Complainant

Respondent

Parties

Tanya  Burke

Ballymore Community Childcare Facility Company Limited by Guarantee

Complainant

Respondent

Anonymised Parties

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Representatives

Conor Quinn John J Quinn and Co Sols

T Lowey BL (day 1) Olivia Crehan BL (days 2 and 3) instructed by Hannah Clinton McGrath McGrane LLP

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-00046136-001

13/09/2021

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adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 WITHDRAWN

CA-00046136-002

13/09/2021

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adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 WITHDRAWN

CA-00046136-003

13/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991WITHDRAWN

CA-00046136-004

13/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 WITHDRAWN

CA-00046136-005

13/09/2021

 This complaint is one of alleged constructive dismissal notified to the Respondent in a letter of resignation submitted by the Complainant on 17 August 2021 which referred to a period of notice, covered by her sick certificate. The Complainant was employed in a childcare facility in different roles and on varying terms between 1/11/2016 until her resignation. Events in 2020 first lead to her promotion, later to the extension of her probation followed by her demotion during the probation period which she was deemed to have failed. The validity of the probation period in the promotional post is still contested by the Complainant. The Complainant was out sick from the date she was notified of her demotion and did not return to work at any stage thereafter. There was an informal discussion about her grievances between the Complainant and the Chairperson of the Board at his home in November 2020. After this meeting, the Complainant was offered a further meeting with the Chair of the Board and the staff liaison person Nora Fagan. She declined the offer on health grounds. The Chairperson sent out details of her new role which was challenged by the Complainant in terms of the job titles he used-and which was then corrected by the Chairperson. Prior to her sick leave and at the meeting with the Chairperson she expressed a difficulty with the hours of work in the new role. There were issues for the Complainant in December when a member of staff was told not to deliver selection boxes to her house for her children. In February she wrote to the Chairperson about the calculation of her pay during Covid.

A formal grievance referencing bullying and other issues was submitted by the Complainant in March 2021. The Respondent replied that they took such allegations seriously adding that the Complainant had not activate the procedures within the employment prior to her departure (on sick leave). Her solicitor also wrote about the alleged underpayment of wages which were not resolved by March 2021 and also made a request for data access.  The Complainant submitted medical certificates throughout her absence referencing variously workplace stress, stress and medical condition. As part of the material issued in response to the data access request, in September 2021 after she had resigned, the Complainant received a document of complaint dated September 2020 by the person against whom she later made a complaint of bullying in March 2021, which she was unaware of up to that point in time. In May 2021 the Complainant was removed from the parents’ whats app group. The investigation of her grievance commenced in June 2021-after issues about the membership of the investigation team (Complainant) and the fitness of the Complainant to participate in the investigation (Respondent) were addressed. Following the meeting with the investigation team in June 2021, the Complainant heard no more from them. She saw an ad for the position of supervisor position similar to her own one. In August she decided she could not continue with her employment and gave notice with immediate effect referencing the effects on her mental health. She submitted a further data access request following her resignation seeking specific records. Following the receipt of her resignation, the investigation team and the Chair of the Board both wrote explaining the reason for the delay in concluding the investigation and asking her to reconsider her decision The Complainant did not reply. The hearing was advised of a separate claim for psychological injuries. The period November 2020 to August 2021 was one of unpaid sick leave-the Complainant suggested that others were paid by the Respondent when on sick leave in the past.

The exact rate of pay and hours of work at the time of termination was a matter of dispute between the parties based on the pay and conditions of her previous role versus those applying to the alternative role to which she was to be assigned in November 2020. The Complainant sought compensation by way of redress whereas the Respondent indicated that they would be open to re-employing of the Complainant.

Mr Quinn on behalf of the Complainant gave some background in relation to the events of 2020 which formed the background from her perspective of the matters related to her employment history between February 2020 and early November 2020.

In terms of the disputed dismissal, he cited certain dates and events as crucial.

An informal grievance made to the Chairperson of the Board in November 2020(which is not denied) while the Complainant was on sick leave.

A decision in December to withdraw permission for a delivery of selection boxes from the Respondent intended for her children and witnessed by them.

Issues raised regarding underpayment of wages, which were not resolved by the Respondent until he as her solicitor became involved.

The delays in dealing with her formal grievance submitted in March 2021-with no response until May 2021 and then requiring that she be certified fit to participate in the investigation, which she then arranged through her GP. The appointment as a member of the investigation team a person named in the complaint and a delay until June before any meeting took place with the Complainant.

The failure to follow up with the Complainant after her meeting with the investigation team on June 22nd, 2021-including the failure to provide minutes of that meeting-noting that when these were provided in September 2021 following her resignation, they consisted of one page of notes to cover an almost three-hour meeting.

Delays in responding to her data access request including stating that documents could not be accessed at the employment due to Covid restrictions, which was not accepted as a valid reason for the delay.

The removal of the Complainant from the parents’ whats app group in May. Later the same day she was removed as administrator for the staff group. She felt humiliated by these actions-her children attended the service.

Mr Quinn described the Complainant as becoming more and more isolated over a period of months which was affecting her mental health, her state of mind as he put it, and this was to be considered in understanding why the Complainant resigned as she felt let down and that the necessary trust in the employment relationship no longer existed. Her mental health was deteriorating, her medical advice was not to return. Her state of mind at the point of resignation needed to be understood. She was without pay from the employer for the duration of her sick leave from November 2020 until her resignation in August 2021, although she believed others were paid by the Respondent for their sick leave. In effect nothing had been done about her complaint, it was not taken seriously by the Respondent. The delay of over five months in (not) addressing her concerns through the procedures was egregious, representing a significant breach of trust to the Complainant. The Respondent had behaved so unreasonably, that the Complainant had met the threshold required to satisfy the complaint of constructive dismissal.

Summary of Complainant Witness Evidence Tanya Burke

In her evidence the Complainant spoke about being in the employment for four years. She raised issues of concern in November 2020 with the Chairperson. She spoke about being in the front office the day after she was told she failed her probation and she alleged that in front of two others the manager was on her back. She had an issue about the hours f work for her revised role which she described as a huge change. It was made out to her that it was a case of take it or leave it and she had to decide by Friday. She became stressed, developing medical issues including chest pains, not sleeping or eating. She went out sick. Asked if she received any sick pay, she replied no. Asked if she know of others who received sick pay she replied yes, at the discretion of the Company.

She described the stages and dates of her formal and informal grievances between November 2020 and March 2021. On May 6th she was removed from the parents’ whats app group. It was highlighted by another person. They were looking for names for the summer camp-there was a message to all parents.

There was no direct communication from the Respondent during this time.

Regarding the delay in providing documents which was said to be due to a partial Covid closure, the very next day after the grievance meeting, she saw the manager with another employee around at the school where the manager handed over documents.

Describing the grievance meeting on June 22nd, the team listened to her and took notes. She felt there was some disbelief at the things she was telling them. After the meeting her felling was that this was a fair investigation, fair to both sides, that she could get closure and her nightmare could be ended.

Asked about the notes of the meeting she received in September, she said there was a lot more discussion and detail.

Asked was she tod about holidays and that they would go back to speak to the manager and other witnesses-she said that they did speak about their annual leave, but not about contacting her again or interviewing the manager. Asked was she told the report would be sent to the Chairperson she said no.

Asked what happened in August the witness said that a position was advertised on the Facebook page-she was still a member. As far as she was concerned, she was being replaced, her situation was not being dealt with, that she didn’t matter.

Asked to explain her reasons for her resignation, the witness said that financially she had no income. She did not trust the employer anymore-that anybody would be listening to her. She referenced the issue around her paperwork and the Covid reason for the delay. Her mental health was quite fragile. Asked why she did not get in touch with the Respondent before she resigned, she said that it was not up to her. Asked about the request to re consider, she said that at that stage she felt she had to stick with her decision. Before her promotion there was no issue with her about anything.

Ms Crehan presented the submission on behalf of the Respondent. The facts of the employment relationship in terms of the contractual arrangements were set out. Written terms of employment were provided to the Complainant at each stage of her employment as her role and tenure changed. However, most of her terms remained unchanged. The written statement contained a grievance procedure. The staff handbook which was to be read in conjunction with the written statement was obsolete and out of date-however these policies and procedures were reviewed and updated at monthly staff meetings.

 The Complainant was promoted to assistant manager in February 2020 and was on a probationary period of six months.

Covid caused the closure of the facility for a period between March and June 2020. In August, following the reopening there were complaints by two fellow workers about the Complainant. The staff liaison officer Ms Fagan intervened and held a counselling session with the Complainant in accordance with the informal stage of the disciplinary procedure. The manager of the facility wrote to the Complainant at the end of August informing her that due to the closure of the facility, the probationary period for the assistant manager position was extended to 25 November 2020, with suitability for the position to be to be reviewed at that stage. In September 2020 there was a further complaint against the Complainant-in writing [it is this written complaint by the service manager which the Complainant refers to when she speaks to not being known to her until she received the data access material]. Ms Fagan intervened meeting with both employees separately on September 30th, 2020.

On November 3rd the Complainant was informed that she was unsuccessful in her probation in the assistant manager post. A new post was offered which was created to match her skill set. The hours of work were not finalised at this point as the Complainant was not happy with the hours being suggested. On November 4th, the Complainant spoke with Ms Fagan and on November 6th she rang in sick, unable to attend work. On the same date, the Chairman wrote to the Complainant setting out the title of the new role and her conditions.  A medical certificate dated 5 November was then provided to the Respondent. On November 6th, the Chairman wrote again expressing concern about the Complainants wellbeing and offering to meet with her-a meeting which took place in the Chairmans house on November 9th.  His note of that meeting summarising the concerns expressed to him by the Complainant was submitted to the hearing.

Following the meeting on November 9th, the Chairman wrote to the Complainant addressing some of the issues she raised with him, emphasising her value to the organisation and inviting her to a meeting with him and Ms Fagan. On November 11 the Complainant replied to the Chairman to the effect that she would like to have the suggested meeting but not at that point due her medical situation.

In a letter dated 20 November, the Chairman again wrote to the Complainant seeking to reassure her of their concern for her wellbeing and suggesting another role if she did not feel she could return to the one previously offered. On November 24, the Complainant replied to the Chairman that he had added to her stress and anxiety in the recent correspondence referring to the role he had described for her. On November 25th the Chairman wrote apologising for his error regarding the title of the job which he corrected, saying that what he had intended was the role and terms and conditions she was working in prior to her promotion to assistant manager. He apologised for any stress caused.

On 23 December the service manager wrote to the Complainant indicating that she was always available to meet and promising accommodating and flexible support in her return to work. The Complainant did not reply.

February 2021 saw exchanges with the Complainant when she began to raise issues with the Chairman regarding her wages during Covid. The service manager responded with a written explanation of the situation and offering to meet to discuss. The Complainant again wrote to the Chairman later in February raising additional issues about her payments. She referred to stress and asked that they receive priority.

On March 9th, 2021, the solicitor for the Complainant wrote to the Respondent attaching a document containing the Complainants grievance and seeking a formal investigation. There was also a data access request and a threat of proceedings through the WRC if outstanding wages were not paid. The Respondent replied that the matters raised would be discussed at a Board meeting on 18 March.

The formal data access request was submitted on 22 March.

On April 1st, 2021, the Chairman wrote that the Respondents clearly defined grievance procedure had not been invoked, referring to the position as set out by the Chairman to the Complainant the previous November including the offer of a meeting, declined by the Complainant. Pay issues were also discussed in that letter.

On 26 April 2021, there was further correspondence on behalf of the Complainant-about the data access request, containing a reason why the Complainant did not complain earlier and suggesting that a letter of fitness to participate in an investigation could be obtained from the Complainants GP.

On 10 May 2021 the Respondent wrote that the Board agreed that the Complainants grievance investigation could proceed provided she was certified fit to participate -given she was at that stage certified unfit to work until June 5. It was not until on May 24th the Respondent received the medical certificate confirming that the Complainant could participate in the investigation of her grievance.

The names of two directors to conduct the investigation, including Nora Fagan, were notified to the Complainant solicitor on June 2nd. There was an objection on behalf of the Complainant to Ms Fagan’s participation as she was named in the grievance document. She stood down from the investigation and was replaced by another member of the Board.

There followed some issues regarding the suggested venue, confusion around the name of the support person nominated by the Complainant which when resolved allowed for a meeting to be scheduled for 22 June 2021. The Solicitor for the Complainant then indicated that the Complainant would not proceed on the 22nd as she had not received all her data access requested documents. Ms Fagan explained this would not be possible as there was a confirmed case of Covid in the school resulting in the building being partially closed.

On June 22nd the Complainant confirmed that she would meet with the investigation team that evening. The meeting lasted almost three hours and it is evident from the minutes which were provided to the Complainant on September 23rd, that it was made clear to the Complainant that the team would make further inquiries; that these would take some time and they would meet again with the Complainant.

The submission outlined difficulties in meeting the employee who was the source of part of the grievance as she was also taking advice from her union and then there was the usual period of summer closure when that employee was on leave with the investigation team members also taking leave during that period. The facility did not re-open until August 16th [the day before the letter of resignation].

On August 17th without any warning, the Complainant resigned in a letter which raised new issues and criticised the investigation team and also raised an issue in relation to the data access request. She asserted that nothing had been done about her grievance.

The Chairman and one of the investigating team each wrote to the Complainant asking her to reconsider her decision. The solicitor for the Complainant replied that she could not accept the explanation provided. Correspondence referred to personal injuries claim and psychological injuries.

The complaint of constructive dismissal was denied. The correspondence by and on behalf of the Complainant failed to recognise that it was only in late May that the Complainant was deemed medically fit to participate. The holding of an investigation meeting in June could not be characterised as an undue delay. The Complainant was made aware of further inquiries and an intention to meet with her again at the meeting on June 22nd. She was aware of the holiday situation for the investigation team and the main responding employee and others due to the annual closure.

The Respondent relied on the Labour Court in Cederglade Limited v Tina Hiblin UDD 1843 which in turn referenced Ulster Bank vs Conway and Berber vs Dunnes Stores [2009] ELR 61

It was submitted that the Respondent acted at all times within the contract of employment and at all times acted fairly and reasonably. The concerns raised by the Complainant were addressed fairly and comprehensively by the Respondent. The Complainant failed to warn the Respondent prior to her resignation that this was her intention unless the grievance was addressed more speedily.

The facts in this case do not indicate any fundamental breach of the contract of employment by the Respondent or level of unreasonable conduct warranting the Complainants decision to terminate her employment.

Summary of Respondent Witness Evidence-Nora Fagan

In her evidence the witness stated that she was a Director of the Board in 2020 21 at the time of these events. She was also the staff liaison officer.  There was a very detailed grievance process in the employment and she was effectively the go-between who stepped in when there were employee issues. Her role was to try to resolve staff issues. In November 2020 she was aware of the Chairperson meeting with the Complainant, and he reported to her that he found it very confusing-the issues being raised by the Complainant, referred to a note he had taken. They decided they would offer to meet with the Complainant to sort it out. She replied that she would find it too stressful and the Chairman replied that she could come back to him at any time that he was always available to her. They decided to leave it with her as when she would come back to them(for the meeting).

In March there was a lot of communication first around pay. The witness stated that they did not pay sick pay in the employment. The exception was for a small number of Covid related cases for a few days, but otherwise sick pay was never paid to employees. It was the Complainants interpretation that she was not paid her correct wages the previous year.

Regarding the complaint of March 2021, the witness stated that the Board took this extremely seriously and provided an immediate response. The Chairman asked for a patient report-fit to participate-they were mindful that she was absent on stress and did not want to cause further stress to the Complainant. Between 9 and 14 May they were waiting on the medical certificate and then informed Mr Quinn they were going to proceed with the investigation and named two Directors to conduct the investigation, the witness and one other. A week before they were due to meet there was an objection to herself, so she was then replaced by another Director.

Regarding the delay in concluding, the witness effectively contradicted the Complainant, stating that except for one year, there was always a school closure in the summer, a shut down in August/September.

Regarding the use of whats app-the witness explained that there were two systems used-one was set up for parents of attendees and the other for staff. The one for parents was the one the Complainant was removed from. The complainant’s children were not in regular attendance at that stage. There would be a regular updating of the records to delete those not using the services regularly-otherwise the system would become unmanageable. She understood that the administrator and the manager at the time decided to remove the Complainant. Beyond that she really does not know much about what happened.

Regarding the selection box at Christmas time, she made some inquiries about what had happened. It seems that it came to the attention of the manager that boxes were to be delivered to the Complainants house by a named male employee. The manager stopped that arrangement saying that she wanted the opportunity to be available for the service to give the boxes to the Complainant rather than appearing to come from the named staff member.

Regarding the ad for a new position, they were down two assistant managers due to maternity leave and a resignation. One had not returned after her maternity leave in roughly August September 2020 and the Complainant knew this. There was a role for an assistant manager to be filled.

Regarding the delay in concluding the investigation, the witness gave direct evidence of the Board meeting in July where they sought a progress report and the team reported that they hoped to be finished the investigation by August.

Regarding the letter of resignation, the witness stated that the Complainant was straightaway asked to reconsider. As far as she was aware there was no response.

In cross examination, the witness replied that there was training on bullying when the Complainant started as part of induction.

Asked if she accepted that the Complainant had submitted a grievance in November 2020,the witness replied that this was not the initiation of the grievance procedure ,it was an informal chat. He reported that he found it very confusing, that the Complainant was very emotional that he didn’t expect to find a very distressed emotional employee raising issues he knew nothing about.  She used the term fright to describe the reaction of the Chairperson which she explained was that they never previously received any indication of medical stress on the part of the Complainant, and he was really taken aback when he met with her.

Asked about previous payment of sick pay, the witness said she was not aware of it-that sick pay was not paid before Aril 2020 and related to Covid.

Asked if the Respondent used a company doctor, the witness replied yes, they had an option to send and employee to that doctor when they were returning to work. They had never contacted an employee when pout sick to have them assessed by the company doctor.

Asked about the claim of outstanding pay, the witness confirmed she was aware of it. This was left to the manager to resolve. Asked if the error was corrected, the witness said that this issue applied to several employees and described the manager as trying to resolve the shortfall by paying vouchers, which she described to the Chair as erroneous. She referred to general confusion about the system. The problem was corrected in April 2021.

Regarding her inclusion on the investigation team, the witness stated that normally she would conduct the investigation. She accepted her name was mentioned in the complaint, but she did not think she was part of it. Once she withdrew from the team, she had no role other than administration arrangements.

At the Board meeting on 5 July the investigation team were asked how the inquiry was going. They advised they were having a difficulty arranging a meeting with one witness.  They expressed the hope of being finished by mid-August.

Asked by Mr Quinn if she agreed that seven days would be a normal timeline for completing the investigation of a grievance, the witness replied no, not at all. The Board had proceeded as quickly as they could and did not consider March to June to start the investigation as prolonged. There was a difficulty with interviewing one witness as she was taking her own independent advice which they, the Board, had to respect.  

Asked by the Chair if they had any policy in place for referral for a medical opinion of someone reporting workplace stress the witness replied to no. The legal advice they had received was not to do anything which would add to the Complainants stress.

In response to the Chair, the witness stated that it was their understanding that the document received in March 2021 was a grievance and she referenced the Complainant describing it as such in her own evidence. It was at the interview that the complaint was detailed in full.

Asked if the Complainant had received the selection boxes when she called to the service around Christmas, the witness said she did not know.

Summary of the Respondent Witness Evidence-Linda Fox

This witness was appointed by the Board as one of the two original members of the team to investigate the grievances submitted by the Complainant. She described the steps in the investigation. When the meeting was arranged with the Complainant, they did not know the detail of the case. There were some initial issues about a venue and attendance.

Asked why the minutes of the three-hour meeting with the Complainant were so short, she replied that the team initially went along for a chat. They went without a minute taker. They were not expecting the abundance of information provided on the night. Following that meeting they had   intended to interview the manager, but she wanted to take union advice as she was entitled to do, and this was delayed as her representative was on holidays at the time. There was some over and back with that person in email.

On 22 June they informed the Complainant that they had a lot of other people to meet as potential witnesses that they would have to meet everyone, they explained that they both worked full time and were taking holidays.

Following the meeting with the Complainant they identified a lot of other people they would have to interview as potential witnesses. They themselves worked full time and so only had evenings and weekends to conduct the investigation. They decided they would meet Nora Fagan and would meet the others after they met with the manager. They were also trying to take some leave and there was the annual holiday at the centre. They expected to meet with the manager and others when the school reopened. The investigation team did work on the investigation at weekends and during their own holidays in this period.

Asked about the meeting on 22 June with the Complainant, the witness said she had an abundance of information. She described it as a very good meeting, acknowledging that the Complainant did get upset. They told her they would be organising notes afterwards and other meetings and they would meet her again.

In response to the Chair, the witness stated that on 17 August 2021when the letter of resignation was dated there was no investigation meeting organised with the manager.

In response to the Chair, the witness stated that the members of the team had not conducted an investigation of this kind previously. She confirmed that they had not received terms of reference. As far as she was aware this was a formal grievance being dealt with in accordance with the written procedure at that stage.

When examined, the chronology of dates and events provided by the Respondent representative clearly indicate a previously positive working relationship in a relatively small employment wilting under real stress over a relatively short period of in work activity (allowing for the Covid period of closure). Ultimately it was the demotion of the Complainant which can be seen as the critical point in creating a wall between her and the employer-or at least this is considered a reasonable conclusion given that she never worked thereafter and was in regular enough correspondence with complaints about various matters from that point on-without ever indicating that she accepted the alternative role proposed by the employer or accepted the related terms. As the months passed the range and number of her negative issues increased: at informal discussions with the Chairman; complaints about pay; the job title proposed; a data access request with complaints about the responses and delays; a formal and detailed grievance; rejection of the membership of the investigation team and finally a resignation.  There was a chronology of difficulty for the Complainant before she was demoted emanating from the employer side followed by a chronology of difficulty for the employer emanating from the Complainant from the time she was demoted and went out sick culminating in her resignation.

The matter of the fairness or otherwise of the demotion in November 2020 is not under investigation here.  Neither is the validity or otherwise of the allegation of bullying submitted in March 2021. What is to be decided is whether the reasons given by the Complainant for terminating her own employment fall within the range of reasonable responses to the actions or inactions of the employer now Respondent and whether she allowed her employer at the time fair procedures in resigning without notice. These expressions of reasonableness and procedural fairness are those frequently used by third parties in cases where the employment is ended by the employer in deciding whether, or not, substantial grounds justifying the dismissal. In those cases, and in accordance with the Act- Section 6.— (1) is applied: 

Subject to the provisions of this section, the dismissal of anemployee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

For the employee or complainant, the test is contained in Section 1 of the Act-

(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,

 …

Irrespective of which party decided to end the employment relationship-they must be able to justify that decision based on the actions (and in some cases inactions) of the other side.

Opinion cited on behalf of the Complainant:

Dr Mary Redmond, Dismissal Law in Ireland

“There is something of a mirror image between constructive dismissal and ordinary 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 in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster Bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without having first ‘substantially utilised the grievance procedure to attempt to remedy her complaints.’

The principal articulated by the late and greatly respected Dr Redmond is one of imposing an equality of obligation on the decision maker in either form of termination/dismissal to justify their respective decisions. It follows that where the decision maker is an employee, the tests of reasonableness and procedural fairness on the part of the employee must be applied to their complaint.  Equally but in reverse, in those cases where the decision maker is the employer - with the burden of providing evidence of substantial grounds and the exercise of available procedural fairness justifying the resignation falls on the employer.

It has been written and quoted that there is a high bar for employees in cases of so-called constructive dismissal. However, when the principal set out by Dr Redmond is applied to the legislation there is nothing in the wording of the Unfair Dismissals Act which suggests any difference in the values or weight which is to be placed by a third party on those tests where it is the employee who ends the relationship. There is a high bar for an employer to pass to achieve a finding that their dismissal of an employee was not unfair and the same is equally true of the employee -and there is an equally high bar for the employee to pass when the shoe is on the other foot. There is nothing in the legislation or in the case law which suggests that the bar is any higher for the employee. What can be said is that because the circumstances are frequently less clear cut the Complainant may have a lot more explaining to do to justify the substance of their decision and a lot of those explanations may be about feelings rather than bald facts established following an investigation of the employer and so is less tangible in many instances, hence the difficulties faced by Complainants in cases of constructive dismissal.  Nonetheless the application of the reasonableness and procedural tests are equally at home and comprehensive enough in deciding dismissal cases irrespective of who makes the decision to end the employment relationship.

In the current case, the Respondent acted quickly on complaints made against the Complainant prior to November 2020 and demoted her. The following is a factual chronology of the actions and inactions by or on behalf of the Respondent after she went out sick after her demotion which I conclude support her decision to terminate the employment relationship:

·         No contact initiated by the employer after November 2020 although the Complainant was out sick with workplace stress. The onus to address or resolve her workplace issues was left with the Complainant. No policy or practice was in place in the employment for supporting a person out on a certificate citing workplace stress.

·         The singling out of the Complainant and her child for the negativity in relation to the selection boxes at Christmas.

·         Pay queries submitted by the Complainant were not resolved until she engaged a solicitor. The Respondent appears to hold the supervisor responsible only reversing her position in response to the solicitor.

·         The initial response of the Board to the March complaint to the effect that she had not followed the in-house procedures when those same procedures are now acknowledged as not fit for purpose.

·         The onus was left with the Complainant to confirm her own fitness to participate in an investigation-at her own expense.

·         An investigation was established which included a person named in the complaint-a basic procedural error.

·         Those who did commence the investigation had no experience and it would appear were overwhelmed by the task-the scale and scope of which only became clear to them at the meeting with the Complainant-in spite of having a detailed complaint document from March. They were not able to take or provide detailed notes of that meeting with the Complainant. Despite receiving an eight-page complaint document which set out details of a bullying complaint, those same notes record the meeting with the Complainant was ‘informal’ in nature. They failed to provide that scant note of that meeting for the Complainants approval or at all until three months after that meeting.

·         Accepting that the members of the investigation team were genuinely trying to carry out their task and on their own time-the Board had not provided clear guidance to them or to the employees as to the nature of the task assigned to them-by means of terms of reference, support, a methodology stating how the investigation would be conducted, a timeline, a communications structure, what would happen to any report. The process lacked clarity as to what policy was being used to determine the validity or otherwise of the complaints. When the investigation team issued their very short note of the three-hour meeting in June-they referred to an informal discussion. What was the basis of this assertion-who had made this decision and how were the other employees informed that this was the case. These questions are pointers to the conclusion that neither the Board or the investigation team or the employees directly involved really knew or understood what was happening in response to the formal complaint. This was an amateurish endeavour for which the Board as the Respondent must take responsibility.

·         The timelines expected by the Complainants solicitor are wholly unreasonable and indeed he may have fuelled the Complainant expectations and disappointment as to how long an investigation would take-but the Board and/or the investigation team also had an unreasonable expectation about the timeline which further suggests their complete inexperience and understanding of what would be involved in such an investigation. Or the fundamental requirement to keep both parties, but in this case the Complainant fully informed of progress or otherwise in an investigation.

·         The hearing revealed that it was the service manager who removed the Complainant from one of the Whats App groups-and while this was not terribly serious in itself-when she was the one who was the main source of the complaints, her actions understandably provided a further source of aggravation to the Complainant-an employee who was out of work with workplace stress and had complained about that same manager.

·         There was an ongoing delay in providing the documentation requested by the Complainant. The Complainant was not unreasonable in concluding generally that there were two different levels of importance regarding issues she raised compared to others-and hers was at the lower level. It is not always what is meant by small slights but the perceptions especially when an employee is isolated from the employment, medically psychologically unwell and the main source of her grievance is the person who repeatedly appears at the centre of her aggravation-in her case the then manager.

·         Over a period of many months, while the Complainant was off pay from the employer, she was incurring costs when she was compelled to pay for a solicitor to deal with her issues. Normally this would not be considered a relevant factor validly contributing to an employee’s decision to resign but in this case, the only time the complainant made any breakthrough in receiving information or action by the Respondent on the issues she was raising after she went out sick with workplace stress was when there was legal correspondence on her behalf.

·         The accessibility of the Chairperson in November 2020 and his offer to meet with the Complainant again were commendable and indicate of concern for the Complainant at that time. The reality however is that thereafter the Complainant was effectively abandoned by the Respondent and left to her own devices. In a vacuum she began complaining later lodging a formal grievance to which the Respondent responded with a tardy, poorly organised inadequate procedure.

·         There was no evidence to support the claim that other employees were treated more favourably through payment of sick pay-other than in the circumstances surrounding Covid which do not support the claim.

·         On the face of it, the aggravation caused by the advertisement of a supervisors position was not entirely justified at the time but given that the Complainant was still holding a grievance about her demotion in November 2020 which formed a significant part of her grievance, and there was no sign of any outcome or developments on that grievance, her reaction should not be regarded as excessive or surprising.

This is a small employment with limited resources in terms of for example HR supports and evidently there is a heavy reliance on the members of the Board in relation to HR matters. Nonetheless, in terms of the substance of her case, such was the accumulation of shortcomings on the part of the Respondent in their handling of issues involving the Complainant whether directly or indirectly within their remit between November 2020 and August 2021, that the decision by the Complainant to resign i.e., to terminate the employment relationship was reasonable to this objective observer. Or, in a mirror of such terms frequently used where the employer terminates the relationship-within a range of reasonable responses to the conduct of the Respondent for most of that period. The Complainant was entitled to conclude that nobody she was dealing with really appreciated or more importantly felt sufficiently bound by their obligations to her in respect of the seriousness of her health issue, her basic pay issues, her complaints about her work environment or the financial implications of her predicament. Such was the accumulation of direct and indirect contractual shortcomings by and on behalf of the Respondent that it was they who in the main caused the justifiable breakdown of the Complainants trust in them and in that employment relationship.  The claim of constructive dismissal passes the reasonableness test in terms of the substance of the case made by the Complainant.

Moving to the procedural aspect of the Complainants decision to terminate the employment relationship, having concluded that the procedures adopted by the Respondent to address the complaints of March 2021 were not fit for purpose I find that she could not be bound by the test that she had not exhausted the Respondents procedures before deciding to resign.

 Conway vs Ulster Bank Limited was cited by the Respondent in denying the complaint -on procedural grounds where the Complainant in that case had not exhausted the internal procedures. In arriving at conclusions in that case, the existence of a detailed and exhaustive internal procedure was noted. For the purposes of contrast the procedure in this employment is worth inserting into the decision:

Extracts from Employers Grievance Procedure at Formal Stages

Stage One: Initial Formal Discussion

Failing settlement informally, the matter should be lodged in writing to your manager/supervisor. Your manager/supervisor or another appropriate person/s will investigate the grievance and will hold a meeting with you to discuss the outcome of the investigation. The outcome of the meeting will be communicated to you in writing.

Stage Two: Second Formal Discussion

Should the problem remain unresolved, a meeting will be arranged between you, your manager/supervisor(optional) and a representative of the management committee

Stage Three: Final Discussion

Should the problem remain unresolved, you should present the problem or dissatisfaction in writing to the Management Committee. You should then give your manager/team leader a copy of this letter. A meeting with the Management committee and any other interested parties will then be scheduled.

The Management Committee will make every effort to resolve the grievance.

The Managing Director will make the final decision on grievances which are not resolved to the satisfaction of the employee. A decision of the Managing Director may be appealed to the Workplace Relations Commission, as appropriate.

              While the grievance procedure is now acknowledged to have been obsolete, the terms of the policy were not followed by the Respondent in responding to the grievance submitted in March 2021 while at the same time the Respondents initial response to the grievance was implicitly critical of the Complainant for not following that same obsolete and in adequate grievance procedure. The application of the Conway testto the facts of this case in terms of the Respondents own procedures and the procedures adopted by them is neither justified or appropriate.

 Nonetheless there was a degree of procedural failing on the part of the Complainant in her decision not to notify the Respondent at all of her concerns at the delay in the process before resigning. The claim made on her behalf that such a complaint would be disposed of even in two months was not reasonable and I am satisfied that she would have been aware of a closure of the facility and that this was at a holiday time generally. The meeting with the investigation team went well according to her own evidence and I am satisfied they clearly indicated that they would be meeting others and would revert to her. Much correspondence was sent on her behalf prior to 17 August and one further item of correspondence seeking an update or expressing concern and or her possible intentions was one further step which I consider the Complainant could reasonably have taken and which the Respondent could have reasonably expected. The failure to make further contact on the matters of concern before resigning represents a significant contribution on the part of the Complainant on the procedural aspect of her conduct in terminating the employment relationship, which at forty per cent is reflected in the compensation awarded.

Redress

The Complainant sought compensation by way of redress. For their part, the Respondent stated that they would welcome the return to employment of the Complainant. The position expressed by the Respondent is wholly unrealistic given that the parties had not agreed on her role within the service at the time of her resignation (they could not even agree on her rate of pay or hours of work at the hearing) and the finding that the Complainant had understandably lost trust in the Respondent as her employer. Compensation is the appropriate redress. 

Regarding the quantum of compensation, the Complainant was unavailable for work due to ill health until 26.09.21. She obtained employment commencing on 31 January 2022.

I have opted to use the figure of €510 gross per week as claimed by the Respondent. That there is a factor for the shortfall in her wages in the successor employment makes up some of the shortfall in the rate claimed by the Complainant. Using the figure of €510, the weekly loss comparing the two positions is €53.25 per week which calculated over a period which I have used of 104 weeks following the commencement of her new position, amounts to €5538.   Her loss for the period of unemployment is calculated at €510 x fourteen weeks or a maximum of €7140 from which €1530 is deducted for insufficient efforts to mitigate losses, leaving a figure of €5610.  I find that compensation for the loss of statutory redundancy entitlements is not justified in this case. On the basis of these calculations, the maximum total compensation figure amounts to €11148 sixty per cent of which amounts to €6689, and this is the amount of compensation found to be fair and reasonable in the circumstances.

CA-46136-001 – The complaint of constructive dismissal by the Complainant Tanya Burke against the Respondent Ballymore Community Childcare Facility Ltd is well founded. The Respondent is to pay the Complainant €6689 in compensation for the dismissal.

Constructive Dismissal