Complainant

Respondent

Parties

Emma  Daly

Dolphins Early Education And Childcare Centre

Representatives

William Wall Peninsula

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-00054804-001

27/01/2023

The Complainant began working for the Respondent on the 27th of July 2020 as a childcare practitioner.  She submitted her resignation on the 15th of November 2022 and that resignation took effect on the 16th of December 2022.

The Complainant attended the hearing and gave evidence under affirmation. She made written submissions beforehand. Where relevant I have referred to the Complainant’s evidence in the findings section of this decision.

The Respondent’s representative made detailed written submissions.

Ms Jennifer Healy, Managing Director, gave evidence under affirmation. Ms Aimee Breen, Branch Manager, gave evidence under affirmation. Ms Tina Gunnery, then Preschool Manager, gave evidence under affirmation.  Ms Helena Dillon, assistant manager, gave evidence under affirmation.

On the 29th of August 2022 the Complainant was transferred to a new room with a colleague (“A”) who she had a good working relationship with. The Complainant had requested that she go part time, and this was facilitated by the transfer to the new room.

There was some rotation of staff and covering arranged for three and a half weeks. This was until another person  (“B”) was hired as room leader and assigned to the room from the 22nd of September 2022. B had a higher level of qualification that the Complainant and A and was paid at a higher rate. B’s first language was not English and she had only recently moved to Ireland. The Complainant went on annual leave for a week shortly after B was hired.

The Complainant’s evidence was that B had not been trained properly on the systems the Respondent had in place for updating documents and other issues. B was also unfamiliar with the restrictions in place regarding her until she her Garda clearance came through. She asked a lot of questions, was unfamiliar of the normal schedule on tasks like changing the children and on a couple of occasions left the room without telling the Complainant or A. There were ongoing communication issues.

There was an argument between the Complainant and B on the Friday the 7th of October, two weeks after B started. B felt the Complainant and A were picking on her whereas the Complainant was frustrated with how B was working. The Complainant’s evidence was that she attempted to bring these issues to the attention of management but was fobbed off. The Respondent’s evidence was that the Complainant tried to raise these issues in the corridor in front of a Tulsa inspector and was told it wasn’t a good time. B then moved from the room to work with children with additional needs, until the 17th of October when she was transferred back to the same room as the Complainant.

The Complainant’s evidence was that she tried to raise the problems she had been having with B but she was not successful. There was a meeting after B returned to the room and there was a sense that they should all move on but the issues they had were not resolved.

It is accepted by both parties that the Complainant continued to alert management to numerous concerns she had about B.  By the 14th of November the Complainant had become frustrated and stressed. She notified the branch manager Aimee Breen that she was resigning unless the Respondent took one of three options. One was that she would be moved. The second was that B would be moved. The third was that the Complainant would get a pay rise to B’s level of pay.

The Complainant’s evidence was that on the 15th she was asked to hand in written notice by Ms  Breen. She did so. The Respondent’s evidence was that the Complainant had threatened to resign before and they didn’t want her to resign but did want her to provide clarity as to whether she was going or not.

I will not review the issues related to the Complainant’s protected disclosure in this decision. They will be considered in ADJ-00045323. What is pertinent to this decision was that the Complainant later attempted to retract her resignation and the Respondents did not accept this retraction.

As such there are two questions before me in this matter under the Unfair Dismissals Act.

1)      Was the Complainant constructively dismissed when she issued her resignation on the 15th of November?

2)      Was the Complainant unfairly dismissed when the Respondent refused to accept her retracting her resignation?

Constructive Dismissal

The Unfair Dismissals Act provides that a dismissal can occur where an employee resigns.

Thiis is outlined in section 1 of the act which defines dismissal as to include:

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 important to note that the above has been interpreted as putting the burden on the employee to establish not only was their decision to resign reasonable but that it was due to the unreasonable conduct of the employer.

Or as the UK Court of Appeal put it in the seminal case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221:

“is that the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving. He can go, with or without giving notice, and claim compensation for unfair dismissal”

The Complainant’s evidence was that she found working with B difficult and that they didn’t get on. She worked alongside B for roughly six weeks before submitting her resignation. She did complain to the Respondent about B throughout this period however she did not submit a formal grievance.

On facts of this case, I cannot find that the Complainant’s resignation was caused by the Respondent. B was only in the role a few weeks at the time of the Complainant’s resignation. It is normal for employees at any level to have a period getting settled into a new job. The Complainant was clearly frustrated by B not least because B was a more senior grade and supposed to be in charge of the room. However, that frustration does not constitute a constructive dismissal. The Respondent was entirely entitled to give B the chance to improve particularly given the short time frame involved.

Unfair Dismissal

Normally an unambiguous and unconditional resignation brings a contract of employment to an end. As outlined by the Labour Court in Millett v. Shinkwin, EED044 (“Millet”):

“resignation is a unilateral act by which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given the contract is generally terminated in accordance with its terms and, since there is no repudiation, the acceptance of the resignation by the employer is not required in order to determine the contract.”

In that same case the Court noted that an employee may withdraw a notice of resignation where special circumstances exist relating to the context in which the decision to resign was taken. In that case the employee resigned following an exchange with her employer in which hurtful and damaging language was used. There had also been a background of severe stress on the employee caused by the employer and which the employee, then pregnant, believed put her health at risk.  The Court found that the employee’s decision to write a letter of resignation was not a fully informed and calculated act and that she was entitled to withdraw it.

On review of the evidence I don’t believe the Complainant, Ms Daly, really intended to resign. I think she felt frustrated about working with B and that by submitting her resignation she would force the Respondent to address the situation through either staff reassignments or a pay rise. She was surprised when Ms Breen asked her to put her resignation in writing but then chose to do so. Under cross examination she accepted that this was a mistake.

The Complainant miscalculated the situation and the extent to which the Respondent would act to keep her. I do not believe that these were special circumstances as outlined by the Court in Millet and that she was entitled to withdraw her resignation.     

The complaint is not well founded.