Complainant

Respondent

Parties

Debbie  Brooks

Irish Association For Social Inclusion Opportunities (Iasio)

Complainant

Respondent

Anonymised Parties

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Representatives

  Self

Tina Ochelle Deasy, Ibec

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-00053416-001

24/10/2022

The complainant was employed as a Resettlement Coordinator by the respondent from 12/01/2015 until she resigned on 26/04/2022.  The complainant submitted a complaint of constructive dismissal to the WRC on 24/04/2022.  The respondent refutes that the complainant was constructively or otherwise dismissed from her employment. At the time of her resignation the complainant was earning €3,935.92 gross per month.

The complainant commenced employment with the respondent on 12/01/2015 as a Resettlement Coordinator and worked there until she left her job on 26/04/2022.  The complainant gave evidence on oath that she believed that she was bullied by a number of people on her team, including her team leader, for six out of the seven years she worked there.  When she reported these to her manager, Mr Barry Owens, he advised her to keep a note of these incidents.  Her initial concerns in 2016 and 2017 were that she was being isolated from other team members and she was not party to relevant information.  The complainant submitted that this continued until she left the job in 2022.  When she raised these concerns informally there was nothing done about these events.  In June 2018 her manager circulated an e mail to the team in which he acknowledged that relationship issues were a reality in the team.  He requested an input from each team member about what had happened.

The complainant submitted a 28-page report about the various instances that took place and outlined how she felt that she was being ignored and excluded in the team.  She received an acknowledgement of this report but no update despite her request for same.

The complainant later submitted an “official complaint” about bullying in the workplace.  Mr Owens suggested mediation and the complainant was agreeable to this.  The mediation process did not reach any outcome. The complainant submitted that there was no formal grievance progressed in relation to her complaint. 

In October 2018 the complainant was subjected to shouting and intimidation by a team member who, the complainant submits, is a close friend of her team leader.  The team leader suggested that they try and work things out, but this ended in the complainant experiencing further hostility.  The complainant then reported this matter to her manager, Mr Owens, who informed the complainant that he had already received a complaint from the other team member, and she was requested to submit a report in relation to her version of events.

The complainant’s manager then commenced an investigation which concluded with an investigation report which was issued in January 2019.  The complainant believes that this report was flawed as the investigator concluded that it was unlikely that the team leader would lie given that she held a position of trust.  The complaints submitted by her colleague were upheld on the basis of what the team leader said that she witnessed.  The complainant also felt wronged by the finding that she was less likely to be honest about the incident as she was relying on the notes that she took at the time of the incident.  It is the complainant’s position that her reliance on notes was due to the effects of the bullying on her mental health and the resulting anxiety did not make it easy for her to recall with recourse to her notes.

Arising from this outcome the complainant requested a transfer to another team to avoid the conflict that had developed between her and the team leader.  Mr Barry Owens confirmed to the complainant that this was not going to take place.

In 2019 the complainant observed that a colleague, who has since then left her position, was subjected to exclusion from the team and team members engaged in gossip about her.  The complainant provided support to this colleague, and she submits that as a result of this she was even further isolated by other team members.

In mid-2021 the complainant became aware that she excluded form a WhatsApp team messaging group.  Other team members left the group and eventually the only member was the complainant.  She was aware from work conversations that the team members were still in contact.

Later in 2021 there was an issue involving a client who contacted the complainant.  This client was being assisted by another team member and she passed on the relevant details to this team member. It is the complainant’s position that in passing on the relevant information she was trying to explain what the client told her.  The complainant reported this conversation to her team leader.  Her team leader subsequently said that the complainant had described her colleague as “aggressive”.  The complainant denied that she ever said this and on oath at the hearing she again denied that she ever called or described her colleague as aggressive.  This colleague then lodged a complaint about the complainant and her use of the work aggressive.    An informal grievance meeting was convened by her manager, Mr Barry Owens.  The colleague requested an apology from the complainant, but she insisted that she could not apologise for something that had never occurred.  Her team leader then called another colleague who said that they had witnessed the complainant use the word.  The complainant believes that the witness and team leader were contradictory as they were describing conversations that took place in other parts of the building and involving different people.  The complainant confirmed that her manager upheld the complaint in favour of her colleague.  This colleague then did not acknowledge her after this.  She reported this to her manager as she now felt more isolated, and her mental health was deteriorating.

The complainant gave evidence that she was informed on 18/01/2022 that her team leader had made a formal complaint about her on 13/12/2021.  This complaint was that she had previously made “malicious” comments about the team leader and had made a “malicious” complaint of bullying against the team leader.  An investigation took place under the auspices of the respondent’s Dignity at Work policy.  The complainant attended a meeting on 10/03/2022 with a representative and later made a written response to the complainant’s statement.  Various witnesses were also interviewed as part of this investigation.  The complainant requested that her manager, Mr Barry Owens, be interviewed to confirm that the complainant had many phone calls and conversations with him in relation to being bullied.  The complainant submitted that Mr Owens did not give any information in relation to the telephone calls and conversations but made a reference to the appraisals of other team members who made references to an unnamed staff member that they did not enjoy working with.  Mr Owens also provided information that none of the staff wished to make a complaint in relation to this.  It is the complainant’s position that it was inappropriate for Mr Owens to provide this information to the investigation as she, the complainant, was not actually named and she concludes that this demonstrated the lack of impartiality on the part of management and is a continuation of the unfair treatment she endured.

On 15/04/2022 the complainant sent an e mail stating that she was resigning from her position, and she sent this to the CEO.  The complainant submitted that she felt that she was continually defending herself and was wondering when the next accusation would occur.  While all this was taking place, she had to keep on top of her work but the end result that all of these incidents damaged her mental health and she felt that she had to resign as her position had become untenable.  The complainant told the hearing that all she wanted was to go to work and feel safe.

In response to a question from the Adjudicator the complainant confirmed that she did not submit a formal grievance prior to resigning as her previous experience in doing so was that her version of events was never taken into account, and she did not want further stress.  All she wanted was to keep her sanity.

The complainant confirmed that she commenced working in a new role on 25/04/2022 and is in receipt of a payment of €800.00 per week.

The complainant was cross examined by Ms Ochelle Deacy on behalf of the respondent.  The complainant confirmed that she had received copies of the grievance procedure and the Dignity at Work Policy.  The complainant also confirmed that she was aware that she had a right to appeal the outcome of any grievance hearing.  She confirmed that she had not done so as she was not listened to or made feel safe.   The complainant confirmed that she was aware of the outcome of the grievance submitted by her colleague in October 2018.   In relation to the informal investigation with her other colleague she confirmed that the outcome was that she was asked to apologise for something she did not say.

The complainant was asked about the case review which took place in January 2022 by her manager.  She was asked if she agreed that her manager was giving her more time to undertake some work and she confirmed that was correct.  The complainant was asked if she felt that she was not being supported.  The complainant said that her manager was supportive, but she felt unsafe after he stated that he believed the team leader.

It was put to the complainant that her grievances were investigated.  The complainant said that her 28-page 2018 grievance was never investigated.  Mediation took place.

At the end of the hearing the complainant submitted that because all staff knew each other their professional boundaries were blurred.  All she ever wanted was to go to work and feel safe.  The last complaint from her team leader put her under enormous pressure.  She confirmed that she did not want to leave her job but wanted to do the best she could.

The complainant also confirmed that she was most satisfied with hearing and that she got the opportunity to present her case and all evidence in relation to her complaint.

The respondent is a non-profit organisation who works in partnership with many state agencies.  The respondent provides a wide range of social inclusion supports to marginalised groups such as access to employment, training, education, social welfare and housing.  They work with some of the hardest-to-reach people in society at community and in prison.

The complainant worked as a Resettlement Coordinator from 12/01/2015 and was based at the Mountjoy Prison Complex. 

Following a request from the Operations Manager, Mr Barry Owens, the complainant and her team submitted complaints to him on 12/06/2018.   The complainant later informed Mr Owens that she wished to submit an official workplace bullying complaint and listed two colleagues as part of that complaint. This complaint was acknowledged by the HR Manager, Ms Aisling Bracken, and she informed the complainant of her urgent efforts to engage an independent mediator in order to resolve the matter.  All parties agreed to mediation, and this was undertaken by a mediation service provider.  The respondent is not privy to the outcome or any update in relation to this confidential process.

The respondent received a grievance against the complainant on 23/10/2018. On 24/10/2018 the complainant submitted a grievance against the colleague who made the complaint.  The matter was the subject of a grievance hearing by the HR Manger and following a final meeting both parties were advised to partake in external restorative practices mediation.  In addition to this communications improvement plan was put forward which would be implemented by means of monthly group meetings and the Operations Manager.  In March 2019 the restorative practitioner submitted a mediation summary in relation to the grievance outcome and detailed the follow up actions which were agreed by both parties.  The Operations Manager implemented the recommended communications improvement plan. At a final meeting in September 2019 both parties agreed that the objectives of the plan were achieved.

On 09/09/2021 the complainant was informed that another Resettlement Co Ordinator had lodged a complaint against the complainant.  The report into this grievance highlighted that the behaviours described in the complaint and supported by colleagues’ statements fell short of professional conduct standards.  It was recommended that all parties engage in a proactive approach to improve working relations and outlined the supports available to assist in this process.

After a number of facilitated meetings, the parties could not agree on a remedy.  The Operations Manager then highlighted the commitment to engage in a professional manner and noted the importance of maintaining healthy professional boundaries and communication practices.

The respondent received a formal complaint from the team leader on 14/12/2021 against the complainant under the Dignity at Work policy.  The complainant was informed of this complaint after the Christmas break and another Operations Manager, Mrs Adrienne Higgins was appointed as investigator.  Various meetings took place, and the notes of these meetings were shared with all parties.  The complainant nominated Mr Barry Owens as a witness, and he provide the investigation with a witness statement.  The complainant, by agreement, was temporarily transferred to another team while this investigation was taking place.

The complainant submitted her resignation on 15/04/2022.  At that stage the investigator was completing the final part of the investigation process, i.e. writing up the report.   The complainant went on annual leave and only resumed work for one day before her employment ended.  The investigator contacted the complainant at her personal e mail address to see if she would continue to engage with the process.  The complainant did not respond to this request.

The respondent also clarified the issue in relation to the case load review which was undertaken by the complainant’s manager in February 2022.  This was an operational issue which involved the wider team, and it was stressed that this was not a disciplinary matter but an operational matter.  The complainant’s manager was looking for answers in relation to the size of the case load, the release service process and client contact to admin ratio.  The complainant was granted additional time to provide this information.

The respondent also submitted that the complainant sought a career break on 08/04/2022 and wanted this to commence on 18/04/2022.  She was advised by the then CEO that the career break would take effect from 14/08/2022 in line with the respondent’s career break notice period and this would also allow the ongoing investigation to conclude and give the respondent a period of time to back fill her post.

The complainant submitted a resignation letter on 15/04/2022 stating that she would resign her post and take annual leaver up to 26/04/2022.  The respondent’s HR Manager, Ms Bracken, contacted the complainant and offered her the Employee Assistance Programme and also access to the Dignity at Work and grievance policy. Ms Bracken also asked the complainant to reconsider her decision and revert with a final decision on 22/04/2022.    The complainant did not revert by that date and Ms Bracken made further contact with the complainant.  The complainant’s response was that she felt that her workplace relations had irretrievably broken down and she would not be able to return to work for the respondent.

A number of legal submissions were provided by the respondent’s representative.  It was submitted on behalf of the respondent that Section 1(b) of the Unfair Dismissals Acts, 1977-2015 (as amended) defines dismissal in relation to an employee as:

“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”.

In that context the established principles are that the burden of proof rests with the employee to demonstrate that she was entitled to terminate the contract of employment by virtue of a demonstrated breach of the contract on the part of the employer or the employer acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

It was submitted on behalf of the respondent that they operated within the terms of the complainant’s contract of employment and there was no contractual violation.  The respondent fulfilled its contractual obligations, implied and otherwise at all times.  In that context the termination of her employment by the complainant fails the contractual test.

It was also submitted on behalf of the respondent that there are two interwoven factors to be considered in relation to the reasonableness test.  Firstly, did the employer act unreasonably so as to render the relationship intolerable and secondly, did the employee act reasonably in resigning and particularly in respect to exercising internal grievance procedures.  The respondent refers to the established approach by the EAT in McCormack v Dunnes Stores, UD 1421/2008 where the Tribunal stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers.  The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

It is the respondent’s position that they acted reasonably and fairly at all times, and in accordance with their policies, best practice and appropriate conduct.  The respondent refutes the complainant’s position that any investigation which she was subjected to was unfair.  These investigations were carried out in line with the respondent’s policies and procedures.    The respondent also refutes the complainant’s view that her complaints were not properly investigated.  These were and in some instances the complainant agreed to participate in a mediation process and also took part in an informal grievance process and a restorative mediation practice.

In relation to the 2022 Dignity at Work process the respondent submits that the complainant resigned mid process. 

The respondent also notes that the complainant’s request for a Career Break was dealt with in line with the parameters of the Career Break notice period.

The respondent believes that the complainant did not act reasonably in resigning her employment as she had not availed of the grievance procedure in an attempt to resolve her complaints.  The respondent submits that this obligation is well established in the case of Travers v MBNA Ireland Limited, UD720/2006 where the Tribunal found”

“The claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”, and,  it then stated: “in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”. In that case the Tribunal found that the complainant was not constructively dismissed.

The respondent’s representative also referred to the case of Fitzsimons v Mount Carmel Hospital, UD855/2007.  In that case the complainant’s letter of resignation contained a complaint against the complainant’s manager.  The respondent in that case encouraged the complaint to reconsider her resignation and offered her their Dignity at Work and Grievance Policy to pursue issues relating to her resignation.  The complainant rejected the offer.  The Tribunal noted:

“It is regrettable that this final step [of acceptance and return-to-work offer] was not taken and the Tribunal finds it was unreasonable for the Applicant not to have seen this process through.  The Employment Appeals Tribunal’s primary function is to ensure that internal workplace procedures are fairly applied to individual employees and there is an onus on employees to engage fully in these procedures where a clear effort is being made to overcome past difficulties”.

It was submitted on behalf of the respondent that the complainant’s resignation does not fulfil the reasonableness test and therefore cannot be determined to be a constructive dismissal.

Ms Aisling Bracken gave evidence on behalf of the respondent.  Ms Bracken is the Human Resource Manager with the respondent. Ms Bracken gave evidence on affirmation, and she confirmed details of the 2018 investigation and the commitment of both parties to improve communication and participate in the restorative practice mediation.  Ms Bracken also confirmed that both parties confirmed that the objective of the plan were met and that they were satisfied with the outcome.

Ms Bracken gave evidence that she received the complainant’s resignation on 15/04/2022 which was Good Friday.  She called the complainant on 19/04/2022 and asked her to reconsider her decision and to think about using the Dignity at Work and Grievance Procedure. Ms Bracken also confirmed that she informed the complainant that she was happy to investigate any complaint and that she would give her some time to reconsider things.

Ms Bracken outlined to the hearing that she wrote to the complainant on 25/04/2002 and she received a reply from the complainant on 26/04/2022 stating that she was not returning to work.  Ms Bracken confirmed that this was the complainant’s resignation date.

Ms Brooks put a number of questions to Ms Bracken by way of cross examination.  She was asked to clarify that her colleague did not go into mediation in 2018 but she did partake in the restorative practice mediation.  Ms Bracken gave evidence that the 2018 mediation process was confidential, and she did not have any details about it other than the fact that it was set up.  Ms Brook put it to Ms Bracken that when she explained to her about all the stress that she was under all she was ever told was to access the EAP, which she did, but this did not stop the bullying.    Ms Bracken outlined that the purpose of the EAP was to provide individual support and advice to employees, and it had no role in the investigation of complaints.

Mr Barry Owens gave evidence on behalf of the respondent on affirmation.  Mr Owens is the Operations Manager.  Mr Owens outlined that the first complaint raised by the complainant was a summary of what was previously raised with him.  This complaint arose on foot of relational issues within the team.  As he was aware that here were many difficulties within the team, he asked all team members to write formally to him about these issues.  While the complainant had issues with some team members, Mr Owens gave evidence that there were also team members who had issues with the complainant.   Arising from these difficulties mediation was offered and accepted.  In relation to the grievance raised by a colleague of the complainant’s Mr Owens outlined that this was raised informally, and he asked the complainant for her comments in relation to the alleged use of the work “aggressive”.  The outcome of this investigation was that the witnesses were adamant that they heard the complainant use the word “aggressive”.  Mr Owens outlined that there were ongoing efforts to deal with the relationship issues and keep the boundaries professional.

Mr Owens also gave evidence in relation to the case review process he instigated on 18/02/2022. He outlined that it was brought to his attention that some clients who transferred were not seen before their transfer by the complainant.  He informed the complainant that this review was operational and not a disciplinary process.  Mr Owens outlined that he was unable to see the case load and the review was a process to provide answers to the questions he had in relation to this.

Mr Owens was cross examined by the complainant.  He was asked about the responses he got to his e mail regarding the work issues and in particular the colleagues who had difficulty with her, the complainant.  Mr Owens gave the hearing the names of these two colleagues.

The complainant also asked Mr Owens about the case load review and outlined that when she did not meet a client she put down “not met to date” on the system.  Mr Owens clarified that what he was seeking was the status of the case load.  This was not clear, and his review was intended to clarify this.

Mr Owens was asked about his evidence that he was “monitoring relationship issues” and that during the appraisal process some mentioned that they had difficulties with someone on the team but she, the complainant, was not named.  Mr Owens confirmed that this was correct, and she was not named.  He was then asked why he put this into his report, and he outlined that as it was raised again and taking account of the history, he felt that it was necessary to mention it.

Mr Owens was asked by the complainant why she did not have an appraisal.  Mr Owens outlined that she did complete her part, but he was unable to finalise her appraisal due to other issues that he was dealing with.

Ms Adrienne Higgins also gave evidence on affirmation on behalf of the respondent.  Ms Higgins is an Operations Manager with the respondent.  Ms Higgins was asked about the Dignity at Work complaint that she received from the complainant’s manger in 2021.  Ms Higgins said that this was received just before Christmas.  There were seven parts to this complaint, and they were linked to what the manager had read in the 2018 report.  Ms Higgins outlined that this investigation followed the procedures outlined in the Dignity at Work policy.  The complainant, the manager and two witnesses were met.   The minutes/notes of all meetings were exchanged. The purpose of this investigation was to get all the facts.  However, the complainant resigned before the investigation report was completed.  The complainant was due to revert to her on 26 April 2022, but she did not.  As she was no longer an employee, and she did not revert to her the outcome of the investigation was not shared with her.  At the hearing Ms Higgins confirmed that six parts of the complaint were upheld, and one was deemed inconclusive.

The complainant was given an opportunity to cross examine Ms Higgins.  The complainant clarified that she put forward her manager, Mr Owens, as a witness to the fact that she had submitted complaints as far back as 2018.  The complainant also clarified that she had asked for clarification on 27/04/2022. Ms Higgins responded and stated that he had provided the complainant with those clarifications event though the complainant was no longer an employee of IASIO. The complainant had no further questions for the witness.

Both parties provided the hearing with comprehensive submissions including details of meetings and various correspondence exchanged.

The Law

Section 1 (b) of the Unfair Dismissals Act defines ‘dismissal’ for the purposes of the Act in circumstances where:

• “(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”.

Section 6(1) of the Act states:

“Subject to the provisions of this section, the dismissal of an employee 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”.

Deliberation

Where the fact of dismissal is in dispute a complainant must establish that his/her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act. To succeed in a claim of constructive dismissal under the Act, a complainant must demonstrate that his/her decision to resign their employment resulted from either a repudiatory breach of his contract of employment by the employer or such unreasonable behaviour by the employer that he could not fairly be expected to put up with it any longer. Was there a repudiatory breach of the complainant’s contract of employment?

To amount to a repudiatory breach, the employer’s breach must constitute a fundamental breach of the employment contract. A repudiatory breach allows a party not in breach to accept the breach and affirm the contract or to repudiate the contract. If the employee decides to repudiate the contract by resigning, he needs to do so in a timely manner otherwise his continuing to work can be taken to amount to an affirmation.

The test by which a repudiatory breach of contract can be identified was set out by Lord Denning M.R. in Western Excavating Limited (ECC) v Sharp [1978] IRLR 332as 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.”

In assessing whether the employer’s conduct in this case amounted to a repudiatory breach of the complainant’s contract of employment the I find that she did not establish any facts that there was a breach of the complainant’s contract of employment such that she was entitled to regard herself as having been dismissed.  The complainant confirmed at the hearing that she did not consider that there was any repudiatory breach of her contract.

Was the employer’s behaviour such that it was reasonable for the Complainant to resign?

The second question for the Adjudication Officer to assess is whether the complainant was entitled to terminate her employment because of the actions of the Respondent. In cases of constructive dismissal, the Adjudication Officer must examine the conduct of both parties. This requires an assessment of the events leading up to the termination of the complainant’s employment.

At the hearing evidence was heard about the employment the relationship issues between the complainant and other team members.

There is a direct conflict of evidence in relation to what happened that led the complainant to submit her resignation.  What is clear is that the working relationship between the complainant and her colleagues were delicate and communication between the parties was poor.  Several events and/or incidents were cited by the complainant and are consolidated as follows:

a)       She was concerned that the outcome of the 2018 investigation left her vulnerable to bullying from her team leader.

b)      She did not get any meaningful follow up to her report in relation to incidents at work which she submitted on 12/6/2018.

c)       An incident with a colleague who is a friend of her team leader was investigated and her complaints were not upheld but those of her colleague were. The outcome of this investigation had an effect on her health and the finding that she was likely to be less likely to be honest.  A request by the complainant to move to another team was not facilitated.

d)      In 2019 the complainant provided support to a colleague who felt she was being excluded from the team.  The complainant herself then began to experience similar exclusion from e mails and a WhatsApp group.

e)      An investigation into a complaint from a colleague that she described him as aggressive was upheld.  The complainant believes that this was flawed as it amounted to “one person’s word against another”. The complainant felt that this further isolated her and had an impact on her mental health.

f)        In January 2022 the complainant’s team leader submitted under the respondent’s Dignity at Work policy against the complainant.  This complaint alleged that she made “malicious” comments about her and that she made a “malicious” complaint against her team leader.  The complainant resigned before this investigation concluded.

g)       The complainant feels that she was subjected to an unreasonable review of her case load and the way she was recording her data.

h)      The complainant was refused a career break.

Was it reasonable for the Complainant to resign?

The question for the Adjudication Officer to consider is whether the cumulative effect of all the interactions between the complainant and the respondent crossed a threshold so as to damage the relationship to such an extent that it was reasonable for the complainant to resign.

The Act places a high burden on a complainant in a constructive dismissal case. To succeed in such a claim, a complainant must establish that the employer’s unreasonable behaviour was such that he/she was justified in believing that he/she could not continue any longer in that employment. An employee must alert the employer to his situation by availing of the grievance procedure, where one exists, to allow the employer an opportunity to rectify the problem before resigning.

The complainant told the hearing that she was aware that there was a grievance process to go through. She told the hearing that her previous attempts to utilise the grievance procedure were not successful and the fact that her experience was that her team leader by virtue of her position would be believed. As a result of this, together with the flawed investigations, the complainant felt that it was apparent that she would not have got anywhere with any grievance. The complaint felt that anytime she raised an issue she was told to seek assistance from the respondent’s Employee Assistance Programme (EAT), but this did nothing to stop the bullying which she stated she experienced for six of her seven years of employment with the respondent.

At stated previously, in any case of constructive dismissal, the Adjudication Officer must examine the conduct of both parties. A failure to invoke the employer’s grievance procedure can be fatal to a complaint of constructive unfair dismissal.

In this case the complainant did not invoke the grievance procedure prior to her resignation.  An employee is normally expected to be able to demonstrate that having brought a concern to his employer’s attention that she gave the employer a reasonable opportunity to address those concerns before resigning.

The evidence given by the respondent’s witness, Mr Owens was that he was aware of the relationship issues with the complainant and team members. He provided the team members with an opportunity to outline their understanding of the difficulties and mediation was offered and accepted.  The respondent also put in place an external restorative practices mediation process which had a positive outcome.

I have reviewed the timelines applicable to this case.  The complainant worked for the respondent from 12/01/2015 until she resigned on 26/04/2022.

The relationship issues were first highlighted to the respondent in 2018 and which various investigations and mediation processes were utilised the complainant felt that, in 2022, she had no other option but to resign due to the enormous pressure when the complaint was submitted by her team leader.

It is unclear why the complainant did wait to avail of the career break which was due to commence on 18/08/2022.  The complainant also gave evidence that she commenced a new role on 25/04/2022 which was the day prior to her last day of employment with the respondent.  The complainant did not appeal the outcome of any of the findings of her grievances. I accept her evidence that she was dealing with challenging work issues of an interpersonal nature.  However, I am also aware that she was familiar with the various policies and procedures, and I am satisfied that she had not advanced any “good cause” to demonstrate that her failure to utilise these.  The use of these policies and procedures would have forewarned the respondent of her intention and afforded the respondent an opportunity to implement these procedures.  The outcome of this intervention could have been favourable to the complainant.

Determination

In all the circumstances, the I find that the behaviour of the respondent was not unreasonable such as to justify the complainant terminating her employment by way of constructive dismissal.

In all the circumstances, I find that the behaviour of the respondent was not unreasonable such as to justify the complainant terminating her employment by way of constructive dismissal.   I have decided that the complainant was not constructively dismissed.

Constructive dismissal.  Mediation.  Investigation. 

Complainant

Respondent

Parties

Debbie  Brooks

Irish Association For Social Inclusion Opportunities (Iasio)

Complainant

Respondent

Anonymised Parties

{text}

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Representatives

  Self

Tina Ochelle Deasy, Ibec

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-00053416-001

24/10/2022

The complainant was employed as a Resettlement Coordinator by the respondent from 12/01/2015 until she resigned on 26/04/2022.  The complainant submitted a complaint of constructive dismissal to the WRC on 26/04/2022.  The respondent refutes that the complainant was constructively or otherwise dismissed from her employment. At the time of her resignation the complainant was earning €3,935.92 gross per month.

The complainant commenced employment with the respondent on 12/01/2015 as a Resettlement Coordinator and worked there until she left her job on 26/04/2022.  The complainant gave evidence on oath that she believed that she was bullied by a number of people on her team, including her team leader, for six out of the seven years she worked there.  When she reported these to her manager, Mr Barry Owens, he advised her to keep a note of these incidents.  Her initial concerns in 2016 and 2017 were that she was being isolated from other team members and she was not party to relevant information.  The complainant submitted that this continued until she left the job in 2022.  When she raised these concerns informally there was nothing done about these events.  In June 2018 her manager circulated an e mail to the team in which he acknowledged that relationship issues were a reality in the team.  He requested an input from each team member about what had happened.

The complainant submitted a 28-page report about the various instances that took place and outlined how she felt that she was being ignored and excluded in the team.  She received an acknowledgement of this report but no update despite her request for same.

The complainant later submitted an “official complaint” about bullying in the workplace.  Mr Owens suggested mediation and the complainant was agreeable to this.  The mediation process did not reach any outcome. The complainant submitted that there was no formal grievance progressed in relation to her complaint. 

In October 2018 the complainant was subjected to shouting and intimidation by a team member who, the complainant submits, is a close friend of her team leader.  The team leader suggested that they try and work things out, but this ended in the complainant experiencing further hostility.  The complainant then reported this matter to her manager, Mr Owens, who informed the complainant that he had already received a complaint from the other team member, and she was requested to submit a report in relation to her version of events.

The complainant’s manager then commenced an investigation which concluded with an investigation report which was issued in January 2019.  The complainant believes that this report was flawed as the investigator concluded that it was unlikely that the team leader would lie given that she held a position of trust.  The complaints submitted by her colleague were upheld on the basis of what the team leader said that she witnessed.  The complainant also felt wronged by the finding that she was less likely to be honest about the incident as she was relying on the notes that she took at the time of the incident.  It is the complainant’s position that her reliance on notes was due to the effects of the bullying on her mental health and the resulting anxiety did not make it easy for her to recall with recourse to her notes.

Arising from this outcome the complainant requested a transfer to another team to avoid the conflict that had developed between her and the team leader.  Mr Barry Owens confirmed to the complainant that this was not going to take place.

In 2019 the complainant observed that a colleague, who has since then left her position, was subjected to exclusion from the team and team members engaged in gossip about her.  The complainant provided support to this colleague, and she submits that as a result of this she was even further isolated by other team members.

In mid-2021 the complainant became aware that she excluded form a WhatsApp team messaging group.  Other team members left the group and eventually the only member was the complainant.  She was aware from work conversations that the team members were still in contact.

Later in 2021 there was an issue involving a client who contacted the complainant.  This client was being assisted by another team member and she passed on the relevant details to this team member. It is the complainant’s position that in passing on the relevant information she was trying to explain what the client told her.  The complainant reported this conversation to her team leader.  Her team leader subsequently said that the complainant had described her colleague as “aggressive”.  The complainant denied that she ever said this and on oath at the hearing she again denied that she ever called or described her colleague as aggressive.  This colleague then lodged a complaint about the complainant and her use of the work aggressive.    An informal grievance meeting was convened by her manager, Mr Barry Owens.  The colleague requested an apology from the complainant, but she insisted that she could not apologise for something that had never occurred.  Her team leader then called another colleague who said that they had witnessed the complainant use the word.  The complainant believes that the witness and team leader were contradictory as they were describing conversations that took place in other parts of the building and involving different people.  The complainant confirmed that her manager upheld the complaint in favour of her colleague.  This colleague then did not acknowledge her after this.  She reported this to her manager as she now felt more isolated, and her mental health was deteriorating.

The complainant gave evidence that she was informed on 18/01/2022 that her team leader had made a formal complaint about her on 13/12/2021.  This complaint was that she had previously made “malicious” comments about the team leader and had made a “malicious” complaint of bullying against the team leader.  An investigation took place under the auspices of the respondent’s Dignity at Work policy.  The complainant attended a meeting on 10/03/2022 with a representative and later made a written response to the complainant’s statement.  Various witnesses were also interviewed as part of this investigation.  The complainant requested that her manager, Mr Barry Owens, be interviewed to confirm that the complainant had many phone calls and conversations with him in relation to being bullied.  The complainant submitted that Mr Owens did not give any information in relation to the telephone calls and conversations but made a reference to the appraisals of other team members who made references to an unnamed staff member that they did not enjoy working with.  Mr Owens also provided information that none of the staff wished to make a complaint in relation to this.  It is the complainant’s position that it was inappropriate for Mr Owens to provide this information to the investigation as she, the complainant, was not actually named and she concludes that this demonstrated the lack of impartiality on the part of management and is a continuation of the unfair treatment she endured.

On 15/04/2022 the complainant sent an e mail stating that she was resigning from her position, and she sent this to the CEO.  The complainant submitted that she felt that she was continually defending herself and was wondering when the next accusation would occur.  While all this was taking place, she had to keep on top of her work but the end result that all of these incidents damaged her mental health and she felt that she had to resign as her position had become untenable.  The complainant told the hearing that all she wanted was to go to work and feel safe.

In response to a question from the Adjudicator the complainant confirmed that she did not submit a formal grievance prior to resigning as her previous experience in doing so was that her version of events was never taken into account, and she did not want further stress.  All she wanted was to keep her sanity.

The complainant confirmed that she commenced working in a new role on 26/04/2022 and is in receipt of a payment of €800.00 per week.

The complainant was cross examined by Ms Ochelle Deacy on behalf of the respondent.  The complainant confirmed that she had received copies of the grievance procedure and the Dignity at Work Policy.  The complainant also confirmed that she was aware that she had a right to appeal the outcome of any grievance hearing.  She confirmed that she had not done so as she was not listened to or made feel safe.   The complainant confirmed that she was aware of the outcome of the grievance submitted by her colleague in October 2018.   In relation to the informal investigation with her other colleague she confirmed that the outcome was that she was asked to apologise for something she did not say.

The complainant was asked about the case review which took place in January 2022 by her manager.  She was asked if she agreed that her manager was giving her more time to undertake some work and she confirmed that was correct.  The complainant was asked if she felt that she was not being supported.  The complainant said that her manager was supportive, but she felt unsafe after he stated that he believed the team leader.

It was put to the complainant that her grievances were investigated.  The complainant said that her 28-page 2018 grievance was never investigated.  Mediation took place.

At the end of the hearing the complainant submitted that because all staff knew each other their professional boundaries were blurred.  All she ever wanted was to go to work and feel safe.  The last complaint from her team leader put her under enormous pressure.  She confirmed that she did not want to leave her job but wanted to do the best she could.

The complainant also confirmed that she was most satisfied with hearing and that she got the opportunity to present her case and all evidence in relation to her complaint.

The respondent is a non-profit organisation who works in partnership with many state agencies.  The respondent provides a wide range of social inclusion supports to marginalised groups such as access to employment, training, education, social welfare and housing.  They work with some of the hardest-to-reach people in society at community and in prison.

The complainant worked as a Resettlement Coordinator from 12/01/2015 and was based at the Mountjoy Prison Complex. 

The complainant submitted complaints to the Operations Manager, Mr Barry Owens, on 12/06/2018.   Mr Owens sought follow up reports from other employees.  The complainant later informed Mr Owens that she wished to submit an official workplace bullying complaint and listed two colleagues as part of that complaint. This complaint was acknowledged by the HR Manager, Ms Aisling Bracken, and she informed the complainant of her urgent efforts to engage an independent mediator in order to resolve the matter.  All parties agreed to mediation, and this was undertaken by a mediation service provider.  The respondent is not privy to the outcome or any update in relation to this confidential process.

The respondent received a grievance against the complainant on 23/10/2018. On 24/10/2018 the complainant submitted a grievance against the colleague who made the complaint.  The matter was the subject of a grievance hearing by the HR Manger and following a final meeting both parties were advised to partake in external restorative practices mediation.  In addition to this communications improvement plan was put forward which would be implemented by means of monthly group meetings and the Operations Manager.  In March 2019 the restorative practitioner submitted a mediation summary in relation to the grievance outcome and detailed the follow up actions which were agreed by both parties.  The Operations Manager implemented the recommended communications improvement plan. At a final meeting in September 2019 both parties agreed that the objectives of the plan were achieved.

On 09/09/2021 the complainant was informed that another Resettlement Co Ordinator had lodged a complaint against the complainant.  The report into this grievance highlighted that the behaviours described in the complaint and supported by colleagues’ statements fell short of professional conduct standards.  It was recommended that all parties engage in a proactive approach to improve working relations and outlined the supports available to assist in this process.

After a number of facilitated meetings, the parties could not agree on a remedy.  The Operations Manager then highlighted the commitment to engage in a professional manner and noted the importance of maintaining healthy professional boundaries and communication practices.

The respondent received a formal complaint from the team leader on 14/12/2021 against the complainant under the Dignity at Work policy.  The complainant was informed of this complaint after the Christmas break and another Operations Manager, Mrs Adrienne Higgins was appointed as investigator.  Various meetings took place, and the notes of these meetings were shared with all parties.  The complainant nominated Mr Barry Owens as a witness, and he provide the investigation with a witness statement.  The complainant, by agreement, was temporarily transferred to another team while this investigation was taking place.

As the complainant submitted her resignation on 15/04/2022 the investigation was interrupted.   The complainant went on annual leave and only resumed work for one day before her employment ended.  The investigator contacted the complainant at her personal e mail address to see if she would continue to engage with the process.  The complainant did not respond to this request.

The respondent also clarified the issue in relation to the case load review which was undertaken by the complainant’s manager in February 2022.  This was an operational issue which involved the wider team, and it was stressed that this was not a disciplinary matter but an operational matter.  The complainant’s manager was looking for answers in relation to the size of the case load, the release service process and client contact to admin ratio.  The complainant was granted additional time to provide this information.

The respondent also submitted that the complainant sought a career break on 08/04/2022 and wanted this to commence on 18/04/2022.  She was advised by the then CEO that the career break would take effect from 14/08/2022 in line with the respondent’s career break notice period and this would also allow the ongoing investigation to conclude and give the respondent a period of time to back fill her post.

The complainant submitted a resignation letter on 15/04/2022 stating that she would resign her post and take annual leaver up to 26/04/2022.  The respondent’s HR Manager, Ms Bracken, contacted the complainant and offered her the Employee Assistance Programme and also access to the Dignity at Work and grievance policy. Ms Bracken also asked the complainant to reconsider her decision and revert with a final decision on 22/04/2022.    The complainant did not revert by that date and Ms Bracken made further contact with the complainant.  The complainant’s response was that she felt that her workplace relations had irretrievably broken down and she would not be able to return to work for the respondent.

A number of legal submissions were provided by the respondent’s representative.  It was submitted on behalf of the respondent that Section 1(b) of the Unfair Dismissals Acts, 1977-2015 (as amended) defines dismissal in relation to an employee as:

“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”.

In that context the established principles are that the burden of proof rests with the employee to demonstrate that she was entitled to terminate the contract of employment by virtue of a demonstrated breach of the contract on the part of the employer or the employer acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

It was submitted on behalf of the respondent that they operated within the terms of the complainant’s contract of employment and there was no contractual violation.  The respondent fulfilled its contractual obligations, implied and otherwise at all times.  In that context the termination of her employment by the complainant fails the contractual test.

It was also submitted on behalf of the respondent that there are two interwoven factors to be considered in relation to the reasonableness test.  Firstly, did the employer act unreasonably so as to render the relationship intolerable and secondly, did the employee act reasonably in resigning and particularly in respect to exercising internal grievance procedures.  The respondent refers to the established approach by the EAT in McCormack v Dunnes Stores, UD 1421/2008 where the Tribunal stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers.  The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

It is the respondent’s position that they acted reasonably and fairly at all times, and in accordance with their policies, best practice and appropriate conduct.  The respondent refutes the complainant’s position that any investigation which she was subjected to was unfair.  These investigations were carried out in line with the respondent’s policies and procedures.    The respondent also refutes the complainant’s view that her complaints were not properly investigated.  These were and in some instances the complainant agreed to participate in a mediation process and also took part in an informal grievance process and a restorative mediation practice.

In relation to the 2022 Dignity at Work process the respondent submits that the complainant resigned mid process. 

The respondent also notes that the complainant’s request for a Career Break was dealt with in line with the parameters of the Career Break notice period.

The respondent believes that the complainant did not act reasonably in resigning her employment as she had not availed of the grievance procedure in an attempt to resolve her complaints.  The respondent submits that this obligation is well established in the case of Travers v MBNA Ireland Limited, UD720/2006 where the Tribunal found”

“The claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”, and,  it then stated: “in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”. In that case the Tribunal found that the complainant was not constructively dismissed.

The respondent’s representative also referred to the case of Fitzsimons v Mount Carmel Hospital, UD855/2007.  In that case the complainant’s letter of resignation contained a complaint against the complainant’s manager.  The respondent in that case encouraged the complaint to reconsider her resignation and offered her their Dignity at Work and Grievance Policy to pursue issues relating to her resignation.  The complainant rejected the offer.  The Tribunal noted:

“It is regrettable that this final step [of acceptance and return-to-work offer] was not taken and the Tribunal finds it was unreasonable for the Applicant not to have seen this process through.  The Employment Appeals Tribunal’s primary function is to ensure that internal workplace procedures are fairly applied to individual employees and there is an onus on employees to engage fully in these procedures where a clear effort is being made to overcome past difficulties”.

It was submitted on behalf of the respondent that the complainant’s resignation does not fulfil the reasonableness test and therefore cannot be determined to be a constructive dismissal.

Ms Aisling Bracken gave evidence on behalf of the respondent.  Ms Bracken is the Human Resource Manager with the respondent. Ms Bracken gave evidence on affirmation, and she confirmed details of the 2018 investigation and the commitment of both parties to improve communication and participate in the restorative practice mediation.  Ms Bracken also confirmed that both parties confirmed that the objective of the plan were met and that they were satisfied with the outcome.

Ms Bracken gave evidence that she received the complainant’s resignation on 15/04/2022 which was Good Friday.  She called the complainant on 19/04/2022 and asked her to reconsider her decision and to think about using the Dignity at Work and Grievance Procedure. Ms Bracken also confirmed that she informed the complainant that she was happy to investigate any complaint and that she would give her some time to reconsider things.

Ms Bracken outlined to the hearing that she wrote to the complainant on 25/04/2002 and she received a reply from the complainant on 26/04/2022 stating that she was not returning to work.  Ms Bracken confirmed that this was the complainant’s resignation date.

Ms Brooks put a number of questions to Ms Bracken by way of cross examination.  She was asked to clarify that her colleague did not go into mediation in 2018 but she did partake in the restorative practice mediation.  Ms Bracken gave evidence that the 2018 mediation process was confidential, and she did not have any details about it other than the fact that it was set up.  Ms Brook put it to Ms Bracken that when she explained to her about all the stress that she was under all she was ever told was to access the EAP, which she did, but this did not stop the bullying.    Ms Bracken outlined that the purpose of the EAP was to provide individual support and advice to employees, and it had no role in the investigation of complaints.

Mr Barry Owens gave evidence on behalf of the respondent on affirmation.  Mr Owens is the Operations Manager.  Mr Owens outlined that the first complaint raised by the complainant was a summary of what was previously raised with him.  This complaint arose on foot of relational issues within the team.  As he was aware that here were many difficulties within the team, he asked all team members to write formally to him about these issues.  While the complainant had issues with some team members, Mr Owens gave evidence that there were also team members who had issues with the complainant.   Arising from these difficulties mediation was offered and accepted.  In relation to the grievance raised by a colleague of the complainant’s Mr Owens outlined that this was raised informally, and he asked the complainant for her comments in relation to the alleged use of the work “aggressive”.  The outcome of this investigation was that the witnesses were adamant that they heard the complainant use the word “aggressive”.  Mr Owens outlined that there were ongoing efforts to deal with the relationship issues and keep the boundaries professional.

Mr Owens also gave evidence in relation to the case review process he instigated on 18/02/2022. He outlined that it was brought to his attention that some clients who transferred were not seen before their transfer by the complainant.  He informed the complainant that this review was operational and not a disciplinary process.  Mr Owens outlined that he was unable to see the case load and the review was a process to provide answers to the questions he had in relation to this.

Mr Owens was cross examined by the complainant.  He was asked about the responses he got to his e mail regarding the work issues and in particular the colleagues who had difficulty with her, the complainant.  Mr Owens gave the hearing the names of these two colleagues.

The complainant also asked Mr Owens about the case load review and outlined that when she did not meet a client she put down “not met to date” on the system.  Mr Owens clarified that what he was seeking was the status of the case load.  This was not clear, and his review was intended to clarify this.

Mr Owens was asked about his evidence that he was “monitoring relationship issues” and that during the appraisal process some mentioned that they had difficulties with someone on the team but she, the complainant, was not named.  Mr Owens confirmed that this was correct, and she was not named.  He was then asked why he put this into his report, and he outlined that as it was raised again and taking account of the history, he felt that it was necessary to mention it.

Mr Owens was asked by the complainant why she did not have an appraisal.  Mr Owens outlined that she did complete her part, but he was unable to finalise her appraisal due to other issues that he was dealing with.

Ms Adrienne Higgins also gave evidence on affirmation on behalf of the respondent.  Ms Higgins is an Operations Manager with the respondent.  Ms Higgins was asked about the Dignity at Work complaint that she received from the complainant’s manger in 2021.  Ms Higgins said that this was received just before Christmas.  There were five parts to this complaint, and they were linked to what the manager had read in the 2018 report.  Ms Higgins outlined that this investigation followed the procedures outlined in the Dignity at Work policy.  The complainant, the manager and two witnesses were met.   The minutes/notes of all meetings were exchanged. The purpose of this investigation was to get all the facts.  However, the complainant resigned before the investigation was completed.  The complainant was due to revert to her on 26 April 2022, but she did not.  As she was no longer an employee, and she did not revert to her the outcome of the investigation was not shared with her.  At the hearing Ms Higgins confirmed that two parts of the complaint were upheld, and the remainder were deemed inconclusive.

The complainant was given an opportunity to cross examine Ms Higgins.  The complainant clarified that she put forward her manager, Mr Owens, as a witness to the fact that she had submitted complaints as far back as 2018.  The complaint also clarified that she had asked for clarification on 27/04/2022.  The complainant had no further questions for the witness.

Both parties provided the hearing with comprehensive submissions including details of meetings and various correspondence exchanged.

The Law

Section 1 (b) of the Unfair Dismissals Act defines ‘dismissal’ for the purposes of the Act in circumstances where:

• “(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”.

Section 6(1) of the Act states:

“Subject to the provisions of this section, the dismissal of an employee 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”.

Deliberation

Where the fact of dismissal is in dispute a complainant must establish that his/her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act. To succeed in a claim of constructive dismissal under the Act, a complainant must demonstrate that his/her decision to resign their employment resulted from either a repudiatory breach of his contract of employment by the employer or such unreasonable behaviour by the employer that he could not fairly be expected to put up with it any longer. Was there a repudiatory breach of the complainant’s contract of employment?

To amount to a repudiatory breach, the employer’s breach must constitute a fundamental breach of the employment contract. A repudiatory breach allows a party not in breach to accept the breach and affirm the contract or to repudiate the contract. If the employee decides to repudiate the contract by resigning, he needs to do so in a timely manner otherwise his continuing to work can be taken to amount to an affirmation.

The test by which a repudiatory breach of contract can be identified was set out by Lord Denning M.R. in Western Excavating Limited (ECC) v Sharp [1978] IRLR 332as 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.”

In assessing whether the employer’s conduct in this case amounted to a repudiatory breach of the complainant’s contract of employment the I find that she did not establish any facts that there was a breach of the complainant’s contract of employment such that she was entitled to regard herself as having been dismissed.  The complainant confirmed at the hearing that she did not consider that there was any repudiatory breach of her contract.

Was the employer’s behaviour such that it was reasonable for the Complainant to resign?

The second question for the Adjudication Officer to assess is whether the complainant was entitled to terminate her employment because of the actions of the Respondent. In cases of constructive dismissal, the Adjudication Officer must examine the conduct of both parties. This requires an assessment of the events leading up to the termination of the complainant’s employment.

At the hearing evidence was heard about the employment the relationship issues between the complainant and other team members.

There is a direct conflict of evidence in relation to what happened that led the complainant to submit her resignation.  What is clear is that the working relationship between the complainant and her colleagues were delicate and communication between the parties was poor.  Several events and/or incidents were cited by the complainant and are consolidated as follows:

a)       She was concerned that the outcome of the 2018 investigation left her vulnerable to bullying from her team leader.

b)      She did not get any meaningful follow up to her report in relation to incidents at work which she submitted on 12/6/2018.

c)       An incident with a colleague who is a friend of her team leader was investigated and her complaints were not upheld but those of her colleague were. The outcome of this investigation had an effect on her health and the finding that she was likely to be less likely to be honest.  A request by the complainant to move to another team was not facilitated.

d)      In 2019 the complainant provided support to a colleague who felt she was being excluded from the team.  The complainant herself then began to experience similar exclusion from e mails and a WhatsApp group.

e)      An investigation into a complaint from a colleague that she described him as aggressive was upheld.  The complainant believes that this was flawed as it amounted to “one person’s word against another”. The complainant felt that this further isolated her and had an impact on her mental health.

f)        In January 2022 the complainant’s team leader submitted under the respondent’s Dignity at Work policy against the complainant.  This complaint alleged that she made “malicious” comments about her and that she made a “malicious” complaint against her team leader.  The complainant resigned before this investigation concluded.

g)       The complainant feels that she was subjected to an unreasonable review of her case load and the way she was recording her data.

h)      The complainant was refused a career break.

Was it reasonable for the Complainant to resign?

The question for the Adjudication Officer to consider is whether the cumulative effect of all the interactions between the complainant and the respondent crossed a threshold so as to damage the relationship to such an extent that it was reasonable for the complainant to resign.

The Act places a high burden on a complainant in a constructive dismissal case. To succeed in such a claim, a complainant must establish that the employer’s unreasonable behaviour was such that he/she was justified in believing that he/she could not continue any longer in that employment. An employee must alert the employer to his situation by availing of the grievance procedure, where one exists, to allow the employer an opportunity to rectify the problem before resigning.

The complainant told the hearing that she was aware that there was a grievance process to go through. She told the hearing that her previous attempts to utilise the grievance procedure were not successful and the fact that her experience was that her team leader by virtue of her position would be believed. As a result of this, together with the flawed investigations, the complainant felt that it was apparent that she would not have got anywhere with any grievance. The complaint felt that anytime she raised an issue she was told to seek assistance from the respondent’s Employee Assistance Programme (EAT), but this did nothing to stop the bullying which she stated she experienced for six of her seven years of employment with the respondent.

At stated previously, in any case of constructive dismissal, the Adjudication Officer must examine the conduct of both parties. A failure to invoke the employer’s grievance procedure can be fatal to a complaint of constructive unfair dismissal.

In this case the complainant did not invoke the grievance procedure prior to her resignation.  An employee is normally expected to be able to demonstrate that having brought a concern to his employer’s attention that she gave the employer a reasonable opportunity to address those concerns before resigning.

The evidence given by the respondent’s witness, Mr Owens was that he was aware of the relationship issues with the complainant and team members. He provided the team members with an opportunity to outline their understanding of the difficulties and mediation was offered and accepted.  The respondent also put in place an external restorative practices mediation process which had a positive outcome.

I have reviewed the timelines applicable to this case.  The complainant worked for the respondent from 12/01/2015 until she resigned on 26/04/2022.

The relationship issues were first highlighted to the respondent in 2018 and which various investigations and mediation processes were utilised the complainant felt that, in 2022, she had no other option but to resign due to the enormous pressure when the complaint was submitted by her team leader.

It is unclear why the complainant did wait to avail of the career break which was due to commence on 18/08/2022.  The complainant also gave evidence that she commenced a new role on 25/04/2022 which was the day prior to her last day of employment with the respondent.  The complainant did not appeal the outcome of any of the findings of her grievances. I accept her evidence that she was dealing with challenging work issues of an interpersonal nature.  However, I am also aware that she was familiar with the various policies and procedures, and I am satisfied that she had not advanced any “good cause” to demonstrate that her failure to utilise these.  The use of these policies and procedures would have forewarned the respondent of her intention and afforded the respondent an opportunity to implement these procedures.  The outcome of this intervention could have been favourable to the complainant.

Determination

In all the circumstances, the I find that the behaviour of the respondent was not unreasonable such as to justify the complainant terminating her employment by way of constructive dismissal.

In all the circumstances, I find that the behaviour of the respondent was not unreasonable such as to justify the complainant terminating her employment by way of constructive dismissal.   I have decided that the complainant was not constructively dismissed.

Constructive dismissal.  Mediation.  Investigation.