ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00039278
Parties:
| Complainant | Respondent |
Parties | A Cleaner | A Cleaning Services Provider |
Representatives | Self-Represented | Management Support Services (Ireland) Ltd |
Complaint:
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-00050750-001 | 22/05/2022 |
Date of Adjudication Hearing: 19/12/2022
Workplace Relations Commission Adjudication Officer: Aideen Collard
Procedure:
This complaint of constructive dismissal was referred to the Workplace Relations Commission (hereinafter ‘WRC’) under Section 8 of the Unfair Dismissals Acts 1977-2015 on 22nd May 2022. Following delegation to me by the Director, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence. The matter was heard in Lansdowne House on 19th December 2022. The Complainant was self-represented and the Respondent was represented by Mr Hugh Hegarty of Management Support Services (Ireland) Ltd. Three witnesses attended and gave evidence on behalf of the Respondent. Written submissions and supporting documentation was received on behalf of both Parties. At the outset, the changes to procedure under the Workplace Relations (Miscellaneous Provisions) Act 2021 were outlined. As the Complainant was self-represented, the statutory requirements and burden of proof for a complaint of constructive dismissal were also explained. The hearing was held in public and evidence was taken on oath. As this complaint contains sensitive medical information, I direct that no details are published that might identify the Parties in accordance with Section 8(1B) of the Acts as constituting special circumstances. All of the evidence, submissions and documentation submitted have been fully considered. The Parties were also afforded a period of time to resolve this matter post-hearing.
Background:
The Complainant was employed by the Respondent as a cleaner on one of its client’s sites and earned €604.80 gross fortnightly. Following an interaction with a supervisor, Mr A, on 31st December 2021, she left the premises and remained on sick-leave for a period of four months before resigning and taking up new employment. She claims that the manner in which Mr A had treated her justified her resignation without notifying management of the incident or recourse to the grievance procedures and claims compensation for constructive dismissal. The Respondent submits that it was unreasonable for the Complainant to resign without firstly affording it an opportunity to resolve the matter and seeks to have this complaint dismissed.
Summary of Complainant’s Case:
As the burden and onus of proof for a complaint of constructive dismissal rests with the Complainant she gave evidence first, supplementing the details provided in her complaint form with oral evidence. She confirmed that she had been employed by another company as a cleaner from 18th July 2011. On 1st April 2021, her employment had transferred to the Respondent, a Cleaning Services Provider under TUPE. She resigned on 13th May 2022. At the time, she worked 27 hours a week at the business premises of one of the Respondent’s clients where she had been based for ten years. She was paid €604.80 gross fortnightly.
The Complainant had not experienced any issues since the Respondent had become her employer until 31st December 2021. She had been scheduled to be off work that day but received a call from a manager asking her to work. Although reluctant at first, upon hearing that the Respondent was short-staffed she agreed to provide cover. She attended at her workplace at 6am and was due to work until 3.30pm. She commenced her usual cleaning routine working through the kitchen, toilets, hallway, front of house and offices. She had been extra attentive to the data halls referred to as ‘red zone areas’ as they contained servers requiring them to be kept dust-free. She had used a machine to scrub and polish the floor area and had cleaned all the other surfaces in detail. Around 9am she went to the canteen for a quick break where she encountered Mr A who was supervising her for the first time. He informed her that he was her manager and in a raised voice, repeatedly told her that her areas were “filthy and unacceptable” and that the client was going to complain about her standard of work. In particular, he told her that because there was a crumb in the oven, he was refusing to sign the ‘audit’. As she had always been assured by the Contracts Manager, Ms B that her building was immaculate and to her knowledge, the client was very happy with her work, she was totally taken aback by these accusations and in complete shock. She opened the oven and pulled out the contents asking Mr A to explain what he meant. She informed him that she had been obliging the Respondent on her day off and had not stopped working since she had got in. She also told him that she was suffering with back and neck pain and her hands were stripped and torn from the cleaning products including hand sanitiser she was required to use due to Covid-19. He declined to comment but continued his rebuke as a staff member walked past, further humiliating the Complainant. She was visibly upset and picked up her phone saying that she was going to ring Ms B with whom she had a good relationship. Mr A then informed her that she was not allowed to call Ms B as she was on holidays and threatened that if she reported the matter she would be in “serious trouble”. She had felt so intimidated that she could not report the incident to anyone. She did not know what “serious trouble” meant for her future employment.
The Complainant felt sick to her stomach and experienced intensifying back and neck pain. She messaged her supervisor as follows: “… got last min Doc apt for today so I will be leaving here at 1030am had 1 of the male manager in this morning he signed his check list the whole building is spotless have a great new year". She left work crying and attended her GP. He prescribed her pain relief and certified her sick-leave for back and neck pain over a four-month period. She went for an MRI which identified degeneration in her back.
The Complainant confirmed that she had taken sick-leave both because of both her back and neck pain and workplace stress. She was on Illness Benefit for this period. She was overcome with anxiety at the thought of returning to work. She had to go on antidepressants and attended for counselling as confirmed in a letter from her therapist. She had been aware of the Respondent’s grievance procedures but had not considered availing of same. She later learned that Mr A had not filed any report of the incident.
The Complainant emailed HR with her resignation on 29th April 2022 simply stating: “Please accept this letter as formal notification that I am resigning from my position with (the Respondent) on 13th May 2022.” She also texted the Area Manager, Ms C on the same date. Ms C rang her and the Complainant relayed her interaction with Mr A on 31st December 2021. Ms C asked her to retract her resignation so that the situation could be resolved and reassured her that it would not happen again. The Complainant refused explaining that she felt blocked. Having previously been appreciated for her work, she could no longer work in an environment where she felt “negativity, undermined and not appreciated”. It had not been an easy decision to resign particularly as she had been adversely affected financially with the costs of doctors’ visits and medication. After the four-month period off work on sick-leave she had recommenced work on similar terms with her former employer. She sought compensation for her loss of earnings for that period.
Under cross-examination, the Complainant was asked why she had not reported the incident to Ms B with whom she had enjoyed a close working relationship and would have contacted her on a regular basis for anything. In particular, she had not mentioned the incident in a phone call with Ms B about an issue with her wages in early January 2022. She replied that she felt too afraid to report the matter to anyone owing to Mr A’s threat. She added that he had raised his hand when emphasising that she would be in “serious trouble” if she rang Ms B. She did not know what this had meant and felt threatened and intimidated. It was pointed out to her that Mr A was not even her supervisor and was only present as she was working on his shift that day. She was pressed as to why she had not reported the matter to anyone given that she had the wherewithal to contact her GP and supervisor following the incident. She replied that she had been terrified, trembling and her head had felt like a ‘squeegee’. The Respondent’s position was also put to her and in particular, Mr A’s account of their interaction which was completely at odds with her account.
Summary of Respondent’s Case:
Evidence of Mr A, A Supervisor
Mr A confirmed that he had been employed as a supervisor by the Respondent with oversight of its clients’ sites at the material time but has since moved to a new employer. English was not his first language although he did not require an interpreter. He had met the Complainant on a few occasions before 31st December 2021. On that date, her site was due a deep clean and Ms B had provided a checklist of the jobs required. He had encountered the Complainant around 9am in the canteen. He informed her that he had a checklist from Ms B to go through and asked whether she had done the oven. She replied that she had not. He told her that Ms B had instructed that the oven needed cleaning. She appeared uncomfortable with the conversation and responded that the oven was clean, she was doing her job and is a good worker. She also had some back pain. She said she would call Ms B. He replied that there was no point in calling Ms B as she was on holidays. She became angry and Mr A left the building to avoid further confrontation. He denied saying that she would be in “serious trouble” if she called Ms B, or being threatening or intimidating in any way. He also denied saying that the client would complain about her as he did not have that power. The checklist had been signed off in relation to all jobs. He had not considered the incident to be serious enough to be reported and was surprised by the Complainant’s account. He did not discuss the matter with anyone or speak to her again. He had been aware that the Complainant had gone on certified sick leave.
Evidence of Ms B, Contracts Manager
Ms B confirmed that at the material time, she was the Contracts Manager responsible for managing the Operations Department and the escalation point above regional level. The client for the Complainant’s site had requested deeper cleaning whilst it was quiet and Ms B had agreed a list of jobs to be undertaken which was furnished to Mr A. This was a ‘checklist’ as opposed to an ‘audit’. She had enjoyed a fantastic relationship with the Complainant who was very obliging and knowledgeable and would have contacted her for anything. They had exchanged messages back and forth up until 27th January 2022 so she was very surprised that she had not mentioned the incident with Mr A to her. Had she known she could have resolved the matter. She was of the view that the Complainant would not have been easily intimidated and was well able to speak up for herself. She recalled that she had expressed a reservation about Mr A’s role. Under her former employer, there had been one supervisor whilst there were three supervisors under the Respondent’s management structure. Mr A had commenced work as a cleaner and having quickly shown management potential was trialled as a mobile supervisor. He had been brought to the various sites and introduced to the staff including the Complainant. She described him as being very able and calm. In her view, the Complainant who took great pride in her work had taken issue with Mr A questioning her jobs which had been different to her norm. She also speculated that there may have been a language barrier.
Evidence of Ms C, Area Manager
Ms C confirmed that she is an Area Manager responsible for maintaining standards of work on behalf of the Respondent who has 1,800 staff. This entailed spot-checking work and liaising with its clients and staff. At the material time, she had recently joined the Company and had only met the Complainant a few times. During her period of leave, she had received her sick certs indicating back and neck pain only. They had exchanged text messages and calls during that period. Ms C had also called to the Complainant’s house to collect a key in January 2022. She recalled having a brief conversation about how she was. She confirmed that at no stage had the Complainant mentioned the incident with Mr A, any issues with work or work-related stress. She had first learned about the incident on the day that the Complainant had given notice of her resignation, being 29th April 2022. The Complainant had texted her to say that she was resigning, and she had rung her back to find out why. The Complainant had told her that she did not like the way Mr A had spoken to her in relation to a dirty kitchen on 31st December 2021. She had asked her why she was only telling her about it now given their contact in the interim so that it could have been resolved through the Respondent’s procedures. She asked her to retract her resignation twice but she refused and HR were informed accordingly. Ms C had also said to the Complainant that she had never found Mr A to be rude and perhaps it was a language barrier. She had always found Mr A to be helpful and never threatening or aggressive. Likewise, she had only ever heard good reports of the Complainant and her standard of work.
Respondent’s Submissions
It was the Respondent’s position that the Complainant’s complaint of constructive dismissal was without merit. She had left work on 31st December 2021 owing to a bad back and upon taking up new work, had resigned on 13th May 2022 and submitted this complaint on 22nd May 2022. She had outlined in her complaint form that she “didn’t want to resign” but felt that she “could no longer work in an environment where (she) felt negativity, undermined and not appreciated”. She had first mentioned feeling threatened in her evidence as a reason for being unable to return to work. There had been no mention of being unable to avail of the grievance procedures. She had never made management aware of any issue with Mr A or the incident on 31st December 2021. Although she had been furnished with and was fully aware of the grievance procedures, she had never utilised them to attempt to remedy this issue before resigning.
Section 1 of the Unfair Dismissals Act 1977 provides for constructive dismissal complaints as follows: “dismissal, in relation to an employee means- (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 or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.” In respect of the legal test for constructive dismissal, the Employment Appeals Tribunal (EAT) held in An Employee -v- An Employer (UD1421/2008): “In advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. In effect the relevant section reverses the burden of proof for an employer set out in Section 6(1) of the Act. 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 unreasonable as to make the continuation of employment with the particular employer intolerable.”
It was submitted that the Complainant had failed to act reasonably and exhaust all internal procedures. Section 1 of the Act makes it clear that the conduct of the employer must be of such a nature as to justify the employee terminating the contract. The test in An Employee -v- An Employer (UD1421/2008) sets out what is required by a complainant to meet the definition and requires the employee to act reasonably and exhaust all internal procedures. In the instant case, the Complainant was well aware of the grievance procedures and how to address concerns within her workplace, yet had chosen not to do so. She had also refused to engage with the Respondent upon tendering her resignation, or to retract her resignation.
In terms of the reasonableness required of both employers and employees, reliance was also placed on Murray v Rockabill Shellfish Ltd [2012] E.L.R. 331, where the EAT held: “TheTribunal must consider whether because of the employer’s conduct the Complainant was entitled to terminate his contract or it was reasonable for him to do so. An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. In the case of Brady -v- Newman UD330/1979, the Tribunal stated at pp 9-10: “... an employer is entitled to expect his employee to behave in a manner which would preserve his employer’s reasonable trust and confidence in him so also must the employer behave.”” In this respect, it was submitted that on either Party’s account, the conduct of the Respondent was not of a type or degree that either amounted to a significant breach of the contract of employment or conduct that showed that the Respondent no longer intended to be bound by one or more of the essential terms of the contract. In fact, the conduct of the Respondent clearly shows a willingness to engage and deal with Complainant’s grievance as soon as being made aware of same.
In summary, it was submitted that the legislation and caselaw have set a deliberately high bar before an employee can succeed in a constructive dismissal complaint. It is the Respondent’s position that the Complainant had not exhausted all internal procedures. She claims to have left for reasons that have no merit, and which were never raised with the Respondent until giving notice of her resignation, having been in regular contact in the interim during her sick leave. Even at the stage of her resignation, her issues could have been resolved but she declined same. At all material times, the Respondent engaged with and behaved towards her as any good and decent employer should. It is the Complainant who has acted unreasonably by alleging to have resigned for reasons which she never made known to her employer and never gave management a chance to resolve. Accordingly, dismissal of this complaint was urged.
Findings and Conclusions:
For a successful complaint of constructive dismissal referred to the WRC under Section 8 of the Unfair Dismissals Act 1977, the Complainant must satisfy the definition in Section 1 which provides: “dismissal, in relation to an employee means- (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 or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,…” This statutory definition is mirrored in the classic formulation of the ‘contract’ and ‘reasonableness’ tests required for a constructive dismissal set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] IRLR 27. The tests are interchangeable and satisfaction of one or both tests will suffice. The ‘contract test’ provides: “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 or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The reasonableness test requires an assessment of whether the employer “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”
Unlike the position in complaints of unfair dismissal referred under Section 6 of the Unfair Dismissals Act 1977, the definition of constructive dismissal provided by Section 1 firmly places the burden/onus of proof on the employee to show that termination of the employment contract was justified. In Berber -v- Dunnes Stores [2009] E.L.R. 61, in the context of a complaint of constructive dismissal, the Supreme Court noted that in determining whether there has been a breach of the implied term of mutual trust and confidence in an employment contract : “1. The test is objective. 2. The test requires that the conduct of both the employer and the employee be considered. 3. The conduct of the parties as a whole and the cumulative effect must be looked at. 4. 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.” The caselaw also overwhelmingly supports the position that an employee must have firstly exhausted all alternative avenues before terminating the contract e.g. Conway -v- Ulster Bank Limited UD 474/1981. However, there are situations whereby employees have been found to be justified in resigning with immediate effect e.g. where there has been a fundamental breach of contract. Caselaw has also identified situations whereby an employee may be justified in not exhausting all internal procedures before resigning e.g. where the employee is unaware of such procedures or grievances are not investigated in a proper or timely manner.
I must therefore apply the law to the factual matrix herein to determine on the balance of probabilities whether the Respondent had behaved in such a way that amounts to a repudiation of the employment contract. It is not usually necessary to consider whether there is merit to an employee’s grievance/s giving rise to a decision to resign. Rather the issue for determination is invariably whether internal procedures were exhausted first such that the employer had been afforded every opportunity to resolve such grievance/s. However, in the instant case, the alleged threat to the Complainant is relevant to determining whether she was entitled to resign without firstly notifying management of the incident giving rise to same or availing of the grievance procedures. To this extent, it is necessary to make a factual determination.
The Complainant and Mr A give very differing accounts of what had occurred between them in the workplace canteen on 31st December 2021. Having observed them both give evidence and considered the evidence given very carefully, my impression was that as time went on, the incident had amplified in the Complainant’s recollection whilst Mr A downplayed the incident and the reality of what occurred lies somewhere in between. Notably, the Complainant’s direct evidence contained further detail not referred to in her complaint form such as the reference to Mr A raising his hand whilst purportedly stating that she would be in “serious trouble” if she reported the matter and to feeling too threatened to report the matter. Likewise, on his own account, Mr A perceived the Complainant’s emotional reaction to be serious enough for him to leave the building to avoid further confrontation yet he did not think it serious enough to record an incident report. I am further of the view that having taken great pride in her work for which she was valued, the Complainant was incredibly slighted by what she perceived as a criticism from Mr A. This was not helped by the fact that she was not working her usual shift under her usual supervisor. The fact that she had obliged the Respondent at short notice is testament to her work ethic. There were also external factors at play including her back pain and other difficulties. Mr A was new to his role, English was not his first language and he probably could have handled the matter more professionally such as by pre-arranging to go through the checklist rather than approaching the Complainant in the impromptu manner he did.
Applying the contract test to the factual matrix, I am not satisfied that the Respondent 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 or more of the essential terms of the contract such that the Complainantwas entitled to consider herself constructively dismissed. On her own evidence, the Complainant had been furnished with grievance procedures but chose not to avail of same. It is also common case that the Complainant’s direct supervisor and managers were unaware of the incident with Mr A on 31st December 2022 or how she felt about the future of her employment as a consequence. Therefore, they could not reasonably have been expected to have addressed any difficulty the Complainant had with Mr A in line with their contractual obligations under the Respondent’s grievance procedures.
Applying the reasonableness test, I am not satisfied that the Respondent has conducted itself so unreasonably such that the Complainant could not be expected to put up with it any longer. Even if I accept her position that she was too afraid to report the matter to anyone on foot of a perceived threat from Mr A, I cannot accept that such a fear remained once she had reported the matter to Ms C upon tendering notice of her resignation on 29th April 2022. On her own account, Ms C’s reaction had been to ask her to retract her resignation so that the matter could be resolved with a reassurance that it would not occur again. In my view, at that stage, the Complainant should have reasonably afforded the Respondent an opportunity to resolve the matter. It is quite possible that a resolution could have been found such as a work arrangement that did not entail her having to work with or encounter Mr A again. However, the Complainant declined this opportunity and recommenced employment with her former employer. In my view, there was nothing further that the Respondent reasonably could have done in the circumstances.
Decision:
Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this complaint of constructive dismissal in accordance with its provisions. Whilst it was her prerogative to resign from her employment, based upon the aforesaid reasoning, I am not satisfied that the Complainant has met the burden of proving that she was constructively dismissed. Accordingly, I dismiss this complaint.
Dated: 13th of March 2024
Workplace Relations Commission Adjudication Officer: Aideen Collard
Key Words: Sections 1 and 8 of the Unfair Dismissals Acts 1977-2015 – Complaint of Constructive Dismissal – failure to notify employer of grievance or exhaust internal grievance procedures before resignation