Complainant

Respondent

Parties

Cassie Greene

Kareplan

Representatives

Jacob and Twomey 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-00060920-001

09/01/2024

The complainant gave her evidence on oath. 

She says she was contacted on August 1st, 2023, while on maternity leave and asked to attend at her place of work. She was offered a revised contract. 

The new contract was a scheduler position, a less favourable title with a larger workload. She refused to sign the contract because she could not get a satisfactory explanation for the changes.

She says that she was told that another person involved in sharing aspects of her role had been promoted and that if she wanted her job back, she would have to share it.

She asked for a meeting to address the issue on August 2nd, 2023, and again followed with a follow-on email with an update regarding the meeting. On August 14th, 2023, she received a reply stating that a meeting would be arranged soon.

She met her manager on August 21st and was told that the other person would not be demoted and if she did not want to take the scheduler position, she would have to share the job role along with extra duties.

The respondent emailed the job duties which had changed. The complainant continued to work at home three days per week assisting in scheduling. She was unhappy with the tone of communications from her team.  It was hard to get anyone to answer phone calls and emails which made her work harder.

As time went on this atmosphere got worse, making it impossible to complete work from home and she also felt she could not work in an environment that would be hostile on her return. Therefore, she made the decision to resign.

Also, she says that she never signed the contract of employment submitted by the respondent and that contrary to what has been stated she did use all available grievance procedures set out in her contract.

In summary, upon returning from maternity leave, she was informed her protected position in the company had been given to another employee and that the HR manager believed and was told she would only be returning as a schedulers position.

No evidence of a HSE request for more management/team leader roles was ever presented and the respondent’s submission is the first she heard of this. She says that she was working in the office at the time of the HSE audit referred to by the respondent but was not aware of the need for any change.

The Respondent, Kare Plan Limited, is a limited liability company which provides home care and personal care for the elderly and those with disabilities.

The complainant commenced employment on March 16th, 2021 and was ‘Scheduling Team Lead’. She went on maternity leave in early 2023 and was due to return on September 18th, 2023. She resigned from her employment on September 16th, 2023.

During the course of her absence on maternity leave, the respondent was the subject of a number of HSE audits, which required the respondent to increase its scheduling requirements.

The respondent met with the complainant prior to her return from maternity leave to update her on the changed position. She was reassured that her duties would remain the same upon her return and that any addition scheduling requirements would be assigned to a colleague.

The complainant’s decision to resign was unnecessary and premature and does not meet the legal threshold to constitute a constructive dismissal. She failed to utilise the workplace Grievance Procedure prior to her resignation.

In August 2023, she was contacted by the respondent and asked to attend a meeting with Ms Emma Dandy, Director, who explained that she would be returning to her position of Scheduling Team Leader on her return from maternity leave with all the same duties as before.

Ms Dandy listed all duties all the relevant duties and the complainant agreed to the changes and also informed her that, following a number of HSE audits, further additional duties were required for the position in order to meet its requirements. She also informed her that those additional duties wouldbeassignedtoacolleaguewhowouldalsohavethetitleofTeamLeader.

On August 21st, 2023, Ms Dandy emailed her a Duty Log for Scheduling Team Leader but on September 11th, 2023, the complainant responded saying that she wished to formally resign.

The complainant stated that her decision was based on an the “unsure position” she would be faced with on her return to work and a lack of childcare available to her at that time. She acknowledged that she had not given the requisite notice of her resignation and requested that this be overlooked.

Ms Dandy respondedbyseekingclarificationonthealleged“unsure position” referred to in her email and reminded her of their earlier discussion regarding her return to the positionofSchedulingTeamLeaderandthedutiesrequiredunder thatrole.

Ms Dandy stated that the complainant had agreed to returning to this role at that meeting. She also referenced the email she sent her with the Scheduling Team Leader Duty Log on  August 21st, 2023, and said that she understood if the complainant’s health issues and childcare issues impacted her ability to return following maternity leave. She expressed her regret at seeing the complainant leave.

On September 12th, 2023, the Complainant responded to Ms Dandy confirming that she wished to resign, stating that it was the “hardest decision”.

On September 28th, 2023, Daniel Gizara, HR Manager, emailed the complainant expressing his regrets at hearing that she had resigned from her employment. On October 4th, 2023, she responded apologising for the inconvenience caused by her leaving and stated that at the time she felt uncomfortable and did not want to return to the role. 

She also stated that she had a job offer and asked if there was any possibility of giving her a position that was available to work from home; possibly part-time. Unfortunately, having made enquiries, there were no roles available.

The complainant has not suffered any loss.

The respondent made extensive legal submissions on the law on constructive dismissal which it is not necessary to reproduce in full, but the following is directly relevant on the point of exhausting the Internal Grievance Procedures.

It is long settled that employees must make exhaust any internal grievance (or problem resolution) procedure before resigning if they are to succeed with a claim of constructive dismissal arising from allegations of unreasonable behaviour by their employer.

In ADJ-00000629it was held that:

“Prior to an involuntary resignation an employee must exhaust all reasonable attempts to resolve their complainants and grievances with their employer.”

In Conway v Ulster Bank Ltd. (UD 474/1981) the Employment Appeals Tribunal found that the Claimant had not acted reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints.”

In Bidvest Noonan v Iosif, UDD2265 the Labour Court stated that normally a complainant is:

“… expected to demonstrate that he/she brought the issue to the employer’s attention before resigning (e.g. through the employer’s formal grievance procedure) but that the employer failed to address the problem or did so only in an unsatisfactory manner.”

In McGuire Haulage Limited v Kelly, UDD2215), the Court stated that:

“In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning.”

In Cope Limited v Bell, UDD2145  the Court stated that:

“… it is trite law that the Complainant is under the burden of establishing that he or she also conducted themselves reasonably in terms of affording the employer the opportunity to address the issue which ultimately led to the termination of the employment.

In Beatty v Bayside SupermarketsUD 142/1987, the Employment Appeals Tribunal, in referring to the need to utilise grievance procedures, held as follows:-

“The Tribunal considers 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 normal circumstances, a complainant must act reasonably by providing the employer with an opportunity to address whatever grievance he or she may have. As set out by the Employment Appeals Tribunal in Conway v Ulster Bank Limited UDA474/1981, a Complainant must demonstrate that he or she has pursued the grievance through the procedures laid down in the employment before taking the step to resign.”

In summary the complainant’s decision was to resign was unnecessary and premature and does not meet the legal threshold to constitute a constructive dismissal under the Unfair Dismissals Act. The complainant failed to utilise the Respondent Grievance Procedure prior to her resignation, and she has not suffered any loss.

This is a complaint of constructive unfair dismissal.

There is something of a conflict in the evidence as to the nature of the revisions to the complainant’s role.

She says that it was an attempt to ‘demote’ her and that she refused to accept the revised terms. She confirmed in her evidence that no demotion had actually taken place. The precise meaning of the documents she relied on at the hearing to support this contention was far from clear and she did not offer very convincing evidence of any proposed demotion.

The respondent says that the complainant accepted the revisions and that her position was going to remain as it had been before her maternity leave.

The position is further confused by the fact that, although the complainant was not due to return to work until September 18th she had continued to work from home during her maternity leave, which is far from satisfactory.

The timeline of events is important.

The complainant was first notified of the proposed changes on August 1st, 2023.

As noted, whether they represented a demotion or not is not clear, but as it happens, this is not ultimately relevant to my decision. Nonetheless, it is clear that the complainant was not happy with the proposals and in due course a meeting was arranged to discuss them on August 21st.

Bear in mind that the complainant was not due to return formally to work for almost another month (September 18th).

Following the meeting the respondent sent further information to the complainant and she saw in this evidence of the demotion, although she could not explain clearly at the hearing why she thought this. It was not immediately obvious from the documents she produced at the hearing but again that is not relevant to my decision.

What is relevant, indeed decisive is that without any further ado, she resigned from her job on September 11th. In her evidence she stated that this was because she was not receiving cooperation from colleagues and feared a hostile reception on her return to work.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of any contract of employment. It is, after all, a breach of a legally binding contract.

When an employer wishes to terminate the contract of employment, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions having regard to the conduct giving rise to the disciplinary proceedings.

The most common source of complaints under the Act is when an employer has terminated the employment, and the criteria referred to above are then the key tests as to whether the dismissal has been a fair one.

On the other hand, and in general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning.

When an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

 ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

 Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to open an assessment of whether the employer’s conduct has been so intolerable that it justifies the complainant’s resignation.

In other words, has it been at a level and of a nature that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery, and this is a critical consideration in this case.

The EAT has made it clear in a series of decisions and followed by the Adjudication service that failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above). The respondent has submitted a number of these in its submission which set out the test to be applied and which I follow.

In this case despite her assertion that she had done so the complainant failed entirely to avail of the internal grievance machinery.

She appeared to regard the objections she raised following the August 1st meeting as a grievance, but she had a subsequent meeting with Ms Dandy on August 21st, following which she was sent further details of the positions and she failed to take any steps after that, formal or informal to challenge the proposals; she simply resigned.

So, I find that she did not avail of the internal grievance machinery at all, nor did she make any effort to do so.

She may have felt she had some reason to resign; her fear that she was being demoted, the alleged change in how her co-workers were treating her, but there remained plenty of opportunity to have these matters addressed and resolved and she was legally obliged to avail of it in order to ground any subsequent complaint of constructive unfair dismissal.

For a start the respondent asserted that no change was being made to her position, and whatever the truth of this may be it was a matter to be sorted out at the level of the workplace before tendering her resignation; similarly with any other issues that arose, such as the alleged inter-personal issues with colleagues.

She did not do so and her decision to resign was entirely premature and unjustified and therefore she does not meet the legal tests outlined above to ground her complaint of unfair dismissal.

The complaint is not well founded.

For the reasons set out above Complaint CA-00060920-001 is not well founded.

Constructive Unfair Dismissal