT rejected the employee’s claim of constructive dismissal, showing the heavy onus of proof she bore. The EAT said she had ‘painted a harrowing picture’ of various meetings. On the other hand her employer had denied the meetings were as she described. In the EAT’s view ‘she was unduly sensitive and she over-reacted’.  

In the “reasonableness test”, the employee must demonstrate that the conduct of the employer was so unreasonable that that the employee cannot fairly be expected to put up with it any longer, and the employee is justified in leaving.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment.  In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

Where grievance procedures exist they should be followed.  In Conway v Ulster Bank Ltd the Employment Appeals Tribunal  considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.  

In this instant case, I note that the Complainant was extremely unhappy and dissatisfied at the appointment of the employee who replaced her on maternity leave to the position of Operations Manager without the Respondent advising her or giving her an opportunity to apply for the role.  There then followed some meetings and mediation between the parties which failed to resolve the matter to the Complainant’s satisfaction.  Taking into consideration the two “tests” established in relation to claims of constructive dismissal, the two questions that must be addressed are 1) was there a significant breach by the Respondent going to the root of the contract or one which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract? and 2) was the behaviour of the employer so unreasonable that that the employee could not have fairly been expected to put up with it any longer, and the employee was justified in leaving?

The Complainant was employed as Project Co-ordinator for some two years before her resignation.  She had expectations as to her career progression and hoped to progress to Operations Manager.  Her manager gave evidence that seemed to indicate that she could have progressed to Project Manager should she have stayed with the company.  I find there was a flaw on the Respondent’s part by not communicating their decision to the Complainant that they were appointing the individual to Operations Manager.  However, it cannot be deemed to be such a fatal flaw that it goes to the heart of repudiation of the Complainant’s contract.  Neither do I find that their behaviour in failing to communicate in a timely manner about the appointment can be deemed to be so unreasonable that the employee cannot fairly be expected to put up with it any longer, and the employee was justified in leaving.   Likewise, the promise of the Respondent to the Complainant that she would report to her manager as normal just simply could not be fulfilled due to unforeseen personal/medical circumstances.    The mediation process, the divulgence of which detail gave rise to some understandable controversy in this case, was ongoing when the Complainant resigned her position. This is the most difficult part of the issue to understand.  Why did the Complainant resign mid mediation?  Perhaps she was badly advised as she seemed to indicate in her communications with the Respondent at a late stage that she could achieve a better settlement in WRC. 

Significantly, by resigning before the mediation process was completed, the Complainant failed to substantially utilise the procedures and facilities at her disposal in order to remedy her complaint and this is the fatal flaw in her case.

Having regard to all the evidence, case law and tests outlined, the Complainant has failed to reach the bar for constructive dismissal and has not discharged the onus of proof required.  Her complaint is not well founded and I find that she has not been unfairly dismissed.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint  in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

 I have decided that for the reasons outlined, the complaint of unfair dismissal is not well founded.

Dated:   05/07/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: