Complainant

Respondent

Parties

Mihaela Brinza

Cos Clubs Afterschool Centre

Representatives

Self-represented 

Mr Jerry Lane, Peninsula

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-00055397-001

03/03/2023

The complainant was employed by the respondent as a Childcare Worker from 14th June 2021 up to 8th December 2022, the date she resigned. She was earning €490 gross per week. Her complaint is constructive dismissal. The respondent denies the complaint in full.

Summary of Complainant’s Evidence

The complainant gave evidence that her witness showed her a letter on 3rd November 2022 which she had found in the dining area. This letter contained complaints against her from another staff member. She was alarmed that this letter was found in the dining area. The complainant and witness then emailed the Manager about the discovered letter on 4th November 2022.

The complainant said she went to work as normal on Friday 4th December 2022. On Saturday 5th December, she received a message from the Manager’s office of a meeting on Monday 7th November at 12 o’clock.

The meeting was attended by all staff, and she was unsure what the meeting was about. She took notes of the meeting. One of the issues raised at the meeting by the manager was that she was bringing in an outside person to investigate bullying complaints recently made by staff.

On 8th November 2022, the complainant was handed a letter stating that complaints against her would be investigated. She said that the process lacked confidentiality as all staff were made aware of complaints even though no specific details of the complaints were revealed.

She said since she commenced work in June 2021 that everything was fine. She even received financial support from the manager to pursue a level 6 qualification. She was a team lead and there were no previous issues of bullying raised prior to 3rd November 2022.

During the investigation process she remained working with those who had made complaints and she felt isolated. She said staff stopped talking to her and kept their distance. She said she previously had a good working relationship with staff and the manager.

It was announced at a general meeting of staff on 17th November 2022, that there would be new owners of the Centre. Initially there was a concern that staff would have to reapply for jobs although this never arose.

On 24th November 2022, she attended the investigation interview on the respondent’s premises. She had commenced her shift at 9am and then attended the investigation meeting at 1pm. She said she was under a lot of stress.

At the beginning of December 2022 arising from the stress she was under, she decided that she had to resign as she felt isolated at work. She handed her notice of resignation letter directly to the manager on 1st December 2022 which stated her leaving date of 8th December 2022. It stated the reason for her resignation as stress arising from allegations made against her.

She left her job on 8th December 2022. In the new year, as she had not received the investigation outcome, she contacted the investigator who informed her the report had issued to the manager on 6th January 2023. She contacted the manager on 14th February 2023 and received the report the next day. After reading the report she said she was happy and relieved that no bullying complaints were upheld against her. She was disappointed with the short email response from the Manager when she was forwarded the report on 15th February 2023. She said the manager always stated she was impartial although she did not believe this and referred to paragraphs in the investigation report. She was upset that she was accused of many things including unfounded allegations that staff left the centre because of her.

She had no contact with the manager from the time she handed her the resignation notice on 1st December 2022 other than the short email exchange of 14/15th February 2023 requesting the investigation outcome.

Under cross-examination by the respondent representative, she was asked how she felt everything was fine in her workplace when there were a series of complaints against her from staff in early November 2022. It was put to her that the manager had no option but to proceed with an investigation and that she had been afforded the normal due process and had full access to the investigator.

She was asked why she did not submit a medical certificate if she was suffering from stress. She replied that she needed to keep working for income and stayed in employment as long as she could. She said she commenced another job on 12th December 2022 which was 39 hours per week and was paid one euro less per hour.

She was asked why she did not submit a grievance prior to resigning. She replied that she gave her reasons prior to leaving and was unsupported by the manager.

Complainant Witness

The witness gave evidence of the circumstances of finding a complaint letter in the dining area. Along with the complainant, she then emailed the manager in relation to the discovered letter. She was not aware of any bullying allegations prior to November 2022.

Under cross-examination from the respondent representative, she clarified that she was the complainant’s sister and that she had been dismissed a few days prior to the complainant’s resignation.

Summary of Closing Submission

The complainant stated the reason she resigned was due to stress and lack of support from the manager. The only complaints she was aware of were from 3rd November 2022. She said she received no previous verbal warnings. She said she was not required to attend any previous meetings on conduct issues.

Summary of Mrs Quigley’s Evidence

Mrs Quigley confirmed her role as manager and clarified that the transfer of ownership did not proceed as the centre remained in family ownership. She outlined that there was a good working environment from 2016 onwards. Currently, there were thirty staff who were mostly on 35 hour contracts. She became aware of conflict between some staff in early 2022.

She said her style of management was open and she was available to staff. As staff grievances emerged in November 2022, she used an outside investigator to ensure fairness to everyone.

On her relationship with the complainant, she said they had a good working relationship in the beginning, and she paid for her level 6 course fees. However, in March 2022, a conflict arose between some staff arising from an event outside of work. She got a third party involved to meet with staff and assist with resolving interpersonal issues. She said there was a verbal warning to the complainant as part of that process.

There was no further issue until the summer of 2022, when she herself felt isolating and undermined by some staff. She confirmed that the complainant was one of them.

In August 2022, prior to travelling to a wedding she planned two separate trips for service users to reduce the likelihood of staff conflict. Despite this, an incident arose, and she received phone calls throughout the day of the wedding. She said she followed this up on her return by interviewing staff. She said that another verbal warning was given to the complainant arising from this incident.

She said there was another complaint on 3rd November 2022 although this was later withdrawn by the staff member. When she received other formal complaints in November 2022, she engaged an outside investigator. Her understanding was the investigator would continue to engage with the parties and issue the final report directly to each of the parties. She confirmed that she received the final report on 6th January 2023. She confirmed that the appeals process of the investigation report was not related to the complainant.

She said she did not receive any medical reports of stress from the complainant. She confirmed the complainant handed her the resignation letter on 1st December 2022.

Under cross-examination, the complainant questioned whether any verbal warnings issued as she denied receiving any. She was asked whether an investigation did in fact take place after the incident in August 2022.

Adjournment to Review Investigation Framework

As the terms of reference of the investigation was conducted under the Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work 2021 (Code of Practice), I enquired if the witness was aware of the contents of the Code. As she was unsure of my questioning, I adjourned to allow all parties to consider the framework under which the investigation was conducted.

On the resumption of the hearing, it was clarified that the investigation was conducted in line with both the Cos local policy and the Code of Practice. The witness was then asked about steps she took to ensure adherence with the code and particularly the sentence-

‘If possible, all parties should continue to work normally during the investigation.’

She clarified there was no discussion on these issues when the resignation letter was handed in.

As to why the investigation report was not forwarded to the complainant until January, she replied that she expected the investigator to deal with these matters.

Summary of Closing Submission

The respondent representative summarised the main points in their submission and the case law on constructive dismissal. It was submitted that the respondent had engaged an external investigator who had afforded due process to the complainant throughout the process. It was submitted that the complainant did not submit a grievance prior to her resignation.

He concluded that the complainant decided to leave the employment of her own accord and obtained alternative employment within days.

The Law

The definition of a constructive dismissal under the Act is:

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

(a) -

(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,…

The established test on constructive dismissal is the ‘contract test’ and/or the ‘reasonableness test’.

The contract test concerns whether the employment contract between the parties has been honoured and, if not, whether a breach was so serious that it frustrated the relationship between the parties beyond repair.

The reasonableness test allows for an objective assessment of the employer’s behaviour and to a lesser extent, the employee’s behaviour.

In Western Excavating Ltd v Sharp [1978] IRLR 332, Lord Denning described the test as asking whether the employer ‘conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, and if so, the employee is justified in leaving.’

The respondent representative relies on the test in Berber v Dunnes Stores Limited [2009] IESC 10 as follows-

a, The test is objective.

b, The conduct of both employer and employee be considered.

c, The conduct as a whole and accumulative effect must be looked at.

d, The conduct of the employer 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 such that the employee cannot be expected to put up with it.

Berber also re-affirmed the implied term in all employment contracts 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.

Section 8 of The Safety, Health and Welfare at Work Act also imposes a general duty to ensure ‘as far as reasonably practicable, the safety, health and welfare at work of his or her employees.’

The Health and Safety Act also puts an onus on an employee to act reasonably and not put oneself in danger. 

Application of Legal Tests to Facts of Case

The complainant has not asserted a breach of a specific contractual term. It was clarified in evidence that the normal operational terms and conditions of the contract were honoured. The complaint, put simply, is that she was stressed, isolated by colleagues, unsupported by her manager and consequently had to resign. The focus of her evidence was that her difficulties arose from early November 2022, when complaints were made against her by other staff.

In assessing the conduct of the parties, as per the test, there was a conflict in evidence on events from March 2022 onwards. The manager described the relationship as good in the beginning. There were then incidents in March, and August 2022 which resulted in two verbal warnings.

The explanation for not including documentary evidence of these warnings was that the matters before the adjudication hearing were not disciplinary in nature as the complainant had resigned. The respondent submitted also that they were not aware the complainant would give evidence of an incident free employment history prior to the formal complaints in November 2022.

The investigation report was put into evidence by the respondent. It is obvious from the evidence that trust and confidence between the manager and complainant had deteriorated even though is it unclear as to when this began. The complainant could also have been oblivious to any deterioration, particularly as she claims she received no warnings.

In constructive dismissal cases, the onus is on the complainant to show that circumstances existed that forced a resignation. In her evidence, she said she became stressed and isolated from November 2022 onwards after complaints against her were under investigation. She described the difference in treatment and isolation towards her from other staff as occurring from November 2022.

The documentary evidence from early November 2022 up to February 2023 assists somewhat in assessing the working environment at that time.

Working Environment

Even though the investigation was ongoing, the complainant said she had no option but to resign from 8th December 2022. She handed the resignation letter directly to the manager on 1st December 2022 which gave the reason for resigning as stress due to the ongoing investigation.     

The lack of intervention from the manager with the complainant from 1st to 8th December 2022 is surprising. At this point, there was an ongoing investigation on site concerning multiple staff and she was on notice of an upcoming resignation due to the stress of the allegations on the complainant.

When the report issued on 6th January 2023, again, the manager did not contact the complainant or send her the report.

On 15th February 2023, the manager forwarded the report, at the request of the complainant, along with a cover note stating-

‘I wish to advise you that an appeals process is already in progress if you want to contact me in the future please contact me through your solicitor as I will be answering no future emails as per instruction from my own legal team.’

In evidence, it transpired that the report findings on the complainant were not under appeal.

Grievance Procedure

The respondent representative put into evidence that the grievance procedure was not used prior to the resignation. He also referred to case law on this issue. It is an established requirement in constructive dismissal cases to use the grievance procedure before resigning, if possible. This ensures the employer is on notice and there is time to attempt to resolve any issues.

For the following reasons, I do not accept that the complainant did not bring her grievance to the manager prior to resigning.

The employment contract under the heading ‘Organisation and Procedures’ states ‘that any questions you have should be directed towards the Manager’.

The Centre’s grievance procedure states-

‘If at any time you have a grievance in relation to your terms and conditions of employment, please talk to your manager.’

On the 1st of December 2022, the complainant handed her resignation letter to the manager with a finishing date of 8th December 2022. It stated-

‘The main reason of my resignation are the allegations against me that caused me a lot of stress, and I consider that the best course of action for me at the moment is to resign.’

Under the circumstances, I consider this communication to be sufficient notification to the manager of a grievance. Although there was a tight timeline of a week, this was sufficient time for some intervention to be made. The manager was on notice, yet not discussion took place with the complainant.

Even without notice, the onus was on the manager to adhere to the Code of Practice.

Another reason for concluding a live complaint existed is that a series of complaints made by other staff were acted on by the manager. These complaints were unclear and did not state they were formal grievances yet they were still followed up on by the manager. If the norm with the centre was for staff to bring issues to the manager without specifically referring to the grievance policy, then the complainant could not have been expected to do any more than that also.     

Finding

The lack of intervention by the Manager between 1st to 8th December 2022 demonstrate the unreasonable treatment of the complainant. There was no discussion to ascertain the reasons for the stress and whether anything could be done to improve matters. It was clarified in evidence that the framework under which the investigation was conducted was the Code of Practice along with the local Cos policy. The Cos policy is silent on interventions during investigations although it does state under responsibilities on page 42 that managers should monitor and follow up the situation after a complaint is made so that sexual harassment or harassment does not recur.

There was a failure to assess whether parties could continue to work normally during the investigation as per 4.2.2 of the Code of Practice. The manager took a hands-off approach. The day-to-day operation of the Centre and staff assignments all come within the remit of the manager. Any attempt to improve the working environment or separate staff would not have compromised the impartiality of the manager and ongoing invesitgation. In fact, the manager should have been on high alert to address any staff concerns whilst the investigation was ongoing.

There was also a failure to communicate the investigation outcomes as per 5.2 of the Code. I accept the respondent’s representative point that the complainant had resigned at that stage. Nevertheless, the terms of reference at clause 17 clearly state the ‘the receiving manager will share the findings of the investigation with the complainant and the respondent’. These omissions could not have influenced the resignation which had already taken place. These events though are consistent with the evidence of the complainant that she was not supported by the manager prior to leaving the employment. The work environment for the complainant at that time was stressful. She gave evidence that she was isolated by staff an unsupported by the manager. I am satisfied of this credible evidence from the complainant and that she had taken sufficient steps and had no other option but to resign.

The notice of resignation containing the reason for leaving was a sufficient representation to put her manager on notice, particularly given how earlier complaints were acted on by the manager.

For the reasons outlined I find the complainant was constructively dismissed.

I find the case under the Unfair Dismissals Acts to be well founded. I find that the complainant was unfairly dismissed under the Unfair Dismissals Act.

Redress

In terms of redress, I must consider what is appropriate having regard to all the circumstances. The complainant confirmed in evidence that she obtained employment within days of resigning. Section 7 (3) of the Act, includes actual and prospective loss and as the complainant would have acquired redundancy rights after 2 years, I am factoring this into the award. I decide that an award of €1,960 compensation is just and equitable having regard to all the circumstances.

CA-00055397-001

I find that the complainant was unfairly dismissed. The respondent shall pay compensation of €1,960 to the complainant.

Constructive Dismissal