Complainant

Respondent

Parties

Pauline  Power

Our Lady Of Fatima School

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Councillor David Hynes (initially) and subsequently Donna Kelly, B.L. instructed by  Frizelle McCarthy Solicitors

Antoinette Vahey Ronan Daly Jermyn

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-00054694-001

23/01/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave her evidence under affirmation, one witness for the respondent gave evidence under oath, another under affirmation.  The opposing parties were provided with the opportunity to cross examine the witnesses.

The complainant was employed as a housekeeper with the respondent educational establishment.

The complainant submitted that she resigned because she felt under pressure, intimidated and bullied. She submitted that everyone got on with her, but she felt there was no way out of this situation with the Principal. She submitted that she loved her job and that she thought that the Board of Management would have tried to resolve the matter.

The complainant submitted that she was treated unfairly and resigned in a letter dated 28 November 2022.  The complainant accepted that there was a grievance procedure and noted that she didn’t follow it ‘tooth and nail’ but noted that she submitted a post resignation grievance.

Complainant evidence:

The complainant stated that she thought she followed the grievance procedure on four occasions during her employment. She stated that she knew that the School Principal did not have any time for her.  She said that her difficulties started back in August 2021 when she was out of work for a period of time. She noted that she was on compassionate leave from the school.

The witness noted that in June 2022 there was an incident regarding window cleaning.  She was unhappy with the way she was being treated. She noted that the School Principal did not ask her to go up a ladder as she had already told her that she wouldn't go up a ladder.  She noted that she had a difficulty with ladders as her brother was injured in a fall from one.

The complainant stated that on another occasion when she went to collect her grandson from school the principal stated “go if you have to but don't make a habit of it."  The witness stated that her complaint was all to do with the way she was being spoken to and noted that on another occasion when School Principal and Vice Principal were weeding the garden, she gave a half hour of her own time but that it was said to her “oh look here is Cinderella coming”.

The witness noted another occasion when the tool shed was untidy, and she said that it was a health hazard. When cleaning it, she broke her finger and got a bang on the head.  Thereafter, she ended up doing power washing but was told that she shouldn't be doing that. She was then asked to go to the doctor but when she went to the chemist who said she should get her ring cut off and go to A&E.  The witness recounted another occasion regarding dishwasher tablets where she felt that she was not treated properly.

The witness noted that on an occasion in November 2022, there was an incident with one of the schoolrooms where the floor had not been properly cleaned.  The complainant noted that this was not her job, as there was a contract cleaning firm in place. She said that the teacher of the class shouted at her, and she went to the principal’s office. She said she was asked whether the problem was the floor or the teacher. She felt she had no choice but to walk out, crying as she went. That afternoon she took a call from the principal who was going to see the Board of Management. She expected to have a meeting about her resignation, but none ever happened.

The complainant noted that she submitted everything to the Chairman of the Board of Management but that the only thing discussed with her was her resignation. She noted that when she left, she received a beautiful card and a present from the staff, but it was not signed by the Principal.

Under cross examination it was put to her that the conversation with the principal was not how she picked it up at various times. In relation to returning from an extended period of compassionate leave, she was asked would it be reasonable for a principle to check in with her staff before the start of school. The complainant did not accept that it was reasonable for the principle to do this.

It was noted that she was paid for the entire duration of her compassionate leave and that although there were no formal leave arrangements in place this was done at the behest and discretion of the school.

As regards the issue of the request to wash windows, the complainant noted that there was a discussion around the upper windows and that she said that she could clean what she could but that no pole was mentioned to reach higher up, and no pole was available.

It was put to the witness that the respondent was always supportive of the complainant, however she noted that there was always an undertone and their dealings with her. It was put to the complainant that she didn't take her grievances anywhere else but she said she didn't even bother as it wasn't worth her while and so she didn't use the grievance procedure.

In respect of the incident about the collection of her grandson, it was put to her that the principal doesn't accept she spoke to the complainant in an offhand manner, but the witness countered that she spoke to her in a very dismissive manner.

It was put to the complainant that there was never any pressure put on her as regards her job and that the WhatsApp messages that passed between the parties do not tally with the complainant’s subsequent recollection of issues. It was put to her that the comment regarding the power washing was made to her as she had injured one hand and that she was sent home to get a medical cert.

As regards the issue of the teacher shouting at the complainant, it was put to her that the principal suggested she go down to the teacher to sort it out. When asked was this correct the complainant noted it was but noted that she didn't want to sort anything out. She noted that she didn't want to discuss anything and that she would put it in writing. She noted that she was so upset and so angry and confirmed that she resigned.

It was put to the complainant that the respondent contacted her again in December 2022 to offer another opportunity to resolve matters, but she confirmed again that she was not interested in returning to work. The Chairman of the Board of Management wrote to her again and she confirmed to him that she was resigning.

It was put to her that she never took a bullying complaint, but she noted that she raised her grievances with the Board of Management. It was put to her that she did not ask for the issues to be investigated but simply returned her keys and took her belongings on the same day as resigning.

It was put to the complainant that she took a set against the principal after the interactions of August 2021, but she countered by saying that she never had dislike of the principal rather the principal had a dislike of her.

When asked about her efforts to try to mitigate her loss, the witness confirmed that she hasn't been looking for any other employment as she had received a diagnosis of an illness from her doctor.

The respondent’s position is that the complainant resigned her employment prematurely, and it was not reasonable for her to do so. She was asked by the principal on two occasions to reconsider her decision, which she refused and subsequently reaffirmed her resignation in a letter to the Chairperson of the Board of Management, although dated 28 November was received by the respondent in or around 6 December 2022.

The respondent submitted that the complainant only submitted grievances to the respondent when reaffirming her decision to resign.  It was submitted that the complainant behaved unreasonably in refusing to reconsider her resignation and afford the respondent an opportunity to address her grievance issues.   

The respondent submitted that its conduct towards the complainant has been reasonable and supportive, was not unreasonable, and cannot be construed as breaching the trust and confidence of the complainant. It denied that it acted unreasonably and noted that neither its conduct nor behaviour justified the complainant’s resignation which it submitted was premature and unjustified.

The respondent submitted that in order to succeed in a claim for constructive dismissal the burden of proof rests on the complainant to establish: a) that the respondent’s conduct was so unreasonable that the complainant could not reasonably be expected to continue in the employment and was therefore justified in terminating the employment, or that b) that the complainant brought her complaints to the respondent’s attention and that the complainant exhausted all reasonable requirements in seeking to have her complaints addressed prior to resigning as a last resort. The complainant did not do so and accordingly has not shifted the burden of proof to the respondent and therefore her claim of constructive dismissal should fail.

The respondent submitted that the 1977 Act defines constructive dismissal 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.”

The respondent submitted that the two tests for constructive dismissal arising from the foregoing definition, are (i) the contract test where the employee argues ‘entitlement’ to terminate the contract because of a fundamental breach of contract on the part of the employer and (ii) the ‘reasonableness’ test, where it is alleged that the conduct of the employer was such that it was reasonable for the employee to resign.

The respondent submitted that there was no conduct or breach of contract on the part of the respondent such as would have entitled the complainant to deem herself constructively dismissed within the meaning of the legislation. It was further submitted that the actions of the complainant in resigning her employment were unreasonable and unwarranted. Furthermore, it was suggested that she submitted her resignation without raising a formal grievance or complaint with the respondent, which would have provided the respondent an opportunity to deal with it through its procedures.

The notion of constructive unfair dismissal places a very 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 the grievance with the employers.  The respondent submitted that it is well established that in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of their employment other than to terminate his or her employment.

The respondent referred to the decision of the Supreme Court in Berber v. Dunnes Stores [2009] 20 ELR 61. In this case the Supreme Court sets out the test for determining whether a breach of mutual trust and confidence has occurred as follows: a) The test is objective; b) The test requires that the conduct of both the employer and the employee be considered; c) The conduct of the parties as a whole and the cumulative effect must be looked at; and d) 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. This decision was applied subsequently in constructive dismissals cases such as McGreevy v. Ulster Bank UD962/2009.

The respondent also relied upon the case of Brothers of Charity v Denise Shaw Kelly UDD1928 where the Labour Court rejected a claim of constructive dismissal, on the basis of the following:

 “The Court is of the view that the Complainant has not demonstrated that it was reasonable for her to resign her employment or that she no option but to resign her employment. On the other hand, the Court finds that the Respondent acted in a responsible and reasonable fashion towards the Complainant”.

The Respondent also noted the case of McCormack v Dunnes Stores UD1421/2008 wherein the Tribunal in this case held an employee must show they had “no option” but to resign, which is a “high burden of proof” which was not met in the instant case.

The respondent also relied upon Helen Denton v The Sexual Health Centre Limited [UD705/2008], where the employee was unsuccessful, as by resigning her employment she deprived herself and the respondent employer of the opportunity to explore options.  It was submitted that that case is on all fours with the facts of this case, given that the complainant completely deprived the respondent of any opportunity to deal with her perceived issues before taking the decision to unilaterally terminate her employment.

The respondent placed reliance on the decision in Conway v Ulster Bank Ltd UD475/198 where the Tribunal was not satisfied that a unilaterally imposed transfer made it reasonable for the complainant to resign without first “substantially utilising” the grievance procedure in an attempt to remedy her complaints.

The respondent also referred to the case of Ryan, Cannon and Kirk Accounting Services Limited –v- Violeta Kneite (UDD1910) [2019] 2 JIEC 2501, where the Labour Court reaffirmed that an employee must make reasonable efforts to engage with their employer and address their grievances before resigning.

In the case of Gary Keogh v. JTM Jump Starters Limited (U.D. 1090/2008) the employee failed on the basis that he had not brought his grievance to the respondent in spite of the fact that there was no grievance procedure in place. The Tribunal found that this did not outweigh the claimant’s duty to have attempted all reasonable means within the company to resolve his grievances before resigning. Instead, the complainant had resigned and then aired his grievance, thus denying the respondent an opportunity to address those grievances while the claimant remained as an employee.

The respondent noted that in the case of A Brewer v A Brewing Company – ADJ000015238, the Adjudication Officer was

“satisfied that the Complainant said that he did not raise a formal grievance on how he was been treated by the Respondent, in particular Ms. A. I note the evidence from the parties and accept the Complainant’s evidence that he was unhappy there and much of that was levelled at Ms. A. However, difficult it might seem on a practical level, there is an obligation on the Complainant in such circumstances to activate an internal grievance with the Respondent to see if the matter can be addressed before taking the step to resign from his employment. The evidence from both parties is that this never happened. The Complainant just left his employment and he never returned”.

On mitigation of loss, the respondent submitted that in circumstances where the complainant has indicated that she not looking for work, due to a diagnosis of an illness, she has failed to mitigate her losses. The respondent noted that section 7(1)(c)(ii) of the Unfair Dismissal Acts 1977-2015 is applicable in that she has suffered no financial loss and submitted that, as such, that the maximum amount of compensation (if any) pursuant to the Act is four weeks remuneration.

Witness Testimony:

The first witness for the respondent was the Chair of the Board of Management. He stated that he received a letter of resignation from the complainant on 6 December 2022. He noted that she did put forward allegations of a serious nature but was clear in her intention to resign. This was noted to her that a third party needed to investigate matters however the witness stated that the complainant moved very quickly from outlining complaints to the ‘nuclear option' of resigning. The witness stated that he took the letter at face value, and it was crystal clear that her intention was to resign.

The witness stated that at the next board of management meeting he noted that they had received the resignation from the complainant but decided as Chair, not to go into detail where the principal was present but had no right to reply to any allegations contained in the letter. He stated that the complainant had not triggered any process and noted that he had written to her to acknowledge receipt of her resignation.

Under cross examination the witness acknowledged that he understood of the feelings of the complainant. He was asked whether he made every effort to resolve the matter and in response noted that the school has procedures in place that had to be followed. He noted that the proper forum to consider the allegations was not activated and therefore no further investigation followed.

The second witness for the respondent was the school principal.  She noted that she had been the principal since 2021 and that the respondent employed about 50 staff.  She noted that she took over during the period of the COVID pandemic and a number of changes we're going on in relation to work on the premises.

The witness noted that she was aware of the complainant’s brother’s medical condition. She stated that she was shocked by the complainants assertions that she was putting pressure on her, as she was trying to get an update on when the complainant might return to work. She noted that the complainants pay was not stopped and that she was paid for the entirety of the compassionate leave period.

The witness stated that the complainant is a good, hard-working employee, who works on her own initiative and is flexible in her approach to the job. As regards the events about cleaning windows she noted that she told the complainant at the time that her work was appreciated.

In relation to the complainants last day of employment she stated that the sweeping of the class was done previously by the complainant before her compassionate leave and noted that rooms were swept straight after classes and then mopped by a cleaner. She noted that she had asked the SNA's if they wouldn't mind sweeping the class around September but in November, she was asked could she outline what the cleaner, the contract cleaner and the SNA duties on cleaning were.  She noted that the SNA's had refused to continue cleaning and the complainant was asked would she resume her duties regarding the sweeping of classrooms. The other staff had been asked to sweep previously as the complainant had injured her shoulder.

The witness stated that when the complainant resigned, she rang the complainant afterwards to ask her to come in, but she refused to come in saying “no I've had enough, I'm done”.

The witness stated that she was taken back when the complainant said felt unappreciated.  She noted that the incident in relation to the injury the complainant sustained when tidying the shed was raised with her and had suggested at the time that the complainant go home.  The complainant had respondent that she would finish what she was doing. However, the principal insisted that the complainant go home to get medical attention.  She stated that she had told the complainant that the medical expenses and any physiotherapy would be covered.

As to the issue about the dishwasher the witness noted that she had to look at saving money where she could and so they wanted to use cheaper dishwasher tablets but that when the complainant raised an issue about it the witness stated that no longer cared and that the complainant should get whatever she wanted.

The witness was asked whether the complainant had ever raised a complaint or grievance and responded No.  She noted that the WRC complaint was a shock to her.

Under cross examination the witness confirmed that her final interaction with the complainant apart from text messages was on the 28th of November 2022. She outlined that a teacher raised an issue regarding the sweeping of the room. The principle assumed that the teacher and the complainant got on well, but this turned out not to be the case on that date. The witness was asked was there ever an inquiry and responded that there was, noting that she had received a written account from the teacher in question but received no written account from the complainant.

The witness noted that it was not her way to snap at people and she noted that she asked all staff who came into her office to do so when she was there rather than when she was absent.  It was not just the complainant.

The witness noted that when she started it was a difficult time for her as there were a lot of changes.  However, she needed to find out whether the complainant was returning to work following a period of compassionate leave. She asked her to write to the board of management seeking leave and noted that when the leave request was made it was granted by the board of management. When asked whether she was dismissive regarding the complainants request to leave early, she noted that although she would support her staff, she had a school to run. She noted that there was never any issue raised with the board of management regarding that.

The witness noted that the respondent operates a grievance procedure under its Dignity and Respect Policy and it was open to the complainant to pursue matters under that policy, but she did not do so. She noted that the resignation letter was not put to the board of management in its entirety.  The witness noted that the complainant continues to work in her role as a bus escort for the respondent, a job which she carried out previously alongside her housekeeping role.

The respondent advanced the notion that constructive unfair dismissal places a very 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 the grievance with the employers. 

The complainant confirmed that she had not made full use of the grievance procedure before submitting her resignation. On the basis of the evidence provided it is hard to see that the complainant made any use whatsoever of the grievance procedure before submitting her resignation. It appears from the evidence of the witnesses that the complainant confirmed her resignation three times, twice orally and once thereafter in writing. It appears to be common case from the evidence put forward that the school principal tried to resolve matters initially in an informal manner immediately upon it being brought to her attention.  The complainant appears to have decided that she was leaving, and nothing was to be done to change her mind. Both the complainant and the principal confirmed having a conversation later on where in principle asked the complainant to reconsider her resignation. However, she refused to do so reiterating that she was not returning to work.

In the written resignation the complainant, although raising issues that had occurred, did not specifically seek that the respondent investigate matters so that she might return to work but merely reiterated her previously stated intention to resign. Although the respondent had a grievance policy in place, the complainant did not seek to invoke it.

The respondent submitted that it is well established that in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of their employment other than to terminate his or her employment.  On the basis of the evidence of all the witnesses, the complainant appears to have had other options but chose not to pursue them.

The respondent referred to the decision of the Supreme Court in Berber v. Dunnes Stores [2009] 20 ELR 61. It noted that in this case the Supreme Court sets out the test for determining whether a breach of mutual trust and confidence has occurred as follows: a) The test is objective; b) The test requires that the conduct of both the employer and the employee be considered; c) The conduct of the parties as a whole and the cumulative effect must be looked at; and d) 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. The respondent noted that this decision was applied subsequently in constructive dismissals cases such as McGreevy v. Ulster Bank UD962/2009.

The testimony of both the complainant and the school principal indicate that the complainant was offered options that when looked at objectively, indicate that the respondent took a reasonable approach.

The respondent also raised the decision in Conway v Ulster Bank Ltd UD475/198 where the Tribunal was not satisfied that a unilaterally imposed transfer made it reasonable for the complainant to resign without first “substantially utilising” the grievance procedure in an attempt to remedy her complaints.  The respondent also referred to the case of Ryan, Cannon and Kirk Accounting Services Limited –v- Violeta Kneite (UDD1910) [2019] 2 JIEC 2501, where the Labour Court reaffirmed that an employee must make reasonable efforts to engage with their employer and address their grievances before resigning. This case differs from Gary Keogh v. JTM Jump Starters Limited (U.D. 1090/2008) and A Brewer v A Brewing Company – ADJ000015238 in that the respondent had a grievance procedure in place for its staff to avail of.

From her own testimony the complainant confirmed that she did not engage with the grievance procedure before resigning. She also confirmed that she did not refer to the grievance procedure when submitting her resignation after having been offered the opportunity to rescind the oral resignation previously.

On the basis of the foregoing, I find that the complainant did not seek to engage with the grievance procedure on any substantial basis, or indeed at all, prior to submitting her resignation both orally and in writing. In consideration of this fact, it's not possible to conclude that the complainant had nowhere else to turn other than to hand in her resignation and therefore fall within consideration for a constructive unfair dismissal.  Arising from the foregoing I find that the complainant was not unfairly dismissed from her position with the respondent.

Having considered all the written and oral evidence presented in relation to this compliant, my decision is that the complainant was not unfairly dismissed.

Unfair Dismissal – constructive unfair dismissal not established – no recourse or adequate recourse to grievance procedure – complainant not unfairly dismissed.