Complainant

Respondent

Parties

Celine  Walsh

Dundalk Institute Of Technology

Representatives

  N/A

Cait Lynch, IBEC

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-00058008-001

01/08/2023

The Complainant stated that she was left with no alternative but to resign from her position as a Science Technician – Veterinary Nursing on 8 June 2023 because her repeated requests for the payment of incremental credit as well as her concerns about her excessive workload were not resolved by the Respondent.

The Complainant raised a grievance in May 2022 in respect of the treatment that she was receiving in relation to the payment of incremental credit and her hours of work. As none of her grievances were upheld at stage 1 of the grievance procedure, the Complainant moved to stage 2 and a grievance hearing was held on 29 September 2022. The Complainant was once again dissatisfied with the outcome of stage 2 and sought to move to stage 3 of the procedure but the Respondent refused to engage with her. As the Complainant’s workplace continued to be intolerable and was having a detrimental effect on her health, she stated that she was left with no alternative but to give notification of her intention to resign from her employment on 8 June 2023.

The Respondent refuted the suggestion that the Complainant left her position because of its actions and stated that they always dealt with her various requests in a fair and equitable manner. Specifically, they stated that they agreed to:

·       Numerous requests to change her daily work patterns and weekly work shifts;

·       Organisation of semester timetables to facilitate her workload;

·       The awarding of incremental credit to her and her acknowledgement of same;

·       The backdating of her progression from Technician to Technical Officer despite the application being over 2 years post the actual date;

·       Discussions between the Complainant and her Head of Department and HR, where appropriate, on her various contracts of employment before issuing same;

·       Allowing the Complainant to withdraw her resignation letter in 2019 and reorganising her work schedule and contract to suit her requests;

·       The granting of Carer’s Leave at short notice in September 2022;

·       Agreement to a Career Break from September 2023 and also to the subsequent cancellation of same.

Despite their fair treatment of her over the course of her employment, the Complainant resigned on 8 June 2023 citing as one of her reasons the failure to deal with her grievances. The Respondent in an email of 9 June 2023 expressed their surprise about the allegation that they had not dealt with her grievances as the Grievance Procedure was still in process and had not concluded. Specifically, the procedure clearly stated that the WRC is part of the process of any possible resolution to a grievance, namely part 4. The email also asked the Complainant if she wished to reconsider her decision to resign and if she wished to discuss her options with her designated Head of School.

Although the Complainant initially replied on 9 June 2023 declining this option, she responded again on 15 June 2023 stating that she would meet with certain managers of the Respondent. This request was acceded to and a meeting took place on 26 June 2023. The Complainant, at the meeting, confirmed her intention to resign and stated that she was also returning to her former place of work in the private sector.

The Act defines ‘dismissal’ as follows:

“’dismissal’, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(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, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose”.

The classic formulation of the legal test in respect of constructive dismissal was provided by the UK Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27. This laid out two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ in the following terms: “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’ assesses the conduct of the employer and whether it “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.”

In Murray v Rockabill Shellfish Ltd [2012] E.L.R. 331, the Employment Appeals Tribunal held as follows:

“The Tribunal must consider whether because of the employer’s conduct the claimant 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.”

The Complainant stated that she was left with no alternative but to issue notice of her resignation from her position on 8 June 2023. Specifically, she stated that, despite having invoked the Respondent’s grievance procedure in May 2022, her repeated requests for incremental credit as well as her concerns about her excessive workload were unresolved.

It is not for me as the Adjudication Officer to replicate the grievance procedure of the Respondent by acting as an investigator of the complaint or by attempting to conduct an appeal of the first instance decision. I must however examine the conduct of the parties in relation to the grievance investigation itself, and note that although the Complainant’s asserted that the Respondent did not facilitate stage 3 of the process, the Respondent stated in evidence at the hearing that stage 2 and stage 3 were effectively combined and that even if they had decided to allow stage 3 to proceed, the grievance would have been investigated by the same two people who investigated stage 2. Having read the Respondent’s grievance procedure and considered their evidence, I believe that this is a reasonable assertion.

I also note that Mr O’Driscoll responded to the Complainant’s notice of resignation of 8 June 2023 by email on 9 June 2023 wherein he highlighted that the full grievance process had not been exhausted and gave her the opportunity to consult with management prior to finalising her decision to resign. I noted however that during the meeting of 26 June 2023, the Complainant confirmed her decision to resign. She therefore terminated her employment without having exhausted the Respondent’s grievance procedure as had been highlighted to her by Mr O’Driscoll in his email to her on 9 June 2023.

In considering whether her decision to resign without having fully utilised the Respondent’s grievance procedure was reasonable, I note that it is well established in case law that an employee is required to exhaust the Respondent’s grievance procedures to resolve their grievance prior to resigning and initiating a claim for unfair dismissal. 

Specifically, in the above mentioned case of Murray v Rockavill Shellfish Ltd it was affirmed that:

“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”.

Similarly in UD142/1987 Beatty v Bayside Supermarkets, it was noted that:

“The Tribunal considers that it is reasonable to expect that 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 Ltd 474/1981. In this case the Tribunal considers that procedure was not followed by the Claimant and that it was unreasonable for him not to do so. Accordingly, we consider that applying the test of reasonableness to the Claimant’s resignation he was not constructively dismissed”.

Considering the foregoing, and given that she failed to fully exhaust the Respondent’s grievance procedure, I find that the Complainant acted unreasonably and that she was therefore not constructively dismissed.

I find that the Complainant was not unfairly dismissed for the reasons set out above.