Complainant

Respondent

Parties

Niamh  Carroll

Newbridge Merchant Limited

Representatives

Paul Hegarty BL instructed by James A. Boyle & Co. Solicitors

 Tom Smyth & Associates

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-00050231-001

03/05/2022

The complainant worked for the respondent from 1 October 2012 until 4 November 2021. The complainant alleges constructive unfair dismissal. The respondent submitted that the complainant voluntarily resigned from her employment.

Evidence of the Complainant - under oath

The complainant was employed as a store manager at the retail outlet in Portlaoise. The complainant outlined that she had over 10 years’ service with the respondent and that there were no complaints in relation to her performance, conduct or attendance during that time. The complainant outlined that her employment was uneventful until June 2021.

On 18 June 2021 the complainant noticed a discrepancy concerning a transaction and a suspicious refund relating to the previous day which had been made by a senior sales assistant (“Ms X”). The complainant reported this discrepancy to Ms Barry, the Operations Manager. This prompted an investigation into the conduct of Ms X. The complainant as store manager was asked to conduct the investigation hearing. The complainant outlined that she was not qualified to do an investigation hearing. However, she received guidance from management on what to do. The complainant outlined that her involvement in the investigation resulted in an uncomfortable working atmosphere given that she was questioning staff she worked with in the store. Ms X as a senior sales assistant had keys for the store. The complainant was instructed not to have Ms X on opening or close pending the outcome of the investigation. This caused operational difficulties for the complainant as only two other members of staff had keys to open and close the store.

In July 2021 Ms X resigned from the employment of the respondent. At the same time Ms X submitted a written complaint to management alleging several acts of misconduct over the previous year on the part of the complainant. Counsel for the complainant opened Appendix 8 of the respondent’s submission (Booklet 1) which contained the written complaint. That written complaint contained several allegations as follows: (1) the failure of the complainant to investigate €100 missing from the float; (2) approving 10 hours work for a member of staff which that member of staff did not actually work; (3) requesting a member of staff to withdraw €100 from the complainant’s bank account to make up the float discrepancy; (4) approving hours of work for a member of staff but requiring her to paint the complainant’s house instead of working for the respondent; (5) taking two products without paying for them; (6) writing off fashion stock and taking them for personal use; (7) cancelling a layaway and not paying for the item; and (8) instructing staff to sign customer names on receipts contrary to company policy. The complainant stated that she was being accused of theft and outlined to the hearing that she did not do any of the acts of misconduct alleged by Ms X. The complainant outlined that these allegations were retaliatory because of the complainant’s role in reporting and investigating Ms X. The complainant added that she should not have had to conduct the investigation into Ms X’s conduct in the first place. Counsel for the complainant submitted that the complainant was not the appropriate person to conduct the investigation into the alleged wrongdoing of her colleagues and that this was indicative of the way the respondent conducted its business.

The complainant was instructed by Ms Flanagan, Head of HR, to discontinue her involvement in a separate investigation concerning another staff member as the complainant was now herself the subject of a workplace investigation due to Ms X’s allegations.  It was very upsetting and stressful for the complainant to now be the subject of an investigation herself having raised the initial discrepancy in good faith and because she had nothing to hide.

An investigation meeting into the allegations made by Ms X against the complainant took place on 3 August 2021. The complainant was advised in writing in advance of the meeting about what was to be discussed at the meeting and the meeting was confined to those issues. The complainant outlined that Ms X was invited to participate in the investigation but declined as she had left the employment of the respondent and was in employment elsewhere. The complainant stated that as a result she was not afforded an opportunity to confront her accuser Ms X or to question the allegations Ms X made against her. Counsel for the complainant opened minutes of the hearing of 3 August 2021 (Appendix 14 of the respondent’s submission, Booklet 1) and highlighted a reference to another matter relating to a discrepancy concerning another member of staff which was detected on 14 July 2021 which had nothing to do with Ms X’s allegations. Counsel submitted that the investigation meeting went beyond the scope of Ms X’s allegations. Further, the investigation was tainted with unfairness, and based solely on the uncorroborated evidence of Ms X.

The complainant outlined the details of the staff incentive fund which was based on exceeding sales targets. The complainant detailed that in July 2021 she spent the incentive money to purchase a voucher for herself only as the other staff entitled to part of this incentive money had left. The complainant followed the prescribed receipt process and authorisation requirements. However, she availed of the full amount for herself because she was angry with everything that was going on. On the direction of Ms Barry, Operations Manager, the complainant refunded the amount spent.

The complainant stated that she took two weeks annual leave in August and two weeks sick leave due to workplace stress. The complainant was invited to a second investigation meeting while she was on annual leave. This added to the complainant’s feelings of stress, and she felt she should not have been contacted about this matter while on annual leave.

The complainant described a period of eleven to sixteen weeks which were very stressful. During this time the complainant saw her doctor on four occasions.  The complainant availed of counselling services in September 2021. The complainant stated that her doctor and the counsellor helped her to manage the workplace stress she was experiencing. The work environment was stressful because colleagues were being investigated and two staff members had resigned due to the investigation. This also gave rise to staff shortages and the complainant was trying to replace these members of staff. The complainant detailed how everyone in the store and other store managers at other locations knew she was under investigation. The complainant described being totally tormented and feeling suicidal by the time she left her employment in October 2021.

The complainant outlined that she cried out for help several times in the form of asking for additional personnel as the store was understaffed not only because of two resignations but also due to the sick leave of two other staff members. Covid Regulations and the ongoing investigations placed considerable pressure on the store. Post Covid it was hard to source and retain staff. However, the complainant outlined that despite repeated requests, no support was forthcoming. Management had increased the number of store visits also which further added to the complainant’s workload. Changes to procedures were required on foot of these store visits. Further, a valued friend and colleague died at this time. All of this culminated in an extremely stressful work environment for the complainant.

The complainant was invited to a disciplinary hearing on 20 September 2021. Counsel for the complainant opened the invitation letter (Appendix 18B of the respondent’s submission, Booklet 1). Counsel highlighted that the letter referred to the “Investigation Handover Findings”, however, this document was not provided to the complainant. Only a copy of the minutes of the investigation meeting were sent to the complainant. Counsel opened minutes of the disciplinary meeting (Appendix 19 of the respondent’s submission, Booklet 1) and submitted that the complainant was going into a purported disciplinary hearing blind as she has not received the outcome of the investigation meeting (the “Investigation Handover Findings” document). Further, the purported disciplinary hearing was referred to by management as an “investigation meeting” on several occasions throughout the disciplinary meeting. Counsel further submitted that throughout the disciplinary hearing the complainant was being blamed for the misconduct of others.

On 1 October 2021 the complainant was issued with a final written warning. Counsel for the respondent opened Appendix 20 of the respondent’s submission (Booklet 1). The letter confirmed that the complainant was being issued with a final written warning for: negligence and mismanagement of the store given that layaways were occurring without her knowledge; permitting staff to wear clothes that were not paid for; and for spending staff incentive money in a manner inconsistent with company policy. The outcome letter further stated that the actions of the complainant were regarded as gross misconduct; however, a final written warning was being issued to her because of her long service and her full participation in the investigation. Counsel for the complainant submitted that it was wrong for the company to sanction the complainant and further that the sanction given was disproportionate. Counsel added that: (1) the incentive fund was earned by the staff and was no longer the property of the company; (2) this was the first time the complainant’s conduct had ever come into question; and (3) the complainant was being accused of mismanagement on the grounds of the failure of other staff to adhere to company policy which the complainant neither authorised or knew of until after the fact. The complainant added that she was made to feel like a thief for using the incentive fund to purchase a voucher. At all times the complainant was transparent about what she spent the incentive money on and sent receipts to payroll as required per company policy. The complainant felt that she was mistrusted by management when all she was trying to do was her job to the best of her ability.

The complainant was advised that she was entitled to appeal the final written warning to Mr Michael Callaghan (Head of Commercial Finance) by 9 October 2021.

On 7 October 2021 the complainant resigned in writing. The complainant outlined that she decided to resign from her employment to protect her mental health. Counsel for the complainant opened Appendix 21 of the respondent’s submission (Booklet 1) which contained a copy of the complainant’s letter of resignation. In that letter the complainant outlined the grounds of her resignation as follows: “. . . following the unfair disciplinary action taken against me <by the respondent> I feel it is in the best interest of my mental health to resign. I do not accept the severity of this disciplinary sanction and believe that it has not followed due process. Despite the option to appeal same I feel I don’t have the energy or mental strength to carry out another draining process . . . I have been involved in a very stressful 16-week investigation and again I reiterate the severity of the Disciplinary action has left me with no option but to Resign. The fact that <the respondent> considered the allegations made in the investigation in the first place which have been proven to be untrue is another deciding factor”. The complainant confirmed to the hearing that she stood over those reasons given for her resignation.

The complainant outlined that Mr Callaghan (who had been assigned to hear the appeal) contacted her to ask her to reconsider her resignation. Mr Callaghan also emailed to say that he was on annual leave but that he would be in contact with the complainant on his return. The complainant outlined how Mr Callaghan took time to listen to her concerns and she felt hope that she was being listened to for the first time. The complainant described Mr Callaghan as very compassionate, and he committed to speaking to the management team. Mr Callaghan spoke again with the complainant days later and explained to her that his hands were tied, and that the complainant would have to invoke the formal appeals process. The complainant outlined that she could not go through another formal process. She felt let down and badly treated by the company after 10 years’ service.  The complainant added that she felt bullied, targeted, and victimised. The complainant decided not to rescind her notice and did not avail of the appeals process as she was simply not mentally able to go through another formal process.

The complainant detailed that she secured employment as a sales assistant on 1 December 2021 working a 3-day (24 hour) week. Her weekly earnings are €300 per week. The complainant calculated her loss of earnings as €23,668.95.

In cross examination, it was put to the complainant that it would be the evidence of the respondent that the complainant had not earned the average bonus of €550 (referred to by the complainant in her calculations on loss) that year as targets had not been reached. The complainant stated that there were no local management positions available coming up to Christmas. In reply to a question on whether the complainant had made sufficient efforts to mitigate her loss, the complainant confirmed that management vacancies were open in Naas, Kildare Village and Carlow but these were not suitable because of the cost of commuting to these locations and childcare fees. The complainant said her confidence took a knock after she left the respondent’s employment, and she needed time to find herself before taking on another challenging management role. The complainant confirmed that she applied for a marketing role eight months after she left the respondent’s employment, and two other positions  in August and November 2022. The complainant also stated she applied for a part-time role as a school secretary in August 2022. In reply to why she did not apply for retail roles, the complainant said she no longer had the confidence and was looking at different career paths. The complainant confirmed she looked for employment every day, but she had to weigh up the costs of going to work in terms of childcare and commuting costs.

Representative for the respondent opened a medical certificate dated 8 September 2021 (Appendix 2 C1 of the respondent’s written submission, Booklet 2). The complainant confirmed that this certificate stated that she was fit to resume work from 13 September 2021. The complainant added that she received no support on her return to work following her sick leave despite having asked several times for support. Representative for the complainant opened Appendix 17 of the respondent’s written submission (Booklet 1) and confirmed with the complainant that a return-to-work interview had been completed with her on her return from sick leave.

In reply to whether it was reasonable for the company to investigate cash refunds, the complainant responded “absolutely”. The complainant also confirmed that HR provided her with templates and support to conduct the investigation into the alleged conduct of Ms X. The complainant added that it was because she worked with Ms X for years that made it difficult to investigate Ms X’s conduct and that the store never had such an issue like this before. The complainant acknowledged that it was understandable that her colleagues did not like her investigating them. The complainant confirmed that she did not object to doing the investigation and that she received support in doing the investigation.

In reply to what support the complainant was looking for, the complainant confirmed that the support she needed was more staff. The complainant acknowledged that she received emails of verbal support but that was no good to her as what she needed was people on the floor. In reply to the comment that the respondent did provide additional personnel, the complainant stated that “yes, but they were new, and it was chaotic in the store at that time” and the complainant was under pressure trying to manage an understaffed store.

It was put to the complainant that it would be the evidence of the respondent that the complainant did in fact know about the layaways and the false names being used for those layaways. The complainant reiterated that she did not authorise or have any knowledge of the layaways or staff wearing product which had not been paid for. It was put to the complainant that she spent some of the staff incentive fund on 9 July 2021 before other staff who were entitled to a share of it had resigned. The complainant responded that she spent the incentive money on herself out of frustration as staff had turned against her. The complainant added that she provided receipts to payroll for same as per company policy.

The complainant confirmed she was given an opportunity to respond to all of Ms X’s allegations during the investigation meeting and that she received all the relevant documents in advance.

In reply to a question regarding not availing of the appeals process, the complainant reiterated that she physically was not able for another process and could not take anymore. The complainant confirmed that she learned of her colleague’s illness in June. Her colleague passed away October 2021.

The complainant confirmed that staff from Carlow and Newbridge were sent to Portlaoise to assist the complainant, but that the Portlaoise store was subject to numerous site visits which placed a considerable burden on the complainant. It was put to the complainant that there was a total of six site visits, and that the complainant was only present for three. The complainant accepted this. The complainant acknowledged that the first of those site visits was instructive and helpful. In reply to what was it that the complainant found stressful about the second site visit, the complainant responded that she was asked for an audit document, and she had never been asked for one before. The complainant added that this site visit and the third site visit which she was present for were negative.

It was put to the complainant that the stressful period she referred to lasted 11 weeks rather than 16 as she had submitted. Representative for the respondent took the complainant through the events of that 11 weeks and asked if she agreed with the chronology to which the complainant answered in the affirmative.

Evidence of Mr Carroll - under oath

Mr Carroll gave evidence of the impact of all the above on the complainant and their family and described an occasion when the company contacted the complainant when she was on her holidays in August 2022. In cross-examination the witness confirmed that he did not personally witness any of the matters referred to by the complainant.

Closing Remarks

Counsel for the complainant submitted that the investigative and disciplinary process involving the complainant was flawed and founded on uncorroborated allegations that the complainant was denied an opportunity to test. The complainant was subjected to two investigation meetings conducted by members of management who saw nothing wrong with investigating uncontested allegations. The respondent saw nothing wrong with disciplining the complainant for the alleged misconduct of other staff that the complainant had no knowledge of. The investigative process that followed involved a denial of the complainant’s constitutional rights to due process. The supports offered by the respondent did nothing to assist an employee suffering from stress. Further the complainant should have been referred for counselling and it was not credible to say that a reduction in trading hours was sufficient support. Efforts made to get the complainant to withdraw her resignation was simply a rubber-stamping exercise. Counsel submitted that the employer’s behaviour was unreasonable and breached the fundamental bond of trust and confidence necessary for the employer-employee relationship.

Legal Submissions

The complainant’s written submission set out the legal tests for constructive dismissal citing Western Excavating (EEC) Limited v Sharp [1977] EWCA Civ 2; Cosgrove v Kavanagh Meat Products Ltd (UD6/1988); Melligan v Karmarton Limited (UD101/2008) and Catherine Hurley v An Post [2018] IEHC 166. The complainant is relying on both tests to ground her claim. In relation to the obligation to utilise the grievance procedure, the submission referred to Garry Keogh v JTM Jumpstarters Limited UD 1090/2008and Barber v Barbershop (ADJ-00018077). Included within the detailed booklet were copies of some of the aforementioned cases and Agbaje v Lloyds Pharmacy Ireland Ltd (ADJ-00025702) and County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370.

Evidence of Mr Michael Callaghan  - under oath

Mr Callaghan confirmed his position as Head of Commercial Finance. He outlined that he was nominated to hear an appeal of the outcome of the disciplinary hearing as he had no prior involvement in the matter. Mr Callaghan confirmed he had experience of conducting appeals. Mr Callaghan outlined that he asked the complainant on three separate occasions to reconsider her resignation. He requested that she utilise the internal appeals procedure as this would allow him to look at her concerns.   Mr Callaghan reassured the complainant that he would conduct the appeal in a timely manner. Representative for the respondent opened several emails which detailed the engagement between Mr Callaghan and the complainant.

In cross-examination, Mr Callaghan was questioned on the appropriateness of his contact with the complainant given he was appointed to hear the appeal. Mr Callaghan outlined that he contacted the complainant to encourage her to use the appeals process. Mr Callaghan responded that he felt the complainant was in a bad place and he had sympathy for her.  In reply to whether he thought the complainant was hard-done-by, Mr Callaghan replied that post Covid was a very hard time for all the stores and staff. In reply to a question as to whether Mr Callaghan accepted that the complainant could not cope with another formal process, Mr Callaghan stated that is what the complainant said, and he was not going to second guess that. He had reached out to her in the hope she would reconsider her resignation as it would have been a shame to see an experienced manager leave the business.

Evidence of Ms Amanda Barry – on oath

Ms Barry outlined that she worked with the respondent for 14 years and 5 years as Operations Manager. She outlined her area of responsibility and that she had worked with the complainant since 2018. Ms Barry stated she had a very positive relationship with the complainant.

On 15 June 2021 Ms Barry conducted a site visit. During that site visit Ms Barry was informed by a member of staff that the complainant permitted staff at the store to do layaways.

Ms Barry confirmed she was not involved in the investigation at the Portlaoise Store.

Ms Barry detailed the support she offered the complainant. Representative for the respondent opened emails from Ms Barry to the complainant (the respondent’s submission Booklet 2, pages numbered 10 -17) which outlined the support offered to the complainant including a reduction in trading hours and additional staff. Ms Barry confirmed that she completed a return-to-work interview with the complainant after her absence on sick leave and that additional supports were offered to the complainant in the form of additional staff and reduced trading hours. Ms Barry confirmed that the complainant was not directed to any mental health supports.

In cross-examination, Ms Barry stated that it was appropriate at the time to permit the complainant to investigate Ms X and that the complainant at the time felt both confident and happy to do it.  Ms Barry confirmed that the complainant requested permission to spend the incentive money. Ms Barry confirmed that she was disappointed to learn of the complainant’s resignation.

In re-direct Ms Barry confirmed that she did not know that the complainant was going to spend the incentive money on herself. Ms Barry also confirmed that the Portlaoise Store was not the only store experiencing staffing issues. All other stores were under pressure as staff were reluctant to return after Covid-19 related lockdowns.

Evidence of Ms Linda Elliot  - on oath

Ms Elliot outlined her role as Visual Merchandiser for the Southeast Region (covering 24 stores). Ms Elliot confirmed she completed six site visits to the Portlaoise store during the relevant time. Ms Elliot stated that site visits had declined in number due to Covid-19. Ms Elliot disagreed that any of the visits were disrespectful. Instead she completed a front to back review and noted what needed to be done in the store, and that it was the nature of the job to give feedback on areas for improvement in addition to what is working well. Ms Elliot stated that while she was present at the store she would help out. Ms Elliot stated that she had great time for the complainant and got on very well with her.

In cross-examination Ms Elliot confirmed that she was told to support the complainant and the Portlaoise store. Ms Elliot stated that she was not of the view the Portlaoise store was understaffed. Rather the issue in her opinion was that the staff were inexperienced. Ms Elliot agreed that during some visits the complainant seemed under pressure, but Ms Elliot was of the view that everyone was under pressure post Covid-19 and that the Portlaoise store was not the only store that required additional support. Ms Elliot stated that she had responsibility for 24 stores and all stores were experiencing similar challenges post Covid-19.

In re-direct Ms Elliot explained that she did both ‘support’ visits and ‘store’ visits. The purpose of the former is to walk with the store manager on duty and decipher what needs to be done and how Ms Elliot can help with that. Store visits involve a review from front to back of the store to determine what is working well and what is not and to action improvement.

In response to a question from the Adjudication Officer, Ms Elliot confirmed that she did visit the Portlaoise store more frequently during June to December 2021, but stated she had no knowledge of an ongoing investigation involving the complainant. Rather what prompted her to visit the store more regularly was because Ms Barry (Operations Manager for the Southeast Region) had told her the store was under pressure and she was to help while in the store in any way she could.

Evidence of Ms Paula Neylon – on oath

Ms Neylon is Head of Operations and has worked with the respondent for 16 years. Ms Neylon described a very positive working relationship with the complainant. Ms Neylon confirmed she led the investigation into Ms X’s allegations. Her brief was to ascertain the facts and nothing else. She had no further involvement in the matter.

On 14 October 2021, while on a support visit, she learned of the complainant’s resignation. Ms Neylon took the complainant out for a coffee to discuss her resignation. Ms Neylon stated to the complainant that she felt the finding of the investigation were “the findings and that everyone makes mistakes”. Ms Neylon felt that the complainant could have remained with the business but that the complainant decided to leave.

In cross-examination, Ms Neylon was asked if she felt there was a case to be answered by the complainant, to which Ms Neylon answered in the affirmative. In reply to the question of whether Ms Neylon accepted that there was a problem if Ms X was not part of the investigation and if it was fair to put the complainant through an investigation when the accusations against her could not be tested, Ms Neylon answered that yes she felt it was acceptable to do the investigation, that she had a duty to investigate the accusations and that it was the complainant’s opportunity to explain herself. Ms Neylon confirmed she was not trained in conducting investigations but that she was given internal and external advice.

Evidence of Ms Flanagan – on oath

Ms Flanagan is Head of HR and is four years with the respondent company. Ms Flanagan detailed the support she gave to the complainant in conducting the investigation into Ms X’s alleged misconduct, which included templates, guidelines on how to investigate and how to ask questions.

Ms Flanagan confirmed that the reason for the issuing a final written warning to the complainant was for breach of company policy. Ms Flanagan confirmed that the second formal meeting with the complainant was a disciplinary hearing and that although the word “investigation” had been used, it was a disciplinary hearing, and the complainant was aware of that.

Ms Flanagan stated that additional resources were given to the Portlaoise store, including reduced trading hours. Reducing trading hours is not something the respondent would do lightly.

Ms Flanagan stated that she was disappointed to receive the complainant’s resignation and so she reached out to Mr Callaghan to contact the complainant, as they did not want to lose the complainant.

In cross-examination counsel expressed his bewilderment at how sorry all the witnesses were to see the complainant leave yet thought nothing of imposing the sanction of final written warning, to which Ms Flanagan responded that at every stage of the process the company sought to give the complainant the benefit of the doubt. Ms Flanagan added that the sanction was given because the complainant had breached company policy and that could not be ignored. Counsel asked how the complainant could be disciplined for the conduct of others that the complainant had neither authorised nor was aware of. Ms Flanagan responded that not knowing what was going on in your store was mismanagement and that it was fair to discipline the complainant on that basis. Ms Flanagan added that the complainant as store manager should have run reports and completed audits, and if she had done so, she would have noticed the layaways. Ms Flanagan submitted that the behaviour of the complainant was in fact gross misconduct, but the sanction was reduced to a final written warning given the complainant’s service. Ms Flanagan disagreed that she was sanctioning the complainant for the misconduct of others of which the complainant had no knowledge. Ms Flanagan disagreed that it was unfair to put the complainant through an investigation without an opportunity to confront her accuser and added that the respondent could not investigate Ms X as she had left the respondent company.

Closing Remarks

In closing remarks, representative for the respondent reminded the hearing that the complaint was one of constructive unfair dismissal, rather than unfair dismissal and the standard applicable was fair procedures and not perfect procedures. The company followed fair procedures in the round and in line with the Statutory Code. The complainant was fairly disciplined for breach of company policy. The complainant had not discharged the burden of showing that the respondent’s behaviour was so unreasonable as to justify her resignation. The complainant had the option of appealing the final written warning and chose not to do so, despite the company reaching out several times to request the complainant to rescind her notice and to engage in the appeals process. Further the complainant did not make sufficient efforts to mitigate her loss.

Legal Submissions

The respondent’s written submission set out the legal tests for constructive dismissal and cited several cases in support of its position including: Cedarglade Limited V Tina Hilban UD/17/145; Paris Bakery & Pastry Limited v Mrzljak DWT1468; Western Excavating (ECC) Limited V Sharp [1978] ICR 221; Berber v Dunnes Stores [2009] IESC 10; Kirrane v Barncarroll Area Development Company Limited UDD1635; Moran v McDermott Laboratories Limited t/a Mylan (Adj-00030750); Harrold v St Michaels House [2008] ELR 1; Conway v Ulster Bank Limited UD 474/1981; Reid v Oracle EMA Ltd; Travers v MBNA Ireland Limited UD720/2006; Sheehan v Continental Administration Co Ltd UD 858/1999 and Smith v Leddy (UDD1974).

Law

The burden of proof is on the complainant to establish that her resignation was not voluntary. There are two tests contained within the definition of constructive dismissal at s 1(b) of the Unfair Dismissals Acts 1977 – 2021 (“the Acts”). Either or both tests may be invoked by an employee. Either test may be applied by the Workplace Relations Commission.

Section 1 of the Acts defines dismissal, which includes at (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 . . . .”

Where the contract is terminated by the employee, there is only a dismissal within the meaning of s (1)(b) if, “because of the conduct of the employer”, the employee was “entitled” to, or it was “reasonable” to terminate the contract of employment. Accordingly, the question of the dismissal must be considered under “entitlement” and/or “reasonableness”.

The contract test is used to assess entitlement to terminate the contract and was summarised in a UK Court of Appeal decision by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.C.R. 121 (cited in Berber v Dunnes Stores [2009] IESC 10) 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 further performance.”

An employee may be entitled to terminate the contract where the employer engages in conduct which results in a fundamental breach of the contract, or which indicates that the employer no longer intends to be bound by the terms of the contract.

A general term is implied into every contract of employment that the employer will not impair the ‘trust and confidence’ of the employee. In Malik v Bank of Credit and Commerce International [1997] 3 All ER 1 (cited in Berber v Dunnes Stores [2009] IESC 10), Lord Stein stated: “The implied obligation extends to any conduct by the employer likely to destroy or seriously damage the relationship of trust or confidence between employer and employee”. In Malik the threshold was held to be high: it must “destroy or seriously damage” the trust between the parties. However, it is not essential that the employer be aware of the effect of the conduct. Nor that they intended such an effect.  Similarly in Joyce v Brothers of Charity Services [2009] ELR 328, the Employment Appeals Tribunal held that the conduct “. . . cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee”.

In Berber v Dunnes Stores Ltd [2009] IESC 10, it was held by the Supreme Court that in determining if there has been a breach in the implied contractual term of mutual trust and confidence, the conduct of both the employer and employee must be examined as a whole, and the cumulative effect of the conduct must be looked at. The conduct of the employer must be unreasonable and without proper cause and its effect on the employee must be viewed objectively, reasonably, and sensibly to determine if it is such that the employee can no longer be expected to tolerate the behaviour.

The reasonableness test “. . . asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, she is justified in leaving . . . .” (Cedarglade Limited v Tina Hilban, UDD 1843). Thus it may be reasonable for an employee to terminate the contract because of the conduct of the employer even if the employer had adhered to the contractual terms.

Regardless of whichever test is applied, the threshold for constructive dismissal is very high (Nicola Coffey v Connect Family Resource Centre Ltd, UD 1126/2014 and Calderon & Others v Lootah & Others, UD1219/2013).

It is well settled law that an employee must make reasonable efforts to bring the grievance to the attention of the employer before resigning. In O’Gorman v Glen Tyre Company Ltd (UD2314/2010), the Employment Appeals Tribunal noted that “it is crucial in a constructive dismissal case that the claimant informs the employer fully of the complaints being made against him and the employer be given an opportunity to resolve the issues”. At a minimum the employee will be expected to utilise the company grievance procedure. In Conway v Ulster Bank Ltd (UD 474/1981), the Employment Appeals Tribunal noted that “it is not for the Tribunal to say whether this procedure would have produced a decision more favourable . . . but it is possible”.

It is also well settled law that an employee may be justified in resigning without utilising the grievance procedure in some circumstances. In Mr O v An Employer (no. 2) [2005] 16 ELR 132, the court accepted “. . . that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal”.  

Findings

It is common case that the complainant had an excellent working relationship with the respondent for many years and was a highly regarded member of management. This relationship was uneventful until June 2021. It was submitted by counsel for the complainant that the respondent acted entirely unreasonably in its dealings with the complainant after this date resulting in a fundamental breach of the employment contract, and in particular, the implied term of trust and confidence, leaving the complainant with no other choice but to resign her position. The alleged unreasonable conduct of the respondent included:

1.      Wrongly requiring the complainant to lead an investigation into the alleged misconduct of Ms X, a request which was indicative of the inappropriate way the respondent conducted itself.

2.      Subjecting the complainant to a flawed, constitutionally unfair, and protracted disciplinary process.

3.      Failing to respond to the complainant’s repeated requests for support to deal with a stressful, heavy workload and difficult work environment.

4.      Repeatedly undermining and challenging the complainant’s competence as a manager.

Wrongly requiring the complainant to lead an investigation (“the refunds investigation”) into the alleged misconduct of Ms X

It is common case that in June 2021 the complainant discovered what she regarded as irregular and suspicious refund activity by a member of staff (“Ms X”). The complainant reported her concerns to senior management. The complainant was asked to investigate those concerns as she was the store manager. It is also common case that at the time the complainant had no difficulty undertaking this task and she was fully supported by HR during the process.

The complainant told the hearing that the respondent acted unreasonably in appointing her to lead the investigation into Ms X’s alleged misconduct because the respondent should have foreseen the negative work environment which would result. The complainant also submitted that it was wrong for the respondent to appoint her to investigate Ms X as the complainant was not trained in conducting investigations. The respondent accepted that the complainant was not trained in conducting workplace investigations but submitted that the complainant was happy to do the investigation and was fully supported by HR during the process.

I am satisfied that it was reasonable for the respondent to appoint the complainant, as store manager, to inquire into the alleged misconduct of Ms X. Conducting investigations is an inherent, albeit unpleasant, part of the role of a people manager. The complainant had responsibility for that store and accordingly was asked to do the investigation. Prior to conducting the investigation meetings the complainant did not voice any concern that it would result in a negative work atmosphere for her and the team. Nor did she suggest that it would be more appropriate for another store manager to conduct the investigation meetings. While I accept the complainant’s submission that management should be trained in conducting workplace investigations, the complainant agreed that she was adequately supported by HR in conducting the investigation meetings. In Appendix 2(A4) of the respondent’s submission (Booklet 2), I note an email dated 1 July 2021 sent from Ms Amanda Barry (Operations Manager, East Region) to the complainant acknowledging the difficulty of investigating team members and asking if the complainant was OK to proceed. The complainant responded acknowledging it was tough going but I note that she did not avail of the invitation to opt out. Accordingly, I do not find that the conduct of the respondent in appointing the complainant to investigate matters concerning her store and those reporting into her to have been unreasonable in the circumstances.

Subjecting the complainant to a flawed and constitutionally unfair investigation and disciplinary process.

On 14 July 2021 Ms X resigned following the investigation into her alleged misconduct. Ms X then sent a written complaint to the respondent alleging that the complainant had engaged in numerous acts of misconduct. The complainant strenuously denied these allegations before the hearing. The complainant argued that the allegations by Ms X were retaliatory.

It was submitted by the complainant that the resulting investigation and disciplinary process into the allegations made by Ms X against her was flawed and constitutionally unfair for the following reasons:

A.     The investigation was based on the uncorroborated and unchallenged accusations of Ms X.

B.     The respondent failed to provide the complainant with a copy of the “Investigation Handover Findings” in advance of the disciplinary hearing.

C.      There was no clear distinction between the disciplinary investigation and the disciplinary hearing.

D.     The process went beyond the scope of Ms X’s allegations.

E.      The process was protracted.

F.      The complainant with issued with an unmerited and disproportionate disciplinary sanction.

A: The investigation was based on the uncorroborated and unchallenged accusations of Ms X.

On 21 July 2021 the company wrote to Ms X inviting her to an investigation meeting. Ms X replied by email on 21 July 2021 (Appendix 12 of the respondent’s submission, Booklet 1) to say she had started a new job. I note Ms X did not expressly state she would not participate in an investigation, but this is what the respondent appears to have assumed from her response. In any event, the respondent could not have compelled Ms X’s participation. I note in her resignation letter that the complainant stated: “. . . [t]he fact that <the respondent> considered the allegations made in the investigation in the first place . . .” was one of the reasons why the complainant decided to resign. The accusations, which the complainant accepted amounted to allegations of theft, were serious. I accept the evidence of the respondent that it had a duty to investigate these serious allegations and that the purpose of the investigation was to allow the complainant an opportunity to challenge the accusations of Ms X. It is common case that throughout the process the respondent repeatedly referred to Ms X’s accusations as “only accusations” and that there was “no presumption of guilt”. Accordingly, I find it was reasonable that the respondent (especially being a retail business) investigated these allegations, notwithstanding that the investigation was limited by the non-participation of Ms X.

B: The respondent failed to provide the complainant with a copy of the “Investigation Handover Findings” in advance of the disciplinary hearing.

The invitation to the disciplinary meeting (Appendix 18 of the respondent’s submission, Booklet 1)  refers to several enclosed attachments, including the “investigation handover email”. That email sets out the findings of the investigator. Therefore, I am satisfied that the complainant was on notice of the findings of the investigator prior to the disciplinary hearing.

C: There was no clear distinction between the investigation meeting and the disciplinary hearing.

Following the complainant’s reporting of her concerns regarding Ms X, an investigation process (“the refunds investigation”) was set up which involved “investigation meetings” with all staff. The complainant was leading that process until Ms X made a counter complaint. The complainant was then stepped down from the refunds investigation given she was now the subject of a complaint herself. However, the refunds investigation continued in parallel to the investigation concerning Ms X’s allegations against the complainant and issues arose within that process that required further investigation also.

Ms Neylon was appointed to investigate Ms X’s allegations against the complainant. I note that on 29 July 2021 Ms Neylon invited the complainant to an ‘investigation meeting’ in this regard. In that letter of invite (Appendix 13 of the respondent’s submission, Booklet 1), Ms Neylon attaches Ms X’s letter and refers to the contents of same as “allegations” and that there was “no presumption of guilt” and that it was a “fact finding process”. This investigation meeting took place on 3 August 2021. At the opening of that meeting Ms Neylon stated: “. . . my role here today is to fact find and gather as much information as possible and to give you the opportunity to answer these allegations . . . .”

By email dated 25 August 2021, the investigating manager wrote to the complainant (Appendix 15 of the respondent’s submission, Booklet 1) to advise that she was at the end of the investigation but that she recalled the Operations Manager mentioning the staff incentive fund. The investigating manager invited the complainant to respond in writing on her use of the staff incentive money. The complainant responded by email on the same date to state: “I am not aware that this incentive money was part of the investigation . . . I have answered this question to Amanda previously and advised that I spent it on myself which was approved by Amanda on 18th of June. I am aware this was not the correct procedure and I did acknowledge that at the time . . . . ”

On completion of her fact-finding investigation, Ms Neylon sent an email to HR containing her findings. Several of the allegations were not upheld; however, Ms Neylon directed that four of the allegations required “disciplinary investigation” or “disciplinary action”.  In summary:

1.      €100 missing from the float: “. . . this incident warrants further disciplinary investigation . . I do not find the explanation put forward . . . to be satisfactory”.

2.      Failure to follow procedure in relation to damaged stock: “. . . I find that this warrants further disciplinary action in terms of Niamh Carroll’s failure to follow the correct procedure for recording damaged stock.”

3.      Layaways of items in store: “. . . I cannot find any evidence to support the allegation against <the complainant> that she removed this item from the Store. However, within this investigation <the complainant> permitted layaways for Staff within the store and instructed that they be disguised with other names to avoid detection . . . I find this warrants further disciplinary investigation”.

4.      Incorrect procedure in the processing of refunds: “. . . it is clear there was an accepted and unquestioned practice in terms of the signing of customer receipts and that the correct procedure was not followed. I find that matter warrants further disciplinary investigation”.

Although, Ms Neylon asked for comments in writing from the complainant in relation to the staff incentive fund, it did not form part of the investigation handover findings.

The complainant was then invited to a “disciplinary meeting” on 20 September 2021. The complainant was advised in this letter that the “investigation handover findings” would be discussed at this meeting. In the minutes of the disciplinary meeting which were opened at the hearing (Appendix 19 of the respondent’s submission, Booklet 1), Ms Flanagan confirms that there were four matters to be discussed: (1) €100 missing from the safe float; (2) failure to follow the company procedure in relation to damaged stock; (3) permitting layaways; and (4) incorrect procedure for the processing of refunds. This is in line with Ms Neylon’s “investigation handover findings”.

Counsel for the complainant submitted that the process was flawed as there was no clear distinction between the investigation meeting and the disciplinary hearing. I note that the purpose of an investigation should be to establish what happened (i.e., a fact gathering or fact-finding exercise to establish if there has been a breach of company procedure for example and if so, what is the nature of the breach). I am satisfied that this was the purpose of Ms Neylon’s investigation. I note also that an investigation should not be confused with a ‘disciplinary hearing’. A disciplinary hearing should only take place after an investigation has been completed. The purpose of a disciplinary hearing is to determine what, if any, sanction is appropriate given what happened. At the outset of the disciplinary hearing Ms Flanagan (Head of HR) references the matters for discussion as “only allegations” and “that is why we are having this meeting” and that it was “still an ongoing investigation”. Clearly, this would suggest the matters were still under investigation. Further, the matter of the incentive fund was also discussed, notwithstanding that it was not in the investigation handover findings or in the invite to the disciplinary hearing. However, I do not find that the complainant was prejudiced by the lack of a clear distinction between the investigation and the purported disciplinary hearing or by the failure of the respondent to notify her that the incentive fund would be discussed again. The complainant had the opportunity to comment on the latter on two separate occasions. I note that Ms Flanagan concludes the meeting by stating that she would “. . . summarise with a senior unbiased person and determine if there is a disciplinary action needed”.

D: The process went beyond the scope of Ms X’s allegations.

Counsel for the complainant submitted that the process went beyond Ms X’s allegations. The minutes of the investigation meeting of 3 August 2021 involving the complainant were opened by counsel for the complainant at the hearing. Having reviewed the minutes of 3 August 2021, I see that each of Ms X’s allegations were numbered and raised in turn. I note that the issue of a layaway which was detected on 15 July 2021 (which was not part of Ms X’s allegations) was discussed but this was brought up by the complainant herself in response to a general question on layaways (top of page 69, Appendix 14 of the respondent’s submission, Booklet 1) “. . . I only knew about  . . I okayed it. In hindsight it was an error in judgement. I didn’t know she wasn’t going to pay or that it was under a different name . . . .” The investigator commented “[M]ight have to come back to that one”. The complainant confirmed in oral testimony that the matters discussed at the investigation meeting were confined to Ms X’s allegations, therefore, I am satisfied that the matters discussed in the investigation meeting were confined by the respondent to Ms X’s accusations.

I also note that the complainant was advised by Ms Neylon in the letter of invite to the investigation meeting that the respondent reserved the “right to ask any other additional questions that are deemed necessary as part of this fact-finding process”. By email dated 25 August 2021, the investigating manager wrote to the complainant (Appendix 15 of the respondent’s submission, Booklet 1) to advise that she was at the end of the investigation but that she recalled the Operations Manager mentioning the staff incentive fund. The investigating manager invited the complainant to make a comment in writing about her use of the incentive money. The complainant responded by email on the same date to state: “I am not aware that this incentive money was part of the investigation . . . I have answered this question to Amanda previously and advised that I spent it on myself which was approved by Amanda on 18th of June. I am aware this was not the correct procedure and I did acknowledge that at the time . . . . ” I am satisfied that while this issue was not related to Ms X’s allegations, it arose as part of the refunds investigation and that the complainant was given an opportunity to comment on same before the fact-finding investigation was complete.

D.  The complainant with issued with an unmerited and disproportionate disciplinary sanction.

On 1 October 2021 the respondent wrote to the complainant to advise as follows:

“Based on the information available and the evidence obtained, we find your negligence and mismanagement of the store, in that layaways were being done by staff without your knowledge and they [sic] staff were permitted to wear and take home clothes they had not fully paid for, this is a clear breech [sic] of company rules & regulations and as such is seen as gross misconduct. The second finding of misuse of incentive fund in that you by your own admittance breached company policy in spending store incentive money on yourself. In line with the Disciplinary Procedure we have decided that the appropriate sanction for this form of gross misconduct is a final written warning. We have taking into account your years of service and acknowledge your full participation in the investigation and disciplinary process and thus did not go with the sanction for gross misconduct of dismissal.”

Counsel for the complainant submitted that negligence was a civil law matter for which the respondent had disciplined the complainant despite acknowledging that she had no knowledge of the layaways being done by other staff. Further, the incentive fund was also a civil law matter as the fund was not the property of the respondent but rather the property of staff. Accordingly, the respondent had no authority to remit such a matter into the investigation in the first place and in doing so, the respondent acted unreasonably and unfairly towards the complainant.

The respondent submitted that a store manager not knowing what was going on in their store was mismanagement and that it was fair to discipline the complainant on that basis. Ms Flanagan added that the complainant as store manager should have run reports and completed audits, and if she had done so, she would have noticed the layaways. Further, it was a breach of company policy to allow staff to take clothes that were not fully paid for, and to spend incentive money exclusively on oneself as opposed to the team and that the complainant acknowledged that she was aware that these incidents were not the correct procedure.

Imposing a disciplinary sanction short of dismissal which is disproportionate (or outside the range of reasonable sanctions for the wrongdoing) could entitle an employee to resign and claim constructive dismissal. In cases of unfair dismissal an Adjudication Officer must look at what a reasonable employer would do in the circumstances. It is not for an Adjudication Officer to consider what sanction to impose but rather to decide whether the sanction imposed by the employer came within the range of responses which a reasonable employer might make (Barry v Precision Software Ltd [2007] 18 E.L.R. 190). A sanction must be proportionate to the gravity of the wrongdoing, and of the gravity and effect of the sanction on the employee (Frizelle v New Ross Credit Union [1997] IEHC 137).

I do not accept that the incentive money was not the proprietary interest of the respondent. I accept the respondent’s submission that if the complainant had done the appropriate checks she would have known about the layaways. Further, the complainant accepted that it was wrong and in breach of company policy to allow staff to take clothes home that were not paid for and to spend incentive money on herself. Therefore, I find that it was within the band of reasonable responses for the respondent to issue a final written warning and that the sanction of a final written warning was not disproportionate in the circumstances.

E. The process was protracted.

Ms X’s allegations were received on 14 July 2021. A final written warning was issued to the complainant on 1 October 2021: just over 11 weeks. The complainant stated in evidence that she was on annual leave for 2 weeks in August and on sick leave from 26 August 2021 to 13 September 2021. It was the respondent’s submission that the investigation process was delayed due to prearranged annual leave of two of the senior managers involved in the investigation. I accept that a workplace investigation should be completed without any undue delay; however, I find that on balance, given the time of year (July to September) and, allowing for the leave of the complainant and the managers involved in the investigation, the investigation was not unreasonably protracted.

Failing to respond to the complainant’s repeated requests for support to deal with a stressful heavy workload and difficult work environment.

I accept that the complainant’s evidence that she felt under pressure and that her work environment was both demanding and stressful, all while being subject to an investigation. The events described at the hearing took place post Covid-19 when some restrictions were still in place. The complainant said in her own evidence that it was hard to get staff and retain staff. The respondent stated that all stores and all managers were under pressure. That was not refuted by the complainant. It was common case that the retail sector and the respondent business was under considerable pressure in securing staff due to the pandemic and its aftermath. The complainant stated that she repeatedly sought assistance and help. In response to a question from the Adjudication Officer as to what assistance the complainant was looking for, the complainant replied that she needed more personnel.

Emails contained within Appendix 2 of the respondent’s submission (Booklet 2) show that the complainant advised senior management that she was under pressure running the store due to staff turnover, inexperienced new hires, and staff absence. Ms Barry emailed the complainant on 19 August 2021 to say that the stores trading times needed to be adjusted to assist the complainant. Ms Flanagan also emailed suggesting the sourcing of personnel from other stores and closing certain days to assist the complainant. I note an email dated 20 August 2021 from Ms Barry to the complainant confirming revised trading hours, authorisation to close Sundays, directing “Linda” (Ms Elliot) to go to the complainant’s store “to give <her> a helping hand” and advising that “A” was also available to help the complainant again and that “J” from another store would also help the complainant out. That email concluded with: “Hopefully this will make things more manageable for you while you recruit and train your new team members. If you need additional hours for training, as always please get in-touch”.

I do not accept that management did not respond to the complainant’s request for assistance. None of the emails opened to me in the hearing support that version of events. Rather, I find that the emails showed a senior management team and HR personnel concerned to assist the complainant and who took steps to reduce the pressure on the complainant as she tried to manage her store. I accept the evidence of the respondent that it did all it reasonably could do considering the demands on all the stores at that time.

Counsel for the complainant submitted that the complainant received no support in terms of her mental health, such as referral for counselling,  following her return from sick leave on 14 September 2021. I note that a return-to-work interview was completed, and that the complainant was certified fit to return to work. Further the complainant in her own evidence stated that she was already privately attending counselling. Therefore, I do not find that it was unreasonable of the respondent not to offer counselling services to the complainant.

Repeatedly undermining and challenging the complainant’s competence as a manager.

It is common case that management increased the number of store visits from June 2021. Changes to procedures were required on foot of these store visits. I accept the complainant submission that this added to her workload.

The complainant stated she felt totally undermined and ignored and noticed a “total negative shift” in attitude towards her on all visits after she was being investigated. The complainant submitted that the store visits led her to believe that all trust in her had been removed; that every part of her job was being questioned; that she could no longer do her store manager’s duties as she was getting too many visits; and all attitudes from head office were passive aggressive and negative towards the store outlet and her personally. The complainant submitted that she felt bullied out of her position. In cross-examination the complainant accepted that there was a total of six store visits from June to October 2021, and that she was only present for three. I note that the first of these three store visits for which the complainant was present was 14 June 2021 which predates the investigation. An email dated 18 June 2021 from the complainant to Ms Barry following this store visit was extremely upbeat in tone and includes a comment from the complainant that she found the site visit to “be very helpful”.

The two remaining site visits were conducted by Ms Elliot.  The complainant outlined that Ms Elliot’s visits were in depth and very intimidating and that they were completed at a time when Ms Elliot knew the complainant was under pressure.  This was denied by Ms Elliot’s. Ms Elliot submitted that she was not privy to the fact that the complainant was under investigation. Rather she was there to do the store visits as normal, and while she had increased the number of store visits to Portlaoise, this was done because Ms Barry had told her the store was under pressure and she was to help while in the store in any way she could. Ms Elliot agreed in cross-examination that during some visits the complainant seemed under pressure, but Ms Elliot was of the view that everyone was under pressure post Covid and that the Portlaoise store was not the only store that required additional support. Ms Elliot stated that she had responsibility for 24 stores and all stores were experiencing similar challenges post Covid-19.

I accept that the increased store visits were unwelcome to the complainant at a time when the complainant was already under pressure. However, I find that there is nothing to suggest that the store visits completed by Ms Elliot were inappropriate or out of line with normal procedure. I note the email of 20 August 2021 from Ms Barry to the complainant specifically directed Ms Elliot to help the complainant. I note in the minutes of the disciplinary hearing (Appendix 19 of the respondent’s submission, Booklet 1) that the complainant outlined that she was finding the visits “very negative” and that “they’re picking on everything”, to which Ms Flanagan asked: “should the visits be paused?”. I note that the complainant did not agree. Rather she explained that new staff are not going to know all the procedures and that not everything “will be done the way it should be done”. The complainant also added that she “had support from “V” in the past couple of weeks so things were better” and that “now we have those updated procedures in the folder, its very structured and easier to train people”. Considering the foregoing, I do not accept that there was any concerted or inadvertent effort on behalf of the respondent to undermine or even challenge the complainant’s competence as a manager. Rather, I find that senior management were concerned to improve standards in all of stores, including Portlaoise, and that the respondent had no desire whatever to see the complainant fail or to bully or push the complainant out as submitted by the complainant.

Conclusion

As per Berber in determining if there has been a breach in the implied contractual term of mutual trust and confidence, an examination of the conduct of both the employer and employee must be examined as a whole, and the cumulative effect of the conduct must be looked at. The conduct of the employer must be unreasonable and without proper cause and its effect on the employee must be viewed objectively, reasonably, and sensibly to determine if it is such that the employee can no longer be expected to tolerate the behaviour. Applying this test to the totality of my findings above, I conclude that the complainant has not discharged the burden of proof on her to establish that her resignation was not voluntary. I accept the complainant’s evidence that she was stressed and very upset in the months prior to her resignation; however, I cannot find on the evidence that the respondent engaged in conduct which resulted in a fundamental breach of the contract, or which indicated that the respondent no longer intended to be bound by the terms of the contract. Nor do I find that the respondent conducted its affairs in relation to the complainant so unreasonably that the complainant was justified in resigning.  

The last matter I must consider is whether the complainant acted reasonably in not engaging in the appeals process before resigning. Counsel for the complainant submitted that the appeals process was not genuine, and that the complainant was entitled not to be forced into a “botched and flawed process which lacked independence and impartiality”. Counsel for the complainant also submitted that it was inappropriate for Mr Callaghan to reach out to the complainant to ask her to reconsider her resignation as he was the appeals manager.  I accept that an appeals manager must remain impartial; however, on the facts of this case, I do not find that Mr Callaghan’s reaching out to the complainant prejudiced the complainant in anyway. The complainant’s evidence was that she felt she was being listened to and that Mr Callaghan was compassionate and understanding. It was only when Mr Callaghan stated that the complainant would have to go through a formal appeals process did the complainant’s reject the invitation to appeal. Her evidence was that she did not want to go through another formal process in the interests of her mental health, despite Mr Callaghan reassuring her that he would complete the hearing without any undue delay. I find that the complainant had no reason to believe that she would not be afforded a fair and expeditious appeal hearing under the direction of Mr Calllaghan. It is regrettable that the complainant did not accept the respondent’s four invitations to rescind her notice and engage in the appeals process. I conclude that the complainant acted unreasonably in not engaging in the appeals process before resigning.

I decide that the complainant was not unfairly dismissed, and I dismiss the complaint under the Unfair Dismissal Act 1977-2015.

Constructive dismissal.