UDD2446

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00040902 (CA-00051725-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 21 August 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 6 and 7 November 2024. The following is the Decision of the Court.

DECISION:

This is an appeal by a Niamh Jennings (“the Complainant”) against a decision of an Adjudication Officer under the Unfair Dismissals Act 1977 (“the Act”) concerning a complaint of unfair dismissal against her former employer SSE Airtricity (“the Respondent”). 

The Adjudication Officer found that the Complainant was not well founded.

The complaint under the Act was made to the Workplace Relations Commission (WRC) on 18 July 2022 and the decision of the Adjudication Officer giving rise to the within appeal issued on 12 July 2023. An appeal of that decision was received by the Court on 21 August 2023.

This Decision is linked to a related complaint ADE/23/100.

Background

The complainant commenced employment with the respondent in December 2020. She resigned from her position on 16 May 2022. Her employment terminated on 23 May 2022.

Summary of the Complainant’s Case

The Complainant was subject to exclusion and bullying by team members. When she sought to address the matter with her line manager and HR, she was ignored. Her concerns about harassment were not treated seriously and were believed to be a symptom of her mental health issues.

There was a breach of confidentiality by a third party in relation to her medical history which was disclosed to the Respondent. When she raised her concerns about that matter with HR, her complaints were not taken seriously, and the breach of confidentiality denied. 

The Complainant submits that the Respondent failed to investigate or address issues of concern raised by her during her employment. Instead, it embarked on an alternative process that focused on her health without any regard for the legitimacy of the issues she raised. Because of its failure to investigate the issues raised and instead to focus exclusively on her health, she felt that her complaints were not taken seriously, and she had no option but to resign.

The Complainant accepts that she did not utilise internal remedies. Her initial complaint was dismissed as a symptom of underlying mental health issues, and she lost faith that further complaints would be taken seriously. As a result, she felt that she had no option but to resign.

Summary of the Respondent’s Case

The Complainant acted in a hasty and unreasonable manner by resigning when she did. She failed to provide the Respondent with an opportunity to respond to her concerns by not utilising any of the formal channels available to her to address workplace issues.

The Complainant raised an informal issue about her work colleagues with her line manager. The words bullying and harassment were never used, and no formal complaint ever made. The Respondent had no knowledge of the harassment complaint until the WRC complaint. There is no reference to issues or complaints about colleagues in any of the extensively documented engagements between the Respondent and the Complainant. The Complainant was given all personal data pertaining to her, yet no evidence has been provided in relation to any of the issues contended by her.

The Complainant made a disclosure to the Respondent about a breach of confidentiality relating to her medical history by a third party and harassment by an external person unconnected to the Respondent. There is no discernible connection between those matters and the Complainant’s employment. The Respondent denies any knowledge of the breach of confidentiality alleged. The Respondent had no knowledge of the allegation that she was experiencing harassment by an external body until the WRC complaint.

The Complainant’s line manager was aware of the Complainant’s mental health issues and sought to establish supports for her by referring her to Occupational Health. On her return to work after a period of certified absence, the Complainant was subject to the absence management process due to her continued failure to comply with the absence policy and several instances of unauthorised absences.

When the Complainant resigned, she was asked to re-consider her resignation and to consult with a family member or other trusted person. Every opportunity possible was afforded to her to reconsider her decision to resign and seek support.

The Respondent at all times acted reasonably and fairly, in accordance with its policies, best practice, and appropriate conduct. It is incumbent on an employee to utilise the internal grievance procedure before resigning so that the employer is on notice and has an opportunity to address those issues. The Respondent in this case cannot be expected to address grievances in circumstances where the Complainant has failed to notify them to the employer.

The Respondent at all times operated within the terms of the contract of employment between the parties. No contractual violation occurred.

The Complainant’s resignation does not fulfil the contract test or the test of reasonableness and so cannot be determined to be a constructive dismissal.

The Law

Section 1(b) of the Act defines a constructive dismissal for the purposes of the Act as follows: -

“(b) 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”.

Section 6(1) of the Act states:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Deliberation

Both parties confirmed to the Court that they were satisfied that the Court had heard all relevant arguments.  Both parties declined to proffer any witness testimony.

The Act places a high burden on a Complainant in a constructive dismissal case. To succeed in a claim of constructive dismissal, a Complainant must demonstrate that her decision to resign from her employment resulted from either a repudiatory breach of her contract of employment by the employer or such unreasonable behaviour on the part of the employer that she could not fairly be expected to put up with it any longer.

The Complainant in this case told the Court that felt that her complaints were not taken seriously and that she had no option but to resign and consider herself constructively dismissed. The Court must assess, based on the facts presented, whether she was entitled to terminate her employment because of the actions of the Respondent.

It is not in dispute that, before her absence on certified sick leave, the Complainant raised certain concerns on an informal basis with her line manager. She subsequently shared those concerns with HR. It also not in dispute that the Respondent had formal procedures in place to deal with workplace grievances and allegations of bullying and harassment. The Complainant confirmed that she had access to those procedures. She also confirmed that she did seek to utilise those procedures to address her concerns before she resigned.

No evidence was presented by the Complainant to support or explain her assertion that she “felt” that the Respondent acted unreasonably Towards her. In correspondence opened to the Court, it is clear that the Respondent demonstrated meaningful engagement with the Complainant to address her concerns. The Court further notes that having resigned on 16 May 2019, the Complainant was encouraged by the Respondent to seek advice from a trusted source and reconsider that resignation. She chose not to rescind her resignation, as was her right, and her employment ceased on 23 May 2019.

On the facts of this case as outlined to the Court, it is difficult to conclude that the behaviour of the Respondent was such that the Complainant was justified in leaving. There is an onus on an employee in a complaint of constructive dismissal to give an employer an opportunity to resolve issues before resigning from their employment. An employee must demonstrate that they have pursued their grievance through any relevant procedures before taking the step to resign. A complainant who invokes the reasonableness test in a constructive dismissal claim must themselves act reasonably by providing the employer with an opportunity to rectify any problems before resigning their employment.

In this case, the Court cannot see how the Respondent’s behaviour was such that the Complainant was entitled to terminate her employment without having seeking to resolve those matters through the established internal procedures. 

Having regard to the facts of this case and the high bar set by the authorities in constructive dismissal cases, the Court finds that the Respondent did not repudiate the Complainant contract of employment or behave in such an unreasonable manner such as to warrant the Complainant’s resignation.

Accordingly, the Court finds that the complaint is not well founded.

Decision

For the reasons set out above, the Court finds that the Complaint is not well founded.

The appeal fails and the decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
FC	______________________
25th November 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Fiona Corcoran, Court Secretary.