UDD247

UD/23/40

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00035390 (CA-00046553-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 16 March 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 16 January 2024. The following is the Decision of the Court.

DECISION:

This is an appeal by Orla Smyth (‘the Complainant’) of a decision of an Adjudication Officer (ADJ-00035390 - dated 10 February 2023) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer held that the Complainant’s claim of constructive unfair dismissal by her former employer The Teresian School (“the Respondent”) was not well-founded.

The appeal was lodged to the Labour Court on 16 March 2023. The Court heard the appeal on 17 January 2024.

Factual Matrix

The Complainant commenced working in the Respondent School as a Montessori teacher in September 1997. She became ill in September 2020 and was absent from work due to stress. She did not return to the workplace. The Complainant submitted a formal complaint under the school’s Respect and Dignity in Our Work Policy on 25 February 2021. She resigned her position on 20 August 2021. The Respondent denies that the Complainant was treated in a manner which amounted to a constructive dismissal.

Position of the Complainant

The Complainant made a formal complaint of bullying on 25 February 2021. She resigned due to the Respondent's failure to conduct an expeditious investigation into her complaint, and/or its unreasonable conduct towards her in relation to this.

The Complainant was subjected to hostile comments and behaviour from colleagues on various occasions during 2018, 2019, and 2020, as they believed her unwillingness to teach classes outside of her contractual obligations was in some way unfair to them. The Complainant made the Respondent aware of the toxic environment at work. In March 2020 she felt obliged to sign a written contract, following attempts to alter her terms and conditions of employment. The Complainant became ill because of ongoing stress and anxiety and was certified unfit in October 2020.

Having submitted a serious complaint, the Complainant was entitled to have the matter investigated with reasonable expedition, both as an express matter of contract in accordance with the Policy, and by reference to the most basic requirements of fair procedures.

Her decision to resign her employment was, on any objective analysis, a perfectly reasonable one.

The Complainant’s requests to have her complaint investigated in a timely way were met with repeated delay on the part of the Respondent without any explanation.

The Policy obliges the investigator to endeavour to agree Terms of Reference regarding the conduct of the investigation in advance of the commencement of the investigation. Following requests to provide Terms of Reference made over a three-week period, the Respondent committed to do so within one day of 26 July 2021, but then ignored its own timeframe. Notwithstanding, the Complainant’s repeated pleas to commence the investigation, no investigation occurred by 20 August 2021, at which point she felt she had no option but to resign from her employment. The Complainant had lost trust and confidence in the process, in circumstances where despite repeated requests for a full and fair investigation into a serious complaint of bullying made in February 2020, no such investigation commenced.

The Complainant could not have been expected to put up with the conduct of the Respondent. The Complainant tried to avail of the relevant procedure and have her complaint resolved but was prevented from exhausting this by the Respondent.

The Respondent's was aware that the Complainant was suffering from medically certified work-related stress and anxiety from September 2020 onwards. It was repeatedly put on notice of the stress and anxiety that its ongoing failure to commence a fair and proper investigation was having on the Complainant.

Attempts by the Respondent to belatedly mend its hand by providing revised Terms of Reference on 25 August 2021, five days after the Complainant’s employment terminated, should be disregarded by the Labour Court.

The Respondent's failure to investigate the Complainant’s complaint of bullying in a timely way caused the stress and anxiety which she suffered since September 2020 to continue, such that she has been unable to mitigate her loss by engaging in alternative employment.

The Court was referred to Malek Zatewsii v ATR Restoration Limited, UD 1818; Rehab Group v Annette Roberts UD/19/100; Berber v Dunnes Stores, 2009, ELR 61; Ranchin v Allianz Worldwide Care S.A, UD1636, in support of the Complainant’s position that she was constructively dismissed.

The Court was referred to Liz Allen v Independent Newspapers (lreland) Limited, UD 641/2000; Homecare Medical Supplies v Pauline O'Connell 2017, UDD 1747; A Manager v A Hotel/Guesthouse, 2019, ADJ-00015339; An Employee v A Community Forum 2022, ADJ-00034982 in relation to the Complainant’s inability to mitigate her loss when her employment ended and her entitlement to be compensated in respect of said loss.

Position of the Respondent

The Respondent’s position is that it was entirely unreasonable for the Complainant to resign when she did, and she does not satisfy the test for constructive dismissal. The Complainant made allegations alleging bullying and breaches of fundamental terms of her contract of employment, which are denied. She did not resign because of the alleged bullying or the alleged breaches of her contract. She resigned on 20 August 2021 because of alleged delays in the investigation process.

The school dealt with her complaint in a perfectly reasonable fashion. The complaint was made at the end of February 2021, and mediation proposed in March. Mediation took place and failed in May. An investigator was appointed in June. An investigation meeting was arranged with the Complainant on the 8 July which was cancelled solely due to objection on the part of the Claimant’s solicitor to the Terms of Reference on the 7 July 2021.

The Complainant unreasonably resigned her employment on 20 August when the Terms of Reference were not revised in a period of weeks. It was extremely difficult to obtain instructions for the revised Terms of Reference due to several factors which were: (a) The fact that the school was closed for July and August, (b) All relevant personnel took some annual leave during this time, (c) Covid-19 as with many things added to delays.

The delay between the 8 July and 20 August 2021 to finalise the Terms of Reference was not so unreasonable that the Complainant had no option but to resign. Her behaviour in resigning in such circumstances is similar to resigning in advance of seeking to have one’s grievance investigated.

By letter dated the 25 August 2021 the Respondent’s solicitor sent the Complainant’s solicitor revised Terms of Reference and invited the Complainant to reconsider her resignation, and to engage in the investigation process. The Respondent wrote to the Complainant on 26 August 2021 asking her to reconsider her decision to resign. A follow up email was sent from the Respondent’s solicitor which was responded to the Complainant’s solicitor indicating that his client was unwilling to retract her resignation.

For a claim of constructive dismissal to be successful, an employee must demonstrate that there was a fundamental breach of contract by the employer and/or that the employer’s conduct was so unreasonable that she had no option but to resign. The Complainant satisfies neither test.

There was no fundamental breach of the Complainant’s contract of employment. The only alleged delay of any relevance is the period between the 8 July and 20 August 2012 as the earlier positive engagement by the Respondent illustrates no delay. The Claimant when provided with the revised Terms of Reference refused to retract her resignation.

The Claimant must demonstrate that her resignation was not voluntary i.e. that she had no alternative but to resign. The failure by the Complainant to fully utilise the grievance procedure and instead resign means that her case must fail. She knew that her complaint was being dealt with and was going to be investigated and she unreasonably decided to resign.

The Respondent denies that the Complainant was treated in a manner which amounted to a constructive dismissal pursuant to the Unfair Dismissal Acts.

The Respondent referred the Court to the cases of Cedarglade Limited v Tina Hliban UDD 1843; Western Excavating (ECC) Ltd v Sharp [1978] WLR 344; Iasc Sliogagh Dun Garbhain Teoranta Dungarvan Shellfish v Daniel Comanescu (UDD1756); and Beatty v Bayside Supermarkets UD142/1987 in support its position.

Testimony of Expert Witness - Mr Ultan Courtney

Mr Niall Beirne SC, on behalf of the Complainant, called Mr. Ultan Courtney to give expert evidence on conducting workplace investigations. Mr Courtney outlined his professional experience and involvement in conducting HR investigations since 1987.

Mr Courtney was asked to carry out a review of the Terms of Reference furnished to the Complainant’s solicitor on 2 July 2021. He did not provide a written report. In his view, the Terms of Reference were insufficient for several reasons. No clear authority was set out regarding who had authorised the investigation. It was unclear if the investigation was a fact-find exercise or an investigation to find blame. It appeared that the report would go to Ms Doherty, who was a party to the complaint. The matter of representation was not specified.

Mr Courtney said that Terms of References may vary according to different organisations and different issues. Some policies specify timelines for conducting investigations. An investigation into bullying and harassment is a serious issue. It is important that an investigator maintains contact with the parties, as people get anxious. The clock starts once a mediation process failed and if it had not started within that a three-month period you would have to ask questions.

Under cross-examination, Mr Courtney agreed that the investigator was appointed within a reasonable timeframe once mediation failed but asserted that it could have been quicker. He agreed that the investigator contacted the complainant within 3 days.

In his view, matters raised about the Terms of Reference were important and fundamental issues. It was important to establish if any the person who authorised the investigation engaged in any way with the matter under investigation. Parties need to know their liability, right of appeal, victimisation, etc. In his view those matters would have been resolved.

Mr Courtney was not aware of a situation where an investigation commenced before Terms of Reference were sorted out. He would not meet with a witness before Terms of Reference were agreed. The investigator decides on the relevance of any witnesses. In his experience Terms of Reference are very rarely varied once agreed, however issues can arise regarding matters of interpretation. It was very rare for an employee to resign because Terms of Reference were not completed.

The Law

Section 1(b) of the Act defines a constructive dismissal for the purposes of the Act as follows: -

“(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”.

Section 6(1) of the Act states:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Deliberation

The Complainant in this case claims that the failure of the Respondent to comply with her contractual entitlement to investigate her complaint of bullying in a timely manner constituted behaviour of such an unreasonable nature as to leave her no alternative but to consider herself constructively dismissed. The question for the Court to assess is whether the Complainant was entitled to terminate her employment because of the actions of the Respondent in this case.

The Complainant lodged a formal complaint on 25 February 2021 under the school’s Respect and Dignity at Work Policy which states that “every effort will be made to carry out and complete the investigation as quickly as possible”.

Mr Niall Beirne SC for the Complainant submits that the employer was obliged to comply with the policy and to progress a formal investigation quickly once the mediation process terminated in mid-May yet, despite assurances given, Terms of Reference were not furnished until 2 July 2021, and were so deficient as to render the commencement of the investigation impossible. He asserts that the Respondent failed to comply with the relevant policy to progress matters quickly and no explanation was given for any delays. He further submits that the Respondent was fully aware and on notice that any delays in progressing the investigation process was exacerbating the Complainant’s stress and anxiety. A new school year was about to commence, and the Complainant had a reasonable expectation that her workplace issues would be resolved promptly.

Mr Mark Curran BL for the Respondent submits the matter was a routine workplace investigation and that any issues regarding time delays only arose from 8 July onwards, after the Complainant’s solicitor sought to have the Terms of Reference amended. He submits that the only actual delay occurred in the period after 26 July 2021, as there was no further correspondence between the parties until the resignation letter dated 20 August 2021.

An amount of correspondence exchanged between the parties’ solicitors after the Complainant submitted a formal complaint on 25 February 2021 was furnished to the Court.

In the Court’s view the Respondent actions once a formal complaint was lodged in February 2021 were appropriate and timely. An external investigator was appointed within a reasonable timeframe. The parties agreed to a mediation process which concluded without a resolution on 11 May 2021. The Court finds no delays with the process up until to this point.

The appropriate timeframe for consideration of any delay is the period from mid-May when the mediation process failed up to 20 August 2021, when the Complainant resigned her employment.

After the mediation process concluded a second external investigator was appointed on 22 June some 6 weeks later. While that appointment could have been made more quickly, in the view of the Court it was made within a reasonable timeframe. Following the appointment of the investigator, Terms of Reference were drafted and circulated on 2 July, and a meeting arranged with the Complainant on 8 July.

On these facts as presented, the Court finds that the actions of the Respondent after the mediation process concluded in mid-May up to 7 July 2012 were not unreasonable, and up to that point in time there was meaningful engagement by the Respondent to address the complaint in a timely fashion. As a result, the Court concludes that the actions of the Respondent from the lodging of the formal complaint in the period from February 2012 to 7 July 2012 were not unreasonable.

The question the Court must consider is whether the delay, and the reasons for it, between 7 July 2021 and 20 August 2021 when the Complainant resigned are sufficient to ground her complaint of constructive unfair dismissal.

The process stalled after 7 July 2021, when the Complainant’s solicitor raised issues regarding the adequacy of the Terms of Reference and advised that the Complainant would not participate in a meeting scheduled to take place with the investigator the following day on 8 July 2021.

The Complainant’s position is that deficiencies identified with the Terms of Reference were fundamental issues, while the Respondent asserts that they were minor technical issues that could be addressed by reference to the policy. The Court makes no comment on the issues raised, as it is not the role of the Court in the within appeal to assess the adequacy of Terms of Reference or otherwise. The relevant question for the Court to decide is whether the actions of the employer in addressing any issues that arose were so unreasonable that it warranted the Complainant’s resignation on 20 August.

On 13 July the Complainant’s solicitor wrote seeking a reply to his correspondence of 7 July. He wrote again on 20 July and advised that he was instructed that the Complainant would have no option but to resign if matters raised in his email of 13 July were not addressed satisfactorily by close of business on Friday of that week.

On Monday 26 July 2021 the Respondent’s solicitor replied by email to advise that he “hoped” to revert in a day or two with revised Terms of Reference and other proposals to address the concerns raised.

In the Court’s view any delay that arose after 7 July was instigated by the Complainant’s solicitor when he raised queries about the Terms of Reference, and exacerbated by the Respondent, through their legal representative, in failing to reply promptly to the queries raised until 26 July 2021. In the Court’s view it was not unreasonable for the Complainant’s solicitor to raise issue with the Terms of Reference and seek to have those matters addressed before commencing a formal investigation process. From a plain reading of the reply of 26 July 2021, the Respondent communicated that the issues raised would be addressed and hopefully resolved shortly.

No further communications were exchanged between the parties before the Complainant resigned by letter on 20 August 2021.

Mr Curran BL for the Respondent submits that correspondence was in abeyance during August, when people were not at work. He referenced the Covid-19 pandemic and the closure of the school during the summer holidays by way of explanation rather than an excuse for the delay.

Mr Beirne SC for the Complainant submits that no explanation for any delay was provided to the Complainant, so that it could have been factored into her decision-making before she resigned her employment. He submits that revised Terms of Reference were not provided by 20 August 2021, a full month later (and a full two months since the appointment of the investigator). Mr Beirne SC asserts that the lack of contact from the Respondent and imminent recommencing of the school year tipped the Complainant over the edge, such that she felt at that point that she had no option but to resign.

There was a clear lack of communication from the Respondent during this period. The Court accepts that the Complainant felt frustrated and disappointed by the lack of progress made, and that her confidence in the process was undermined by delays in replies to communications. A common thread highlighted in correspondence by the Complainant’s solicitor was that delays in progressing the investigation was exacerbating the Complainant’s stress and anxiety.

There is an onus on employer when conducting investigations into allegations of bullying to do so in a prompt and expeditious manner. Mr Ultan Courtney, in his testimony, noted the importance of maintaining contact with parties to an investigation, as people involved can get anxious. In the Court’s view, the fact that the Complainant was absent from work suffering from stress was a relevant factor to be taken into consideration by the Respondent when conducting the investigation, and a timelier reply by the Respondent to some of the correspondence may have addressed some of the Complainant’s concerns.

However, the question the Court must consider is whether the delay, and the reasons for it, between 7 July 2021 and 20 August 2021 are sufficient to ground a complaint of constructive dismissal.

The Act places a high burden on a Complainant in a constructive dismissal case. To succeed in a claim of constructive dismissal, a Complainant must demonstrate that her decision to resign her employment resulted from either a repudiatory breach of her contract of employment by the employer or such unreasonable behaviour by the employer that she could not fairly be expected to put up with it any longer. A Complainant must establish that an employer’s unreasonable behaviour was such that she was justified in believing that he could not continue any longer in that employment. An employee must allow an employer an opportunity to rectify any problem before resigning.

Berber v Dunnes Stores [2009] IESC 10, the Supreme Court held:

‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’

Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence:

‘1. The test is objective.
2. The test requires that the conduct of both employer and employee be considered.
3. The conduct of the parties as a whole and the accumulative 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 question for the Court to consider in the within case is whether the cumulative effect of the interactions between the employee and employer crossed a threshold so as to damage the relationship to such an extent that it was reasonable for the Complainant to resign.

The Complainant’s position is that she tried to have her complaint resolved through the relevant procedure but was prevented from do so by the Respondent, who breached that procedure by not progressing an investigation in a timely manner.

The Court cannot agree with the assertion that requests to have the Complainant’s formal complaint of bullying investigated in a timely way were met with “repeated delay” on the part of the Respondent.

An external investigator was appointed without delay in March, after the formal complaint was submitted on 25 February 2021. The parties agreed to engage in mediation, which concluded unsuccessfully on 11 May 2021. A second external investigator was appointed on 22 June some 6 weeks later. Terms of Reference were circulated on 2 July. A meeting arranged between the investigator and the Complainant for 8 July did not proceed as the Complainant’s solicitor raised issues with the Terms of Reference. On 26 July 2021 the Respondent’s solicitor advised that he hoped to revert in a day or two with revised Terms of Reference and other proposals to address the concerns raised. There was no further correspondence from either party before the Complainant resigned on 20 August 2021.

On the facts as presented, the Respondent demonstrated meaningful engagement to address the formal complaint of bullying. The Court finds that delays in replies to correspondence during July and August when the school was closed, while not acceptable, do not objectively, in and of itself, amount to a repudiation of contract, or behaviour that was so unreasonable as to warrant the Complainant’s resignation.

To succeed in a claim of constructive dismissal an employee must demonstrate that they have pursued their grievance through any relevant procedures before taking the step to resign. 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.

There is no dispute that the Complainant in this case cooperated fully with the relevant process and sought to have her complaint expedited in a reasonable timeframe. She had a reasonable desire to have the matters resolved by the start of the new school year in September, and she raised concerns about the impact of the delays on her health. However, notwithstanding the issues raised about the Terms of Reference and a lack of communications over the summer period, the Court finds that there was meaningful engagement on the part of the Respondent to address her complaint.

The Court heard that it was very rare for an employee to resign in response to issues relating to Terms of Reference. The Court notes that the Complainant threatened to resign her in June and again in July, before resigning her position in August. There is an onus on an employee to give an employer am opportunity to resolve issues before resigning from their employment. In the view of the Court the decision by the Complainant to resign her position when she did was premature. She had not exhausted the procedures, in circumstances where the Respondent had demonstrated meaningful engagement to address her complaint. The next step was to finalise the Terms of Reference.

While the Respondent submits that the Complainant acted unreasonably by not retracting her resignation when revised Terms of Reference were furnished to her some days after she resigned, the Court has not taken that fact into its consideration as it finds that the relevant timeframe for consideration in this case is the period that preceded her resignation on 20 August 2021.

The Court has carefully evaluated the evidence adduced during the hearing and has taken full account of the written submissions and legal arguments made by the parties. The Court find that the within appeal can be distinguished from the cases ATR Restoration v Zalewski UDD1818 and Rehab Group v Annette Roberts UD/19/100 relied upon by the Complainant, where there was no or limited engagement by the employer.

Having regard to the facts of this case and the high bar set by the authorities in constructive dismissal cases, the Court finds that the Respondent did not repudiate the Complainant contract of employment or behave in such an unreasonable manner such as to warrant the Complainant’s resignation on 20 August 2021. Accordingly, the Court finds that the complaint is not well founded.

During the course of the hearing the Court heard expert witness testimony from Professor Harry Kennedy and Dr Peter Whitty in relation to the Complainant’s fitness to return to a work environment after her resignation and her ability mitigate her loss.  In light of the Court’s finding that the complaint is not well founded, it is not necessary to reproduce that testimony in this decision.

Decision

For the reasons set out above, the Court finds that the Complaint is not well founded.

The appeal fails and the decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
AR	______________________
21 February 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.