Complainant

Respondent

Parties

Aoife  O'Reilly

Laya Healthcare Limited

Representatives

Neal Horgan BL instructed by  BDM Boylan Solicitors LLP

Des Ryan BL instructed by Ronan Daly Jermyn Solicitors

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-00049739-001

19/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00050040-001

28/04/2022

The Complainant swore an Oath at the outset of the hearing. Submissions were filed and referred to in evidence at the hearing. It was the Complainant’s complaint that she was constructively dismissed by the Respondent as a result of its conduct. It was identified that a duplicate complaint of unfair dismissal was submitted, and this was withdrawn at the hearing – CA-00050040-001.

The HR Manager, Margaret Cleary, gave evidence on Oath on behalf of the Respondent.

Brid Seymore, Director of People and Culture swore an Oath and gave evidence on behalf of the Respondent.

The Respondent objected to the matter being hearing in public due to the commercial sensitives of information relating to third parties. A number of documents were withdrawn at the first hearing date by the Complainant at the request of the Respondent.

The complaint was heard over four days. There was a considerable amount of evidence given and examined by the parties. However, this decision is focused on the evidence relevant only to the complaint of constructive dismissal under Unfair Dismissals Act 1977 which is limited to the employment relationship between an employer and employee. All parties, employed by the Respondent and involved in the events leading up to the Complainant’s resignation have been named where they are/were employees of the Respondent. While the decision does refer to third parties, I have decided not to name them on the basis that there was no direct evidence presented from any third party nor was the evidence that the Complainant, an employee, under a contract of employment, with any party other than the Respondent. Therefore, my jurisdiction is limited to this relationship under the Unfair Dismissals Act 1977 under which the complaint was referred to the Workplace Relations Commission.

Both parties agreed that the Complainant was a long serving dedicated and hardworking employee of the Respondent.

The Complainant gave evidence that she was employed as a Strategic Account Manager from 1 July 2013 to 11 February 2022 with a monthly gross salary of €10,451.89.

Preliminary Objection

The Complainant’s response to the preliminary objection on the jurisdictional point was that it was a matter for evidence and the new contract was signed as a safety net for the Complainant.

Complainant’s Evidence

The Complainant outlined her employment history with the Respondent. She spoke of her working relationship with her line manager, Maria Loughran, in September 2021. Also in September 2021, the Complainant was asked by John O’Gorman, Senior Lead for Innovation in Health and Wellbeing, to document complaints she had been made aware of in relation to the service a partner company was delivering to a client of the Respondent. The email, which the Complainant marked for internal discussion, was later the subject of a meeting between the Complainant and her colleagues, where it was her evidence that she was not given an opportunity to contribute.

On 14 October 2021, Ms Loughran informed the Complainant that she had received a serious complaint from the partner company, which caused the Complainant to collapse with a panic attack. The Complainant attended her GP, who in turn referred her to a specialist. The Complainant was on sick leave for a period of four weeks. Referring to the complaint, the Complainant said she never saw it despite two data subject access requests.

Upon her return to work, she described the relationship between her and the partner company as being strange, with the partner company requesting that all calls be recorded. A meeting with the HR Manager, Margaret Cleary, and the Complainant was set up by Ms Loughran to discuss the complaint on 19 November 2021. As the Complainant had not seen the complaint, she requested a copy and contact with the witness, and for the meeting to be moved to 26 November 2021. The Complainant also sought clarity around the purpose of the meeting with HR; whether it was a formal or informal process meeting.

An email with an attachment of a one-page summary letter signed by the CEO of the partner company was sent to her on 19 November 2021 by Maria Loughran, who told her it was an informal meeting, “an information gathering session”.

At 08:59 am on 22 November 2021, the Complainant raised a grievance with Brid Seymour, Director of Culture and People, about the manner in which the matter was being handled, referring to the Dignity at Work Policy and stating that she was unaware of the allegations against her. She refers to the protection offered under the Respondent’s Dignity at Work Policy, which extends to clients and business contacts. Reference is made to the Workplace Relations Commission and the Safety, Health, and Welfare at Work Act 2005.

There was a same-day reply from Ms Seymour, which asked her to trust the process and be guided by the HR Manager in line with the Dignity at Work Policy. She referred to the meeting as being formal.

On 23 November 2022, the Complainant gave evidence that she was not made aware of the structure of the meeting with Ms Cleary and Ms Loughran. During the meeting, Ms Loughran suggested she come off the client account which was referred to in the partner company’s investigation, an account the Complainant stated was one she had brought to the Respondent.

The Complainant sent two further emails to Ms Seymour on 23 and 24 November 2021, outlining her concerns. The Complainant’s notes from her meeting with Ms Loughran and Ms Cleary were shared with Ms Seymour.

A call was received from the HR Manager on 30 November 2021 to advise the Complainant that an additional letter had been received from the partner company. The Complainant noted the original complaint was not attached to that letter either. It was the Complainant’s evidence that none of the contents of the 30 November 2021 letter could have come from the original complainant who worked for the partner company. Instead, she submitted that the email she was requested to draft by Maria Loughran and sent on 9 October 2021 was repurposed by the MD of the partner company in his letter to the Respondent of 30 November 2021. Furthermore, the Complainant highlighted that the letter of 30 November 2021 was written by the MD and not the original complainant. All of this was raised in the Complainant’s meeting with Ms Cleary on 9 December 2021. The Complainant was told by Ms Cleary that the Respondent had received legal advice that the letter of 30 November was sufficient to be used as a formal complaint against her. It was also said that Ms Cleary did not explain the process to the Complainant as she was told initially it was informal. She was not given an opportunity to cross-examine the original complainant.

It was only after a second data subject access request to the Respondent and to the partner company that the Complainant presented email correspondence between Maria Loughran and the partner company MD, where Ms Loughran is seeking that the MD: “Thanks for the below and it gives us some detail around the complaint, but I do think we may need it presented in a more formal format, similar to the Outcome Letter.” She continues: “I think it would be helpful for us to have a letter drafted by you as MD of [partner company], outlining the nature of the complaint/allegation against Aoife.” It was submitted that Ms Loughran, her manager, was intimating to the MD how to frame a complaint against the Complainant. The Complainant described feeling traumatised by this email.

On 13 December 2021, a detailed email was sent to Ms Cleary referring to the informal procedure and stating that she was assured by Ms Seymour that she would be afforded the opportunity of fair and natural justice under the Dignity at Work policy. She states in her email that she wanted to share her side of the story. By 21 December 2021, the Complainant’s faith in the Respondent was in pieces. She had been referred to Occupational Health due to her work-related stress.

The Complainant received a text message from Ms Loughran, her line manager, asking her if she had returned to work. It was the Complainant’s evidence that Ms Cleary had failed to update her manager on her health status. The Complainant returned to work on 10 January 2022, when she received a call from Ms Cleary at 11 am to say she had scheduled an outcome meeting for 4 pm that day. She did not ask how the Complainant was. During the 4 pm call, Ms Cleary advised the Complainant that the complaint of bullying was upheld. She said she could not say anything in response as she still did not have the complaint. The Complainant expected minutes to be taken at the meeting in light of the presence of Patricia Owens, but she later found out none were taken. It was put to the Complainant that the Respondent disputed any comment was made by Ms Cleary relating to “gross misconduct,” but the Complainant confirmed she did. It was the Complainant’s evidence that Ms Cleary advised her the matter was being referred for a final disciplinary meeting with the Head of Legal, Ms Leary, and the Head of HR, Ms O’Connor.

She further confirmed that the Occupational Health Nurse had sent a note to HR and therefore they were aware of her medical condition. She said she wanted to slow the process down. On 10 January 2021, the Complainant lodged two detailed grievances against Maria Loughran and the MD of the third party. It was her evidence she never heard anything further about these grievances.

The Complainant resigned on 10 January 2021, stating it was “under duress” as she thought this would slow things down. On the morning of 11 January 2021, Ms Cleary replied stating she was accepting her resignation. The Complainant outlined her financial loss of €5,477.95. She obtained employment at a higher salary and commenced 17 days later.

Cross Examination

The Complainant was cross-examined on the timing she signed her contract of employment for her new job, particularly referring to the conflict-of-interest clause in her contract with the Respondent.

The communication of 22 November 2021 to the Director of People and Culture, her relationship with them, and the threat of referring a complaint to the WRC were put to the Complainant. The Complainant described a positive and, at the time, trustful relationship with Ms Seymour. However, at the time of writing the email, she had not received a copy of the third complaint despite being offered mediation by the Respondent. She felt she was not being dealt with in accordance with the Respondent’s Dignity and Respect Policy. Upon her return to work, she encountered passive-aggressive emails from her line manager, had meetings recorded with her client, and was unaware of the outcome of the third-party letter.

It was put to her whether it was a coincidence that she threatened the Respondent with a complaint to the WRC on 22 November 2021 and engaged in discussions with her future employer on 26 November 2021. The Complainant replied that the discussion was around a potential job. On 16 December 2021, the Complainant received a call from her future employer confirming they wanted to make her an offer. It was put to her that the meeting/call on 10 December 2021 was, in fact, a job interview, to which the Complainant replied, “in my head it was a discussion, but I was working for Laya.” The Complainant described the role as a safety net at the time and signed the contract on 22 December 2021. It was put to her that this was an extremely serious step at the time, considering the Conflict-of-Interest Clause in her contract, which required the written consent of the Respondent to engage directly or indirectly with any other business or undertaking. The Respondent questioned whether her decision to resign from the position was because of the new job and not due to the unreasonable behaviour of the Respondent.

The Complainant was questioned about the reply sent by Ms Seymour on the same day and agreed that it included an assurance that no determination had been made. The Complainant added that it also stated the formal process had not been initiated. It was put to her that this was evidence of a caring employer who was attentive to her needs, to which she responded she was very fond of Ms Seymour.

It was put to her that there was a request not to engage with her and that the Respondent was being sensitive and considerate of this request. It was accepted by the Complainant that Ms Seymour contacted her on 24 November 2021 by phone call and assured her that the third party had carried out the investigation, but the Respondent had a duty to carry out its own. She denied that Ms Seymour told her to trust the process during that call.

It was put to her that Ms Loughran offered her the grievance procedure during a call, as well as support from the Respondent. The Complainant accepted this but said that it was outside the scope of the third-party investigation. The letter of 29 November 2021 from Ms Cleary to the MD of the third party was put to the Complainant as evidence that the Respondent had a procedure it was committed to investigating. Referring to meeting notes with Ms Cleary on 9 December 2021, it was put to the Complainant that, from the Respondent’s perspective, it was a formal process. The Complainant replied that nothing was said to her.

It was put to the Complainant that meeting with the CEO and HR Director on 10 December 2021 was unusual in that they would devote a standalone meeting to her. The Complainant described the meeting as a “meet and greet” and a general chat with nothing specific about her role. On 16 December 2021, she discussed her notice period, with 1 March 2022 being the start date she agreed with her new employer. It was put to her that there was no reference to the informal process in the minutes of 9 December 2021.

The Respondent’s “Team Member Investigation” of December 2021 was opened to the Complainant and highlighted that there was no reference to “gross dismissal,” which she accepted. The grievance letter of 10 January 2022 was opened to the Complainant, and it was put to her that this was “highly misleading” on the basis of the fact she signed a contract with a new employer.. Referring to the resignation letter of 10 January 2022 at 16.25pm, it was put to her that she resigned because she got a new job. In response the Complainant said she “was actually begging for Laya to slow things down” and this was the reason for the reference to duress. The Complainant denied that there was no basis that the Respondent wanted to get rid of her, but it was a fact she had a new job. It was put to her that it was reckless conduct to sign a contract when she had no intention of going through with it which was accepted by the Complainant.  

It was the Complainant’s evidence that she wrote her grievance on 24 November following advice from Ms Seymour, but it took her time due to her work and family commitments. It was put to her that she had resolved to resign from her role when she signed the contract, which the Complainant denied. She further denied using the period of sick leave over the Christmas period to engage with a prospective employer.

It was put to the Complainant that she resigned before allowing the Respondent to investigate her grievance and was asked why she expected the investigation would continue after she left her employment. The Complainant said she expected an exit interview to discuss matters. It was put to her that it was unfair to criticise the Respondent for relying on the payment in lieu of notice clause when she terminated her employment without any notice.

The Complainant was asked if she would have resigned if the report had a different outcome, to which she responded she would have filed it regardless. She described having no trust in the Respondent's disciplinary procedures. She confirmed she was aware of the Respondent’s EAP but was not offered it.

The Complainant was asked why she did not seek an earlier start date with her new employer to mitigate her financial loss. She stated she never thought she would be leaving the Respondent, describing being in a state of shock.

The Complainant gave evidence of her new salary, and it was put to her that she secured a role with greater remuneration. In reply, the Complainant explained there was a round trip to Dublin three times a week required, which came at a personal cost in terms of time away from her family.

Upon inquiry, the Complainant’s evidence was there was no written meeting invite to the outcome meeting, no reference to having a colleague present, just a phone call that day from Ms Cleary to attend. She had to ask for the report and was not given a chance to appeal, with 11 January 2022 being the first time she had sight of the written report from the Respondent. She was not offered the EAP at any stage during the process but noted it was run by the third party, which was a conflict. No alternative was suggested.

Asked why she did not give the Respondent an opportunity to investigate her grievance, she said her trust was broken.

Preliminary Objection

The Respondent raised a preliminary objection, asserting that the Workplace Relations Commission did not have the jurisdiction to hear the complaint because the Complainant signed a new contract of employment while in employment with the Respondent and on sick leave from her position.

The date the employment ended was disputed by the Respondent on the basis that the date of cessation of employment occurred much earlier in law.

Substantive Issue

Ms Cleary, the HR Manager, described the Complainant as a highly valued and very successful employee who had been in the role for over 20 years.

It was Ms Cleary’s evidence that she never received the original complaint. The matter came to her attention from Ms Loughran at the end of October or the start of November 2021. According to her evidence, it was a serious complaint, and the Respondent had a duty of care to carry out its own investigation separate from that of the third party. Ms Cleary was not aware of the grievance prior to 10 January 2022.

On 23 November 2021, she described a meeting with the Complainant as an informative session to discuss the process and the letter received from the third party.

The letter of 29 November 2021 from Ms Cleary to the third party sought information about the complaint. She said it would not have been the practice to uphold a third party finding and that the Respondent would carry out its own investigation. She acknowledged that the Respondent did require input from the third party, which is why she sought cooperation from the third party’s employees.

In relation to the meeting invite of 6 December 2021, it was Ms Cleary’s evidence that the disciplinary procedure was attached to make the Complainant aware of her rights. This followed a call to the Complainant that morning.

On 9 December 2021, Ms Cleary met with the Complainant, accompanied by her colleague Patricia Lynch. She described it as a co-lead investigation.

Ms Cleary could not recall if the letter of 30 November 2021, which contained additional information about the complaint, had been shared with the Complainant. Ms Cleary disagreed with the allegation that Ms Loughran had manufactured the complaint, stating it was her understanding that Ms Loughran sought further details on the complaint. Referring to the minutes of their meeting, Ms Cleary said the minutes were not drawn up as part of a formal process. Comments from the Complainant were incorporated into the minutes particularly in relation to amending the  meeting from “informal” to “formal”.

Commenting on the speed of the investigation, Ms Cleary expressed concern for the Complainant, acknowledging it was a very difficult time. A draft report was furnished to the Complainant on 14 December 2021. A meeting with the original complainant from the third party took place on 17 December 2021. The final report was furnished at the end of December or early January 2022, with Ms Cleary commenting it was her intention to get the matter resolved and move forward with the process.

Ms Cleary considered the large volume of emails presented by the Complainant in support of her assertions as per point 11 of the report. Ms Cleary disagreed with the allegation that the complaint was upheld, noting that no such language was used in the report.

The findings section referred to the Complainant as being open and honest, reflecting the Respondent’s view of her as a valuable employee. Ms Cleary denied any finding of bullying or misconduct.

The Complainant tendered her resignation before she had seen the report. The next stage of the process was to have her case heard again by the Head of HR and Head of Legal.

The call on 10 January 2022 from Ms Cleary to the Complainant was to arrange a meeting regarding the report and the next steps, which would include proceeding with a disciplinary hearing. Ms Cleary confirmed she was aware the Complainant was deemed fit to engage.

At 11 am on the morning of 10 January 2022, the Complainant sent her grievance. When asked if the Complainant had raised a grievance on 24 November 2021, Ms Cleary denied it.

The resignation email was received at 16:25 on 10 January 2022, which Ms Cleary described as surprising, especially since the Complainant had filed her grievances earlier that day. Due to the timing of the grievances, there was no opportunity to investigate them.

Ms Cleary did not agree with the Complainant’s reference to being under duress in her resignation but accepted the resignation.

It was Ms Cleary’s evidence that she was surprised to hear that the Complainant had engaged with a new employer when the investigation stage was ongoing in December 2021. Ms Cleary accepted she did not notify the Complainant about the EAP but felt she would have been aware of it. The Complainant also had access to a Nurse and Occupational Health. Ms Cleary was cross-examined by the Complainant’s Counsel on her knowledge of the report prepared by the Complainant in October 2022 and the serious complaint arriving five days after. Ms Cleary confirmed she was aware of it, and it did not form part of the investigation.

Ms Cleary was taken through the evidence presented in the Respondent’s booklet. She accepted that she had never been involved in an investigation following a complaint from a third party. She acknowledged it was a slightly more complicated investigation where she needed to get on top of it from the Respondent’s perspective. In response to the email of 19 November 2021, which she was cc’d in, she said she followed up herself via a letter dated 29 November 2021 to the third party but accepted she did not have the original complaint, nor did she ever get it.

In response to Ms Loughran’s emails to the MD of the third party and the assertion that she was trying to formulate a complaint from the third party, it was Ms Cleary’s evidence that she thought Ms Loughran was trying to gather information. It was Ms Cleary’s evidence that the Respondent had a duty of care to the Complainant, that they requested the complaint, and it was not ideal to investigate in the absence of such a complaint. It was put to Ms Cleary that this was a fatal flaw to proceed with the investigation and undermined the investigation. Ms Cleary disagreed.

Ms Cleary was asked why Ms Loughran was looking for a more formal complaint in her email of 23 November 2021 and whether she felt that was appropriate. It was Ms Cleary’s evidence that she would have expected that the MD would have provided the information in a formal format and confirmed she was asking for this. It was put to her that it appeared Ms Loughran was directing the complaint where she sought screenshots and more information, and that was a problem. Ms Cleary repeated that Ms Loughran was gathering information.

The letter of 30 November 2021 was relied upon in the investigation by Ms Cleary to give the Complainant an opportunity to respond. She accepted the letter did not have enough detail in terms of dates, times, and allegations to allow the Complainant to respond. She accepted it was important to know when the complaint was made by the original complainant, and it did not feature in the letter of 30 November 2021. It was put to her this was important in light of the report the Complainant was asked to compile highlighting issues with the third party and the timing of it and the complaint.

Asked about the findings section in the Investigation Report, Ms Cleary denied there were any findings. Asked about the reference to “other colleagues” under the heading of “Findings and Conclusions,” she said it was in the letter from the MD and accepted it “would have had an influence but not be a deciding factor” as to whether to move to the disciplinary stage or not. It was Ms Cleary’s evidence she did not “have findings on the complaint from [third party complainant], but that’s why we moved to a disciplinary investigation.”

Ms. Cleary was questioned on several points regarding the investigation and the procedures followed. She explained that the Respondent conducted the investigation and the original complainant was not cross-examined by the Complainant. Ms. Cleary disagreed that it was more appropriate to first ask the original complainant about their complaint before questioning the Complainant. She noted that there was no formal letter indicating the formal procedure was being applied to the meeting on 9 December 2021 but mentioned a Skype message informing the Complainant of the process.

It was highlighted that the Complainant was at a disadvantage during the 9 December 2021 meeting, which opened with references to legal advice taken by the Respondent. Ms. Cleary did not qualify her findings in the report noting the absence of the original complaint, stating that the investigation report was not the end of the process, although she accepted that it was the end of her part in the process. Ms. Cleary confirmed that the Complainant was deemed fit to engage despite being on certified sick leave. She could not recall if she informed the Complainant during the call inviting her to the meeting on 9 December 2021 that she could bring a colleague but thought it "was in the Teams invite". Ms. Cleary accepted there were no minutes of the call and denied any reference to "gross misconduct".

Ms. Cleary confirmed she accepted the resignation letter and emailed her acceptance the following morning, stating the Respondent was "left with no option as Aoife had resigned" and assumed she would not have made the decision lightly. She noted it was up to her to decide if an exit interview was necessary, which was standard in the majority of cases but not where there was an ongoing investigation.

Upon re-examination, Ms. Cleary discussed the recommendation in the Investigation Report and the fair procedures for challenging evidence during the initial investigation stage. She was asked why only the Disciplinary Policy was provided and not the Dignity at Work or any other policy. Ms. Cleary stated the policy was provided to advise the Complainant of her rights and for investigating the bullying complaint. Ms. Cleary accepted she did not return to the Complainant with the meeting notes with the original complainant.

Ms. Brid Seymour, the Director of People and Culture at the time, also gave evidence. She described having a very good working relationship with the Complainant, who was excellent at her job. Ms. Seymour noted she was not directly involved in HR operations but had an open-door policy. She received an email from the Complainant on 22 November 2021 regarding the complaint and responded the same day, advising that the formal process had not been initiated and there was no conclusion to the Respondent’s investigation. Ms. Seymour reassured the Complainant to trust the process, which would align with the Respondent’s Dignity at Work Policy.

Ms. Seymour expressed concern about the Complainant's reference to the WRC in her email, considering it an unreasonable reaction given that the Respondent had not yet had the opportunity to address the situation. She stated that the Respondent could not control what happened within the third party but could manage what occurred within the Respondent. Ms. Seymour conducted her own inquiries and found no concerns. She believed there was a misunderstanding regarding the third party’s investigation and reassured the Complainant that nothing had been decided. Ms. Seymour described the Complainant’s email as slightly premature.

The next email from the Complainant to Ms. Seymour was dated 24 November 2021. Ms. Seymour felt there were fundamental misunderstandings and picked up the phone to speak to the Complainant. She reiterated that no decision had been made by the Respondent, a separate investigation would be carried out, and urged the Complainant to trust the process.

Ms. Seymour provided detailed evidence regarding her interactions with the Complainant and the procedures followed. She noted that during a call with the Complainant, issues about the Complainant's manager were raised, and she encouraged the Complainant to use the Grievance Procedure, which had to be initiated by the Complainant. Ms. Seymour expressed disappointment over the ongoing confusion regarding the formal process and its outcome, despite their lengthy and positive conversation.

Ms. Seymour followed up with a phone call on 15 December in response to the Complainant's email from 13 December, reassuring her that all gathered information had been shared with her. She suggested that the Complainant contact the DPO of the third party, which was also described as a positive conversation.

Regarding the events of 10 January 2022, Ms. Seymour was questioned about the Complainant's resignation letter and its reference to duress. Ms. Seymour disagreed with this statement, given the assurances she provided and her personal involvement. She believed the Respondent was still working through the issue, which had not yet concluded, and did not agree that the Complainant had no option but to resign. Ms. Seymour was unaware of the Complainant’s engagement with another employer.

When cross-examined about the Conflict of Interest clause in the Complainant’s contract, Ms. Seymour noted that there was an 8-10% employee turnover per year. It was pointed out that, despite many employees leaving over the years, this was the only instance where the clause was sought to be enforced. Ms. Seymour reiterated that the third-party complaint had no impact on the Complainant’s role, emphasizing that it was merely an allegation. When asked why the Complainant was removed from a large account if this was the case, Ms. Seymour stated she was not aware of this removal and agreed it would have been a mistake if it occurred.

The email from 22 November 2021 was discussed, and Ms. Seymour was asked whether the Grievance Policy was in effect at that stage. She confirmed it would be her responsibility to address it and that she had responded to the Complainant. Referring to the Dignity at Work Policy, Ms. Seymour acknowledged she was the contact person and had been working informally through the process with the Complainant, who was dissatisfied with it. Ms. Seymour believed the informal procedure never ended as the Complainant resigned before it could be resolved.

It was highlighted that emails from 23 and 24 November showed ongoing issues, indicating that the Dignity at Work grievance had not been resolved. Ms. Seymour stated that every time the Complainant contacted her, she responded and did not receive any indication of dissatisfaction. She noted the Complainant did not file a formal grievance against the Respondent for mistreatment, and they were operating under the informal Dignity and Respect procedure.

Ms. Seymour confirmed she had advised the Complainant to trust the process and was aware that the outcome letter from the third party had been shared with her. However, it was pointed out that not everything was provided to the Complainant, including emails between Ms. Loughran and the MD. Ms. Seymour stated the Respondent included the original complainant's contact in the investigation but not the interactions between Ms. Loughran and the MD. She did not know the whereabouts of the original complaint but affirmed that everything received from the third party had been shared with the Complainant.

When questioned about the EAP and support for the Complainant during her sick leave and throughout the process, Ms. Seymour listed several onsite supports available. It was suggested there was confusion about which policies applied. Ms. Seymour explained that the mistreatment allegation fell under the Dignity at Work Policy, the Grievance Policy related to the Complainant's complaints about her manager, and the Disciplinary Policy related to the allegations against her. She confirmed that all these policies were available on the intranet site.

Request to have the case held in private

At the outset of the hearing, the Respondent made an application for the case to be held in private with the decision anonymised on the basis that commercially sensitive information formed part of the Complainant’s complaint, which related to a third party not present at the hearing. The third party is a client of the Respondent, and there would be collateral damage to the Respondent.

In response, the Complainant sought the matter to be heard in public where she agreed to withdraw commercially sensitive data. It was submitted that there was an imbalance of power between the Complainant, an individual, and the Respondent, a large company, and in the interest of justice, the matter should not be anonymised.

After hearing a considerable amount of evidence, the focus of this case was between an employee and her employer, as is the jurisdiction under which this complaint was initiated. In considering the relevant evidence presented, no commercially sensitive information has been identified and referred to in this decision. On that basis, I have decided not to divert from the principle of open justice.

Substantive Issue

The test of constructive dismissal is set out in Section 1 of the Unfair Dismissals Act 1969, with the burden of proof resting on the employee to establish that either because of the conduct of the employer, the employee was entitled to terminate their contract, or it was reasonable to do so.

The UK Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 stated:

“... the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving. He can go, with or without giving notice, and claim compensation for unfair dismissal.”

The Court continued:

“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.”

There is a body of case law, with the Supreme Court judgments in Berber v Dunnes Stores Limited [2009] IESC 10 and [2009] ELR 61, Ruffley v Board of Management of St Anne’s School [2017] IESC 33, relied upon by both the Complainant and Respondent. The Court in these two cases emphasised the requirement to consider the facts of the case objectively with a focus not only on the conduct of the employer but also the employee.

The Complainant gave evidence that the Respondent was engaged in a concerted effort to oust her from her employment, and its conduct was so unreasonable that she had no option but to resign from her position.

The Complainant emphasised the denial by the Respondent of her right to natural and constitutional justice with reference to the decisions in Cassidy v Shannon Castle Banquets & Heritage Ltd [2000] ELR 248, Maguire v Ardagh [2002] 1 I.R. 385, and Merrigan v Home Counties Cleaning Ireland Ltd UD 904/1984, where the allegations against an employee in a disciplinary action arose from a complaint by a third party, and the original complaint was not furnished to the Complainant.

 The EAT in Merrigan held: “The job of an employee cannot be at risk on the mere whim of a third party to the employment relationship.”

In this case, it was the Complainant’s primary complaint that she had never been provided with a copy of the original complaint made by PT to his employer, a third party in this instance. While this was not furnished to the Complainant, nor were any of the original investigation reports, a letter from the MD of the partner company was provided to the HR Manager following a direct request in November 2021.

A number of emails from 3 to 19 November between Ms Loughran and the MD were exchanged which were of concern. An email of 5 November 2021 from the MD to Ms Loughran had a letter addressed to PT attached with the outcome of the partner company’s grievance. What is most surprising about this letter is that it was future-dated to 8 November 2021. It is clear that the MD was informing Ms Loughran of the outcome before the individual complainant.

In the absence of any evidence from Ms Loughran to the contrary, it is clear there was a concerted effort to frame the complaint in a certain manner by both her and the MD. In addition, Ms Loughran, who was not present at the hearing to give evidence, felt it necessary to regularly update the MD of the partner company as to internal matters, including the health status of the Complainant and the stage of the internal investigation. Not only was this professionally inappropriate, but upon reading the emails, it cannot be ignored that Ms Loughran appears to be giddy with excitement at the prospect of such a complaint against the Complainant. So much so, she told the Complainant of a serious complaint against her in a phone call on 14 October 2021, over a month before the partner company had supplied a written complaint to the Respondent.

However, unlike the facts in Merrigan, the Complainant in this case was not dismissed from her employment as a result of the complaint from a third party.

It is necessary to further consider whether the Respondent’s conduct was reasonable at the next stage. Having very carefully reviewed the only internal procedure provided to the Complainant at this stage, the Disciplinary Procedure, there is no provision for a pre-disciplinary investigation and/or report. While it could be viewed as the fair route to take to assist in understanding the complaint, particularly as it was a third-party complaint and to assess the impact on the business, there are a number of concerns about the approach taken by the appointed investigators:

1. It is entirely unclear as to the basis by reference to a policy or procedure for the investigation meeting of 9 December 2021 or the subsequent report. The only policy provided to the Complainant was the Disciplinary Procedure at the outset of this stage.

2. Ms Seymour referred a number of times to the Dignity and Respect Policy, but again it’s not referred to by Ms Cleary and Ms Lynch in any evidence before me.

3. The investigation meeting notes of 9 December 2021 contained in the report differed from those agreed by the Complainant. The report notes that the meeting was opened by Ms Cleary, who advised that this was a “formal meeting”. The amended notes from the Complainant from the same meeting, attached to the report, note that Ms Cleary advised it was an “informal meeting”. This is of particular significance where the Complainant, throughout her evidence, stated she was unaware of what process was being followed.

4. The reference to legal advice from the Respondent’s solicitors at the outset of the meeting by Ms Cleary with an employee was wholly inappropriate. Any such advice was a matter between the Respondent and their advisors. It should not have been used in a manner to intimidate or dismiss the Complainant’s objections at the outset of an investigation meeting.

5. Ms Cleary and Ms Lynch chose to meet with the Complainant first and then the original complainant. She was not given an opportunity to respond to PT’s statement. This is unusual, particularly where the original complaint was not available to the Respondent or the Complainant despite her numerous requests from October 2021. There is no logical sense to this sequence of events.

It is understandable why the Complainant lacked clarity about the process being undertaken by the Respondent around this time. However, it is necessary to consider that neither Ms Cleary nor Ms Lynch took a step in the disciplinary process to sanction or dismiss. The report was limited to making a recommendation to proceed to a hearing under the Disciplinary Policy.

On 10 January 2022, Ms Cleary delivered the findings of her investigation. It was disputed that Ms Cleary referred to the matter as being at a level of “gross misconduct”. Unfortunately, despite it falling into the arena of being a formal matter, no notes were taken, and it is unclear if this term was said or the context in which it was referred to. However, there is no evidence that Ms Cleary imposed a sanction on the Complainant at that meeting. It would not have been out of context for the parties to discuss the disciplinary procedure and what may transpire during the disciplinary process.

On the same day, the Complainant lodged her grievance against Ms Loughran and the MD of the partner company. Later on 10 January 2022, following the meeting with Ms Cleary, the Complainant sent an email with her resignation.

Ms Cleary’s response of 11 January 2022 was simply to accept it. This again is questionable, considering the Complainant stated she was resigning under duress, together with the fact that the Respondent’s own occupational health advisors had informed Ms Cleary that the Complainant was suffering from work-related stress. Furthermore, she was a described as a loyal and long serving employee by Ms Cleary. It is not accepted that the Respondent was “left with no option as Aoife had resigned” or that she made the decision lightly. At the time it was not within Ms Cleary’s knowledge that she had secured alternative employee.  It is clear Ms Cleary was content to close the matter at that stage.

There is no doubt the manner in which the complaint from the partner company was handled internally by the Respondent was not what would be expected of a company with an experienced HR department with detailed policies in the health and wellbeing sector. However, the test must be objective. Charleton J in Ruffley v Board of Management of St Anne’s School [2017] IESC 33 held:

“An employer is entitled to expect ordinary robustness from its employees; Croft v Broadstairs and St Peter’s Town Council [2003] EWCA Civ 676. Correction and instruction are necessary in the functioning of any workplace, and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary.”

In the same case, O’Donnell J held that a bona fide disciplinary process has its place in the workplace:

“In many cases in which it can be said a person has been ‘targeted’ or ‘singled out’ for disciplinary sanction and which constitutes at least part of a finding of bullying, the fact of a general practice will have been known to the superior prior to the initiation of any disciplinary process, and in such circumstances may give rise to the inference that the disciplinary proceedings are not being pursued bona fide because of a concern about the practice or behaviour, but rather as a form of punishing and perhaps humiliating the individual concerned.”

The Respondent was at the investigation stage, not even a disciplinary investigation, nor had any sanction been suggested or applied. It is not accepted that removing the Complainant from contact with the partner company was in any way a sanction; instead, this was for her benefit to protect her and allow the matter to be investigated. The Supreme Court has been clear that invoking a disciplinary process is an accepted and sometimes necessary step for employers. The mere referral of the Complainant did not give rise to a punishment. Consequently, in this instance, the Respondent cannot objectively be found to be unreasonable in its conduct before the disciplinary stage began to force the Complainant to terminate her contract of employment.

It is also necessary to address the Complainant’s application of the internal procedures. The Respondent relied on the EAT decisions of Conway v Ulster Bank Ltd UD 474/1981 and Harrold v St Michael’s House [2008] 19 E.L.R. 1, where the employee’s failure to fully engage in the internal procedures was deemed unreasonable. The Tribunal in Harrold noted:

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

It was the Complainant’s case that her emails to Brid Seymour amounted to a grievance, and these were never investigated in accordance with the Grievance Policy. Ms Seymour denied this, instead referring to herself as a support for the Complainant during the investigation process undertaken by HR. The Respondent argued that it did not get an opportunity to investigate the grievances raised by the Complainant on 10 January 2022 as she resigned later that day.

Reviewing the correspondence between the Complainant and Ms Seymour and taking into consideration their respective evidence, Ms Seymour’s description of her involvement with the Complainant is accepted. While there is no doubt the Complainant was expressing her concerns with the process and the way she was being treated, she clearly was aware that Ms Seymour was not part of the investigation process. It is understandable, considering the lack of a complaint together with the lack of clarity around the investigation, why she did seek guidance from Ms Seymour. The emails and phone calls described by Ms Seymour were evidently intended to supportive in nature.

In contrast, the grievances raised by the Complainant on 10 January 2022 were unmistakably intended to be formal grievances and subject to investigation. However, due to her resignation on the same day as the grievance was raised, she did not afford the Respondent time to address the complaints.

It was obvious by 10 January 2022 the Complainant had made up her mind to end her employment with the Respondent. She had signed a new contract of employment on 22 December 2021 , her safety net as it was described. Much was made of the clause in her contract and whether she in fact terminated her employment the day she signed that new contract. While this is not accepted as it does demonstrate the Complainant’s mindset at the time and goes to understanding why she choose not to give the Respondent a fair opportunity to follow through on its processes in the hope of resolving the issue. This was discussed in detail in Murray v. Rockabill Shellfish Ltd [2012] 23 E.L.R. 331 where the EAT held, “employee must pursue his grievance through the procedures laid down before taking the drastic step of resigning”.

In conclusion, the Complainant, in her haste to resign on 10 January 2022 before the Respondent had been afforded the opportunity to carry out a disciplinary investigation and a grievance investigation, it cannot objectively, be concluded that the Respondent acted unreasonably. While there were flaws in its approach, particularly around the third-party complaint, it was premature on the part of the Complainant to deny both herself and the Respondent an opportunity to fully investigate and consider the next steps, if any. Termination of a contract in such circumstances should have been the final step.

I find the Complainant was not unfairly dismissed.

Constructive Dismissal