Complainant

Respondent

Parties

Barbara  Delaney

Balbriggan Community Childcare Group

Representatives

Peter Dunlea

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-00063585-001

17/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00063585-003

17/05/2024

A complaint form was received by the WRC 17 May 2024. The complainant’s employment ended on 30 January 2024. The complainant was paid €525 per week, and she worked 37.5 hours per week.

In her complaint form, the complainant submitted that she had been out sick leave since February 2023.  She had been awaiting a hip replacement operation and had sought reduced working hours from the respondent.  She had letters from a hospital doctor and her own GP supporting this request, however her request for reduced hours was refused.  As a “floater” the complainant was required to cover the work of colleagues who were on annual leave.  In one such instance the complainant was asked to work in the Baby Room, which required work the nature of which she would find difficult due to her medical problems. The complainant asked her manager that she be allowed cover in another area and that someone else cover the Baby Room.  Her manager told her that another member of staff whom she had asked to do this swap had refused and the complainant would have to cover the Baby room. The complainant submits that when she checked with this other member of staff about the matter the other person said they had not refused to swap. The complainant submitted that she struggled that day, felt isolated, used and was very upset and sore.  At the end of the day, she told her manager that she was going to go to her GP the next day to get signed off sick as she felt she had been given the hardest task and she was not able for it as she had struggled physically and emotionally at work and nothing was being done to accommodate or help her.

The complainant submitted that she did go to her GP and she was signed off work. The respondent arranged for her to attend several meetings with HR consultants, which she did attend, but the respondent never made contact with her at all. There was a Christmas party was in December, to which she was not invited, though another colleague on sick leave was invited. This upset the complainant greatly. Having discussed the matter with her family the complainant decided that after everything that had happened and how she had been treated after Christmas that she should resign. The complainant sent her resignation letter by email and hard copy on 4 January 2024.

The complainant submits that when she handed in her notice on 4 January 2024, she was asked if she would like to raise a grievance as she had said in her notice letter that she had found the latter part of her employment with the respondent to have been extremely difficult both physically and emotionally and she could not see how she could possibly continue her employment with the respondent under the circumstances.  The complainant submits that the respondent asked her for a letter from her GP confirming that she was fit to engage in a grievance procedure. There were some delays in getting such a letter and in the interim the respondent contacted the complainant and asked her to return the key and fob she had for the building by 23 February 2024. The complainant returned the key and fob on 24 February 2024 by putting it in the post box [it was a Saturday and the building was closed]. She also included a letter stating that she wished to go ahead with a grievance procedure. A week went by and the complainant had heard nothing back so she emailed the respondent, no response was received so she sent another email on 6 March 2024.  She did receive an email response on this occasion saying that a response had been sent to her on 16 February 2024 and that the case was closed as the complainant had not responded within the timeframe.

The complainant submitted that she would have been happy to proceed with a grievance procedure, but she was told that the case was closed. 

The complainant gave evidence on oath at the hearing.

The complainant stated that she had started in the creche in 2015 while doing a FETAC course.  She began working in the Toddler Room in 2018. She became a floater in her last year, moving between room covering for leave etc.  The Toddler Room was the best room for her as it does not require as much lifting as is required in other rooms. In February 2023 the complainant was aware a colleague was about to go on leave and that it apparent she would have to cover her job in the Baby Room. In advance of this the complainant spoke with her manager Ms Sophie Grant and highlighted concerns she had about the work she would have to do and the lack of support available due to staff shortages. The complaint says she was assured by Ms Grant that she would switch things around to assist the complainant.  The complainant felt there was a plan in place.

On the following Monday the complainant came to work and was told by Ms Grant to go to the Baby Room.  This came as a surprise to the complainant as she thought she was going to be swapped out from the Baby Room or at least supported in the room. The complainant continued working in the Baby Room on her own, despite her medical problems of which the respondent was aware, as letters from three medical practitioners had been copied to the respondent, advising that the complainant’s hours should be reduced. The complainant felt really let down.

The complainant stated that she continued to work in the Baby Room, although she was in a lot of pain and very upset. By the time she was finishing up that week, on the Thursday, the complainant had decided that she was going to go to her GP on the Friday to get signed off sick as she was in pain and not getting support.

The complainant stated that she went sick on 24 February 2024.  Thereafter she stated that there were several meetings with HR Consultants and OHPs, the outcomes of which were that her hours should be reduced. She did not receive any feedback from the respondent on the meetings she attended with external agencies.

The complainant stated that in December 2023 she realised she had not been invited to the Christmas party which made her feel she had been left out. She also received a voucher for €50 around Christmas having received a voucher for €150 the previous year.

The complainant stated that she considered the situation over the Christmas period and taking into account what had happened and with a lot going on and being physically unwell, she decided she could not see a way back to work with the respondent.

On the 3 January 2024, the complainant handed in her notice by email and by hard copy to a Board member who does not have email. In reply she received an email from Ms Jean Fay Brady, Chairperson of the Board, expressing her surprise at her decision and if she had a grievance to please let them know. The complainant replied by email stating she would like to initiate the grievance process. The complainant prepared a grievance letter and emailed it to the respondent manager, Ms Grant. Thereafter she was asked to get a doctor’s certificate confirming she was well enough to participate in the process.  For various reasons, it took a little while for this certificate to be sent to the respondent. This certificate was delivered by the complainant to the respondent on 24 February 2024. The complainant heard nothing in response and contacted the respondent twice to find out the status of the process.  In response to an email sent at 12.50 on 6 March 2024 the complainant received a response email at 13.20 on the same day from Ms Fay Brady, stating that she had emailed the complainant about the matter on 16 February 2024 and that as she [the complainant] had not replied within the required timeframe and the matter was now closed.

In response to questions put to her in cross examination the complainant stated that she had been of the belief that some kind of support would be given to her when she as working in the Baby Room. The complainant agreed that it was clear from the OHP’s report that she would not fit to return to work until her hip operation had taken place. The complainant also accepted that her employment had ended with the respondent in January 2024 but her grievance process was still ongoing at the time. She did, however, consider herself finished with the company.

In response to my questions, the complainant stated that she had not worked since her resignation, that she had not been available for work due to the difficulties with her hip.

When asked why she had not raised a formal grievance before she resigned, the complainant stated that she had done so before but got nowhere. She was also waiting for the respondent to come back to her, she thought the next step was to hear back from the respondent.

In closing, the complainant state that the WRC hearing would not have been necessary if she had been allowed express her grievance at the appropriate time.  Different things delayed things and time got away from everyone.  The complainant thought she would get an opportunity to talk about things and maybe withdraw her resignation. Her health issues should have been considered more and some accommodation should have been made to enable her carry out her work.

The respondent provided a written submission.

The respondent submits that in early 2023, the complainant informed the respondent that she was experiencing pains in her hip.  On 20 February 2023, the complainant was assigned to the Wobbler Room as the usual member of staff was on annual leave. The complainant expressed concerns about being assigned to the room because of the presence of a crawling baby. The complainant was informed that as she only held a level 5 qualification, she could not cover the older children’s room. The respondent met with the complainant on 23 February 2023 to discuss her concerns. The complainant stated that she did not feel supported. The complainant stated that she would not be coming to work the next day; the complainant remained on sick leave until January 2024, when she resigned.

During the complainant’s absence the respondent submits that it kept in contact with her and referred her to the OHP on several occasions and to a HR consultant for welfare meetings. The respondent also made it clear to the complainant that it was happy to commence a grievance procedure as soon as the complainant was fit to participate in such a procedure. Regarding the complainant’s health, a report emanating from a welfare meeting noted that the complainant would not be able to return to work until after she had surgery on her hip.

Regarding the Christmas bonus the respondent submits that it was decided by the Board that staff on long-term leave would get vouchers to the value of €50. Some staff got vouchers to the value of €20-30 only. Regarding the Christmas party, originally no staff on long-term absence were invited and the reason one such person was invited was because of a late withdrawal by someone else.

The respondent submits that the complainant’s resignation in January 2024, came as a surprise. The respondent replied to the complainant’s letter of resignation on 9 January 2024, asking her to reconsider her decision and to engage in a formal grievance procedure. The complainant replied in turn on 17 January 2024, filing a grievance but not retracting her resignation.  The respondent acknowledges there were delays in commencing the grievance procedure due to the voluntary nature of the Board. On 25 January 2024, the complainant wrote to the respondent requesting an update.  Ms Fay Brady for the respondent replied looking for more information. 

The respondent, despite the complainant’s resignation, sought to continue the grievance procedure however in doing so they required a letter from the complainant’s medical practitioner to confirm she was fit to engage in the grievance procedure. The respondent corresponded regularly with the complainant seeking the letter however the complainant was unable to provide the respondent with such a letter. The complainant did not provide the respondent with a letter before the end of February, several weeks after it had been requested by the respondent, so the respondent concluded the grievance procedure.

The respondent submits that the complainant failed to raise her grievance with the respondent before her resignation and as such failed to exhaust all internal procedures before her resignation. Following her resignation, the respondent sought to engage with the complainant and sought to have her reconsider her resignation and engage in a grievance procedure.  The grievance procedure was suspended after the complainant failed to engage in a timely manner.

Ms Sophie Grant gave evidence on oath at the hearing.

Ms Grant stated that she has been the manager of the creche since 2022. She became aware of the complainant’s hip problems, in or around the end of 2022.  She explained that matters arose with the complainant when she was asked to cover in the Wobbler Room which is for children aged between one and two years of age (the creche does not have any babies under one year of age). Ms Grant told the complainant that she would try and get some help for her. Ms Grant stated that she did help the complainant at times on the day.  She and the complainant had a meeting at 3.30 Thursday 23 during which the complainant told the witness that she would not be coming in the next day and that she would be attending her doctor.

Ms Grant gave evidence regarding several welfare meetings and OHP visits that were organised for the complainant in 2023. Throughout the year Ms Grant was of the view that the complainant would be returning to work, although it might be some time before she did return. Regarding the invite of the colleague to the Christmas party Ms Grant stated that this was an “accident”, and if she had seen the complainant, she would have invited her to the party as well.  Regarding vouchers Ms Grant stated that since Covid these had been based on performance and at least one other colleague had received the same amount as the complainant, some colleagues got less.

Ms Grant stated that she was shocked when she heard the complainant had resigned. It was decided the Board would handle the grievance procedure. Ms Grant stated that the complainant had never explained her grievances to her before she resigned.

In response to questions put to her in cross examination, Ms Grant stated that the creche was short staffed when the complainant was assigned to the Wobbler Room and that she had tried to get more staff. Ms Grant stated that the complainant was not invited to the Christmas dinner because she was out on sick leave.

Ms Jean Fay Brady gave evidence on oath at the hearing.

Ms Fay Brady explained that she is Chairperson of the Board of the creche. She stated that she had contacted the complainant in February 2023 to find out how the respondent could assist the complainant vis-à-vis her hip problems. The Board discussed the complainant ‘s request for shorter hours but due to staff shortages it was not possible, but it was agreed that the matter would be reviewed in six months.

In February 2023, Ms Fay Brady learned the complainant had gone out sick. The Board decided to outsource OHP and got a report in April 2023, which advised that the complainant was having problems and that the respondent should not contact her. As things progressed it became apparent that the complainant would not be returning to work until she had had her hip operation.

Ms Fay Brady stated that she was surprised when the complainant sent in her resignation. It was agreed that a third party would carry out the grievance process.  The third party stated that they needed a medical certificate stating the complainant was fit to participate in the process.  There were some delays, the respondent was waiting for the complainant “to come back.”  However, when she did come back, she was looking for her holiday pay and she was no longer an employee, the respondent was advised that that there was no need to continue with the [grievance] process.

Ms Fay Brady stated that the respondent had asked the complainant to reconsider her position; the Board wanted her back.

In response to questions put to her during cross examination, Ms Fay Brady stated that she had told the complainant she could not contact her doctor. The reason she had not spoken with the complainant directly was because the respondent had been advised not to do so. The respondent had been waiting “for ages” for a doctor’s certificate and then the complainant wrote to them and they decided “she was gone,” up to that point they thought she was going to return.

In closing, the respondent acknowledges that better communications might have resulted in another outcome, but the respondent was not wrong legally; the process had to be followed. The respondent adhered to the process and as such there was no discrimination or an unfair dismissal.

The respondent re-iterated that the offer made to the complainant of re-engagement still stands.

The Law

The Act at Section 1(b) defines constructive dismissal in the following manner:

“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 key facts were not in dispute in this case.

In a claim of Constructive Dismissal, it is for the Complainant to establish that her/his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act at Section 1 above. That section of the Act, and the case law since its enactment, has established two circumstances where an employee is entitled, or it would be reasonable, to terminate the employment relationship.

Firstly, the Contract Test; in circumstances where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee is entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”. It was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332as follows:

“If the employer is guilty of 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 entitled to treat himself discharged from any further performance”.

In plain English, this means that where an employer makes a fundamental breach of an essential term of the contract of employment, the employee may consider him or herself to be constructively dismissed. In the instant case there was no evidence presented to suggest that the respondent breached the contract test and attempted not to be bound by one or more of the terms of the contract of employment

Secondly, the ReasonablenessTest; an unlawful constructive dismissal may arise where an employer’s behaviour is so unreasonable as to mean that the employee is left with no reasonable alternative but to terminate his or her employment. This test of reasonableness, when applied to the within matter, asks whether the employer conducted its affairs in relation to the Complainant so unreasonably that he could not fairly be expected to put up with it any longer. In this context, the complainant must establish that she also conducted herself reasonably in terms of affording the employer the opportunity to address the issues which ultimately led to the termination of the employment.

In terms of the reasonableness of the respondent’s behaviour, I note the complainant’s assertion that she sought greater support to assist her while she was working in the Wobbler Room and she felt it was not forthcoming or at the least, not sufficient. Her conversation with Ms Grant on Thursday 23 February 2023, centred on this matter and the complainant was not satisfied with the answers she received from Ms Grant. However, I do not find that Ms Grant’s actions could be found to be unreasonable in the circumstances. Ms Grant acknowledged the difficulties the complainant was experiencing and was willing to assist but she was not given the opportunity to do so as the complainant went on sick leave the following day, until her resignation in January 2024.

I find the respondent’s actions in arranging appointments with the OHP and setting up Welfare meetings shows the good will the respondent had towards the complainant and was doing what it thought was right to assist her during her absence.  I did not detect anything in the actions of the respondent during the complainant’s absence that would indicate that the respondent wished to bring the employment relationship to an end.

The requirement on a complainant to exhaust the respondent’s grievance procedure prior to a resignation to succeed in a claim of unfair dismissal has been emphasised repeatedly by the Employment Appeals Tribunal (EAT) and the Labour Court.  The most relevant case in this regard is Conway v Ulster Bank Ltd (UD 474/1981) where the EAT found that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated:

“We find that the Complainant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the Complainant’s case. In constructive dismissal cases it is incumbent for a Complainant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

Desmond Ryan BL also set out the onus on employees in this respect in Redmond on Dismissal Law (2017) at paragraph 19.14: “There is something of a mirror image between ordinary dismissal and constructive dismissal.  Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance.  The duty is an imperative almost always in employee resignations.  Where grievance procedures exist they should be followed”

Notwithstanding her genuine health concerns and hip problems, the complainant did not initiate a formal grievance before she resigned and as such did not give her employer, the respondent, an opportunity to address them while she was still in their employment.

Considering all the above, I find that there was no breach of the contract test and that the complainant acted unreasonably in deciding to terminate her contract of employment.

I note the respondent’s willingness as expressed at the hearing to re-engage the complainant.

The complainant was not unfairly dismissed.

I have no jurisdiction to hear the complaint.

Constructive dismissal, out of time.