ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00041374
Parties:
| Complainant | Respondent |
Parties | Marisca O'Connor | MFR Service Station Limited |
| Complainant | Respondent |
Anonymised Parties |
|
|
Representatives | Self-Represented | Tom Smyth & Associates |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00052562-001 | 04/09/2022 |
Date of Adjudication Hearing: 07/07/2023
Workplace Relations Commission Adjudication Officer: Brian Dolan
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant commenced employment with the Respondent on 2nd September 2020. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly wage of €480.00. At all relevant times the Complainant’s role was described as that of “deli assistant”. The Complainant resigned her employment on 23rd August 2022.
On 4th September 2022, the Complainant referred the present complaint to the Commission. Herein, she alleged that she was forced to leave her employment due to persistent bulling on the part of her line manager. As a consequence of the foregoing, the Complainant submitted that she had no choice but to terminate her contract of employment and consider herself to be constructively dismissed. By response, the Respondent submitted that they sought to investigate the Complainant’s allegations as they were raised and that she resigned without exhausting the internal grievance procedures.
A hearing in relation to this matter was convened for, and finalised on, 7th July 2023. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.
Both parties issued submissions in advance of the hearing and expanded upon the same by way of oral argument. In addition to the foregoing, the Complainant gave evidence in support of her complaint, while the Respondent called the Operations Manager in defence. All evidence was issued under affirmation and was opened to cross examination by the opposing side.
At the outset of the hearing the Respondent made an application to amend the impleaded title so as to reflect their correct legal name. This application was made under consent and granted by the Adjudicator.
In circumstances whereby the Complainant accepted that she resigned her employment, she accepted that consequent burden of proof imposed by the Act and presented her case first.
No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings. |
Summary of the Complainant’s Case:
In evidence, the Complainant stated that she was engaged as a deli assistant with the Respondent. The Complainant stated that while she initially enjoyed this role, she began to suffer ongoing bullying at the hands of her direct line manager. In this regard, the Complainant stated that her line manager would frequently single her out for criticism and speak with her in an entirely inappropriate manner. The Complainant submitted that this ongoing adverse treatment had a significant effect on her well-being, to the extent that she began to dread coming into work. In March of 2022, the Complainant made efforts to inform the Respondent of these issues. In this regard, the Complainant put the same into writing and delivered the same to the Company Director’s office. Following receipt of the same, the Operations Director of the Respondent met with the Complainant to discuss her options. While the informal and formal proceeds were explained at this juncture, the Operations Director indicated a clear preference towards the informal procedures, stating that anything would remain on the Complainant’s permanent record. Following the same, the Operations Director arranged a meeting between the Complainant and her line manager. During this meeting, the Complainant’s line manager stated that he would no longer speak to her in the manner alleged and that he would treat her with respect and dignity thereafter. While matters did improve somewhat following this meeting, unfortunately, the Complainant’s line manager recommenced the bullying behaviour in the weeks and months thereafter. While the Complainant endured the same for a period of time, following a period of annual leave, the Complainant returned for one day and found that she simply could not endure the bullying behaviour any longer. As this adverse treatment had begun to have a detrimental effect on her health, the Complainant was forced to resign her employment on 23rd August 2022. While management did meet with the Complainant thereafter, they stated that they could not ensure the behaviour would stop and the Complainant felt that she could not return to employment. |
Summary of the Respondent’s Case:
In March 2022, the Complainant slipped a note under the door of the Company Director’s office. This note requesting a meeting regarding the Complainant’s line manager stating that he was continuously raising his voice to her and that the same was affecting her well-being. On foot of the same, the Company Director passed the note to the Operations Director, who immediately met with the Complainant in relation to this issue. During this meeting, the Operations Director discussed the Respondent’s internal procedures in relation to such matter and enquired as to whether the Complainant wished to avail of the informal or formal process in relation to the same. In circumstances whereby the Complainant elected to proceed under the informal process, the Operations Director set about arranged a meditated meeting between the parties in an effort to resolve the issues. During the subsequent meeting, arranged for 8th March 2022, both employees put forward their version of events, and were reminded that any disrespect demonstrated towards any member of staff would not be tolerated. Following this meeting, the parties agreed continue their working relationship, with the Complainant being requested to maintain a diary of any incidents that occurred thereafter. The Operations Director also spoke with the Complainant’s line manager a short time thereafter, reminding him of his responsibilities to his colleagues. The Operations Director also met with the Complainant in or around this time, to enquire as to how matters had progressed. At this point the Complainant stated that matters had improved, and that she was glad to have cleared the air. Thereafter, matters progressed without incident for a period of approximately five months. On 23nd August, the Complainant was due to return from a period of annual leave. While the Complainant returned for one day, she subsequently informed her store manager, that she would not attend the following day. Later that evening, the Complainant sent an email thanking the Operations Director for her working experience but stating that she felt she had to resign due to the ongoing bullying at the hands of her line manager. By response, the Operations Director expressed surprise at this development in circumstances whereby the matter had previously been discussed, and no further issues had been brought to the attention of the Respondent. This email concluded with a request that the Complainant re-consider her resignation and meet with the Operations Director with a view to considering the next steps. On 30th August 2023, the Complainant and the Operations Manager met to discuss the email and the next steps. During this meeting, the Complainant advised that she would not return to work unless her line manager was removed from employment. By response, the Operations Director stated that she could not facilitate the same, but that she would investigate the Complainant’s allegations in the event that the same were provided in writing. Following this meeting, the Complainant did not send issue these complaints to the Respondent, but instead referred the present complainant. At this point, the Respondent concluded that the Complainant had resigned her employment and the engagement came to an end. In answer to a question posed by the Adjudicator, the Operations Director denied that she forced the Complainant to proceed under the informal procedure during their initial meeting. In this regard, she stated that she simply outlined the consequences of the Complainant’s election in this regard. By submission, the Respondent stated that in circumstances whereby the Complainant failed to exhausted or substantively engage with their internal grievance procedures, her complaint must fail. |
Findings and Conclusions:
In the present case, the Complainant has alleged that she suffered ongoing and persistent bullying at her former place of employment. As a consequence of the same, the Complainant submitted that she was forced to terminate her employment and could, within the meaning of the Act, consider herself to be constructively dismissed. In contesting this application, the Respondent submitted that the Complainant resigned without recourse to the relevant internal procedures and, as a consequence of the same, that her complaint must fail. In this regard, Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal as follows: “…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” In Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that, “There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.” In Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that, ‘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. If he does so, then he terminates the contract by reason of the employer’s conduct.” In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows, “…the correct approach to be taken by an Adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.” To succeed in a complaint of constructive dismissal, it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures. In the matter of Beatty v Bayside Supermarkets UD 142/1987 the Employment Appeals Tribunal held that, “…it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”. In the matter of Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. While the Complainant in this matter initiated the company’s internal grievance procedures, he resigned without lodging a final appeal. In this instance the Tribunal found that, “…the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case” And, “…in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”. Regarding the instant case, it is apparent that the Complainant put the Respondent on notice of the difficulties she had been experiencing in the course of her employment. In this regard it is noted that on receipt of the initial written complaint, the Respondent promptly met with the Complainant and informed her of her rights as per the relevant internal procedures. While the Complainant has suggested that the Respondent demonstrated an unwillingness to proceed under the formal policy, it is apparent that during the initial meeting in relation to the same, the Complainant’s options in this regard were simply being set out. Following from this meeting, it is apparent that the Complainant elected to engage with the Respondent under the informal policy, with a meeting being arranged shortly thereafter. Following this meeting it appears that a provisional agreement was reached between the parties that provided the Complainant with some comfort that the adverse behaviour would cease. In addition to the foregoing, I note that the Operations Director followed up with the Complainant in the weeks following the meeting to ensure the agreement had the required effect. Having considered this sequence of events, I find that the actions of the Respondent in this regard were reasonable and serve to solve, at least temporarily, the Complainant’s issues. Thereafter, the evidence of the Complainant was that the adverse behaviour unfortunately resumed some months thereafter, with near contemporaneous records of the incidents being opened as part of the proceedings. Following weeks of this adverse behaviour, the Complainant submitted that she could no longer endure the same, and she submitted that she had to resign her employment in August 2022. While the evidence of the Complainant in relation to the effect the alleged bullying behaviour had on her wellbeing was clear and cogent, it is also apparent the Complainant did not bring these issues to the Respondent as they arose. Rather, it appears that the Complainant informed the Respondent by email that she could no longer continue in the role and that she wished to resign. Following the same, I note the Operations Director met with the Complainant and offered to investigate her allegations in the event that the Complainant withdrew her resignation. Again, having reviewed this sequence of events, this is the correct course of action to be taken by the Respondent, and one that again sought to rectify the Complainant’s issue in a prompt fashion. Having regard to the foregoing, and the authorities referenced above, I find that the Complainant had not discharged the burden of proof necessary to succeed in a complaint of constructive dismissal. In this regard, it is apparent that the Complainant resigned her employment without any material engagement with the Respondent’s internal policies. This finding in no way suggests that the Complainant did not endure adverse treatment in the course of her employment, and in this regard it should be stated that this forum is not the proper venue for the investigation of the same. Rather, the Complainant’s failure to allow the Respondent to formally investigate the same proves prior to her resignation proves fatal to her application. Having regard to the foregoing, and the totality of evidence presented, I find that the Complainant was not unfairly dismissed within the definition of the Act. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that the Complainant was not unfairly dismissed within the definition of the Act. |
Dated: 1st of February 2024
Workplace Relations Commission Adjudication Officer: Brian Dolan
Key Words:
Resignation, Grievance Procedures, Formal Investigation |