Complainant

Respondent

Parties

Jayne  Kerr

Halcyon Cleaning Services Limited

Representatives

  Self

 Mary Kirwan

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-00062818-001

26/01/2024

This is a claim of constructive dismissal under the Unfair Dismissals Act 1977. The following is the relevant extract from the Unfair Dismissals Act 1977 in respect of claims of constructive dismissal. The onus is on the Complainant in the first place to provide evidence in support of the complaint and to meet the test set out under the legislation. Section 1 of the Unfair Dismissals Act as amended defines dismissal in relation to an employee as:

“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 parties made written submissions prior to the hearing. Mary Kirwan was present as the representative of the Respondent and Linda Meakin, a director of the company, gave sworn evidence as did the Complainant Jayne Kerr. Mr Peter Kirwan who is referenced in the complaint on a number of occasions was not present for the hearing to provide evidence and I was informed that he was absent through illness. No medical evidence was provided and post the hearing the Complainant contested the claim that Mr Kirwan was in fact ill. The absence of Peter Kirwan means that the complaint is decided based on the available evidence and documentation provided by the parties.

The Complainant stated that she commenced employment with Halcyon Management Services Limited (the Respondent) in February 2021 as an accounts administrator on a part-time contract of 19 hours. Within two to three days with the departure of a previous employee she became a fulltime worker. Her salary at the point of departure was €32,500 per annum. The Complainant gave evidence of the employment starting out fine, that she pushed herself and that the employment is very results driven. She described the work that she did in relation to accounts and that in 2022 she was informed that another person who was previously the payroll manager would be taking over a promotional position which included responsibility for accounts. The Complainant felt that this decision and the manner in which it was arrived at was unfair. The Complainant handed in her notice but was persuaded to come back to which she agreed on the basis that she was told that her job was safe. On another occasion in August 2023, she and another employee were put under pressure to secure an overdraft as Peter Kirwan was trying to secure funding and at a meeting they were told that they were not going to be paid the following Monday unless they secured the overdraft. The Complainant objected, said that he could not do that and that he could not keep her money. That was the second time on which she threatened to give her notice and on that occasion it was related to the threat not to pay wages. Thereafter the Complainant continued working. She described an incident in the office in November 2023 when she entered the room where there were engineers and they started speaking in Afrikaans. Her evidence was that she asked was it appropriate that they would be speaking in another language, that this was an English-speaking office. She described receiving a barrage of abuse from other employees. She received a telephone call from Peter Kirwan who she described as shouting down the phone that she could not speak to an engineer like that. She was accused of being racist. She was not happy about those comments by Peter Kirwan and said that he would have to ‘choose between her word and the engineers’. Peter Kirwan’s response was to say, fine, and he later asked her for her resignation in writing. She wrote out her resignation. After she handed in her notice Peter Kirwan did not speak to her for days following which she was asked to go to speak to him. She went into a meeting which she recorded because she said that this meeting was to take place behind closed doors with nobody else present to take notes. Other employees knew she was going to record the meeting. At that meeting she was described as a mental case, and he spoke about other employees. She contended that in the meeting  implicitly she was threatened regarding the employment of her husband and her daughter both of whom were employees of the company at the time. She was told that her work and her work ethic were not in question. At the hearing she clarified that the notice she wrote after the 6th of November was torn up by Peter Kirwan. After the meeting with Peter Kirwan she did not know what to do at that point, she felt disgusting and referred to the way in which he spoke about other staff at the meeting. After that incident in November and the meeting with Peter Kirwan for the next four to six weeks she wasn’t happy.

 On the 11th of December 2023 she had a planned meeting with Linda Meakin about the accounts at which she said that she was going to leave, that she wasn’t happy in the company. She said she would work until the end of January. In her evidence she said that Linda Meakin remarked she didn’t want Peter Kirwan to hear what she was saying, referring to someone else who had left the company, and she asked her to leave it with her, that she would talk to Peter Kirwan to smooth things out. The Complainant stated she left it at that. On the following day she came in and Linda Meakin asked her was she still considering leaving to which she replied she was, that she was still unhappy.  Linda Meakin replied that it was better that she would go now straightaway and spoke about doing a transfer of information to another named employee. The Complainant was shocked as she had said she would work until the end of January to help with the accounts, and she sat there in tears. Her contention is that she was forced out of the company, that Linda Meakin took her moment when she could to get rid of the Complainant. She described the work that she had done, that a promotion had been dangled in front of her for two years, and that she had worked across four or five companies to complete work.

That afternoon Peter Kirwan came to the office and said he thought a break would do her good and maybe in the future she would return, that he would see her in January or February once she had had a break. He asked her to come in and help S with the handover and she agreed. On the Wednesday she had a hospital appointment but when she went in on the Thursday afternoon she had been locked out of the system and she couldn’t access anything. She then cleared up her things and left the building.

In cross-examination the Complainant stated that she had threatened to or had resigned twice prior to the 12th of December. Asked if she had received a contract of employment and a staff handbook, she stated no and that she had not received any staff handbook. She later stated that the contract which was presented by the Respondent was for her part-time position which she performed for two days, and she did not receive any further contracts or any contracts for the other companies for which she worked during her time in the employment. She denied receiving the staff handbook at all. Asked by the Respondent if she was aware that there was a grievance procedure she replied yes, loosely. Asked by the Respondent if management’s right to manage included a right to have informal meetings around issues the Complainant replied yes. Asked by the Respondent if she thought that it was fair that other staff knew that she was recording the meeting, and that Peter Kirwan did not know, the Complainant replied that she didn’t know.  In her evidence she referred to being abused, intimidated and shouted at by Peter Kirwan. She agreed that she was told by Linda Meakin that she would be paid in lieu of notice. At that point she had not put anything in writing and  was told that she had to give notice in writing of her resignation. She is seeking compensation by way of redress for loss of income. On mitigation of losses, she has not obtained employment since and is not actively seeking similar work or work in an office environment.

In response to the evidence of Linda Meakin the Complainant stated that it was not the case that there was very little turnover of staff, and she put a list of names to Ms Meakin of former employees who left while the Complainant was in Halcyon, and these amounted to eight to ten employees. There was some disagreement around the detail and at least one person was said to be returning. Also, in response to Linda Meakin the Complainant denied that there was any reference by Linda Meakin of  the option of using the grievance procedure to deal with her issues in the employment at their meeting on 12 December 2023 when she first spoke about her unhappiness and leaving the employment.

In their written submission the Respondent refuted the allegations of inappropriate treatment and stated that the Complainant had not ever raised any complaints through the bullying prevention and resolution policy. Had she done so these would have been promptly investigated. The company takes any actions deemed necessary to ensure a respectful and professional environment. There were no formal complaints regarding the Complainants behaviour towards another member of staff in November 2023 and neither did the Complainant submit a grievance about the issues she has mentioned in her complaint. Texts submitted by the Complainant could have taken place in any context. By her own admission the Complainant confirms that she herself was verbally abusive towards Mr Kirwan on December 22nd where she uses profanities towards him.

The company consistently complied with the terms and conditions outlined in the Complainant’s employment contract and she was provided with a safe working environment, reasonable working hours and all contractual benefits. The company listed a number of benefits and supports which were implemented in favour of the Complainant during her employment. The Complainant signed a contract of terms of employment on February 16th, 2022(copy supplied). There are grievance and anti-bullying policies in place.

The Complainant was paid in lieu of one month’s notice which would be the practice when a person with access to the company systems and accounts would leave the company that their access would be removed, and they would be paid in lieu of notice.

On the 11th of December 2024 the Complainant spoke with Ms Meakin and advised she was unhappy and wanted to leave. It is accepted that Ms Meakin was very surprised as the Complainant was a valued member of the team. The position of the company and the evidence of Ms Meakin is that the Complainant was informed that there was a grievance procedure in the company and if she wished to raise concerns they would be reviewed appropriately. The evidence of Ms Meakin is that the Complainant was advised to write everything down, to consider her position, to discuss it with her family and they would discuss it the following day. On the following day the Complainant confirmed that she was resigning, and it is the evidence of Ms Meakin that again the Complainant was advised of the availability of a grievance procedure which she declined to pursue. It is agreed that Mr Kirwan, the CEO, met with the Complainant on that afternoon of the 12th of December and she advised him she was resigning and they noted that the Complainant recalled him saying to her “the break would do her good and maybe she would return at some point in the future”. A letter of resignation was submitted on the 14th of December 2023 . The Respondent relies on a robust grievance procedure which was never used by the Complainant. All reasonable steps were taken to support the Complainant. Case law was cited including the relevant section of the Unfair Dismissals Act. It is submitted that the employee must demonstrate that:

1.     The employer had acted in such a manner so as to breach a fundamental term of the employment contract, or

2.     The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

In this case the company contends that Ms Kerr resigned voluntarily and provided a written letter of resignation without exhausting any internal procedures as were made available to her.

Prior to the hearing the Respondent wrote to the WRC stating that they considered that the undisclosed recording of the meeting with Mr Kirwan in November 2023 was a private matter. At the hearing the Respondent stated that Mr Kirwan had advised that he had no objection to the recording being opened to the hearing. I asked the Respondent’s rep if having heard the recording she agreed with the Complainant that there were profanities used and other negativities used towards her in the meeting. The representative conceded that it was not a perfect recording of a meeting, there were profanities used by Mr Kirwan in expressing himself, but the Complainant had also used terms which were not perfect either. This was a meeting aimed at an informal resolution of an issue in the workplace.

 Additional relevant evidence was provided by Linda Meakin related to the incident in November involving the engineer. Linda Meakin stated that she was not in the office that day, that she was in fact in London and that she received contact from the engineer in question who was very upset at the comments said to have been made by the Complainant and another member of staff also contacted her. Linda Meakin spoke to the engineer subsequently and asked him if he wished to take the matter further, but he declined to do so saying that he believed that it was dealt with and it wouldn’t happen again. Referring to the events of the 11th and 12th of December 2023 the witness stated that there was always a meeting around that time each month and she and the Complainant conducted their business as usual. The Complainant then stated that she was thinking of leaving, that she was not happy there anymore, she felt it was time to leave and referred to leaving at the end of January. Linda Meakin referred to urging her to write it all down and to discuss it with her family before making a final decision. On the next day she asked the Complainant had she discussed it with her family, and she asked what she had decided to do. The Complainant said she still intended to leave. She then asked the Complainant to go somewhere private and another employee S to attend the meeting where the Complainant said that she was going to leave and said again that she was happy to stay until the end of January. Linda Meakins  response was that  if she was definitely leaving it was not ideal that she would stay, that if she was unhappy that  it was better to leave straight away, that she would be paid notice.

Asked about the working relationship with the Complainant Ms Meakin said she thought it was very good, there was an amicable atmosphere, and she described some social engagements involving the Complainant. Asked about the grievance procedure and the suggestion in the submission that she had encouraged the Complainant to use the grievance procedure the witness stated that it had been mentioned. In the summary of their case the Respondent stated that there were local and informal procedures which were used in the company. There is a staff handbook. An incident did occur in November which was resolved. The Complainant had resigned on a number of occasions. She was asked to put her resignation in writing and she did so on the 14th of December and was paid in lieu of notice.

The first item to be addressed is the Complainants knowledge of a contract and the related terms. In a submission the Complainant stated that the contract she signed was for her employment as a part time worker. This is not correct. On her evidence she became a full-time worker shortly after she commenced in the employment in 2021. The contract of terms was signed in April 2022. At the hearing she also referred to not receiving a contract for the work she did for other subsidiary or related companies as part of her position regarding non receipt of a contract, but which is not relevant. In her evidence the Complainant stated that she was ‘loosely’ aware of the grievance procedure. ‘Loosely or otherwise, she was aware of the existence of such a policy. The Complainant provided different versions of the meeting with Linda Meakin on 12 December 2023. In her written complaint version, she spoke about telling Linda Meakin of her unhappiness with Peter Kirwan at their meeting on 11th December  and of her intention of leaving but staying until January. In later versions, she referred to Linda Meakin effectively pushing her to leave, telling her on December 12 that she had not changed her mind and the Linda Meakin saying that ‘it is better that you go then’ to the astonishment of the Complainant. At the hearing, the Complaint referred to the meeting with Peter Kirwan in November and that incident as the central cause of her unhappiness that led to her speaking to Linda Meakin. But the written accounts of the meeting with Linda Meakin also refer to dissatisfaction with Peter Kirwan about other matters, ‘promises not kept’ chief of which was the decision to promote another worker to a position the Complainant appears to have felt was to be her reward for work done on behalf of the Respondent. In spite of the written and verbal statements regarding the behaviour of Peter Kirwan at and outside of meetings, their meeting on the afternoon of 12th December appears to have been very amicable and considerate on his part. His reference to her perhaps feeling better in a few months is consistent with the contents and explanation for her resignation  as expressed by the Complainant in her letter of resignation where she thanked both Linda Meakin and Peter Kirwan for the opportunity to work alongside them over the previous two years. The remainder of the letter does refer to disagreements and difficulties ‘but we achieved quite something’. She referred to her own contribution and then went on to describe her own health difficulties-relating them to the workplace only in reference to her workload. There are general references to difficulties she experienced with her unhappiness over a couple of months. There is a reference to promises not kept and other peoples actions affecting her more than they should.

On the balance of probabilities, the Complainant was unhappy in the workplace at the time of her resignation. I am satisfied that she clearly indicated her intention of resigning due to that unhappiness to Linda Meakin in the meeting on December 11th. Based on her own oral evidence to the hearing the suggestion that Linda Meakin clearly offered the Complainant the opportunity to the Complainant of staying and pursuing her grievances at the same time is very unlikely. It  is reasonable to conclude however that given the previous history of withdrawn resignations by the Complainant, she did provide the Complainant with the opportunity to reflect on her position overnight until December 12th and also that the Complainant made her own decision without any pressure from Linda Meakin. The Complainant is of the view that Linda Meakin took the opportunity presented by the Complainant, but then the Complainant had come forward entirely of her own volition on this occasion and spoke about leaving without any prior indication there was an issue or issue of substance at that time. What shocked the Complainant undoubtedly was that she was effectively closed down and rushed off the premises without any prior notice, especially from Peter Kirwan at their meeting on December 12th. But while this practice can be extremely unpleasant for an employee, so long as the employer is making a payment in lieu of notice, they are entitled to require immediate vacation of the role.

From the letter of resignation, it is clear that by December  11th 2023 the Complainant was unhappy for a variety of reasons. The question to be decided is whether that unhappiness was justified to such an extent that the Complainant has justified a complaint of unfair(constructive) dismissal. Before finding on the fundamental question, I find it necessary to comment on the assertions by the Respondent  that they take complaints very seriously and provide for their investigation within their staff handbook. At the same time, at the hearing they questioned the Complainant on their stated approach of handling matters informally. My observation of the manner in which Mr Kirwan handled issues was more to a standard of offhand than the general understanding within HR  speak of the word informal. It should go without saying that resolving matters informally within a staff environment is to be encouraged rather than criticised, but the accounts I received under sworn evidence of exchanges with the Complainant exceed the threshold of good sense and appropriate leadership by a senior manager. And the question must be asked, if an employee had/s  an issue with Mr Kirwan or Ms Deakin as Directors of the Company-who are they to approach with a grievance or a complaint of bullying.

The core difficulty with the Complainants complaint of constructive dismissal, is she did not make any formal grievance while in the employment. Nor did she inquire about how to do so prior to or as part of her informing Linda Meakin of her intention to leave in January 2024. Effectively she is passing the burden of a full investigation of her various issues to the WRC under her complaint without having exhausted or even attempted to explore the internal procedures for doing so, notwithstanding the difficulty I have observed in making a complaint against one or two of the most senior employees and directors. From the Respondents submission, there are two sides to be heard in relation to each individual item, perhaps three in the case of the incident involving other employees which occurred in early November 2023. And on that issue, at the hearing  the Complainants sense of unhappiness was traced directly to that incident and Peter Kirwans response. However, as it was other employees complaining about the Complainants behaviour on that occasion, an investigation in the WRC forum would become an investigation within an investigation. This is not appropriate. Commencing an investigation process at the WRC without an internal investigation  is not the practice in any employment procedure that I have seen., including the one in this employment and nor should it be. The purpose of grievance/anti bullying procedures is to provide an opportunity to resolve inter staff issues as well as to investigate the grievances. In this case the Respondent was not afforded the opportunity to do either and it would therefore be manifestly unfair to conclude the Complainant was justified in her complaint of constructive dismissal due to the issues she had in the workplace without the Complainant  raising complaints internally in the first instance and prior to deciding and informing the respondent of her intention to leave on 11th December 2023 as notified to Linda Meakin on that day and confirmed the following day.

CA-00062818-001 The Complaint of constructive dismissal by Jayne Kerr against Halcyon Cleaning Services Ltd is not well founded.