Complainant

Respondent

Parties

Karen  Connolly

Combilift

Representatives

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-00056792-001

23/05/2023

The Complainant commenced employment with the Respondent on 24 May 2021.  Her employment ended 10 February 2023. A complaint of Constructive Dismissal under the Unfair Dismissals Act was received by the WRC on 23 May 2023. A remote hearing of the case took place on 25 October 2023.

In her Complaint Form the Complainant submits that in July 2022 she raised concerns she had about working with a particular colleague. In September 2022, the Complainant made management aware of concerns she had about this individual and another colleague with whom she had been instructed to work.  The Complainant felt that these two individuals were excluding her from information which made it difficult for her to do her work properly, this caused her anxiety. On 29 September 2022, the Complainant reported to management that she was being isolated by her two colleagues.

The Complainant submits that through November 2022 the Complainant spoke with her manager about the issues she was experiencing at work with these two colleagues which she believed was bullying.  In December 2022 the Complainant met with the HR Manager and they discussed the situation. The HR manager agreed that a team talk on Dignity and Respect in the workplace would be arranged before the Christmas break, however it did not take place until 16 January 2023.  The Complainant was asked on 18 January by her manager whether she had noticed any improvement in the situation, to which she replied she had not and she was still being belittled at work by these two colleagues.

On 24 January 2023, the Complainant was called to a meeting where she was told that a complaint had been made against her by one of the two individuals with whom she was having difficulties. The Complainant rejected the allegation made against her. She then told management that she wished to raise her own grievance, which she emailed to the HR Manager later that day.

On 31 January 2023, the Complainant submits that she was told that one of the two colleagues against whom she had raised her grievance was willing to apologise.  The Complainant accepted this apology. On 1 February 2023, The Complainant was asked if she would accept an apology from the other colleague.  The Complainant made it clear that she would accept an apology from the second colleague if it was sincere and there was a sense of remorse on the individual’s part.

On 2 February the Complainant was again asked if she would be willing to accept an apology from the other individual to which she said she would once the apology was sincere. The Complainant informed her manager that she could no longer deal with the stress and anxiety she had been experiencing before coming into work due to how the situation was being dealt with and that she would be handing in her notice.

On 3 February 2023, the Complainant spoke with the Managing Director stating that she believed she had been the victim of bullying and that the company had failed to deal with the situation in a serious and professional manner, that she felt she had been left with no other option other than handing in her notice as the working environment was unbearable and the stress and anxiety caused by how management had attempted to belittle the situation had taken such a toll on her mental health. 

The Complainant gave oral evidence at the hearing on Affirmation.

The Complainant stated that although she got some concessions to enable her study these were all agreed in advance with her manager.  She also stated that she raised issues of concern regarding her relationship with the two colleagues, but her manager did not take her concerns seriously.

The Complainant stated that she went to the HR manager in December 2022, and she was told that taking a formal grievance was a complicated process, so the Complainant opted to go with a team talk on dignity and respect at work.  When on the 23 January 2023 issues were put to her as per her colleague’s complaint, the Complainant felt it ironic as she herself had been raising issues for a long time but there did not seem to be anything being done about them. On 3 February 2023, the Complainant made it clear her issues had been downplayed for a long time.  By this stage she was at the end of her tether.

Regarding mitigation of her loss, the Complainant stated that although she had found a job on similar terms to those she enjoyed when working with the Respondent, her actual disposable income had dropped as she had now to rent accommodation in Dublin.

In concluding, the Complainant stated that she hoped that issues such as hers were to arise again in the Respondent company, that they would be dealt with in a better manner than hers had been.

The Respondent provided a detailed written submission.

The Respondent submits that shortly after the Complainant commenced working with them that she sought support to enable her to participate in a Master’s degree education programme.  The Respondent agreed that it would support her although it was only after this had been agreed that the Respondent came to realise that the cost would be circa €10,000.  The Respondent submits that many concessions were granted to the Complainant to allow her to succeed in the course. 

In mid-autumn 2022, the Respondent submits that the Complainant spoke to her manager advising that she was very stressed about the course workload and how she felt alienated by two colleagues.  The Complainant approached her manager in late 2022, and said she was not happy with the way she was being treated by her two colleagues. She was asked if she wanted to progress to a formal complaint; she declined saying she just wanted it to stop.

The Respondent submits that the Complainant met with the HR manager on 16 December 2022 to advise her that she was not happy with how she was being treated by her two work colleagues and that it was affecting her mood. The HR manager suggested that an option might be that there be an address to the team about dignity and respect at work or that the Complainant could initiate a formal complaint. The Complainant thought that a team talk might be enough.  The HR Manager undertook to try and get a date for this talk before Christmas but if that were not possible, as soon as possible after the Christmas break.

The Respondent submits that the team talk was scheduled to take place on 9 January 2023, but due to the absence of a team member it had to be re-scheduled until 16 January 2023.

On 24 January 2023, a colleague of the Complainant complained that she had been unhappy at how she had been spoken to by the Complainant.  The Complainant was made aware of this complaint. This matter was investigated, and it was confirmed that the allegation did not stand, and no further action was required.

The Respondent submits that on 25 January 2023 the Complainant submitted a grievance letter to HR. The grievance was against the two work colleagues mentioned previously. 

On 26 January 2023, the Complainant was informed of the outcome of the investigation made against her the previous day. On 31 January 2023, the Complainant was told that the investigation into the grievance she had raised was on-going.

On 2 February 2023, the Complainant informed her manager that she had found a new job on more money and that she would be handing in her notice. She was asked whether she would stay on until the investigation was completed but she advised that she wanted to leave.

On 3 February 2023, the Complainant sought a meeting with the Respondent’s Managing Director. During the meeting the MD asked the Complainant was sure she wanted to leave, and she advised that she was not happy to stay and that she had another job. She gave in her notice letter.

In conclusion, the Respondent submits that the Complainant took the decision to apply for a new job while her complaint was still open and subject to an investigation by the company. The Complainant left of her own accord to take up her new role.  The Respondent denies that her claim for constructive dismissal does not arise.

The Respondent submits that the Complainant was at all times treated very well and fairly by the company.  Once her formal complaint was submitted an investigation was instigated by the company, but she resigned from her position prior to the conclusion of that process.  The Respondent submits that the Complainant applied for another job and advised she was leaving within days of submitting her formal complaint and while the investigation was ongoing and within weeks of completing her Master’s Degree.

Mr Colin Gray, Sales and Marketing Advisor, the Complainant’s line manager, gave evidence gave oral evidence at the hearing on Affirmation.

Mr Gray stated that he spoke regularly with the Complainant about the course she was doing outside of work.  He was concerned for her wellbeing and did his best to support her.  The Complainant did mention to him that she was experiencing some “cliquishness” from two of her colleagues, but whenever he asked her if she wanted to take the matter further, she always said no.

Ms Shauna McKenna, HR manager of the Respondent company, gave evidence gave oral evidence at the hearing on Affirmation. The witness stated that when the Complainant came to her in December 2022, she did not say things could get messy but she did suggest a team talk. She stated that when the Complainant raised her grievance the company took it very seriously and it was still ongoing when she resigned.

In cross examination the Ms McKenna stated when she spoke with the Complainant, she said she preferred the informal route being taken in such situations but she was happy to go with whatever route the Complainant wished to take.

Mr Martin McVicar, Managing Director of the Respondent company, gave evidence gave oral evidence at the hearing on Affirmation.

Mr McVicar stated the Complainant came into his office at about 09.30 on 3 February 2023 and told him that she was handing in her notice because she could not continue to work in the company because of the two colleagues referred to above. Mr McVicar asked the Complainant to stay and that he wanted to get the matter sorted.

In cross examination the MD stated that when the Complainant came to him, he made it clear to her that he did not want her to leave the company. He confirmed the Complainant told him that she felt she had been bullied- but this was the first time he had heard her use the bullying word.

In concluding the Respondent stated that it takes all grievances seriously.  In this case an investigation was ongoing on foot of the formal grievance raised by the Complainant. At all times the Respondent wanted to support the Complainant.

The complaint is one of constructive dismissal.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of a contract of employment. It is, after all, a breach of a legally binding contract.

In the case of an employer wishing to do so, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

It is relatively easy for an employee to terminate their employment by simply resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment and 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 p34):

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 mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

In relation to the employer’s actions in relation to this employee, I find it to be nothing other than benign.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery. In this case, I find the Complainant did raise the matter with her line manager in an informal way and turned down the offer of initiating a formal grievance until she had made up her mind to leave her employer and when she herself was subject of a complaint. She did not allow nearly enough time for her own grievance to be investigated and instead resigned of her own volition, turning down requests to re-think her decision.

Looked at by reference to either of the above tests the Complainant does not come anywhere close to the burden of proof necessary to ground her case.

The Complainant’s resignation without allowing her grievance to be processed is fatal to her case on these facts.

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)

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

‘The Tribunal finds that the claimant does 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.

I find the allegation of constructive dismissal is unwarranted.

The Complainant was not unfairly dismissed.

Constructive dismissal, burden of proof, grievance procedure