Complainant

Respondent

Parties

Siobhan  Keely

Guerbet Ireland Ulc

Representatives

 IBEC

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-00056366-001

27/04/2023

The complainant was employed by the respondent as an Administrative Assistant from February 2006 and in January 2013 she became Inventory Co-Ordinator. On October 4th, 2022 the complainant resigned her position, and her last day of employment was October 28th, 2022. She was paid € 41,716.74 gross per annum.

She complains that she was constructively dismissed.

The complainant worked for Guerbet for over sixteen years as inventory controller and for seven years worked for the supply chain manager, John Talbot (JT). Over this time there had been issues, but these were resolved.

However, between February and October 2022, she felt she was being intimidated and harassed, starting when she was moved out of an area she had been working in for sixteen years to a location outside her manager’s office.

She saw this as a form of punishment because of a mistake she made, despite knowing that she this would upset her and affect her mental health.  She spoke to the plant manager David Forde (DF) looking for help and she agreed to mediation.

As mediation was being organised and she talked to the mediator she did not engage in any way with her manager other than in a professional manner.  She had no further discussions with Mr. Forde who said he was being impartial, but, she says, did not remain impartial.

However, despite mediation being organised, when the plant manager DF went on holidays, between mid-July to August 2022, she says JT went on a campaign of intimidation and was assisted by others.

Hedidnotseemtobeconcernedthatthiswouldimpact on themediation.

From wrongly  accusing her of leaving an area untidy on July 27th and insisting she come into the plant from working from home to tidy something she had not created, (and she pointed out who did and got him to tidy it) to having a meeting with the Finance department about her role, putting her on camera in his words 'to make the meeting more affective' and to have questions fired at her, trying to make her responsible for a process failing that she only had a small part in.

Her doctor certified her ‘unfit for work’.

The complainant added to this in her oral evidence, which was given on affirmation and confirming detail above.

She said that she declined to make a formal grievance as this would have been managed by the HR department and she had no confidence that it would do so in a fair way. She did not believe that it would have been investigated by an impartial person.

While she did agree to enter into a mediation process under the auspices of the WRC after preliminary engagement with the service in early September she decided to withdraw from the process as she did not believe it would be capable of resolving the issues involved.

She confirmed that she had an offer of alternative employment before she resigned her position with the respondent.

In 2020 the complainant referred in her mid-year review to allegations in relation to her manager, and her perceived treatment by him.

There had been issues in 2019, and the complainant was advised that there were procedures and processes to deal with them.She chose not to submit a formal grievance but the respondent on its own initiativeinitiatedagrievanceonthecomplainant’sbehalf.

None of the points of her grievance were upheld and she was given right to appeal the outcome which she did not avail of.

On February 3rd 2022 she had her performance review with her direct manager John Talbot. The complainant did not use the employee feedback section to highlight areas of her performance and when questioned she shrugged her shoulders and said, “what’s the point?”

During the meeting the complainant became extremely upset and before walking out of the office said ”I ‘m warning you, don’t do this”. She later went home and on February  9th the complainant commenced a period of sick leave.

On  February 14th, the HR Manager contacted her and requested her attendance at the company doctor. A copy of the Stress Policy and EAP were shared with her. She was asked to confirm her attendance at this appointment which she failed to do.

Another appointment was scheduled for  February 17th and the complainant did not attend. The complainant was reminded that as per the company sponsored Sick Pay Scheme employees must attend Occupational Health. A third appointment was organised for the complainant for February 22nd.

On March 7th,  HR contacted the complainant to arrange the meeting to discuss the medical report. They met on March 7th and 15th to discuss the medical report, the  desk move, end of Year Performance review meeting and meeting that happened with the manager on  February 3rd, 2022.

The complainant stated that she believed the tone of her manager during the performance review meeting was aggressive and that she believed the reason for the desk move was to keep an eye on her. During this meeting, Ms McCarthy, HR Manager explained that the requirement for her to move the desk was to accommodate for two new roles who, would be more appropriately located within the Maintenance (Facilities) workshop.

Ms. McCarthy met with the complainant’s manager to discuss the End of Year Performance Review, and he stated that during the review meeting they discussed the fact that the complainant did not enter any comments into EE section which was her opportunity to bring to the attention of her manager any items of her performance worth highlighting. The manager stated that the complainant said ”what is the point, what difference would it make”.

Ms. McCarthy explained she received conflicting accounts of the review meeting from the complainant and her manager. It was explained to the complainant that she can proceed with a formal complaint and all parties will be notified and the issue would be investigated by an impartial person.

On  March 22nd,  Ms. McCarthy issued a letter to the complainant summarising meetings with her and her manager and offering access to Grievance and Dignity at Work Procedure should she wish to raise a formal complaint. Details of the EAP were further shared with the complainant .

There were a number of desk moves elsewhere and on March 15th Ms. McCarthy confirmed the desk move to the Administration building must take place no later than Friday, March 25th. The complainant moved in mid-April.

Ms. McCarthy followed up with the complainant on April 7th, to see if she would be willing to meet regarding previous internal meetings on March 7th and 15th.

On  April 28th, 2022, the complainant approached the Plant Manager to ask whether she cannot talk to him without permission of her manager. He explained that he was open to listening however the employees should ensure to go through their manager first. The complainant stated she was unhappy with change the desk at work and how it was managed. Mr. Forde flagged that formal and informal grievance process was available to her to deal with the matter.

On May 5th, Mr. Talbot spoke to the complainant about ongoing behaviour and communication at work.  The complainant stated that she considered grievance against Mr. Talbot and Ms McCarthy

On the same day the complainant spoke with the Plant Manager and stated that Mr. Talbot made unwarranted and upsetting accusations about her behaviour as well as past difficulties. Mr. Forde again flagged a formal mechanism available to the Complainant: grievance procedure as well as possibility of independent mediation.

On July 4th, the complainant again raised these issues and said she may need to contact solicitor and that she felt management did not believe her claims. Mr. Forde again suggested independent mediation to resolve the issue.

On August 18th, the complainant met with Mr. Forde and complained about an email about untidy work area and request that she come to the site to address it, a request to visit a company doctor when she was certified sick, and a request from Mr. Talbot to follow up matters with invoices. Mr. Forde once again discusses options available to her such as grievance process and mediation. The complainant stated she did not trust HR hence she would not engage in grievance process, but she would like to try mediation.

On August 19th 2022 Ms. McCarthy confirmed with both complainant and her manager their willingness to take part in mediation and confirmed that WRC workplace mediation services will be requested. Ms McCarthy received phone call from Mediation services confirming the request was received and that the Mediation services will be in touch with Mr. Talbot and Complainant.

On September 8th, Mr. Forde contacted the complainant and stated that he was aware WRC appointed the mediator to the case. The complainant expressed relief with the independent nature of the process.

On October 3rd, 2022, the complainant resigned. On the same day the complainant had a brief meeting with the Plant Manager where she informed him about her resignation and the fact, she did not have a job lined up. She further claimed that the mediation would not be successful and listed other colleagues such as Ms. Aileen McCarthy, HR being against her.

On October 4th Ms. Aileen McCarthy issued a memo to all staff advising them that the complainant will be leaving the company and thanking her for her contribution to the site over the last 16 years.

On October 27th, 2022, the complainant took part in an exit interview. During the meeting she stated that she was leaving the employment due to lack of recognition and quality of supervision. The complainant stated that she was bullied by her manager Mr. Talbot and other between February and July 2022, she was accused of things she did not do and never issued an apology. The complainant was once again offered to raise a grievance which she refused to do so

In light of the definition in Section 1(b) of the Unfair Dismissals Acts, 1977 – 2015 (as amended), and established principles adopted by third parties, there exists a burden on the employee to demonstrate that:

The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer (contractual test), or The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign. (Reasonableness test)

It is only when either of the above tests have been met that the employee is entitled to terminate the contract of employment. It is the Respondent’s position that neither test has been met

Contract test: The respondent at all times operated within the terms of the contract of employment between the parties. No contractual violation occurred in this case.

The respondent draws on the explanation of the contractual test for constructive dismissal as set out in Conway v Ulster Bank, UD474/1981 to confirm this position, in that the respondent did not violate any term of the contract or organisation policies, express or otherwise. There is nothing to demonstrate that the respondent no longer intended to be bound by terms of the contract of employment and nor was any proposed change radically different from what already existed.

On several occasions the complainant was offered to lodge grievance that could be investigated by the respondent and each single time she refused to do so. She was also offered independent mediation which she finally agreed to in August 2022. On September 8th, 2022 the complainant expressed relief for taking part in independent mediation process and yet she resigned less than a month later.

Thus, the respondent’s actions were in no manner “a repudiation of the contract of employment” and did not demonstrate “that the respondent no longer intended to be bound by the contract”. No contractual breach occurred.

The respondent always fulfilled its contractual obligations, implied and otherwise. Considering this, it is the Respondent’s position that the termination of employment fails on a contractual test to be a constructive dismissal.

Reasonableness test:It is the Respondent’s position that there exist two interwoven factors to be considered: (a) did the employer act unreasonably to render the relationship intolerable, and (b) did the employee act reasonably in resigning, particularly in respect of exercising the internal grievance procedures. This is in accordance with established approaches as expressed by the Employment Appeals Tribunal (and now followed by the Labour Court), for example 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 it always acted reasonably and fairly, in accordance with its policies, best practice, and appropriate conduct. The complainant was met by HR who informally investigated the matter. The complainant was issued with summary of the findings and advised she could use the formal grievance process to have her complainant further investigated. The complainant never done so but chose to seek assistance of Plant Manager who tried to encourage her to use company procedures and when this failed to use mediation process.

The respondent contacted WRC and sought assistance through the workplace mediation services. hoping to use it to resolve the matter but she resigned while the mediator was trying to schedule the mediation.

She acted in a hasty and unreasonable manner by resigning from her position and thus not allowing the respondent to deal with the matter before exhausting the grievance procedure and without the assistance of WRC mediation services. The first reference to mediation by the respondent was made on May 5, 2022.

The respondent has a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed. The complainant had access to grievance process, and it was shared with her on several occasions. This procedure provides for referral of a dispute to third parties “should the matter remain unresolved to the employee’s satisfaction”.

Historically the complainant refused to lodge a grievance about her Manager and taking into consideration the allegation made against Mr. Talbot, HR decided to investigate it in 2020. The complainant never appealed the outcome of this process. Additionally, she was offered to raise a complaint during her exit interview, however she refused to do so.

Theobligationtoexhaustinternalgrievanceproceduresextendseveninsituations whereby there exists a purported breach of contract.

In Travers v MBNA Ireland Limited, UD720/2006, the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. The complainant initiated the company’s internal grievance procedures but did not exhaust them and resigned without lodging a final appeal. The Employment Appeals 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 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”. The Tribunal thus found in that case that the complainant was not constructively dismissed.

Just as it is unacceptable in the case of an alleged unfair dismissal, for an employer to dismiss without recourse to fair and comprehensive procedures, so to it is insufficient for an employee to claim herself to have been constructively dismissed without exhausting the internal grievance procedures. It is the Respondent’s position that the complainant failed to establish the burden of proof that her actions were reasonable. As in Travers v MBNA, it is the Respondent’s position that the Complainant’s failure to utilise and exhaust internal grievance procedures is fatal to her claim under the terms of the Unfair Dismissals Act. Thus, the Complainant’s resignation does not fulfil the test of reasonableness and thus she cannot substantiate a constructive dismissal under this test.

In conclusion, it is the respondent’s position that it in no way repudiated the contract of employment but rather always operated within the parameters of the contractual relationship. Furthermore, it is the respondent’s position that it always acted reasonably, and that, conversely, the Complainant’s failure to exhaust the internal grievance procedures amounted to unreasonableness on his part.

In the circumstances the complainant’s resignation from her employment does not amount to a constructive dismissal within the meaning of the Unfair Dismissals Act.

This is a complaint of constructive unfair dismissal. The legal criteria required to ground a case of constructive dismissal are set out in the legal authorities referred to in the submission of the respondent. The facts are also as set out above and largely not in dispute.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of any contract of employment.

It is, after all, a breach of a legally binding contract.

When an employer wishes to terminate the contract of employment, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions having regard to the conduct giving rise to the disciplinary proceedings.

The most common source of complaints under the Unfair Dismissals Act is when an employer has terminated the employment, and the criteria referred to are then the key tests as to whether the dismissal has been a fair one.

On the other hand, and in general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning.

In most, if not all cases an action for breach of the employment contract is unlikely to arise. A different situation arises when an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

 ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

 Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to open an assessment of whether the employer’s conduct has been so intolerable that it justifies the complainant’s resignation.

In other words, has it been at a level and of a nature that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant has made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

The EAT has made it clear in a series of decisions and followed by the Adjudication service that failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above). These are all relevant to the current case

In Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268

‘The Tribunal finds that the claimant do not give her employer an opportunity to date with her complaints. The tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she failed to any of the several avenues open to her.

And in Zabiello v Ashgrove Facility Management Ltd UD1106/2008 the Tribunal stated;

For a claim of constructive dismissal to succeed the claimant needs to satisfy the tribunal that her working conditions were such that she had no choice but to resign. The tribunal is satisfied that the claimant had difficulties with her line manager. However, for a period of six months she did not attempt to resolve the issue.

In Kirwan v Primark (UD 270/2003) the EAT held noted that the claimant said that she was only going through the motions and therefore there was not a genuine attempt to utilise the grievance procedures and her case failed.

In this case, and in the course of her sworn evidence the complainant expressed quite a degree of disdain for the internal procedures, and this was the basis on which she declined to avail of them. Not only did she not dispute that she had not used them, but she was unrepentant for taking that position.

In particular, she said that she distrusted the HR department to oversee the matter.

The offer made to her of an investigation of her grievance included that it would be conducted by an ‘impartial source’.  She dismissed this and again indicated in her evidence that she had no faith that it would be impartial.

This means that as she did not have any knowledge of who a possible investigator might be (nor did she seek to find out) she had no means of assessing their impartiality and this was simply pre-judgement on the complainant’s part. 

Had she submitted a grievance (or simply inquired) that was the point at which she could have exerted some influence over who might have had sufficient detachment from the matter to qualify as impartial. She was obliged to take at least these steps and failed to do so.

She took a similarly dismissive attitude to the mediation process; apparently considering that her dispute was so serious that it fell outside the skill range of a professionally qualified mediator to resolve.

However, this was, again, an assumption, and there was nothing in the facts of the dispute that are set out above that suggest anything beyond a reasonably straightforward breakdown in working relations which would not tax an experienced mediator. The situation regarding the change of her work location, which loomed so large in the matter is a good example of this.

Subsequently, she withdrew from mediation arranged under the auspices of the WRC on the basis, as told to the hearing, that it would not be able to address the issues between her and the respondent, so serious were they (in her view).

In fact, looked at dispassionately, the issues that had arisen between her and her manager fell well within the area of conflict regularly and successfully addressed by mediation. They were interpersonal issues of a type which trained workplace mediators confront routinely.

In any event, between the attempt to get mediation under way, (and I hold the complainant to be at fault for the fact that it did not), and her eventual resignation, there was no further deterioration in the situation. She stated that her reason for resigning was her belief that nothing would change.

Then, between withdrawing from the mediation in early September and submitting the notice of her resignation almost a month later she did nothing at all to have the matter processed. Likewise, and importantly, there was no suggestion of any further adverse incident on the part of the respondent or its managers.

The actions of the complainant falls well short of the requirements placed on a complainant in a constructive dismissal.

The respondent relied on the authority in McCormack v Dunnes Stores, UD 1421/2008, which, while it is similar to the other case law referred to in respect of requirements to use grievance procedures, it also included a reference to ‘informal procedures’.

“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 EAT had no means of knowing in 2008 precisely how the requirement to use mediation in cases under the Mediation Act 2017 would revolutionise awards of costs in civil cases where parties unreasonably decline to avail of mediation.

That Act does not apply in the sphere of employment law but, under a statute such as this where employee conduct is a critical determinant, the reference to ‘procedures formal or otherwise’ should not diminish the significance of a failure to unreasonably avail of dispute resolution procedures such as mediation.

(It is not necessarily always helpful in practice to refer to mediation as an informal procedure, even though it is a fair description, as it has a tendency to diminish its significance as a tool for dispute resolution; mediation is not an alternative to justice, it is part of the justice system).

In this case the complainant entirely failed and without reason to avail of either the more traditional grievance route or mediation to process (in the case of the former) or to resolve (in the case of the latter) her grievances.

 This was of a piece with the complainant’s hostility towards anything that might address the problem; she would not submit a grievance or engage in mediation.

Finally, it emerged at the hearing that the complainant resigned shortly after having secured the offer of alternative employment, although she revealed this important fact only very reluctantly.

At first, she declined to answer the question at all, and then she fudged the sequence of events by saying she got the job offer ‘around the same time’ as she resigned, before eventually confirming in response to questions by the adjudicator that she resigned after having got the offer of alternative employment.

 (The respondent says in its submission that she told her manager on leaving that she did not have another job, but formal evidence was not heard on this point, and nothing turns on it for this decision.)

The fact remains that she did have another job before she resigned and that was the reason she did so.

She has not come remotely close to establishing a basis for her complaint of constructive unfair dismissal and it is not well founded. She quit her employment on finding another job.

For the reasons set out above Complaint CA-00056366-001 is not upheld.

Constructive dismissal