Complainant

Respondent

Parties

Sinéad  Byrne

Bellerophon Ltd Griffith College

Representatives

Sandra Masterson Power SMP Legal & Advisory

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-00063852-001

31/05/2024

The Complainant commenced working for the Respondent on 19 April 2023 as a Digital Content Executive. Her employment ended on 8 March 2024.  A complaint under the Unfair Dismissals Act, 1977 was received by the WRC on 31 May 2024. An in-person hearing of the case took place on 30 October 2024 in Lansdowne House. The preferred redress of both the Complainant and the Respondent was compensation.

This is a complaint of Constructive Dismissal.  As the fact of dismissal was in dispute the Complainant gave her evidence first.

In her complaint form the Complainant submitted that when she began working with the Respondent in April 2023, she was six-months pregnant. She got a positive performance before she went on maternity leave in July 2023.

The Complainant returned to work from maternity leave on 15 January 2024 and was informed that she would not be returning to create and manage content for the same department she had been working in before she went on maternity leave. Instead, she was told that she would be working across several departments.  This was fine until “they started to go heavy on my probation.” In probation meetings in January and February the Complainant submits that she was put under pressure to carry out certain task, and was assured she would receive appropriate training in a specific area.  The Complainant submits that she was given certain tasks that were far outside her remit.  She felt she was being set up to fail. She was told that the Respondent did not know what was going to happen in June when the person covering her maternity leave was due to come to the end of their contract. The Complainant felt she was being pushed out of the company. 

The Complainant handed in her notice on 1 March 2024.  At an Exit Interview with HR, the Complainant was told that the faculty she worked in had been afraid to give negative feedback during her employment prior to her maternity leave because she was pregnant.

The Complainant gave evidence on Affirmation at the hearing.

The Complainant stated she felt she had been wronged.  Before she went on maternity leave, she had had a very good experience working with the Respondent.  However, when she came back from maternity leave in January 2024 and had her first probation meeting, she was given feedback that her work could improve; it was a different type of message to that she had been given at a probation meeting before she went on her maternity leave.

When she returned from maternity leave there was no laptop ready for her, it stayed with the person who had come in to cover her absence. Her duties changes, she was moved to a different role. Things were up in the air and it was not clear what was going to happen about her duties. The Complainant was assigned training but it never took place. She was given jobs that were outside her skill set.

At an Exit Interview during the last week of her employment the Complainant was told that she was not given negative feedback while she was pregnant. There was an apology about the lack of training.

The Complainant stated that the person covering her maternity leave got a permanent contract.

The Complainant stated a new job on 14 March 2024, with similar terms and conditions to those she had enjoyed with the Respondent.

The Complainant stated that things only changed due to her pregnancy.

In answer to questions put to her in cross examination, the Complainant accepted that she had knowledge of the Respondent’s employment polices including those relating to Probation and to Grievances. She also accepted that she had not raised a grievance.  This was because she did not want to deal with it on her return from maternity leave.  The Complainant had spoken to someone in the WRC and she knew she could raise a grievance.

When asked about her resignation letter which indicated that she had had a good working relationship with the Respondent, the Complainant stated that she gave such a letter as she had a good experience before she went on maternity leave but felt her role was not secure and that is why she wanted to leave. She did not raise a grievance because they [the Respondent] wanted to hold onto the person who covered her maternity leave.

In closing, the Complainant stated that she would not have left if she had not believed her position was insecure.  The last thing she wanted to do was look for another job.

The Respondent provided a written submission

At the outset the Respondent’s submission points to the Complainant’s Contract of Employment, which includes a probationary period clause which provides that the offer of employment is subject to the satisfactory completion of a six-month probationary period, which can be extended by the Respondent in exceptional circumstances.

The Respondent submits that the complaint form submitted by the Complainant provides no statement or commentary or evidence as to poor treatment on grounds of “pregnancy related matters” and does not set out or explain why she was left with no option other than to resign from her employment.

The Respondent submits that the claim is spurious and without merit, that the Complainant was at all times treated with dignity and respect. The Respondent points to the Complainant’s own letter of resignation which completely undermines her claim for constructive dismissal. In addition, the Respondent submits that the Complainant did not raise any issue or invoke any grievance or any complaints procedure before tendering her resignation.

Ms Lara Cozzo, Digital Marketing Manager, gave evidence on Affirmation at the hearing.

Ms Cozzo stated that when the Complainant returned from her maternity leave her probation process re-commenced. Regarding the lack of a laptop for the Complainant on her return, Ms Cozzo stated that she was waiting to hear from the Complainant when she would be returning and when she did return there was only a few days in which to get a laptop sorted out.  Regarding the allegation that the Complainant’s role changed after she came back to work, the witness stated that the Complainant was asked to do other jobs but she still reported to her and the skill sets required remained unchanged.  She did not understand why the Complainant felt insecure.

Regarding the Complainant’s resignation, Ms Cozzo stated that she did not see it coming, she was surprised when it came, there were no signs she was going to leave, she gave no indication she was going to leave.

In closing, the Respondent put forward that the Complainant has not reached the required burden of proof.

The Law

The Act at Section 1(b) defines constructive dismissal in the following manner

“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,”

It is for the Complainant to establish that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act at Section 1 above. That section of the Act, and the case law since its enactment, has established two circumstances where an employee is entitled, or it would be reasonable, to terminate the employment relationship.

Firstly, in circumstances where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee is entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”. It was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”.

In plain English, this means that where an employer makes a fundamental breach of an essential term of the contract of employment, the employee may consider him or herself to be constructively dismissed. In the instant case there was no evidence presented to suggest that the Respondent breached the contract test and attempted not to be bound by one or more of the terms of the contract of employment

Secondly, an unlawful constructive dismissal may arise where an employer’s behaviour is so unreasonable as to mean that the employee is left with no reasonable alternative but to terminate his or her employment. This test of reasonableness, when applied to the within matter, asks whether the employer conducted its affairs in relation to the Complainant so unreasonably that he/she could not fairly be expected to put up with it any longer. In this context, the Complainant must establish that she also conducted herself reasonably in terms of affording the employer the opportunity to address the issues which ultimately led to the termination of the employment.

In terms of the reasonableness of the Respondent’s behaviour, the Complainant did not adduce any evidence which would indicate unreasonableness on the part of the Respondent.

The requirement on a Complainant to exhaust the Respondent’s grievance procedure prior to a resignation in order to succeed in a claim of unfair dismissal has been emphasised repeatedly by the Employment Appeals Tribunal (EAT) and the Labour Court.  The most relevant case in this regard is Conway v Ulster Bank Ltd (UD 474/1981) where the EAT found that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated:

“We find that the Complainant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the Complainant’s case. In constructive dismissal cases it is incumbent for a Complainant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

The Complainant did not utilise the Grievance process available to her and of which she was aware.

Her letter of resignation does not indicate any displeasure at the way she was treated when working for the Respondent.

In light of all of the foregoing, I find that there was no breach of the contract test and that the Complainant did not act reasonably in deciding to terminate her contract of employment.

I find that the Complainant was not unfairly dismissed for the reasons set out above.

Resignation, grievance proceedure