Complainant

Respondent

Parties

Amanda  Jones

Tigers Childcare

Representatives

  Self - represented 

Lauren Tennyson BL, instructed by O'Mara Geraghty McCourt Solicitors

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-00057445-001

30/06/2023

The complainant lodged a complaint of constructive dismissal against the respondent under the Unfair Dismissals Act. The complainant states that she worked 30 hours per week as an Accounts Assistant in the Finance Team with the respondent.

The complainant states that on 16 September 2022, the respondent launched an investigation into an alleged GDPR breach within the company. The complainant alleges that at 11.58 am on 16 September, she received an email inviting her to a meeting 2 hours later. The complainant states that she had no time to prepare for said meeting at such short notice. She states that she had no idea what the meeting was about other than the alleged GDPR breach.

The complainant states that the GDPR breach was in relation to a staff member in head office leaking pay information to her husband who also was employed by the respondent. The complainant states that her husband at the time had lodged a grievance in relation to an equal pay complaint as he had been made aware that his colleague had been hired on significantly more pay than he was on and the respondent assumed he had been leaked this information. The complainant states that from the beginning of the investigation, she felt that the investigation was completely biased and was a witch hunt to the point that the finger was been pointed at the complainant. The complainant states that during the investigation, she was asked about a report she had received containing information relating to this particular colleague’s pay. The complainant states that this report was sent to her every week since she moved from HR to her Child Paths finance role. She states that the report was sent to her and payroll each week and it contained information of leavers and starters. The complainant states that her role was to disable the leavers from the system so they no longer had access.

The complainant alleges that the Managing Director in the minutes of a meeting had claimed that the complainant went out of her way to ask for this report to be sent to her as if the complainant knew what would be in the report. The complainant states that she had no idea that this employee would be mentioned in the report. The complainant states that like any other normal week, she reviewed the list and disabled the leavers and then carried on with her day. The complainant states that within the minutes of the meeting, it goes on to say that the company realise that the complainant should not have access to this report and as a result of the investigation, management have now made sure that she does not receive it going forward.

The complainant states that during her first interview about the data breach, she began to have a panic attack and felt that she was pressurised to continue in the meeting even though she was not in a fit state to do so. The complainant states that she feels the meeting should have been stopped and she states that none of her colleagues were treated in the appalling manner in which she was treated.

The complainant states that her second interview meeting went much the same as the first to the point that she had to leave the meeting and go out to the car park. The complainant states that she was summoned to come back and many more probing questions were put to her. The complainant states that this situation and the pressure she was put under caused significant stress to her and her mental health and well being to the point that she tendered her resignation. The complainant states that after a few days she was forced to redact her resignation given her circumstances and that of her family.  The complainant states that the weeks following on from this were very distressing  and she was completely ignored in the office. The complainant states that she felt that she was being watched and scrutinised and she was never included in conversations. The complainant states that at Christmas in the previous years, she had been given a bonus of €500 but in 2022 she was only given €200. The complainant states that her manager, as a goodwill gesture, topped this up by €100 as her manager felt bad for the complainant that she had felt it was due to her performance. The complainant states that she lost her confidence as a result of the events. The complainant states that in the weeks leading up to her departure, there was another colleague due to leave and a page was added to the newsletter saying goodbye and good luck and how much that colleague was valued and would be missed.

The complainant states that the week she left, she did not have a face to face exit interview but a call over the phone and she states that she does not know what was written on the exit interview form and was not requested to sign same at any point.

The complainant states that given the sequence of events and the stress it was causing to her and her family she had no alternative but to leave the company.         

The respondent states that it provides early school, pre-school and after-schools care.   It states that the complainant commenced employment with the company on 30 August 2018 and her employment ended on 10 February 2023. Prior to that, the complainant was an employee of the respondent from April 2013 to September 2017. The respondent submits that at the date of her resignation from her employment, the complainant worked 30 hours per week from 9:00 AM to 3:00 PM Monday to Friday as an Accounts Receivable Assistant in the Finance Team and her weekly wages were €510 per week (gross) or €17 euros per hour (gross). It was submitted that the complainant engaged in hybrid working and she was responsible for supporting her colleagues with inquiries regarding the respondent's Child Paths system. ‘Child Path’ is a system that is used for communication between the childcare practitioners and parents. It is also used to manage the monthly invoicing which the complainant looked after, which included overseeing the monthly invoices for parents’ fees.  The respondent states that the complainant’s previous roles with the company included After School Manager and HR administration in head office. 

The respondent states that on 17 July 2019, the complainant signed an acknowledgement in relation to the employee handbook updates.  On 1 September 2020, by agreement and at the complainant’s request, the complainant’s terms of employment were amended with effect from the 27 August 2020, whereby her hours of work were increased to 30 hours per week and rate of remuneration set at €510 per week (gross).  It was submitted that in February 2022, the complainant stopped supporting the HR function and moved fully to support the Finance Team with the Child Path project.

 The respondent submits that inor around September 2022, it came to the respondent’s attention that there was a potential breach of personal data in respect of an employee of the respondent and their salary. The complainant’s husband who was also an employee of the respondent had told the respondent that another colleague whom he worked with was earning more than he was, and that this colleague had told him so. When the respondent met with him, the colleague denied that he had told the complainant’s husband this information, and he made a complaint about the fact that the complainant's husband was privy to such information and that it was a breach of his privacy. The respondent states that on foot of this, it notified the Data Protection Commission and conducted an investigation into the matter.  The investigation panel comprised of Ms. B, HR Manager and Ms S Quality Manager. It was submitted that Ms. B and Ms. Smet with the complainant and other members of staff as part of their investigation. The purpose of the meetings was to gather information on the alleged GDPR breach of personal data.

It was submitted that in relation to the complainant, the investigation panel met with her on the 16 and 22 September 2022.  At the meeting on the 22 September 2022, the employee assistance program (EAP) was offered to the complainant. The respondent states that it was conscious of the fact that it was a difficult situation for the complainant.  The respondent states that by letter dated 10 October 2022, the complainant received a letter from Ms. B advising her that the investigation was now closed.  The respondent states that on 22 September 2022, the complainant tendered her resignation by e-mail after the second investigation meeting. It was submitted that Ms. B emailed the complainant asking her to reconsider her resignation and offered her the EAP and provided her with the Grievance Policy. Ms. PB, CFO and the complainant’s line manager also emailed the complainant and asked her to “take some time to think through this and consider if this is definitely what you would like.” The complainant replied to Ms PB stating: “…Thank you for all your support. You are one of the best managers I have ever had!”

It was submitted that by e-mail dated 30 September 2022, the complainant retracted her resignation stating: “After many conversations with P [my emphasis] and from her support and guidance, I wish to retract my resignation. I would be lying if I said the last few weeks have been easy for me but I just want to move on and put it all behind me now!.”  The respondent states that on 4 October 2022, the complainant received confirmation in writing about an amendment to the terms of her employment with effect from 1 September 2022 that her annual holiday entitlement would increase by one day and that with effect from 1 November 2021 she was employed as an Accounts Receivable Assistant. It was submitted that on 15 November 2022, the complainant confirmed participation in the office Kris Kindle and on 15 December 2022, the complainant attended Christmas lunch with staff members.  It was submitted that on 5 January 2023, the complainant received an addendum to her contract of employment confirming a new salary of €27,600.

The respondent states that on 16 January 2023, the complainant notified Ms. PB of her resignation and thanked Ms. PB for being “a great manager”, “a friend and support network”.  It was submitted that the complainant also emailed the company on 16 January 2023, as follows:

“Hi S and K [my emphasis}, 

I just wanted you to hear it directly from me. I handed in my resignation to P [my emphasis] this afternoon and will finish up on the 10th of Feb.

This was not an easy decision as Tigers have been my Family for many years. I just want to thank you both personally for everything over the years. It has been an absolute pleasure working for you both and thank you for all of the opportunities you have opened up to me!

I cannot express how happy I am to see the company grow, especially being here since the beginning. Your ongoing support will not be forgotten.”

The respondent states that in relation to the bonus payment, 2022 was not a good financial year for the company. The childcare industry was being supported by the wage subsidy scheme and occupancy levels were only starting to come back.  The respondent states that the complainant got the same bonus as other colleagues on the finance team.  The respondent states that a supervisor in the office team received €500 as she had two staff members reporting to her.

The respondent states that on 16 January 2023 the complainant sent emails to staff members informing them of her resignation and the fact that she had secured alternative employment on more money starting on the 13 February 2023. It was submitted that EB emailed the complainant on 16 January stating: “If there's anything you need before you leave (or even after you leave) you know where I am.” It was submitted that on that day, the respondent emailed the complainant accepting her resignation and stated that the respondent was sorry to hear that she was leaving and wished her the best in the future.  The respondent asserts that on 23 January 2023, a birthday lunch was organised for a team member and the complainant attended.  The complainant completed an online exit interview withPB and confirmed her new role has a significantly higher salary. It was submitted that in or around February/March 2023, the complainant contactedPB to ask if the respondent wanted her to provide cupcakes for a baby shower that they were throwing for a colleague on 23 March 2023.  The complainant’s last day of employment was on 10 February 2023.

The respondent submits that prior to the complainant tendering her resignation, she did not lodge any grievance and in those circumstances failed to utilise or engage in all internal procedures available to her prior to her decision to resign her position. 

The respondent states that constructive dismissal is defined in the Acts 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 was submitted that Kerr in his ‘Termination of Employment statutes’ book (2016) comments that paragraph (b) refers to what is commonly described as “constructive dismissal”. Kerr goes on to refer to comment that, “the distinction between the two limbs of para. (b) is well summarised by the Labour Court in Paris Bakery & Pastry Ltd v Mrzljak DWT 68/2014.  The first limb applies where an employer behaves in a way that amounts to a repudiation of the contract of employment. The Court noted that not every breach of contract will give rise to “repudiation”. The second limb applies where the employer conducts his or her affairs, in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer.”

Kerr goes on to comment that, “if unequivocal words of resignation are used, the employer is entitled to immediately accept the resignation and act accordingly.” 

       In Millett v Shinkwin DEE4/2004 the Labour Court stated the “general rule” to be as follows: A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end.”

The respondent submits that it is well-established that a complainant in a claim for constructive unfair dismissal bears the burden of establishing that the conduct of the respondent was such that the complainant could not fairly be expected to remain on in the employment of the respondent.  In asserting a constructive dismissal, the complainant must satisfy one of two tests, those tests were articulated by the Labour Court in the case of Office and Industrial Cleaners Limited v Connolly as follows: Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test”an employer must be “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 ”as heldSecondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so he is justified in leaving. It is this latter reasonableness test that is relied upon by the complainant.

In the case of Mc Cormack v Dunnes Stores UD14 21/2008, the EAT stated as follows in respect of the burden resting with a complainant in such cases: “the notion places a high burden of proof on the employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures or otherwise in an attempt to resolve her grievance with his/her employer. The employee would need to demonstrate the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.” [Emphasis Added]

The respondent relies on the following 3 decisions in support of its position. In the case of Barry-Relph v HSE [2016] 27 E.L.R. 268 the claimant found her working relationship with a number of colleagues to be poor. The claimant was excluded from a Christmas lunch. When the claimant raised this with her team leaders, along with other work-related issues, the team leaders took grave exception and the working relationship deteriorated further. The email was not an express grievance. The claimant’s line manager tried to resolve the issues informally which was not successful. Mediation was offered to the claimant which she refused to take part in. Ultimately the claimant went on sick leave and the claimant tendered her resignation. The Employment Appeals Tribunal (EAT) dismissed the claimant’s claim and looked at the reasonableness of the conduct of both the employee and the employer. The Tribunal held that the employee must exhaust all avenues before tendering their resignation and that the employee did not give the employer the opportunity to deal with her complaints prior to her resignation.

In the case of Harkin v Guinness Storehouse Ltd D469/2015, the EAT determined that: “The Tribunal find that it was not reasonable for the claimant to terminate her contract of employment in circumstances where she failed to invoke any grievance in relation to her concerns and failed to appeal her 2014 review result. Furthermore, the Tribunal finds that the respondent acted reasonably in their dealings with the claimant and were fair and objective at all times. No evidence was adduced before the Tribunal which could lead the tribunal to conclude that the failure to invoke the grievance process was justified. The Tribunal also find that the claimant’s reaction to the two issues was disproportionate to the issues themselves.”

The respondent cites the recent Labour Court decision in Citi Bus Ltd v Marek Bartosik UDD 2319 in support of its position wherein the Labour Court determined as follows: “On the facts of this case the Court cannot see how it could realistically be said that the respondent was guilty of conduct in relation to the complainant which was such as to entitle him to terminate his employment without having sought to ventilate and resolve whatever grievance that he had through the internal procedures.”

It was submitted that in the within matter, the complainant has not adduced any evidence to establish that the respondent breached the terms of her contract of employment, let alone a fundamental or repudiatory breach of the kind necessary to satisfy the “contract” test outlined above.  The respondent submits that the complainant has not adduced evidence to establish the ‘unreasonable conduct’ test as envisaged in the second test outlined above. Indeed, the respondent is a stranger as to what the complainant is claiming in respect of the respondent’s behaviour. There is no question that the respondent’s actions were “so unreasonable as to make the continuation of employment with the [respondent] intolerable”. The complainant did not lodge a grievance before she resigned her employment with the respondent. The complainant has failed to exhaust all avenues before she resigned. As per the decisions in Barry Relph, Harkin, and Citi Bus the failure to lodge a grievance was deemed fatal to their respective constructive dismissals claim, and it is submitted on that basis the complainant’s claim should be dismissed.

The respondent submits that the complainant resigned her position on 16 January 2023 and worked out her notice with no issue until 10 February 2023. The respondent states that it is aware that the complainant commenced employment with a new employer on Monday 13 February 2023 having finished up employment with the respondent on Friday 10 February 2023.

Constructive Dismissal is defined in the Unfair Dismissals Act as:

“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.”

There are two sets of circumstances in which a resignation may be considered a constructive dismissal.  The law is well settled here, and these tests are known as the “contract” test and the “reasonableness” test.  The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign.  It is now generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee.  All other options including grievance procedures must be explored. 

The reasonableness test requires that the employee must satisfactorily demonstrate that the employer behaved or acted in a manner, which was so unreasonable as to make it impossible for the employee to continue in the employment.  There is a reciprocal duty on an employee to demonstrate that they acted reasonably.  The reasonableness test can be relied upon either as an alternative or in combination with the contract test. 

In Berber v. Dunnes Stores [2009] 20 E.L.R. the Supreme Court held as follows:

“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 the case of Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 Denning J stated:

“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 of more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.”

In considering whether there has been a constructive dismissal I have to determine whether there has been a repudiatory breach of contract by the respondent, or, if there has been no repudiatory breach, whether the respondent engaged in conduct which made it reasonable for the complainant to terminate her contract. 

In a constructive dismissal case, it is well established that it is incumbent upon an employee to utilise any available grievance process before resorting to a resignation, as set out in the seminal EAT case Conway v. Ulster Bank Ltd.  [UD474/1981]. In the case of Harkin v Guinness Storehouse Ltd D469/2015, the EAT determined that: “The Tribunal find that it was not reasonable for the claimant to terminate her contract of employment in circumstances where she failed to invoke any grievance in relation to her concerns and failed to appeal her 2014 review result. Furthermore, the Tribunal finds that the respondent acted reasonably in their dealings with the claimant and were fair and objective at all times. No evidence was adduced before the Tribunal which could lead the tribunal to conclude that the failure to invoke the grievance process was justified. The Tribunal also find that the claimant’s reaction to the two issues was disproportionate to the issues themselves.”

Based on the totality of the evidence adduced in the within matter and having carefully considered all of the written and oral submissions, I find the complainant has failed to discharge the burden of proof to support her claim that she was constructively dismissed. There is no evidence to suggest that the respondent no longer intended to be bound by any essential term of the contract of employment. I am satisfied that the complainant has failed to establish that she was constructively dismissed particularly when regard is had to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” pursuant to the Unfair Dismissals Act.  I cannot find that the respondent acted in a manner which was so unreasonable as to make it impossible for the complainant to continue in the employment. 

I note that the respondent offered support to the complainant in respect of the EAP programme. It provided the complainant with comprehensive documentation with regard to its policies and procedures including the grievance procedure.

I find that the complainant has not acted reasonably in resigning without having utilised the grievance procedure. I note from the documentation submitted  that the complainant had been looking for other jobs since December 2022. I also note the complainant worked out her notice period. In those circumstances, I find the complainant’s proposition that her position at work was so untenable that she had no option but to resign is implausible.

Based on the totality of the evidence adduced in the within complaint, I find that the complainant has failed to establish a case of constructive dismissal and accordingly her complaint fails.

I find that the complainant was not unfairly dismissed.

Constructive dismissal - grievance procedure not exhausted