Complainant

Respondent

Parties

Shannon Avril  Holland

Ability West

Representatives

Jason O' Sullivan J.O.S Solicitors

Aisling McDevitt 

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-00042802-001

03/03/2021

The Respondent operates in the west of Ireland providing residential and respite care services to intellectually disabled children and adults. The Complainant commenced employment with the Respondent on 4/9/2017 and her employment terminated on 28/2/21. The Complainant’s net monthly earnings were €2,300.

The Complainant contended she had no option but to leave her employment due to the conduct and treatment of her by the Respondent which assertion was disputed and denied by the Respondent. This is therefore a case of alleged constructive dismissal and consequently the burden rested on the Complainant to establish she was unfairly dismissed.

The Complainant referred complaints to the WRC in respect of gender discrimination, sexual harassment and victimisation and these complaints are filed and dealt with separately under ADJ-00028742. These complaints were dealt with at the adjudication hearing in conjunction with the Complainant’s unfair (constructive) dismissal complaint although the decisions are filed separately under their respective ADJ reference numbers.

The Respondent made an application to have the adjudication hearing held in private. This was opposed by the Complainant who stated she was not seeking to anonymise the names of the parties.  Having heard submissions on the matter, I determined that the names of the parties to the case would be public and that I would identify other persons by reference to their employment positions.

The Complainant outlined her career history with the Respondent leading to her being appointed as a senior instructor on full-time/35 hours/week. The Complainant also outlined her everyday workplace interactions with her Line Manager. She stated that from January 2018 she encountered problems with her Line Manager including in relation to his management practices, that he appeared to be under the influence of alcohol in the workplace, was not signing protocols and that he often missed meetings, didn’t reply to emails and that she “never knew where he was”. The Complainant stated that she recalled an example of when the Line Manager was under the influence of alcohol when he crashed the Respondent’s bus and also when he wrote “sex & drugs” on a petty cash slip. The Complainant stated that her Line Manager was unprofessional, that he made crude jokes and made her feel uncomfortable. She stated that she was most seriously affected when her Line Manager began to treat in a manner which amounted to unwanted sexual harassment, that she felt embarrassed and didn’t know what to reply. In this regard, the Complainant outlined her experiences including:

-        That the Line Manager sent her unwanted text messages of a sexual and highly suggestive nature on 19 and 20 May 2019 which included “Y best be in a skimpy c through outfit” and “y owe me a bj….”;

-        That during a workday in the Summer of 2019, the Line Manager placed his hands on the her hips from behind which action she stated was “unsolicited, unwelcome and extremely upsetting”;

-        That she received other highly inappropriate text messages from the Line Manager in 2019 which included references to “handjob”, to asking whether she wanted “some toe curling orgasmic sex” to saying “y owe me”.

The Complainant stated the Line Manager’s behaviour had a severe and distressing impact on her. The Complainant stated that her sleep was affected and that she suffered anxiety and stress. She attended her GP and received treatment and medication. The Complainant stated that she was also obliged to seek psychiatric treatment from a consultant psychiatrist at Galway University Hospital. The Complainant stated that she also took sick leave from work.

The Complainant stated that initially she did not report the Line Manager’s behaviour as she was afraid of the consequences. The Complainant continued to suffer stress in 2019 and availed of the Respondent’s Employee Assistance Programme (EAP). She confided in a former colleague and stated that she heard that another member of staff had a similar grievance. The Complainant stated that between July 2020 and March 2022 she spent €2660 on private therapy sessions.

On 15 December 2019 the Complainant submitted a formal complaint under the Respondent’s “Dignity, Respect and Equality in the Workplace” policy (DR&EW). The Respondent's DIrector of HR responded on 6 January 2020 advising that an investigation would be conducted by an independent HR Consultant and including the investigation’s Terms of Reference. The Complainant stated that her first interview was within a month on 15/1/2020. The Complainant stated that the investigation process caused her uncertainty and anxiety and she took issue with the length of time it took to complete which was much longer than the ten working days stipulated in the Respondent’s policy and with the failure to keep her appraised of developments throughout the process including the lack of feedback on the appeal stage. The Complainant also stated that she never received the full written investigation report until the WRC adjudication process commenced and only received the outcome via email on 29 June 2020. The Complainant stated that until June 2020 she was not formally made aware that the Line Manager “had been let go because of sexual harassment”.

The Complainant stated that during the investigation and following the outcome of the process, she had to work alongside the Line Manager’s partner, notwithstanding that the Respondent was on notice of this interpersonal relationship and the difficulties this caused her. The Complainant stated that the Line Manager’s partner had made a number of allegations against her in the course of the investigation. The Complainant stated that she was nervous going to work, that she lived near the Line Manager’s partners house and frequently saw the Line Manager’s car outside the house. She stated this caused her to walk a different route as she “was anxious that she would be followed” by the Line Manager.

The Complainant stated that there was one group counselling session provided to employees to deal with the fallout of the investigation and that the Line Manager’s partner was present at this session which the Complainant experienced as “terrible”. The Complainant stated that this counselling session was conducted by the Respondent’s psychologist. The Complainant stated that the psychologist explained at the meeting that the Line Manager had been dismissed due to sexual harassment and that nobody knew what to say in response. She stated that she remained very quiet during this session.

The Complainant stated that there was no communication from HR following the termination of the Line Manager’s employment nor was there any attempt to ensure that she felt supported in the workplace. The Complainant stated that a friend of the Line Managers took over his management position. The Complainant stated that she did not feel she could make a further complaint and that arising from what occurred she felt there was no opportunity for career progression. The Complainant stated that she applied for different jobs in other centres in order to remove herself “from the hostile work environment” but was unsuccessful and was not given the reasons why. The Complainant stated that she became very anxious at work, that she was not sleeping and experienced a worsening depression. The Complainant stated that she told her new Line Manager that she couldn’t continue working with the former Line Manager’s partner.

In her evidence the Complainant stated that when she was appointed she received a contract of employment and a folder of policies and that she was told to go through the policies and sign off on them. She stated that she received no training on the policies, no training on sexual harassment either prior to or after her complaint nor any other support.

The Complainant was cross examined on her evidence. Under cross examination she accepted that the Respondent had a policy on sexual harassment which was available to her and that she did not progress her complaints until December 2019. The Complainant accepted that her preferred outcome was to stay working for the Respondent but not to work with the Line Manager. The Complainant accepted under cross examination that the Respondent communicated with her in relation to her complaint on 16, 17 and 18 December 2019 and on 6 January 2020.  The Complainant also accepted under cross examination that she received the transcripts of interviews and minutes of meetings in the course of the investigation process and was afforded the right of response. She also accepted that she was afforded representation throughout the investigation process. The Complainant accepted that she received preliminary findings of the investigation report on 22 April 2020 and responded on 8 May 2020. It was put to her that she was appraised of the investigation outcome at the meeting with the HR Director on 8 June 2020 and informed that her allegations of sexual harassment were upheld. The Complainant also accepted that the Covid-19 pandemic impacted on the Respondent given the nature of the service it provided. She also confirmed that she did not pursue complaints against any other employee.

The Complainant stated that as a result of how she was treated she had no option but to tender her resignation on 1 February 2021 effective from 28 February 2021. Her letter of resignation stated as follows:

“It greatly saddens me to send you this letter of resignation……

I greatly appreciate the opportunity you have provided me with, and I have genuinely enjoyed working with the individuals who attend the service……. My work gave me great satisfaction and I learnt so much…… unfortunately, I need to resign due to my mental health having deteriorated due to work-related issues that has happened over the past couple of years, as you are aware of.

During the last four weeks, I intend to do everything necessary to ensure a smooth transition…..”

The Complainant stated that she could not continue working for the Respondent and had no option but to resign due to her treatment by her Line Manager and having to continue working with the Line Manager’s partner. She experienced the working environment as hostile and stated there were no supports put in place for her after the internal investigation upheld her complaint of sexual harassment. The Complainant stated that the profound effects of what occurred – including loss of confidence and the undermining of her dignity - were never properly addressed by the Respondent.  The Complainant stated that the impact on her mental health was very significant and she became withdrawn and suffers from anxiety. The Complainant stated that the Respondent did not take any/adequate measures to prevent or remediate what had occurred including the provision of training, supports or follow up. It was not the case that matters could be presumed to have been addressed because the Line Manager had left. The Complainant stated that she could not go through another complaints procedure and that the situation became intolerable.  The Complainant stated that when she explained that she was leaving for mental health reasons, she was asked “if they could do anything for her” and that that was the extent of the assistance offered. The Complainant stated that due to the effects of what occurred on her mental health she was no longer in employment.

It is the position of the Complainant that she exhausted all internal procedures when she invoked the formal grievance procedure and remained working whilst the investigation was carried out even though she felt under considerable stress and anxiety for a protracted period. It is her position that she was entitled to terminate her employment on the grounds there was a demonstrated fundamental breach of contract in that, she was subjected to sexual harassment in the workplace as the Respondent did not have adequate policies and procedures in place to prevent this occurring. In addition, the Complainant maintained that the Respondent had behaved in such an unreasonable manner she could not be expected to put up with the situation any longer. The Complainant stated that her work situation had become so intolerable she had no choice but to leave, amounting to constructive dismissal.

The Respondent outlined the services it provides ranging from daily to residential, respite, outreach services, community supports and rehabilitative training. The Respondent stated that it was primarily funded by the HSE with an additional small amount of funding from the Department of Education. It also engaged in fundraising. The Respondent stated that it had 645 employees and 590 service users.

The Respondent outlined its Dignity, Respect and Equality in the Workplace Policy (DR&EW) which it stated was available in the staff manual and formed part of the Complainant’s terms and conditions of employment.  The Respondent stated that its policy makes clear that bullying, harassment and sexual harassment in all its forms was unacceptable and would not be tolerated.

The Respondent outlined the steps it took in response to the Complainant’s complaint against her Line Manager of 15 December 2019 the substance of which it stated could be divided into two categories – namely allegations of inappropriate conduct/performance and allegations of inappropriate text messages and sexual harassment. It stated that another female member of staff also raised a complaint against the Line Manager. The Respondent stated that the allegations made by the Complainant were most concerning and were treated with the utmost seriousness. The Respondent stated that its Director of HR offered the Complainant mediation – which she declined, obtained copies of the text messages in question and referred the Complainant to its Employee Assistance Programme. 

The Respondent stated that it appointed an independent Investigator/HR Consultant to conduct the investigation and that pending same, the Line Manager was placed on administrative leave which measure was communicated to the Complainant by letter of 18 December 2019. The Respondent referred to its letter to the Complainant of 6 January 2020 which enclosed the Terms of Reference for the investigation and informed the Complainant of her right to representation.

The Respondent outlined the various interviews conducted in the course of the investigation. The Respondent stated that both it and the Investigator regarded the investigation as a priority but that the Covid-19 pandemic caused delays and challenges. The Respondent stated that its DIrector of HR maintained contact with the Complainant throughout the period of the investigation. It stated that a preliminary investigation report was issued to the Line Manager on 22 April 2024 and that the Line Manager’s response to the preliminary report was shared with the Complainant and she responded on 8 May 2020. Thereafter a final report was issued and the Respondent stated that each finding was communicated to the Complainant “in detail” at a meeting which she attended with the Director of HR on 8 June 2020.

In respect of sexual harassment the Investigator reached the following conclusion:

“Having considered all of the evidence in this aspect of the complaint and further examined it in the context of the DR&EW policy (and the broader legal framework) it is concluded that [the Line Manager’s] actions in sending text messages of a sexual nature to Shannon in May and August 2019 amounted to sexual harassment”

The Investigator also reached some negative conclusions in respect of the complaints concerning the performance, conduct or management practices of the Line Manager. The Investigator also concluded that the Line Manager had a “strong working relationship with [a specific colleague] but the evidence indicates that it is most likely that this relationship extends beyond this…..”.

The Respondent stated that its Director of HR advised the Complainant at the meeting on 8 June 2020 that he remained available to her should she require any support or to discuss any issues. On 29 June 2020 the Respondent notified the Complainant by email that the Line Manager’s employment had been terminated following a disciplinary process and that he had a right to appeal this sanction. The Line Manager did not return to his employment with the Respondent.

The Respondent’s Director of HR gave evidence and was cross examined. He stated that he took the Complainant’s allegations very seriously and acted with sincerity. He outlined his responses and the investigation process and explained the impact of various factors on the investigation time-line such as the Christmas vacation period of 2019, Covid-19 and the fact that there were two parallel investigations ongoing against the same Line Manager. In all the circumstances he disputed there was delay. The Director stated that he engaged with the Complainant, that his door was always open and he rejected that there was any lack of support.

The Director outlined various promoted positions the Complainant unsuccessfully applied for in 2020 however he stated that the Complainant never sought a transfer within the Respondent's operation. The Director outlined measures taken by the Respondent following the investigation including the termination of the Complainant’s former Line Manager, his replacement by an experienced person and the organisation of a planning day in July 2020 with a member of the Respondent’s psychology team who he stated was a skilled support contact person under the DR&EW policy. The Director stated that had there been any change following an appeal by the Line Manager this would have been relayed to the Complainant. The Director stated that had there been a further complaint by the Complainant in respect of any other employee it would have been investigated.

Under cross-examination the Director stated that the Respondent’s DR&EW policy was implemented to the best of his ability and that an appropriate approach was taken. In response to a question on whether any training was provided to the Line Manager on sexual harassment, the Director stated   he did not know and that there was “no record of training”. He stated that all staff were required to familiarise themselves with the Respondent’s policy but under questioning he accepted that it was “possible [the] perpetrator didn’t familiarise himself with policy”. The Director also stated under cross examination that he had no knowledge of any training provided to other staff on sexual harassment prior to the Complainant’s complaint.

The Director was questioned and whether he was aware that the Complainant’s Line Manager had a friendly relationship with the person who replaced him and with another member of staff. In response he stated that there was no further complaint from the Complainant in relation to any other employee and that he had to exercise balance. In relation to the provision of the full investigation report to the Complainant, the Director stated that he acted on the advice of HR but that he was satisfied the outcome and findings of the report had been fully communicated to the Complainant. Under cross-examination he stated that he agreed with the findings of the investigation report and that had he been requested by the EAP he would have supported the provision of additional sessions.

In relation to the planning day with the psychologist in July 2020, he stated that this was an “attempt to unwind tension”, that he did not organise any other intervention and that training was difficult in 2020 as many employees were working remotely. Under cross examination the Director accepted that “with the benefit of hindsight training should have been provided” and he accepted that no structures such as a contact person was put in place to support the Complainant. The Director was questioned on the Respondent’s overall management structure and he acknowledged there were deficiencies, that each of its services has its own manager but that the Respondent had moved to appoint an additional Director.

In relation to the Complainant’s notice of resignation of 1 February 2021, the HR Director stated that he replied by letter of 2 February 2021 wherein he urged the Complainant “to reflect on and reconsider [her] decision…..[and advised that]…Ability West is open to supporting you in any way we can to continuing your career across our services within Ability West.”

The Respondent stated that it discharged its obligations as an employer to do what was reasonably practicable to prevent and deal with harassment in the workplace or in the course of employment. It submitted that it’s DR&EW policy was evidence of this and that the policy demonstrated that the Respondent took reasonable and practical steps including the placing of the Line Manager on administrative leave to prevent and reverse the effects of any harassment and prevent the Complainant from being treated differently and/or discriminated against. The Respondent stated that the Complainant raised no other complaints and that the first it knew that the Complainant was feeling uncomfortable in the presence of the Line Manager’s alleged partner was when it received the Complainant’s WRC submission on 8 March 2022. The Respondent maintained that its HR Director responded to the Complainant’s complaint in a timely manner and also reached out to the Complainant at the meeting on 8 June 2020. Notwithstanding, the Complainant did not make the Respondent aware of any allegation regarding her interactions with any other employee and accordingly the Respondent “was not given any opportunity to explore investigate or remedy same”.  It stated that the complaints regarding management deficiencies related to the Line Manager only.

It is the position of the Respondent that the Complainant has not discharged the burden of proving she was entitled to terminate her contract of employment, that she has not demonstrated that the Respondent breached her contract and further, that the Respondent acted reasonably and fairly at all times in accordance with its policies and best practice. In this regard the Respondent referred to the conduct of the investigation in the course of which the Complainant was afforded transparency regarding the process and natural justice. The Respondent stated that the Complainant was notified in June 2020 of the termination of the employment of the only person complained of by her and this was over seven months before she tendered her resignation, that no further complaint was raised by the Complaint during that time and no further complaints were raised in her letter of resignation. Nor did she respond to the Respondent’s reply of 2 February 2021. The Respondent stated that the first occasion on which it became aware of the Complainant’s reasons for resignation was in her submission to the WRC of 8 March 2021.

The legal provisions in relation to unfair dismissals are set out in the Unfair Dismissals Act [1977-2017] and for the purpose of this decision the following provisions relevant:

Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as follows:

““dismissal”, in relation to an employee, means –

a) the termination by his employer of the employee’s contract of employment with the employer…..

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 I would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

The Complainant is claiming she was constructively dismissed and that matters had become so intolerable she had no option but to resign. Accordingly, I must consider whether or not on the balance of probabilities, there was a dismissal in accordance with the provisions of section (b) above. There are two tests to establish if a constructive dismissal occurred – the ‘contract test’ – i.e. that there was a breach of the contract of employment, such that an employee is entitled to terminate his/her employment and the ‘reasonableness test’ – i.e. that the behaviour of the employer was so unreasonable that the employee was entitled to terminate his/her employment. The reasonableness test asks whether the employer conducted its affairs in relation to the employee so unreasonably that a complainant could not fairly be expected to put up with it any longer. These tests were enunciated in Western Excavating (ECC) v Sharp [1978] ICR 221 and have been relied on by the Labour Court. For example in NCBI v Ms Mary Cawley [UDD2138] the Court explored whether there was “any fundamental breach going to the root of her contract” such that it was reasonable for the Complainant to terminate her contract and/or whether the employer conducted its affairs “in relation to the employee so unreasonably that the employee cannot be expected to put up with it any longer, [and] if so…is justified in leaving”.  By the same token, a complainant is under the burden of establishing that they have conducted themselves reasonably in terms of affording the employer the opportunity to address the issue(s) which ultimately led to the termination of the employment. In that regard, in referring to the need to utilise established internal grievance procedures, the Employment Appeals Tribunal held as follows in Beatty v Bayside Supermarkets [UD142/1987]:

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases…”

For the most part the facts of this case are not in dispute in terms of dates, documentation and meetings. From my consideration of all the information, I am not disputing the Complainant’s bona fides nor the impact of the workplace environment on her – especially in the wake of her complaints of sexual harassment and gender discrimination. That being said, having carefully considered the extensive submissions, the sworn evidence of the parties, the correspondence, emails and case law cited, I have reached the following conclusions:

-        I am not satisfied the Complainant exhausted all avenues at workplace level prior to her resignation in February 2021. In this regard I accept the submissions of the Respondent that the complaint made by the Complainant on 15 December 2019 was addressed via the investigation instigated by the Respondent on 6 January 2020 and that the Complainant raised no other complaint against any other employee or as regards any of the Respondent’s practices or policies after the conclusion of that investigation in June 2020.  Whilst the Complainant has stated that she couldn’t go through another complaints procedure, nonetheless in my view, there was an onus on her, to advise the Respondent of her ongoing concerns and specify these in some manner -  in advance of her resignation – in order to afford the Respondent an opportunity to address any such matters. The Complainant was aware – as a consequence of her complaint of 15 December 2019 – that the Respondent had previously responded promptly by way of an investigation. Whilst I accept that initiating a Complaints/Grievance Procedure can be difficult, it is an essential tool of employment practice as required by SI 146/2000 which stipulates that: “Such procedures serve a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed.”;

-        The Complainant did not respond to the Respondent’s letter of 2 February 2021 which not only urged her to “reflect on and reconsider” her notice of resignation but also reached out to her by stating that the Respondent was “open to supporting [you] in any way we can to continuing [your] career across our services within Ability West”. In my view had the Complainant engaged with the Respondent’s invitation in this regard, it could have resulted in changes to her working pattern and/or working environment arising from which she may not have proceeded with her resignation. The Complainant did not exhaust this avenue. In saying this I am also mindful of the Complainant’s statement under cross examination that her preferred option was to stay working with the Respondent but not to work with her former Line Manager;

-        The Respondent’s evidence that the Complainant did not apply for a transfer within its operation although she did unsuccessfully apply for other positions was not contested;

-        A period of almost eight months had elapsed between the conclusion of the investigation in June 2020 and the Complainant’s resignation on 28 February 2021 during which the Complainant raised no other formal complaint nor is there any reference to a complaint or concern in her letter of resignation.

In light of the foregoing, I have reached the conclusion that the Complainant has not demonstrated that the Respondent breached her contract of employment or acted so unreasonably that she was justified in resigning. Accordingly, I find the Complainant has not discharged the burden of proving that she was constructively dismissed pursuant to the Unfair Dismissals Act [1977-2017]. 

CA-00042802-001

For the reasons outlined this complaint is not well founded. 

Constructive Dismissal, Sexual Harassment