UDD2437

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00029839 (CA-00039748-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 15 November 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 18 September 2024.

The following is the Decision of the Court:-

DECISION:

This matter comes before the Court as an appeal by Eileen Murphy (the Appellant) of a decision of an Adjudication Officer in her complaint made under the Unfair Dismissals Act, 1977 (the Act) against her former employer, Presentation Secondary School Board of Management (the Respondent).

The Adjudication Officer decided that the complaint of the Appellant was not well founded.

 Summary submission and evidence of the Appellant.

The Appellant made comprehensive submissions to the Court detailing various events and occurrences during the latter period of her employment. She outlined that she had raised a grievance in November 2021 against the principal of the School. She set out that this grievance was resolved in mid-2020 following mediation which had been provided independently at the request of the Respondent. She submitted and gave evidence that the matters associated with this grievance were not matters which formed the reason for her decision to terminate her employment.

She submitted and gave sworn evidence that the reason she had decided to terminate her employment was that the Chairperson of the Board of Management had behaved in a manner which undermined her trust in her employer and that her contract of employment has been breached beyond repair as a result.

She clarified under oath when request to do so that the behaviour which led to her loss of trust and her consequent decision to retire from her employment under a scheme in place in the employment was

(a) The fact that she had been absent from her employment through illness in the weeks before 21st November 2019 and had not received any contact from the Chairperson of the Board of Management during that period, and

(b) The Chairperson of the Board of Management had e-mailed the Principal of the School who was the Secretary to the Board of Management in the run up to a Board of Management meeting in January 2020 seeking guidance as to how matters relating to the Appellant, including her continued absence from her workplace and the fact of a grievance having been raised by her should properly be brought to the attention of the Board at its then upcoming meeting.

The Appellant submitted and gave evidence that it was these behaviours of the Chairperson and not any aspect of her November 2019 grievance which were the cause of her decision to terminate her employment.

Summary submission and evidence of the Respondent

The Respondent made extensive submissions and gave evidence on a range of matters relating to the employment of the Appellant. The submission and evidence of the Respondent in relation to the matters which were, according to the submission and evidence of the Appellant, the reason for her decision to terminate her employment were an element of a much wider submission.

The Respondent submitted that the Respondent behaved reasonably and compassionately at all times in respect of the Appellant. She retired from her employment before exhausting internal procedures in respect of any matter which was a cause of concern to her.

The Appellant’s decision to retire was not caused by a fundamental breach of the contract of employment by the Respondent and neither did it result from any conduct of the Respondent which was so unreasonable that the Appellant could not have been expected to tolerate the Respondent’s behaviour any longer.

The Chairperson of the Board of Management did not contact the Appellant during a period of absence through illness in the weeks prior to 21st November 2019. The Chairperson gave evidence that his understanding of normal practice would be to allow a member of staff who is absent through illness the privacy and space to recover from her illness without intrusion by the Chairperson of the Board. He said that this manner of behaviour was his normal approach to such matters and was, in his understanding, reflective of normal practice in the education sector.

The Respondent submitted, and the Chairperson gave evidence, that the Chairperson did e-mail the Principal of the school who was the secretary of the Board of Management, to seek guidance and advice, including through the secretary from the Joint Managerial Body for Secondary Schools, as to how the Board should properly conduct itself at its January 2020 meeting when the Chairperson would make the Board aware of issues relating to the Appellant’s grievance and continuing absence from her workplace.

The Respondent submitted that no aspect or element of this engagement between the Chairperson and the Secretary to the board could fairly be concluded to amount to unreasonable behaviour or behaviour which undermined the contract of employment

Relevant Law.

The Act at Section 1 defines dismissal as follows:

“(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;”

Discussion and conclusions.

The Appellant in this matter contends that she was constructively dismissed from her employment on 4th September 2020. It is common case that, on that date, the Appellant availed of a retirement scheme having notified her employer of her intention to do so on 21st May 2020.

The Appellant had raised a grievance under the Dignity at Work Policy of the Respondent in November 2019 which was ultimately resolved at mediation in mid-2020. She contends that certain behaviour of the Chairperson of the Board of Management in the weeks prior to November 2019 and in January 2020 caused her to retire from her employment in September 2021, and that her decision to retire amounted to an unfair dismissal within the meaning of the Act.

The grievance raised by the Appellant in November 2019, which was not a grievance related to any behaviour of the Chairperson of the Respondent’s Board of Management, was resolved through mediation in mid-2020. The mediation which led to the resolution of the matter was arranged by the Respondent in response to her having raised a grievance. She submitted to the Court that the matters underpinning the grievance which she raised in November 2019 would not have resulted in her constructive dismissal and that her alleged constructive dismissal did not occur as a result of any of the matters which gave rise to her grievance.

She contends that two sets of behaviour of the Chairperson of the Board of Management were the reason she decided to retire from her employment under a scheme in place in the employment.

She submits that she was absent from work for four weeks prior to her raising a grievance against a colleague in November 2019. She contends that the Chairperson of the Board of Management did not contact her during those four weeks and that this behaviour of the Chairperson was unreasonable. The Chairperson of the Board, in evidence, asserted that the practice in the respondent school and in many schools is that workers are not intruded upon during absence through illness and that the fact of his not contacting the Appellant during her illness was in keeping with his practice generally as Chairperson of the Board of management and in keeping with practice in the Education Sector generally as he understood it.

The second set of behaviour which represented unreasonable behaviour on the part of the employer was that, in January 2020, prior to a Board of Management meeting, the Chairman sought advice through the secretary of the Board who was the principal of the school, as to how to present the fact of the existence of the grievance of Appellant received in November 2019 to the Board and how to deal with the continuing absence from the workplace of the Appellant at that meeting. The principal of the school was the colleague against whom the Appellant’s November grievance was made.

The Appellant, in her submission, identified a specific e-mail from the Chairman of the Board to the secretary of the Board in January 2020 which, she says, was evidence of unreasonable behaviour. The e-mail is a brief request for guidance on how to deal at the then upcoming Board of Management meeting with the difficult matter of the grievance which had been raised in November by the Appellant.

It is a clear and established reality that a person seeking to advance a complaint of constructive dismissal bears the burden of establishing that the behaviour of the employer was so unreasonable as to mean that the Appellant could not be expected to continue in the employment, or alternatively that the behaviour was such as undermine the contract of employment.

The Court can find no basis in the behaviour of the Chairperson of the Board of Management in the four weeks prior to 21st November 2019 or in January 2020, including as regards an e-mail contact between the Chairperson and Secretary of the Board of Management, to conclude that the behaviour of the Respondent in this case was so unreasonable as to mean that the Appellant could not be expected to continue in her employment or that any behaviour of the Respondent was such as to undermine the contract of employment.

Having reached that conclusion, the Court must conclude that the complaint of the Appellant that her retirement from her employment amounts to a constructive unfair dismissal grounded on the behaviour of the Chairman of the Board of management of the Respondent in the weeks prior to 21st November 2019 and in January 2020 including as evidenced by an e-mail authored by the Chairperson addressed to the Secretary of the Board of Management in January 2020 is not well founded.

Decision

The Court decides that the termination of the employment of the Appellant upon her retirement was not an unfair dismissal within the meaning of the Act and the within appeal consequently fails.

The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
09 October 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.