Worker

Employer

Anonymised Parties

A community Worker

A community facility

Representatives

  Iris White, B.L.

Joe O'Loughlin , Adare HR

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969

CA-00053722

15/11/2022

The Worker commenced employment as a community development worker on a fixed term contract with the Employer on 8/02/2022.  She was paid a salary of €35,000.  She resigned on 16/09/2022 as she felt that the culmination of issues had an effect on her health.  She is seeking compensation for loss of salary, GP visits, medication costs and professional counselling. The Worker submitted her dispute to the Workplace Relations Commission on 15/11/2022.  The Employer refutes the Workers claims.

The Worker believes that there were a number of serious incidents during the course of her employment which constituted breaches of employment law, fair procedures and a lack of dignity and respect for her in the workplace.  She also felt that she had “been falsely and maliciously accused of serious offences, defamed and maligned and undermined to such an extent that my health has suffered, and I have had no alternative but to terminate my employment on medical advice”. 

At the hearing the Worker’s representative outlined an array of incidents which commenced with a lack of induction, no training in relation to the role, inappropriate comments in the presence of others, micromanagement, unfair criticism and a total lack of support.  In addition to this she was assigned additional duties without any consideration given to her existing workload.  The Worker also had issued with the reporting of how grants she obtained were spent and reported.  She was not provided with proper receipts and poor accounting practices.  The Worker also had an issue when she was told that a board member looked in her handbag for keys and this resulted in a strained relationship with some board members.  She was denied opportunities to work collaboratively, her probation was extended. The Worker had concerns about the manner in which these meetings took place and the documentation associated with these meetings.  The Worker also had issues with the late payment of her salary.  The Worker was expected to spend 60% of her time in direct contact with local communities and 40% on other duties.  Towards the end of her employment the Worker believes that she was only spending 5% of her time on community related work and the remainder of her time was based in the building doing administration and building related tasks.  Due to her vast qualifications in community development work this was demeaning and not in keeping with the role she was successful in obtaining.

It was submitted on behalf of the Employer that the burden of proof remains with the Worker to prove to the satisfaction of the Adjudicator that the behaviour of the Employer was such that she was left with no other option but to resign from her position.  It was submitted on behalf of the Employer that this is categorically denied and refuted.  The Worker never utilised any of the Employers internal, formal or informal mechanisms to resolve any issues.  It was submitted by the Employer that the EAT findings in Margot Conway v Ulster Bank Limited UD 474/1981 are relevant and in that context the Worker’s case is not well founded.  It was submitted by the Employer’s representative that the Worker spent several days downloading e mails and documents prior to resigning.  The Employer considers many of these documents confidential, commercially sensitive  and her downloading sequence from 18/08/2022 shows that she had decided to abandon her post well in advance of her GP’s certificate which is dated 09/09/2022.  The Employer submits that this certificate does not certify the Worker as having any workplace stress but rather it states that she was diagnosed with “stress and anxiety”.    There is also no mention of her GP advising her to seek any special accommodation and there is no reference to any advice that she should resign her role.

The Employer refutes the Workers claim that any grants were inappropriately used.  The Employer is accountable for all public monies received and no issues have ever emerged from any audit of its finances.  The Workers salary issue was caused by the bank limits on new payee, but the Employer changed the payment date to ensure that she was properly paid.  The Worker was supported on a daily basis during her first month.  She was not happy to have to deal with accounts and staff supervision, but these were clearly outlined in her job description.  The Employer also refutes that the Worker was asked to undertake facility management duties as these are undertaken by the facilities management company.  The Worker also received training during the course of her employment.  One training request was not sanctioned due to the amount of time involved.

It was submitted on behalf of the Employer that they conducted themselves in accordance with their own policies and procedures.  The Worker was familiar with these, and the Worker’s contract of employment outlined the grievance procedure which was more fully outlined in the employee handbook.  The Worker clearly made a decision not to utilise these.

The Employer had issues with the Worker’s performance, behaviours and attitude to work.  The Worker was supported with normal ongoing performance management and her probation was extended to allow her time to improve performance.   Around this time the Worker  submitted a medical certificate accompanied by a letter of resignation.

It was submitted on behalf of the Employer that the Worker abandoned her employment in circumstances where she had less than 12 months service.  Despite her contention that she was constructively dismissed she failed to utilise any of the internal grievance procedures which were well known to her.  The Employer has no case to answer. Any issues which the Worker had were acted on in good faith by the Employer and there is no evidence that the Worker was treated or victimised in any manner which would give her cause to abandon her employment.  The Worker embarked on a process to download and remove confidential documents from her Employer without any authorisation.  The Worker did not provide copies of all these in her submission to the WRC but chose to retain and produce a significant amount of material at the hearing.    As this process commenced in advance of her letter of resignation and submission of a medical certificate on 09/09/2022 it is clear that she always intended to tender her resignation in advance of her becoming unwell. 

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

At the hearing the Adjudication Officer clarified that this is a voluntary process and there is no formal evidence taken, and no witness evidence. In that context there are no findings of fact made.

On the basis that the Worker had less than 12 months service under section 2(1)(a) of the Unfair Dismissals Act, in order to avail of the protections provided by that Act, the Worker referred this dispute to the Workplace Relations Commission under the Industrial Relations Acts and is, in essence, a claim of constructive dismissal.  The term “constructive dismissal” is not provided for in the Unfair Dismissals Act, 1977.  The term is commonly understood to refer to that part of the definition in section 1(b) of the Act which provides:

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

(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.”

I am satisfied the definition of constructive dismissal set out above is the appropriate backdrop against which I will base my conclusions in this case.  There exists a body of legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it must satisfy either one or a combination of both of the following “tests”.

There are two sets of circumstances in which a resignation may be considered a constructive dismissal.  The law is well settled in this context, and these tests are known as the “contract” test and the “reasonableness” test.  The first test, that of breach of contract, requires that the contract of employment must have been breached to such a degree that the employee is left with no option but to resign.  However, it is now also generally understood that an employee must act reasonably in terminating their employment and that resignation must not be the first preference taken by the employee.  All other options, including grievance procedures, must be explored.  The reasonableness test requires that the employee must satisfactorily demonstrate that the Employer behaved or acted in a manner, which was so unreasonable as to make it impossible for the employee to continue in the employment.  The employee must show that his/her action or behaviour in resigning was reasonable in all the circumstances. 

It is also well established that an employee is required to initiate and exhaust the Employer’s internal grievance procedures, to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal.  This is clearly set out in Reid v. Oracle EMEA Ltd [UD1350/2014] where the EAT stated:

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”

In the present dispute, the Worker has outlined a series of alleged poor treatment on the part of the Employer regarding her employment.   I note the Employer denies these allegations and submits in defence that the Worker did not raise a formal grievance at the relevant time and that they were not given any opportunity to consider her issues. They further submit that in circumstances whereby the Worker failed to raise such a grievance, her resignation was pre-planned, premature and consequently her case should fail.

The role of an Adjudicator in relation to disputes of this nature is to make a recommendation to try and resolve the dispute.  The purpose of the hearing is not to act as a substitute for a grievance hearing. Rather, the purpose of the hearing is to examine the conduct of the Employer and to determinate if the same was reasonable in the circumstances.   My role as an adjudication officer is also to examine how the workplace procedures are utilised and to assess the reasonableness of the outcome, if any.  In the instant case there is no outcome for me to consider as the Worker did not take the opportunity to raise a grievance either informally or formally. 

It is also well established that the WRC and Labour Court will not provide an audience for matters when the workplace procedures have not been fully utilised and exhausted.  I am satisfied that the Worker in this case was presented with and was cognisant of the procedures which constituted a multi-step formal and easy to follow grievance procedure.  This failure to raise a grievance is crucial in terms of considering the Workers claim for constructive dismissal.  Furthermore, the Worker has failed to establish that she was constructively dismissed, particularly when regard is had to “the reasonableness or otherwise of the conduct (whether by act or omission) of the Employer in relation to the dismissal” as provided for at section 6(7) of the Unfair Dismissals Act. 

Based on my careful consideration of the written and oral submissions, I find the Worker has failed to discharge the burden of proof to support her claim that she was constructively dismissed for the following reasons.   I do not find the conduct of the Employer amounted to an essential breach of the contract of employment.  Having carefully reviewed all the information I cannot find the Employer acted or behaved in a manner so as to leave the Worker with no option but to resign. Finally, the Worker did not avail of the Employer’s grievance procedure prior to resigning. 

Having regard to the accumulation of the foregoing points, I do not recommend in favour of the Worker.  Neither do I find I can recommend that which the Worker sought by way of an outcome.  Based on the foregoing, I am satisfied to recommend this dispute does not amount to a constructive dismissal claim.

Constructive dismissal.  Grievance procedure.