Complainant

Respondent

Parties

Michelle  Farrell

Ard Ri Marble Mantlepieces Ltd

Representatives

David Fitzgerald, O’ Sullivan Reidy Solicitors

Neil Fitzgibbon, Director, Ard Rí Group

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-00044591-001

11/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00044591-002 Withdrawn at the hearing

11/06/2021

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

CA-00044591-003

Withdrawn at the hearing

11/06/2021

The Complainant commenced her employment with the Respondent on 28 September 2010 as a Financial Controller. Her employment terminated on 7 April 2021.

On 11 June 2021 the Complainant referred her claims to the Director General of the WRC alleging that she was constructively dismissed, that she did not receive her annual leave pay, and that she did not receive her statutory minimum notice on termination of her employment or payment in lieu thereof. At the adjudication hearing, the Complainant’s representative informed the hearing that the claims under the Organisation of Working Time Act, 1997 (CA-00044591-002) and the Minimum Notice & Terms of Employment Act, 1973 (CA-00044591-003) were withdrawn.

Mr McNamara BL, on behalf of the Complainant submits as follows.

Background

The Complainant was employed as a Financial Controller between the 4 October 2010 and the 7 April 2021 when she resigned from her employment. It is the Complainant's case that she was constructively dismissed. At the time of the termination of her employment, the Complainant was earning €576.00 net per week.

The Complainant's written contract of employment of the 25 February 2015 (exhibited at the hearing) stipulates that grievances shall be dealt with without undue delay and, where they cannot be resolved between the parties, an agreed third party would be appointed to seek to do so. The Complainant, whilst absent from work on grounds of ill health and having previously notified the Respondent about her grievances on several occasions, received a copy of the company handbook setting out its policies and procedures under cover of letter dated the 15 January 2021. The Complainant's default position is that the grievance procedure set out in her contract of employment is the only relevant procedure given that it was this policy that she specifically agreed to.

During the course of her employment with the Respondent, the Complainant was bullied and harassed by Mr Neil Fitzgibbon, the owner of the Respondent company and by the Office Manager. The Complainant's grievances were neither adequately addressed nor resolved. Additionally, the Complainant raised other issues with her employer which were having a negative effect on her in the workplace. Again, these issues went uninvestigated and unresolved. These failures, and in particular the Respondent's obstruction of the Complainant's attempts to raise her grievances, caused her to resign from her employment.

The Complainant's Grievances

The following are the principal grievances raised by the Complainant with the Respondent during the course of her employment:

·       Shouting criticisms at the Complainant despite the fact that the subject of the criticism was not within the Complainant's work responsibilities - 30 April 2018.

·       Querying the Complainant's qualifications.

·       Shouting at the Complainant about the level of gifts and donations made by the Respondent — 21 May 2018.

·       Shouting at the Complainant at a work meeting regarding the Respondent's terms and conditions for customers (despite such matters not coming within her area of responsibility) — 28 May 2018.

·       Providing the Complainant with 4 hours' notice of a disciplinary meeting to take place on the 4 July 2018.

·       Pressuring the Complainant to work excessive hours.

·       Failing to provide the Complainant with clarification regarding her role and then criticising her for failing to perform certain tasks.

The Complainant began to experience panic attacks as a result of the foregoing and was required to absent herself from work on the 5 June 2018, and again on the 9 July 2018. The Complainant remained on sick leave until her resignation.

Chronology The below chronology sets out the timeline of events culminating in the Complainant's resignation:

·       On the 22 May 2018, the Complainant complained to the then HR Manager (who was also Mr Fitzgibbon's personal assistant),  that she was being shouted at and undermined by the Office Manager.

·       On the 6 June 2018, the Complainant raised the Office Manager’s treatment of her on the 28 May 2018 with the HR Manager.

·       At a meeting on the 16 August 2018, the Complainant informed the HR Manager and Mr Fitzgibbon of her concerns about being bullied and harassed.

·       Between August 2018 and March 2019, the Complainant repeatedly, but unsuccessfully, requested an independent mediator to seek to resolve her grievances or a meeting to deal with them. The mediators proposed by Mr Fitzgibbon were not acceptable to the Complainant either because they were too closely concerned with the subject matters of her grievance or were considered by the Complainant not to be completely independent. During this period, the Complainant made a data access request so that she could review all relevant material prior to any mediation.

·       On the 10 April 2019 the Complainant met with the Respondent's new HR Manager (second). During the course of that meeting, the Complainant was informed that the position of Financial Controller had become a full-time position and that she could no longer work a 3 day week as she had done previously. The Complainant was further told that if she wanted to resume that position, she would have to interview for the role.

·       On the 10 April 2019, the Complainant met with the new HR Manager, regarding her continued absence from work on grounds of ill health. During the course of this meeting, Mr Fitzgibbon unexpectedly joined the meeting and the HR Manager indicated that, thereafter, the meeting would address the grievances raised by the Complainant. The Complainant felt very uncomfortable from that point onwards as he was not prepared for Mr Fitzgibbon's attendance nor that her grievances would be raised at the meeting. The Complainant denies that she agreed at the meeting that she had no grievances and that matters could move on.

·       On the 15 July 2019, the Complainant attended a meeting with Mr Fitzgibbon and the HR Manager which did not yield any further progress regarding her grievances.

·       On the 11 September 2019, at a meeting with the HR Manager, it was agreed that the informal machinery had been exhausted and that the complainant would submit a formal grievance.

·       By the 3 June 2020, the Respondent had made no attempts to progress the Complainant's grievances and so she emailed the HR Manager on that date indicating her intention to resign.

·       The HR Manager responded on the 15 June 2020 seeking to meet the Complainant.

·       The Complainant's solicitors wrote to the Respondent on the 30 June 2020 reiterating her grievances.

·       Mr Fitzgibbon replied on the 6 July 2020 stating that the Complainant had no outstanding grievances or issues pending resolution with the Respondent and that she had "agreed to all outcomes".

·       By way of letter dated the 8 December 2020 to Mr Fitzgibbon, the Complainant's solicitors set out her 6 outstanding grievances and requested that they be investigated in accordance with the Respondent's grievance procedure.

·       The Respondent replied by way of letter of the 15 January 2021.

·       The Complainant's solicitors' letter of the 16 February 2021 took issue with much of what the Respondent alleged above.

·       On the 17 February 2021, the Respondent's new HR manager (third), informed the Complainant's solicitor, David Fitzgerald, in an open telephone call, that the Respondent's position was that no formal grievance had been lodged that required investigation by the company and that one would be required.

·       The HR Manager replied by way of letter of the 18 February 2021.

·       The Complainant's solicitors replied by way of letter of the 5 March 2021.

·       The Complainant's letter of resignation of the 7 April 2021.

·       The Complainant's email to the HR Manager of the 7 April 2021 enclosing resignation letter of the same date.

·       The Respondent's invitation to investigation meeting dated the 5 April 2021 but franked as having been sent on the 7 April 2021 and not received by the Complainant until the 9 April 2021.

·       The HR Manager emailed the Complainant on the 8 April 2021 asking her whether she wanted to reconsider her resignation.

·       The Complainant's solicitors wrote to the HR Manager on the 9 April 2021 taking issue with the Respondent's attempts to give the impression that she had been sent an invitation to a grievance investigation meeting prior to tendering her resignation.

·       The Complainant lodged her complaints to the Workplace Relations Commission on the 11 June 2021.

·       The Complainant's solicitors wrote to the HR Manager on the 21 June 2021 indicating that the matter would be dealt with by the WRC.

Respondent's Response to Grievances

It is submitted that the Respondent's handling of the Complainant's grievances was wholly inadequate. Not only was there a failure to investigate the grievances, the Respondent, when challenged regarding that failure, sought to contend that the Complainant had agreed that there were no further issues when this was clearly not the case.

The Complainant first raised her grievances informally with the HR Manager on the 22 May 2018. At the meeting of the 10 April 2019, the Respondent sought to force the Complainant to agree that she had no complaints. That was patently not the case as was evidenced by the Complainant's eventual meeting with the second HR Manager on the 15 July 2019. Thereafter, on the 11 September 2019, the Respondent's HR Manager confirmed that the informal resolution process had been exhausted. The Respondent made no attempts to progress the complaints thereafter until the Complainant threatened resignation on the 3 June 2020. When the Complainant relented after being persuaded by  the HR Manager’s email of the 15 June 2020 to reconsider, she instructed her solicitors to intervene with a view to progressing her grievances. Her solicitors' letter of the 30 June 2020 was met with a response by Mr Fitzgibbon in which he denied that there were any outstanding grievances. It is submitted that this was an unacceptable position for the Respondent to adopt in the circumstances and the Complainant was particularly upset by it. When her solicitors wrote again to the Respondent on the 8 December 2020, setting out her grievances in detail, the response was, incredulously and in the teeth of that letter, to deny that there were any outstanding grievances. The letter sought a written account of the allegations despite the fact that this had already been provided both verbally and in written form and as recently as the 8 December 2020. The Respondent's position was subsequently repeated by the HR Manager in a telephone conversation with Mr Fitzgerald on the 17 February 2021 and again in correspondence of the 18 February 2021. Put simply, the Complainant would, again, have to submit a grievance in order for it to be investigated.

Complainant's resignation

When over a month had passed since the Complainant's solicitors had responded, on the 5 March 2021, to the HR Manager’s letter of the 18 February 2021, the Complainant tendered her resignation.

It is submitted that the Complainant's decision to resign was reasonable in all the circumstances. Despite having repeatedly set out her grievances, the Respondent sought to place obstacles in her way every time. No attempts were made to investigate those grievances nor to agree to the appointment of an independent third party to do so as required by the Complainant's contract of employment. Instead, the Complainant was told to resubmit grievances that she had already submitted. This was a clear example of highly unreasonable behaviour on the Respondent's part.

To emphasise that behaviour, one need look no further to the Respondent's attempts to shore up its position. On receiving the Complainant's resignation, the Respondent sent her an invitation to her to participate in a grievance investigation meeting. That letter was dated the 5 April 2021 to give the impression that the decision to do so had been made prior to the Complainant's resignation and to portray the Complainant's decision to resign as being premature and unreasonable.

However, on closer examination, it is clear that this letter was actually sent on the 7 April 2021 and not the 5 April 2021. The letter itself was franked on the 7 April 2021 and, furthermore, in her email to the Complainant of the 8 April 2021, the HR Manager refers to the letter having been sent the previous day. It is submitted that this gives a window into the type of behaviour that the Complainant had to contend with during her employment with the Respondent.

It is submitted that the Complainant was constructively dismissed in all the circumstances.

Summary of the direct evidence and cross-examination of the Complainant

The Complainant outlined her qualifications and experience. She said that when she commenced her employment, Mr Fitzgibbon did not want a full-time Financial Controller, she worked initially two, then three days a week.

The Complainant said that the owners, Mr Paul Fitzgibbon and Mr Neil Fitzgibbon liked to micromanage. The management structure included both owners, the Financial Controller (the Complainant) and the Office Manager, the owners’ sister.

The Complainant said that up until her sick leave she would have worked 24 hours a week and was paid €576 weekly.

The Complainant said that in April-May 2018 a new HR person joined the organisation who became a Personal Assistant to the directors. They decided to hold weekly management meetings. The Complainant said that she worked Monday to Wednesday and informed the Respondent that she would prefer the meetings to be held on one of these days and not on Thursday. As she was told that it’s important for her to attend and there was no change, she tried to accommodate the Respondent and attended most meetings on her days off.

The Complainant said that at one of the meetings, the Office Manager was very aggressive and intimidating towards the Complainant. The Complainant said that she was taken aback. She thought that it was a once off, but the Office Manager continued to berate and humiliate the Complainant. The Complainant said that she tried to explain to the Office Manager what her job was and that she should go to the Directors rather than attacking the Complainant. The Complainant said that that she felt under pressure, she worked part-time but there were more tasks that had to be done. The Office Manager started shouting at the Complainant telling her that she wasn’t doing her job. She told the Complainant in front of other staff, directors, sale reps that she was making excuses. She wanted immediate answers to all questions, she was aggressive.

The Complainant described an incident when the Office Manager came into her office and, with the door open, she shouted at the Complainant aggressively that she was not doing her job, colleagues in other offices could hear her. The Complainant said that she was shaking, and the HR Manager asked if she was OK.

The Complainant said that there was no bullying procedure. The Complainant said that she turned to the HR Manager at times and the HR Manager had a keypad put on the Complainant’s door so the Office Manager would not burst in.

The Complainant referred to email correspondence and emphasised that she was being attacked, the Office Manager was always very irritated and aggressive.

The Complainant said that on 13 April 2018 Mr Neil Fitzgibbon came into her office/cubicle and started roaring and shouting that things are in disarray, and it was her fault. The Complainant said that Mr Fitzgibbon expected her to do the same work as if she was working full-time. She explained that she was working three days a week.

The Complainant said that she spoke with the HR Manager who told her that the Office Manager was the same with her, she said she was going on holidays and was not sure if she would come back. The Complainant said that she asked her to speak with the directors. Mr Fitzgibbon never contacted her after she spoke with the HR Manager.

The Complainant said that she called in sick in early June 2018, the Office Manager rang her to check was she alright.

The Complainant said that she received an email on 4 July 2018 at 11:51am requiring her to attend a disciplinary hearing in Mr Fitzgibbon’s office at 4pm. The Complainant said that she was shocked and unprepared. She believed that the HR Manager knew about her anxiety and used it against her. The Complainant tried to put things together but she was overwhelmed. She contacted the HR Manager to say that she couldn’t do it on the day. The HR Manager told her that she had to be there early in the morning. The Complainant didn’t go to work on the next day, she was certified sick. The HR Manager said that this was an excuse.

The Complainant said that on 13 July 2018 she replied to the Respondent’s email of 4 July 2018 with the allegations against her.

The Complainant said that she believes that the disciplinary action was taken because of her complaints.

The Complainant said that she wanted to have a meeting to air the differences, see what her role was, discuss the bullying issue and the effect it had on the Complainant, and her possible return to work. On 16 August 2018, the Complainant met Mr Fitzgibbon and the HR Manager in a café and raised all the concerns she had. The response she got was “that’s just [the Office Manager’s name] being [the Office Manager’s name]”. They said that the issue cannot be dealt with. The Complainant said that she also raised the issue of her pay in comparison to a male co-worker.

The Complainant said that she did not get minutes of the meeting. The email she received on 16 August 2018 did not mention bullying and harassment, she felt her grievances were not important. The Complainant said that she tried to contact the HR Manager regarding the inaccuracies but there was no reply. She then tried to contact Mr Fitzgibbon. On 22 August 2018, the HR Manager contacted her saying not to contact Mr Fitzgibbon but the HR Manager directly.

The Complainant said that she started corresponding with Mr Fitzgibbon and the HR Manager regarding her possible return to work.

The Complainant was informed on 4 October 2018 that the HR Manager resigned her position. Mr Fitzgibbon said that he would arrange a meeting. The Complainant said that the Respondent offered a person to deal with the matter, but she was a good friend of the Office Manager, and the Complainant was not comfortable with her. The Complainant was also asked to copy the Office Manager in her emails which she was not comfortable with as none of the grievances she had raised were addressed.

The Complainant said that the Respondent then attempted to appoint a named barrister to investigate her complaints. The Complainant emailed the Respondent explaining that she would prefer someone who has no connection to the business. She said that the named barrister worked for the HR firm that worked for the Respondent.

The Complainant said that the new HR Manager was then appointed.

The Complainant said that a meeting was arranged on 10 April 2019 between her and the new HR Manager. The Complainant said that she was surprised that it turned into her grievance meeting and Mr Fitzgibbon was in attendance. The Complainant said that she told the Respondent that because of her anxiety, she was not able to take everything in or process her thoughts. She also said that she never agreed that they could move on.

The Complainant said that she assumed that the meeting on 1 May 2019 was about her grievances. She said that she wanted the Respondent to instigate the grievance process. She said that she was asked to sign the minutes without reading them.

The Complainant said that she thought that if she said that she was resigning, the Respondent would do something about it.

The Complainant contacted her solicitor and on 8 December 2020 her grievance was again invoked through her solicitor.

The Complainant said that her sick leave ended in April 2021 and she has been looking for a job since. She was not working at the time of the hearing. Between September 2021 and January 2022, she provided services as a self-employed person. However, the company she worked for wanted a full-time presence in the office and the Complainant was not able to work full-time.

In cross-examination, the Complainant confirmed that she asked the Respondent for compensation. She said it was out of frustration. She could not recall how much she asked for.

It was put to the Complainant that she signed the document saying that she was happy. The Complainant replied that she was not in a position to absorb what was happening. She said that she came back to the HR Manager on that on 1 May 2021.

Regarding the meeting on 20 June 2021, the Complainant said that there was misunderstanding about the venue, she was outside the hotel, but she got so stressed and anxious that could not make the meeting.

In relation to the missing certs, the Complainant said that she understood that her GP sent them directly.

It was put to the Complainant that the Respondent attempted to resolve the issues on 15 January 2021 but it still did not have her grievances in writing.

The Complainant was asked if she wanted to return to work and she replied in the affirmative. She said that she did not because it was not a safe environment. Nothing was resolved, there was no control over people’s bullying and harassment, and nothing was done to make her feel secure.

The Complainant was asked why she did not put it in email. She said that she asked her solicitor for help.

In re-examination, the Complainant said that she did discuss her grievances as per the ‘Procedures for dealing with Bullying’. The matter was never progressed to the next stage.

In relation to the Respondent’s assertion that the Complainant never mentioned bullying in writing, the hearing was referred to the minutes of the grievance meeting of 10 April 2019, which notes that the Complainant outlined her grievance with the Office Manager. 

The Respondent submits as follows.

Refusal to Engage with the Grievance Procedure

The Respondent submits that every attempt was made to hear the Complainant’s grievances both internally and through the appointment of an external third-party Investigator in January 2019 and again in April 2020 with the offer of mediation. In April 2019, the Complainant attended a Grievance Meeting and requested to have them dealt with informally. At the end of meeting, the Complainant agreed she could move on as her grievances were resolved.

Since that date in April 2019, it has been entirely unclear as to exactly what the Complainant’s continuing grievance are. There was a statement attached to her solicitor’s letter of 8 December 2020 with a list of grievances and an entirely different list (with the exception of working hours) set out in the submissions filed on her behalf. Both lists contain grievances which she had resolved informally in April 2019.

The Respondent has been at a loss as to what exactly her grievances were which remains the case to this day.

Complainant’s Demands for Financial Compensation

The Respondent contends that this is an exercise by the Complainant purely to benefit financially from the Respondent. On 15 July 2019 during a meeting with the HR Manager and Mr Fitzgibbon, the Complainant sought compensation from the Respondent.

At a meeting of 11 September 2019, the Complainant sought compensation in the sum of €100,000 and would not return to work until her claim was resolved.

In an email of 3 June 2020 the Complainant again demanded money from the Respondent to resolve her issues.

Introduction

The Complainant commenced employment with the Respondent on 28 September 2010 as a Financial Controller. The date of commencement of 4 October 2010 as per the Complainant’s Complaint Form is incorrect.

She was paid €20 per hour as per her contract of employment and was contracted for 16 hours per week totalling a gross sum of €320 per week. The Complainant did not earn a net figure of €576 per week as stated in her submissions.

The Complainant signed a contract of employment on 30 November 2010 and 25 February 2015 agreeing to the terms and conditions of her employment.  The 2015 contract of employment set out in detail the Grievance Procedure. The Complainant resigned voluntarily on 7 April 2021.

Third Party Investigation and Mediation

It is noted in the Complainant’s submission that there is an assertion that the Respondent failed to appoint a third-party Investigator to investigate the Complainant’s grievance. This is inaccurate.

On 10 January 2019 Mr Neil Fitzgibbon wrote to the Complainant advising that the Respondent was willing to engage a third-party independent Investigator to investigate her grievances. Mr Fitzgibbon sought her agreement to the appointment, the sharing of her personnel file with the Investigator and confirmation she is medically fit to attend. Unfortunately, the Complainant refused to agree to this appointment instead demanding in her email 17 January 2019; “Can you please provide me with details of the efforts you have made to deal with the grievances I highlighted at our meeting in August. I requested a list of the grievances I highlighted at that meeting but have not been provided with any.” 

On 18 January 2019, Mr Fitzgibbon again sent an email reassuring her that every attempt was being made to investigate her grievances and extending the time to reply regarding the appointment of the investigator. Mr Fitzgibbon also suggested she take the time to seek the legal advice she referred to in her email of 17 January 2019.

In January 2019, the Complainant stated she had sought legal advice and instead of responding to the request to appoint an independent third party to investigate her grievance, she shifted her focus to a data access request. 

On 18 February 2021 an offer of workplace mediation was made to the Complainant in writing to her solicitor. This was not acknowledged in the replying letter of 5 March 2021 from the Complainant.

Correspondence between the parties

On 21 February 2019, the HR Manager wrote to the Complainant to introduce herself and request a meeting with her at a place and time of her choice. This email went unanswered.

On 25 February 2019, the HR Manager sent a follow up email again requesting a meeting with the Complainant. This email went unanswered.

On 4 March 2019, another email was sent by the HR Manager.

On 5 March 2019 the Complainant did reply and stated as regards her grievances:-

“On a number of occasions I have requested the details of the list of grievances I relayed to the directors of the company and the former HR Manager [named]. I have been repeatedly told that the company has tried to accommodate me and resolve the grievances I have highlighted. However, they will not tell me what actions have been taken or confirmed that they even have a log of the issues I highlighted.”

In response to the request to meet with the HR Manager, the Complainant stated, “With regard to a meeting I would like to receive my files first so as I can see where I currently stand with the company and how they have dealt with my case to date.” 

It is clear that the Complainant’s sole focus was on the data access request and not on resolving her grievances.

Between 28 March 2019 and 4 April 2019, the Respondent sent numerous invites to the Complainant to meetings to discuss her long-term absence. She was advised the HR Manager and Mr Fitzgibbon would be in attendance at the named hotel, initially on 3 April 2019 but when there was no response from the Complainant until 3 April 2019 to the two invites it had to be postponed to 10 April 2019.  On 9 April 2019 the Complainant eventually confirmed her attendance at the meeting.

On 10 April 2019, a meeting was held with Mr Neil Fitzgibbon and the HR Manager wherein the Complainant discussed her grievances and requested to deal with them informally. At the conclusion of the meeting, the Complainant confirmed that she had no grievance and they could move on.The Complainant signed the minutes of the meeting which were transcribed by Mr Fitzgibbon.

It is untrue for the Complainant to state in her submissions that she was not aware that Mr Fitzgibbon was going to be in attendance. The email of 4 April 2019 specifically stated he would be present at the meeting.No issue was made by the Complainant as regards Mr Fitzgibbon’s attendance at the meeting. 

As regards the issue of the three day v five day week role, as per the notes this was a discussion between the parties due to the Complainant’s complaint as regards the demands of the job and her return to work on a phased basis.

Between 24 and 29 April 2019 several emails were sent to the Complainant seeking to arrange a follow up meeting set for 1 May 2019 regarding her long-term absence as pre-arranged on 10 April 2019.

On 5 June 2019 the Complainant failed to attend a pre-arranged meeting with the Respondent. A follow up letter was sent to her on 10 June 2019.

On 13 June 2019 the Complainant emailed the Respondent requesting a meeting and stating that she could not make a decision about returning to work without “finalising a few issues with Neil.”

Between 13 June and 17 June 2019 the Respondent wrote to the Complainant on two occasions seeking to arrange a meeting.

On 20 June 2019, the HR Manager and Mr Fitzgibbon attended at the named hotel and waited from 10.25am – 11.10am for the Complainant to attend. At 10.44am the Complainant emailed the Respondent stating she was in the hotel at that time but there had been some confusion as regards confirming the location. The Complainant stated,” I don’t think I can go ahead with it today I will get back to you to reschedule.”

On 11 September 2019, the HR Manager met with the Complainant regarding her long-term absence. At this meeting the Complainant demanded, “at least €100,000 ” and could not consider returning to work until this had been sorted.

On 10 October 2019, the Respondent wrote to the Complainant requesting medical certs for her absence as she had not produced them since 31 August 2019.

Between December 2019 and February 2020 there was ongoing correspondence between the parties regarding the Complainant’s failure to submit medical certificates on time.

On 23 April 2020, the Respondent wrote to the Complainant due to her ongoing unauthorised absence as a medical certificate had not been received since 31 December 2020.

On 3 June 2020. the Complainant advised the Respondent that she was preparing her letter of resignation and stated “I have to submit my claims to the WRC and PIAB as it is time sensitive but I would hope  that we can come to some agreement rather than dragging it out. I think it would be in both our interest.”

On 15 July 2020 a meeting was held with HR and Mr Fitzgibbon regarding the Complainant’s long term sick leave.

On 8 December 2020, the Complainant’s solicitor wrote to the Respondent with an attachment signed by the Complainant with a list of six grievances. Interestingly there is only one grievance regarding working hours that correspondence to the list of grievances set out in the Complainant’s submission. This is a further example of the Complainant’s own lack of clarity as to what exactly her grievances were.

On 15 January 2021, the Respondent replied to the grievances in detail together with factual evidence and welcomed an opportunity to resolve any outstanding issues the Complainant may have with a meeting. The Complainant’s annual leave entitlements were also addressed in this letter.

On 16 February 2021, instead of the Complainant engaging directly with her employer, by way of a formal investigation, her solicitor drafted a detailed response. This was not in compliance with internal grievance procedures.

On 18 February 2021, it was again explained that the Complainant raised grievances informally and these were agreed upon as being addressed in April 2019 by the Complainant. An offer of mediation was made to the Complainant and the Respondent was willing to engage an independent workplace mediator.

On 5 March 2021, a response from the Complainant’s solicitor did not address the issue of mediation.

On 5 April 2021, the Respondent issued a written invite to a formal investigation meeting into her grievances on 12 April 2021.

On 7 April 2021, a letter of resignation was received from the Complainant. It is disputed that she ever requested a formal investigation except for her solicitor’s letter of 5 March 2021.

On 8 April 2021, the Respondent emailed the Complainant requesting that she reconsider her resignation and avail of the formal grievance procedure.

On 9 April 2021, the Complainant’s solicitor advised that the matter was proceeding to the Workplace Relations Commission.

It is submitted where the Complainant has refused to engage in any meaningful and reasonable manner with the Respondent internally and to follow the company Grievance Procedures, she has failed to satisfy the obligation to exhaust any grievance procedure prior to resigning as per been the decisions in McCormack v. Dunnes Stores UD142/2008 and Terminal Four Solutions v. Rahman UD898/2011.

Summary of direct evidence and cross-examination of Mr Neil Fitzgibbon, Director

Mr Fitzgibbon said that it is not clear what the Complainant’s grievances were. He said that the Complainant admitted that she has not followed the grievance procedure. He said that the rules are the rules.

In cross-examination, it was put to Mr Fitzgibbon that , on the first day of the hearing, he sought an adjournment to bring the HR Manager and the Office Manager as witnesses to give evidence, but they did not attend. He agreed.

Mr Fitzgibbon agreed that allegations of bullying and harassment are serious. However, he said that he did not know what the allegations against his sister were. It was put to him that the purpose of the meeting on 16 August 2019 was for the Complainant to raise her grievances. Mr Fitzgibbon said that he was not sure, it was an informal meeting. Mr Fitzgibbon agreed that the reason to have the meeting outside of workplace was to deal with sensitive issues raised which the Complainant wanted to discuss in comfortable environment. He said that the HR Manager never discussed the issues with him prior to the meeting. He insisted that he did not know what the meeting was about until he got there. Mr Fitzgibbon disagreed that at the meeting the Complainant made serious complaints regarding the treatment she was exposed to. However, he agreed that sensitive matters were discussed and  that bullying and/or harassment was mentioned at the meeting.

It was put to Mr Fitzgibbon that he agreed that bullying and harassment are serious allegations and, if mentioned, it would have prompted him to have some record. Mr Fitzgibbon said that he followed up by email, no minutes were kept. He said that they were trying to resolve the matter and agreed to follow up and meet again.

It was put to Mr Fitzgibbon that there is no mention of bullying and harassment in his follow up email, to which he replied, “you are dead right”. He said that, if it was not in the email, then the Respondent spoke with the Complainant.

Mr Fitzgibbon said that the Complainant had an opportunity to put her grievances formally, but she said that she “felt” she was bullied. He said that he was not on notice of bullying and harassment as the Complainant said that she “felt”. He said that she signed the notes of the meeting confirming that they could move on.

Mr Fitzgibbon was referred to the letter of 8 December 2019 and asked if the letter was notification that the Complainant was making a bullying and harassment complaint. He disagreed.

Mr Fitzgibbon confirmed that the investigator that he had proposed to investigate the Complainant’s grievance provides work for the Respondent, albeit he confirmed that he does not meet the person socially.

Section 1 of the Unfair Dismissals Act provides the following definition of “dismissal”:

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

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(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.”

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act (as quoted above).

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp [1978] IRLR 332.  It comprises of two tests, referred to as the “contract” and the “reasonableness” tests. It summarised the “contract test” as 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 as discharged from any other performance.” 

The “reasonableness test” assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, [if so] the employee is justified in leaving.”

In both situations, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment.

In Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“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 the present case, the Complainant has alleged that the conditions of her employment, and in particular the bullying treatment by the Office Manager, and the subsequent failure to deal with her grievances in an appropriate manner made the conditions of her employment intolerable to the extent that she was entitled to resign and consider herself constructively dismissed. The Respondent denies the Complainant’s allegations and submits that her failure to engage with the Respondent’s internal procedures was fatal to her complaint.

To succeed in a complaint of constructive dismissal, it is incumbent on a complainant to demonstrate their engagement with the Respondent’s internal procedures. In the matter of Beatty v Bayside Supermarkets UD 142/1987 the Employment Appeals Tribunal held that:-

“…it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

In Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. While the Complainant in this matter initiated the company’s internal grievance procedures, he resigned without lodging a final appeal. In this instance the Tribunal found that,

“…the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”.

and,

“…in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In essence, in a constructive dismissal claim the burden of proof rests with the employee, who must prove that their decision to resign was both justified and reasonable. In effect, the employee must demonstrate that they had no option but to resign. The notion places a very high burden of proof on an employee to demonstrate that she acted reasonably and had exhausted all internal procedures in an attempt to resolve her grievance with her employer.

Having carefully considered the submissions and evidence proffered in this case I find as follows.

There was no dispute that the Complainant resigned from her position on 7 April 2021.

There was no dispute that an Invitation to a Disciplinary Hearing was sent to the Complainant by email on 4 July 2018 at 11:51. The email listed some 10 allegations against the Complainant and requested her attendance at a Disciplinary Hearing at 4pm on that day. I note that the Respondent did not propose an investigation meeting but a disciplinary one. The Complainant was required to give the Respondent the names of any witnesses she wished to call by 3pm that afternoon and provide copies of any documents she wished to have considered “as soon as possible”. The Complainant did not attend the meeting, she commenced her sick leave and by email dated 13 July 2018, she provided the Respondent with a detailed response to the allegations contained in the email of 4 July 2018.

I accept that the Complainant informed the HR Manager of her grievances on 22 May 2018 and subsequently at the meeting with the HR Manager and Mr Fitzgibbon on 16 August 2018. While the email issued post the meeting does not address the matter, Mr Fitzgibbon confirmed at the hearing that the issue was raised. The fact that it is not mentioned in the HR email summarising the meeting shows the Respondent’s  disregard for the Complainant’s grievances from the outset.

I note that on 9 October 2018 the Complainant informed the Respondent that she would not be comfortable meeting with the Respondent in the presence of other staff members, who appear to be junior to her. The Complainant again, on 16 November 2018 asked the Respondent to arrange a person who is “impartial to the situation” and “qualified to deal with the situation”. The Respondent replied on 16 November saying that it would seek out a mediator and revert.

On 14 December 2018, the Complainant wrote to the Respondent noting that she met with the Respondent “…over 4 months ago and listed a number of grievances and I have not had a response to a single one of them.“ She goes on to say “Can you please let me know what you have done to date to resolve the issues I have raised and if you want to facilitate a return to work for me?”

On 10 January 2019, the Respondent wrote to the Complainant seeking her agreement to have a named person appointed to investigate her complaints. The Complainant questioned the choice of the investigator, as they had previous involvement with the Respondent. It was explained to the Complainant that the person in question no longer works for the HR company that provides services to the Respondent. The Complainant, however, did not believe the meeting would be impartial or a move toward reconciliation. At the hearing, the Respondent confirmed that the proposed investigator conducted work for the Respondent but there was no personal relationship. While I have no reason to question the proposed investigator’s integrity, it was clear that the Complainant was not comfortable with the appointment in light of the professional relationship between the Respondent and the proposed investigator. The Respondent did not appear to make any further effort to seek alternatives.

I note that the new HR Manger contacted the Complainant on 21, 25 February and 4 March 2019 and further correspondence ensued regarding the Complainant’s data request and her queries as to what steps had been taken to deal with her complaints. On 5 March 2019, the Complainant informed the HR Manager that she was not aware what actions the Respondent had taken or was there a record of her grievances.

Subsequently, the HR Manager informed the Complaint by email dated 28 March 2019 that “no such letters/emails will be sent confirming anything around your grievance until a meeting takes place” on 3 April 2019. She then clarified in her email of 2 April 2019 that the meeting is “a long terms sickness meeting due to absence from work for 8 months” to be held on 3 April. The meeting was eventually arranged for 10 April 2019.

It seems that the meeting commenced as “long terms sickness meeting” at 10.30 am. This meeting concluded at 11am and moved to a ”grievance meeting”. I note that the HR Manager’s letter did not inform the Complainant in advance that her grievances would be dealt with at the meeting. The letter was clear to say that the meeting was to discuss the Complainant’s long-term absence. I was given two different accounts of what transpired at the meeting. The main issue related to whether the Complainant agreed that she has no grievances and that the parties could move on.

I note that, in the Respondent’s submission, it is contended that the Complainant “confirmed that she had no grievance and they could move on. The Complainant signed the minutes of the meeting that were transcribed by Mr Fitzgibbon”. I was not presented with the signed minutes.  The Complainant disputed that she agreed to “move on”. She asserted that it was the HR Manager that suggested that they should move forward. A document was exhibited at the hearing (unsigned and undated) which appears to be correspondence from the HR Manager to the Complainant regarding another meeting which notes that the Complainant “was not in the best of thinking that particular day”  (the day she signed the document regarding the previous meeting).  She also said that she “could not consider a return to work until a claim had been sorted”. In that regard, I find that the Complainant was absent for an extended period due to stress and anxiety, she was not informed of the grievance meeting, attended the meeting with no witness and support. I find that the Respondent’s reliance on the Complainant signing the minutes at the time is an unconvincing argument.

The Complainant clarified her non-attendance at the subsequently scheduled meeting in June 2019. I accept the Complainant’s explanation that an unexpected email from the Respondent caused her such level of anxiety and stress and that she was not in a  position to attend the meeting.

The Complainant asserted that she met with the HR Manager on 15 July 2019 and 11 September 2019 at which she informed the HR Manager that, in her view, no progress was made to address her grievances and allegations.

On 3 June 2020 the Complainant emailed the HR Manager informing of her intention to resign. She received no reply or acknowledgement and emailed the Respondent again on 9 June 2020. The HR Manager replied on 15 June 2020 saying that she would be happy to meet, asking for outstanding medical certs and confirming that outstanding holiday pay would be checked.

Following an exchange of correspondence between the Complainant’s solicitor and Mr Fitzgibbon, on 8 December 2020, the Complainant’s solicitor listed what they considered to be the outstanding grievances. A person from the HR Department of the Respondent replied on 15 January 2021 stating, inter alia,

“if Michelle is of the opinion that this incident [with the Office Manager] constitutes bullying, please write to us and we are happy to investigate the matter and other matters…”

“We are happy to resolve any grievance Michelle has prior to returning to work”.

On 18 February 2021, a new HR Manager wrote to the Complainant’s solicitor “encouraging “ the Complainant “to issue a written statement and engage with the company’s formal grievance process” despite the Complainant’s solicitor expressly stating in their letter of 8 December 2020 that the formal grievance was being instigated;-

“To be clear, and to avoid any miscommunication of any kind, our Client is formally seeking to raise grievances about her employment to be fully investigated and resolved as per the Company’s Grievance Policy”.

I find that the Complainant engaged with successive HR Managers and with Mr Fitzgibbon directly. She was in a vulnerable state due to her anxiety and stress. She commenced her sick absence in or around June 2018 and referred her complaints to the Respondent on 16 August 2018. The Complainant was reasonable in her expectation that these would be investigated. She then, throughout the period of some 2 years and 8 months repeatedly requested for her grievances to be dealt with and made many requests to clarify the Respondent’s position in that regard.

There was no dispute that the Respondent had a  detailed Grievance Procedure and Bullying and Harassment Policy. However, it appears that following the Complainant raising her grievances the Respondent circumvented its own procedure and failed to engage with the Complainant in a meaningful manner. Despite the exchange of emails and some meetings between the parties, there was no meaningful and robust action taken by the Respondent. There does not appear to be any records of the Complainant’s grievances, there was no suggestion that the Respondent carried out any investigation into the allegations raised by the Complainant. I accept that some proposals regarding the Complainant’s return to work were put forward. However, the kernel of the matter was the Complainant’s grievances. These appear to have never been addressed and instead, the Respondent engaged in a futile process. Even if the Respondent was unclear as to the Complainant’s allegations, they were spelled out in the letter of 8 December 2020 and further requests to submit grievances were baffling.

I don’t accept the Respondent’s assertion that the HR Manager reached out to the Complainant on 5 April 2021. In that regard, I accept that the letter, albeit dated 5 April, was franked on 7 April 2021. Furthermore, I note that the HR Manager in her email of 8 April 2021 refers to the letter as posted by registered post “yesterday”.  It is, therefore, disingenuous to assert that the Respondent issued a written invite to a formal investigation meeting into the Complainant’s grievances prior to her resignation.

Having considered the circumstances of this case, I have concluded that the behaviour of the Respondent was unreasonable such as to justify the Complainant terminating her employment by way of constructive dismissal.

Pursuant to Section 7 of the 1977 Act redress in the cases of unfair dismissal might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss. The Complainant sought compensation. Having considered the circumstances, I find that compensation is the most appropriate form of redress in the instant case.

The Complainant resigned her employment on 7 April 2021. She informed the hearing that her sick leave ended in April 2021. She was in receipt of Job Seekers Benefit until approximately September 2022. In the period between September 2021 and January 2022, the  Complainant was self-employed and provided accountancy services. In that period she earned approximately €8,411.98. The Complainant said in her evidence that the named business sought her full-time attendance in the office. The Complainant said that she was not able to work full-time. The Complainant said that she is currently not working but she has been looking for work since the termination of employment.

The requirement on a dismissed employee to seek alternative employment is very significant. The Employment Appeals Tribunal in Sheehan v. Continental Administration Company Ltd. noted that:- 

“The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

In arriving at my decision as to the amount of compensation that is just and equitable, I have considered the Complainant’s insufficient attempts to mitigate her loss.

There was a dispute between the parties as to the Complainant’s weekly wage. The Complainant asserted that she was paid €576 net per week. The Complainant exhibited her record of hours worked and paid and contended that while her contractual hours averaged 16 hours a week at €16 per hour, the rate increased to €25 per hour. The Respondent did not dispute that the Complainant was paid €576 net per week and that she was an employee of the Respondent. However, the Respondent suggested that the Complainant was paid €320 through the payroll and the rest was invoiced. In the absence of any evidence supporting the Respondent’s assertion, I find that the Complainant was paid €576 net per week.

I declare this complaint to be well founded.  

I require the Respondent to pay the Complainant redress of €27,000. In reaching my decision, I have taken account the Complainant’s  inadequate efforts to mitigate her loss.

Constructive dismissal – failure to mitigate loss