Complainant

Respondent

Parties

Brenda  Cummins

 Moore Cleaning Services Ltd

Representatives

  Self

 Mr Greg Moore

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-00056046-001

13/04/2023

The Complainant commenced employment with the Respondent on 19/10/2020.  She worked as a cleaning operative (DOC Team) until she resigned on 05/04/2023.  The Complainant submits that she was constructively dismissed as a result of what she described as “bullying and harassment” over a period of time.  The Respondent submits that the Complainant’s grievance was properly investigated, and various measures were put in place to deal with the Complainant’s issues.  The Complainant was paid €11.20 per hour and worked ten hours per week.  She submitted her complaint in relation to unfair dismissal to the Workplace Relations Commission on 13/04/2023.

The Complainant gave evidence on oath.  She outlined the background which led to the issues which arose.  Her neighbour got the Respondent’s company to power wash her driveway in November 2022 and this resulted in some of the off spray and other debris spilling on to her property.  Her neighbour was also her manager (Manager A).  She made various calls to the Respondent to have her driveway cleaned and as a result of this her neighbour (Manager A) began a series of behaviour and actions which she alleges amounted to bullying and harassment.  She raised a formal grievance with the Respondent and a meeting was arranged.  She did not attend as she object to the proposed presence of another manager (Manager B) against whom she had also mentioned in her complaint.  When she did meet with the Manging Director, she was unhappy with the way the meeting was conducted. 

The Complainant gave evidence in relation to a number of incidents involving Manager A as a neighbour and as her manager in the workplace.  Some of these were reported to the Gardaí but no further action was taken. The Complainant disputed Manager A’s version of all the events.  She was on sick leave for a period of time and on her return, she had issues with her cleaning supplies, and she submits that this is a further example of the manner in which she was treated.  The Complainant gave evidence that she had to purchase her own cleaning materials in order to do her job properly on the assigned site.

The Complainant also gave evidence that the client, on the site where she was based,  asked her to move her hours to an earlier start and she was happy to facilitate this.  However, she was subjected to further unfavourable treatment from one of the Respondent’s managers  (Manager C) who accused her of changing her hours without permission.  She was also accused of stealing cleaning supplies.  The Complainant stated that this manager was abusive towards her and insisted that her work hours should be 5pm to 7pm and not 3pm to 5pm as requested by the client.  It is the Complainant’s position that if her change of hours were not notified to the Respondent by the client then she should not have been subjected to the treatment she received from Manager C. 

The Complainant also gave evidence that when she submitted a timely request for compassionate leave to her Manager, she did not get response until the day of the funeral, and she was unable to attend the funeral in Northern Ireland given the short notice of approval.  She had asked another manager but was told that she could not approve.

The Complainant also stated that when she returned from sick leave she was subjected to “aggressive behaviour” from a number of the Respondent’s managers.

The Complainant was cross examined by Mr Moore on behalf of the Respondent.  The Complainant was asked to confirm that she had taken a case to the Labour Court in relation to the manner in which the Respondent operated the grievance procedure and she confirmed that she had.  The Complainant was asked if she had confirmed to the Labour Court that she agreed to be bound by the outcome of the Labour Court hearing and she confirmed that was correct. 

Mr Moore then read from the conclusions of the Labour Court hearing:

“Having considered the Parties’ written and oral submissions, the Court is satisfied that the Company applied its own procedures correctly and afforded the Worker a reasonable and fair opportunity to air the issues of concern to her.  That being the case, the Court does not recommend any further steps be taken by the Company in relation to the matter that is the subject of the within referral”. 

It was put to the Complainant that this was a clear and decisive outcome and that she was now attempting to raise issues in relation to how her grievance was handled as part of her constructive dismissal complaint.  The Complainant stated that although she agreed to be bound by the outcome of the Labour Court hearing she did not agree with their finding.  It was put to the Complainant that this position was contradictory, and the Complainant stated that she was putting her point of view across.

It was put to the Complainant that all her issues stemmed from a personal issue with her neighbour, and which was outside the workplace.  The Complainant stated that the neighbour got her work done using the Respondent’s team and that the neighbour was also using a car belonging to the Respondent when she hit off her car.  It was only when she sought assistance from the Respondent that her manager and neighbour commenced the bullying and harassment towards her in November 2022 and continued.

It was put to the Complainant that she alleged that her car was hit twice but the insurance assessor did not find any evidence of any damage.  The Complainant stated that she was aware of this, and she had to get her car repaired.

It was then put to the Complainant that while Manager A was aware of the change in her work hours this was not known to the other Manager (Manager C) who replaced Manager A.  The Complainant stated that the fact that Manager A did not inform Manager C of the change this was another attempt to get at her.

The Complainant was asked about the cleaning supplies, and she confirmed that she was left without any supplies.  It was put to the Complainant that the Respondent had quarterly delivery dockets which showed that the supplies were delivered to the site with the exception of the bleach she had requested.  The bleach is not supplied to any of their client sites due to the risks associated with it.  The Complainant stated that she had not seen these dockets but all she knew was that she did not have the supplies.

It was put to the Complainant that when she was out sick a manager went to the client site where she was based and took over the duties and took photographs of various areas which showed that it was not cleaned to the required standard.  It was also put to the Complainant that when this manager brought this to her attention when she returned from sick leave, she screamed down the phone at the manager and told her that she did not want anything to do with her.  The Complainant disputed this and stated this was not correct and that it was the manager who was actually abusive to her.  It was put to the Complainant that this was a new manager who replaced the original manager, and she should not have had any issue with her.  The Complainant stated that she only had a problem with her when she spoke to her in the manner in which she did.

It was put to the Complainant that when her house was cleaned by the Respondent’s team, she expressed satisfaction that it was done.  She agreed but wished to note that she had specifically requested to be informed when the work would be carried out so that she could be present, but this did not happen.  The work was done in her absence.

The Complainant was asked if she agreed that this entire matter resulted from a personal issue with her neighbour who was also her Manager, and this then escalated.  She agreed that was what happened.

The Adjudication Officer explained to the Complainant that in a constructive dismissal case she must demonstrate that her employment came to an end from either a repudiatory breach of her contract of employment by the employer or there was such unreasonable behaviour by the Respondent that she could not fairly be expected to put up with it any longer.  The Complainant stated that she was raising no issues in relation to her contract of employment and that her reason for resigning was purely linked to the behaviour of the various managers of the Respondent.

The Adjudication Officer asked the Complainant to present her evidence in relation to her attempts to mitigate her loss.  The Complainant stated that she did apply for various jobs and only succeeded in obtaining employment on 19/10/2023.  She remains in that role and is paid €13.40 per hour.  From the period 05/04/2023 until 19/10/23 the Complainant stated that she was in receipt of a Social Welfare payment of €303 per week.

At the end of the hearing the Complainant confirmed that she was happy that she was afforded the opportunity to present her case and she had no further submissions to add.

Mr Greg Moore gave evidence on oath on behalf of the Respondent.  Mr Moore is the managing director of the company.  Mr Moore stated that the Respondent disputes that the Complainant was constructively dismissed.  He sat in on the grievance meeting with the other manager.  The Complainant was advised that she had a right to be represented at the meeting but declined.  Mr Moore gave evidence that the Complainant’s grievance was fully investigated.  It was concluded that this was a personal issue between the Complainant and her then Manager (Manager A) who was also her next-door neighbour.  As part of their response to this the Respondent changed the Complainant’s Manager.  It is the Respondent’s position that their managers are competent people and during this time it was the Complainant who was aggressive towards them.  There is a limit to the number of Managers the Respondent can change, and it was felt that when Manager A was changed this would have helped but the Complainant still had issues with other managers.

Mr Moore gave evidence that the Respondent was very accommodating in relation to the Complainant, and this involved changing Managers and keeping jobs.  Mr Moore stated that it is the Respondent’s position that they were surprised that the Complainant was looking for other work. They had no problem with her staying on and they were always fair to the Complainant during her employment.  Mr Moore stated that the Respondent feels that when the Complainant failed to obtain a Contracts Manager role with the Respondent that this may have been a contributory factor in her decision to resign.  The only reason she did not obtain this role was due to her lack of management experience.

The Complainant cross examined Mr Moore.  It was put to Mr Moore that in his evidence he stated that other managers stated that the Complainant was aggressive towards them and asked him what evidence he had of this.  Mr Moore stated that he was going on what he was told by these supervisors and managers.

It was put to Mr Moore that there were a number of contradictory versions of events e mailed to him by the Managers and he was asked to clarify which version of these he actually believed.  Mr Moore stated that the incidents reported were investigated by the Gardaí and also the insurance assessor.  The outcome of these was that there was nothing further to investigate and this was what he believed.  Mr Moore was further asked if he noted the contradictions in the reports sent to him by the Managers and he stated that he had received a considerable amount of e mails in relation to this matter and he was satisfied that the Labour Court had confirmed that their handling of the grievance was correct, and the Garda and insurance assessor determined that there was no further action required and in that context the various contradictions were not a factor.

The Complainant has submitted a complaint seeking adjudication arising from her constructive dismissal from her employment with the Respondent on 05/04/2023. 

The Law:

Section 1 of the Unfair Dismissals Act 1977, as amended, in relevant part, states as follows:

(1)                “In this Act –

“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;”

As the Adjudication Officer I am obliged to establish if Section 1(b) of the Act of 1977 operates to validate this complaint of constructive dismissal. 

Considering the statutory definition contained in Section 1 of the Act of 1977 as amended, and the authoritative principles adopted by the relevant fora and the Courts, the onus lies with the Complainant to demonstrate that her resignation was justified.

In supporting her decision to terminate her employment the Complainant will have to prove that the circumstances of her dismissal met the tests as set out by Lord Denning MR in Western Excavating (ECC) v Sharp (1978) IRL 332, and described as follows:

“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 entitles to treat himself discharged from any further performance.”

And the reasonableness test which was expressed in the following terms:

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be expected to put up with it any longer, the employee is justified in leaving.”

Both of these tests have been followed by various Irish authorities.

In relation to breach of the Complainant’s contract of employment the Complainant’s evidence was that no breach occurred. 

In examining the conduct of the employer there was evidence that the Complainant had issues with the conduct of some of the Respondent’s managers and in particular Manager A. The Complainant did raise a formal grievance and the respondent dealt with this.  The Complainant made a referral to the Labour Court in relation to how the Respondent dealt with her grievance and received a recommendation in relation to that aspect of her issues with the Respondent.  In that context I am satisfied that there is no complaint in relation to the same matter before me.

In reviewing the “reasonableness test” the Supreme Court in Berber V Dunnes Stores [2009] E.L.R. 61 in considering the reasonableness test stated:

“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.”

There is no doubt that this was a difficult situation for the Complainant.  She had worked for the Respondent for just over 10 years. The unusual circumstances where her neighbour was also her Manager led to neighbour related matters causing difficulties in the workplace.  The Complainant believes that Manager A was completely responsible for this entire matter.  However,  I did not identify any endeavours on the part of the Complainant to initiate a conciliatory approach which could culminate in ensuring that professional working relationships were established.

As was explained to the parties at the hearing as the Adjudication Officer my deliberations are confined to workplace matters and in this particular case the provisions of the Unfair Dismissals Act.

I am satisfied that the Respondent took very practical steps to resolve the interpersonal difficulties between the Complainant and Manager A.  As a result of this she no longer had to report to this manager.  I do not accept that there is any causal link between the Complainant’s issues about her supplies, her working hours, other examples and her relationship with her manager/neighbour that would vindicate her decision to resign.   I was not persuaded that these were of such significance to justify the Complainant having to resign her employment.

The Complainant provided no evidence of her attempts to mitigate her loss.  She obtained employment approximately six months later. While I accept that she made some efforts to mitigate her loss, I am not satisfied that she approached this with the resolve that is set out in the case of the Employment Appeals Tribunal v Continental Administration Co Ltd (UD858/199) where it stated: 

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.  It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work.  The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

Based on the evidence and the authorities cited, I find that the Complainant has failed to meet the tests set out in Western Excavating (ECC) v Sharp 91978) IRL 332. 

I do not find that the complaint of constructive dismissal taken under the Unfair Dismissals Act to be well founded.

In all the circumstances, I find that the behaviour of the Respondent was not unreasonable such as to justify the Complainant terminating her employment by way of constructive dismissal.   I have decided that the Complainant was not constructively dismissed.

Constructive dismissal.  Reasonableness.