Complainant

Respondent

Parties

Cliona  Holt

Veolia Energy Services Ireland Limited

Representatives

Terence O Sullivan TJOS Solicitors

Judy McNamara IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00059245-001

05/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00059245-002

05/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00059245-003

05/10/2023

The Complainant was employed as Group Commercial Accountant for the Respondent company with effect from 13 May 2019. She stated that she was left with no alternative but to terminate her employment on 21 August 2023 because of the Respondent’s wholly unreasonable decision to suspend her on 5 April 2023 and their conduct in relation to her thereafter.

The Complainant was employed as Group Commercial Accountant for the Respondent company with effect from 13 May 2019.

On 5 April 2023, the Complainant sent an email to several colleagues stating that she had discussed a tender with a family member, who worked with the relevant client. She mentioned that the feedback from him was that the Respondent was a preferred contractor for the tender. Additionally, she made a "tongue in cheek" remark that a trip to Poland would be welcome, as a member of the client's team had relations in Poland. As a result of sending this email, the Complainant was suspended later that day.

The letter of suspension alleged that she:

•Had breached the anti-bribery and corruption policy.

•Had breached her duty of non-disclosure of confidential information including breaching her terms and conditions of employment.

•That she allegedly may have taken action that could bring the company into disrepute.

The Complainant stated that she was astonished to receive this letter given that she had previously discussed similar matters with her family member and had been actively encouraged to do so by the Respondent. She was at a loss to fully understand the allegations made by the Respondent.

Having discovered through a data access request that the Respondent brought the alleged offending email to the attention of its client, who having considered the email were clear that they had no issue with it and considered the matter closed, the Respondent did not lift the Complainant's suspension.

She stated that because of the enormity of the pressure upon her, she had no option but to take medically certified sick leave. She subsequently raised a formal grievance on 28 July 2023 but was not allowed by the Respondent to pursue it. She was left with no other option but to resign her role which she did on 21 August 2023.

Between 28 July and 21 August 2023, and in response to the grievance, a decision was made by the Respondent without any acknowledgement to the grievances, to extend the Complainant's unpaid leave by a further 4 weeks. There was no explanation or justification provided in respect of the extension. The HR Director would not allow the grievance to be heard until she received medical confirmation of her illness. The Complainant followed up with another Senior HR personnel, but no one was willing or able to allow her to pursue her grievance. It was only after the return of the HR Director and the receipt of the Complainant's resignation on 21 August 2023 that the Respondent acknowledged the grievances and then considered holding the grievance hearing.

The Complainant stated however that she did not receive any clear direction on the suggested grievance hearing and was left to assume that any suggested hearing was likely to be heard by the very same personnel who had taken action against her on foot of the initial allegations and suspended her.

On 5 April 2023, the Complainant circulated an email to Directors of the Respondent, potentially in breach of the company Anti Bribery and Corruption policy, in breach of her duty of non-disclosure of confidential information including breaching her terms and conditions of employment and by her actions, potentially bringing the company into disrepute. Arising from the possible very serious outcome of her actions, the Complainant was suspended later that day pending investigation of the allegations.

Following discussions internally within the Respondent, it was determined that this e-mail was a concern, as it reflected inappropriate discussions between an employee and a client during a tender phase for a contract. Declan White, Operations Manager of the Respondent. met with the Project Director on 6 April 2023, for the purpose of raising the matter with the client. The Project Director in turn raised the concern with the client's Legal team and the client's Project Tender Manager and ultimately concluded that as the Complainant's family member would not have any decision-making role in the tender process, they were satisfied that the competition had not been compromised abd did not intend taking any further action in the matter.

The implications of such breaches of policy are that the Respondent could have been asked by the client to withdraw from Phase 1 of the tendering project and it potentially no longer have been in a position to forward a tender for the remaining phases.

Notwithstanding the positive outcome of the situation with the client, the Complainant's actions reflected a level of naivety and ill judgement, potentially breaching a number of company policies and necessitated action on the part of the Respondent to ensure that the company was not put in a similar potentially precarious position again. Hence, the Complainant was suspended on 5 April 2023 and subsequent attempts were made to address the matter via the disciplinary procedure.

The letter of 5 April 2023 confirmed the details of the Complainant's suspension, setting out the allegations clearly. The Complainant was also invited to attend an investigation meeting the following Tuesday 11 April 2023. The Complainant, by email on 7 April 2023, requested that the investigation meeting be postponed due to the seriousness of the allegations and also on the basis that she was seeking advice. The meeting was postponed and rescheduled on 13 April 2023, as confirmed by the letter of 11 April 2023.

That investigation meeting was again postponed and rescheduled for Tuesday 18 April 2023, and the following day, 13 April 2023, the Respondent received an email from TJOS Solicitors, confirming their representation of the Complainant, indicating that she was unwell. The email further stated that the Complainant's representative wanted to attend the investigation Meeting. In accordance with company policy, and the Code of Practice in Disciplinary Matters Sl 146, the Complainant was advised that she could only be accompanied by a work colleague or Trade Union Representative and the investigation meeting was again postponed and rescheduled.

A subsequent email was furnished by Mr Gavin Swann on 18 April 2023, containing details of new arrangements for the Investigation meeting, to be conducted on 20 April 2023.

The following day, the Complainant submitted a certificate from her GP, which certified her sick from 18 April to 2 May 2023, citing the reason for illness as work related stress.

The Complainant subsequently attended an appointment with the Respondent’s Occupational Health Advisor on 1 June 2024 which confirmed that she was unfit to work or engage in the investigation process. Although the doctor had suggested that he would like to review the Complainant four weeks after this and although an appointment was made for her on this date and on various dates in July, the Complainant did not attend. In a subsequent email send on 26 July 2023, the Complainant wrote: "l will not attend any such review at any time, certainly not till my health allows. This is my final word on the matter".

Some two days later, in an email dated 28 July 2023 the Complainant submitted a formal grievance, under cover of an email indicating that she had 'issues' with her Line Manager, who could therefore not hear her Grievance at Step 1 of the process. As it was also suggested in the grievance of 28 July 2023 that HR and Gavin Swan were at the root of her grievance, and the Complainant contended that HR were not the appropriate department to hear her grievance, Step 3 of the process was invoked, which requires a grievance to be heard by the Regional or Technical Director or the next appropriate level of management.

In an email on 2 August 2023, Donnamarie Masterson, HR Director of the Respondent, stated that that the grievance could not be heard until the Complainant was medically fit to either return to work or enqaqe in the process, contingent on appropriate advices from medical experts. Additionally, Ms Masterson stated that she would contact her in a couple of weeks on 21 August 2023 to review further occupational health arrangements to allow her grievance to be progressed.

The Complainant nonetheless, regardless of the notification that Ms Masterson would not be returning from leave until 21 August 2023, sent another email on 21 August 2023 entitled 'My Unanswered Grievance' containing the same accusations and allegations to Ms Masterson and followed this communication up some 12 minutes later with an email stating that she was resigning.

Ms Masterson replied on 21 August 2023 setting out, inter alia, the processes in place, the Respondent's position regarding the grievance, the requirement for Occupational Assessment, the reasons for all the foregoing and in particular, a request for the Complainant to consider the information provided and the reasons offered. The purpose of this communication was to offer the Complainant time to reconsider her resignation but importantly and notably offering her the opportunity to provide certification from her own GP certifying her fit to engage in the Grievance Process, in which case a grievance meeting would be scheduled on 29 August 2023.

The Complainant's response, by email on 23 August 2023, alleged that the explanations set out by Ms Masterson were 'too little, too late', confirmed her resignation and indicated her intention to file claims for constructive dismissal and pay claims based on advice received by her.

CA-00059245-001 and CA-00059245-002:

Section 1(i) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as: 

“…any sums payable to the employee by the employer in connection with his employment, including- (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise”

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated that a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991. 

In determining what wages are properly payable in the instant case, I note that the Complainant was on certified sick leave for the entire month of July and until she resigned on 21 August 2023. As her entitlement sick leave pay had been exhausted in May 2023 and she was not in work in either July or August, she was not entitled to any wage payment. Therefore, there was no question of any deduction having been made for either month and the complaints are not well founded.

CA-00059245-003:

The Law

Section 1 of the Act defines what is commonly termed ‘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”

Findings

As dismissal as a fact is in dispute, it is for the Complainant to establish as a matter of probability that her employment came to an end in circumstances amounting to a dismissal within the meaning of the Act.

The case law envisages two circumstances in which a resignation may be considered a constructive dismissal which is unfair within the meaning of the Act. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee would be entitled to regard himself or herself as having been dismissed and that the dismissal was unfair. In the UK Court of Appeal Lord Denning in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 held that

“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”.

A line of authorities has since established this decision as defining the “contract test”.

Secondly, an additional ‘reasonableness’ test 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, and, if so, he/she is justified in leaving. It is clear from the case law, that in addition to asserting that an employer acted unreasonably, an employee must also conduct themselves reasonably prior to resigning if they are to succeed in a case for constructive dismissal. Specifically, in the case of Murray v Rockabill Shellfish Ltd [2012] E.L.R. 331 it was held as follows:

“An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning”.

This is also in line with the decision of the Employment Appeals Tribunal opened to me by the Respondent in McCormack v Dunnes Stores, UD 1421/2008, where the Tribunal stated: “The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonableas to make the continuation of employment with the particular employer intolerable”

In this case, the Complainant contends, including in evidence, that her employer's conduct—both in deciding to suspend her on 5 April 2023, and in the period thereafter until her resignation on 21 August 2023—was so unfair and unreasonable that she was left with no alternative but to terminate her own employment. However, as established in the case law cited above, the Complainant must show that she acted reasonably in response to the Respondent’s unreasonable actions.

In reviewing the parties' conduct, I must first point out that the decision to suspend the Complainant was unreasonable. This decision was based on her discussing a tender involving the Respondent with a family member, despite undisputed evidence that she had done so on previous occasions and had been encouraged to do so by the Respondent. Therefore, it is incomprehensible that the Respondent's employees involved in the decision to suspend her were aware that the Complainant had previously discussed other work matters with her family member and had been actively encouraged to do so.

As well as highlighting the unfairness of her suspension, the Complainant made much of the fact that, after she had been suspended, the company where her family member worked had no difficulty with her having discussed the matter with them. While I accept that this was the case and it was not disputed in evidence by the Respondent that they knew this, I find that it was not relevant for the purposes of this complaint because the Respondent is entitled to apply both their own standards as well as their policies and procedures independent of any other company's opinions. Moreover, any communication from the company where the Complainant’s family member worked could have been presented as evidence during the investigation or as a mitigating factor during any disciplinary process that might have resulted from the conclusion of the investigation.

While I accept that the decision of 5 April 2023 to suspend her was unreasonable, I also recognised that the Respondent sought to move the investigation along quickly and arranged to have an investigation meeting held on 11 April 2023. As she was reasonably entitled to, the Complainant refused the opportunity to meet on this day because she wanted time to take advice and the investigation meeting was deferred for the first time until 13 April 2023 and again at her request to 18 April 2023.

I further noted that as the Complainant went on certified sick leave from 18 April 2023, the investigation process was understandably parked. The Respondent subsequently informed her on 4 May 2023 that she would no longer be paid the full pay that she had been receiving since she had been suspended and would be moving to sick pay from 16 May 2023. Given that the Complainant was sick and had provided certs to cover this, I find that this decision was reasonable and was not at odds with any of the Respondent’s policies or procedures.

As is also provided for in the Respondent’s policies and procedures, and as is the case in many companies, arrangements were made for assessment of the Complainant by their Occupational Health Provider on 1 June 2023, which the Complainant attended. Although the Respondent’s Occupational Health Advisor stated that they would review the Complainant four weeks after this initial appointment, specifically on 29 June 2023, the Complainant did not inform the Respondent until 29 June 2023 that she would be unable to attend, despite having been formally on notice of it since 22 June 2023. The Complainant also refused to attend subsequent appointments for 7 and 25 July, and, in an email, dated 26 July 2023 advised that she would not be attending any further Occupational Health Review arranged by the Respondent until such time as her health allowed. I find that the Complainant’s refusal by to engage with the Respondent’s Occupational Health Advisor in the period from 29 June to 25 July 2023 was unreasonable.

I also noted that two days after advising the Respondent that she would not be attending any further Occupational Health Review arranged by them, the Complainant submitted a formal grievance on 28 July 2023. In examining the conduct of both the Complainant and the Respondent after the grievance had been made and prior to the resignation of the Complainant, I find that the Respondent’s assertion - that the grievance could not be heard until the Complainant was medically fit to engage in the process, based on appropriate medical advice- was entirely reasonable. I make this finding because it is a standard practice that such medical clearance is obtained prior to the commencement of an investigation. I also noted that the Respondent commendably refused to accept the Complainant’s resignation and offered her the opportunity to provide certification from her own GP certifying her fitness to engage in the grievance process, in which case a grievance meeting would be scheduled on 29 August 2023.

On the other hand, I find the Complainant's conduct in the period after she submitted her grievance to be entirely unreasonable. She was unable to explain in evidence at the hearing why she considered herself fit to engage in a grievance investigation process but not able to attend an appointment with the Respondent’s Occupational Health Advisor. I find that her decision to resign without exhausting the grievance procedure was precipitous and entirely unreasonable, particularly given that she knew the Respondent’s HR Director was on holiday until 21 August and thus unable to respond to her email of 14 August until she returned to work. Even if I ignore the fact that the HR Director was on leave, I noted that it took the Complainant herself 12 days to respond to the HR Director’s email of 2 August 2023 and believe that it was unreasonable that she did not allow her the same period for a reply. Additionally, it was unreasonable for her not to accept the Respondent’s suggestion to reconsider her resignation of 21 August 2023, especially since the Respondent had changed its position and agreed to accept a certificate of fitness from her own GP to engage in the Grievance Process, instead of one from their Occupational Health Advisor.

While I therefore find that the Respondent acted unreasonably in deciding to suspend the Complainant, their actions following the suspension were entirely reasonable and I am satisfied that their conduct in that period was in line with best practice as well as their own policies and procedures. Additionally, I acknowledge that they sought to retain the Complainant in their employment, even after her resignation on 21 August 2023 and allowed her further time to engage in the grievance process. On the other hand, while I recognise that the decision to suspend the Complainant understandably caused her considerable stress which resulted in her going on sick leave, her conduct thereafter in response to that of the Respondent was entirely unreasonable. These unreasonable actions include her refusal to attend the Respondent’s Occupational Health Advisor after 1 June 2023, her demands that the Respondent address her grievance without being medically cleared to engage, and her precipitous resignation despite the HR Director being on holiday and without exhausting the grievance procedure, as detailed above.  

As set out in the case law cited above, an employee must act reasonably in deciding to terminate their employment. As the Complainant acted unreasonably in this case, notwithstanding the conduct of the Respondent in relation to her suspension, I find that her resignation did not amount to ‘constructive dismissal’ constituting unfair dismissal.

CA-00059245-001:

I find that the complaint is not well founded for the reasons set out above.

CA-00059245-002:

I find that the complaint is not well founded for the reasons set out above.

CA-00059245-003:

I find that the Complainant was not constructively dismissed.