Complainant

Respondent

Parties

Fatoumata  Diallo

Nurture Childcare Limited

Representatives

Jason Meagher BL instructed by Keans Solicitors

 N/A

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-00063277-001

03/05/2024

The Complainant began her employment on 3 January 2023 as a Leader in the childcare facility in Hollywoodrath, having previously worked with the Respondent in 2020. She stated that she had no choice but to terminate her employment on 2 January 2024 because of an investigation carried out, that she alleged was flawed, and an instruction to transfer her to a different location.

The Complainant stated that she was promoted to the position of Assistant Manager at the Respondent’s Hollywoodrath premises in July 2023. She alleged that the Manager of the premises was due to go on maternity leave soon after and that she was made Acting Manager in the manager’s absence. Although it was subsequently clarified that this was not the case, it was never explained to her why the role of Acting Manager was not offered to her. She stated that this was a huge source of frustration to her. In addition, she stated that she was subsequently subjected to bullying and harassment by the Area Manager of the Respondent. As a result, she told the Respondent that she could no longer work with the Area Manager.

The Complainant was subsequently informed of the appointment of a new Manager at the childcare facility where she worked. The Complainant had difficulties with her from the outset. As well as being told that she she should take off her uniform, the new Manager also immediately asked her when she would be out of the office and an argument ensued relating to the length of time for which the Complainant used the laptop.

A meeting was subsequently held with Head Office in September 2023 in relation to the difficulties the Complainant was having. Although the Respondent appeared to have the intention of investigating these matters, it was submitted that this process was unfair. Specifically, it was asserted that although the Respondent appeared to intend to investigate complaint, there were several questionnaires issued to staff to fill out in relation to the Complainant, which she asserted was unfair.

The Complainant subsequently attended a further meeting with the Respondent on 3 October 2023 where she was instructed to move from the Respondent’s Hollywoodrath premises to Dundrum, given the issues that she was having. The Complainant requested a further meeting on 6 October 2023 which was not acceded to. She also requested that the Respondent produce the final report of the investigation but this was not provided to her.

On 23 November 2023, the Respondent emailed the Complainant and accused her of breaching the confidentiality clause of her contract of employment but the details of the alleged breach were never particularised and the Complainant was not given an opportunity to respond.

On 15 December 2023, in response to an email from the Respondent, the Complainant stated that she was going to resign when she had sourced alternative employment and when her doctor indicated that she was fit to work.

On 2 January 2024, the Respondent requested sick certificates for the week and in response the Complainant indicated that she was resigning because it was impossible to resolve the problems between them.

The Respondent stated that when the Complainant started in Hollywoodrath in July 2023, the Manager of the premises was finishing up to go on maternity leave. It was explained to the Complainant that she would have to act up for a short period as the new Manager who was due to start had to give a two month notice period to her then employer.

When the new Manager subsequently started in September 2023, the Complainant had a very hostile attitude towards her and would not speak to her. The Complainant also began to inform the staff that she (the Complainant) was the Manager which was very undermining of the actual Manager.

On 8 September 2023, the Complainant started shouting at the Manager when she entered the premises. When the Manager subsequently reached down to her bag to get her phone, the Complainant started shouting at her again and informed her that she was going to call the police.

When the Respondent addressed her conduct with the Complainant, she informed them that the issue she had was not with the new Manager of the Hollywoodrath premises but with the Area Manager.  She subsequently made a complaint of bullying against the Area Manager on 11 September 2023 which was investigated but did not conclude as the Complainant was out sick and would not provide a medical certificate to confirm that she was fit to engage with the investigation process.

In October 2023, the Complainant was also asked, in line with the provisions of her contract of employment, to move to the Respondent’s premises in Dundrum as it was believed that it would be better for her wellbeing as it was closer to her home and she would have a new Manager there as well as a new Area Manager. It was disputed that this was an instruction, as the Complainant suggested, and asserted that it was only a request.

The Law

Section 1 of the Act defines what is commonly termed ‘constructive dismissal’ as follows: -

“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”

Findings

As dismissal as a fact is in dispute, it is for the Complainant to establish as a matter of probability that her employment came to an end in circumstances amounting to a dismissal within the meaning of the Act.

The Two Tests – The Contract Test and Reasonableness Test

The case law envisages two circumstances in which a resignation may be considered a constructive dismissal which is unfair within the meaning of the Act. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee would be entitled to regard himself or herself as having been dismissed and that the dismissal was unfair. In the UK Court of Appeal Lord Denning in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332held that

“an employer must be “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 as discharged from any further performance”.

A line of authorities has since established this decision as defining the “contract test”.

Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so he is justified in leaving.  This is the ground that the Complainant in this case stated she is relying upon because of both the way the Respondent allegedly conducted the investigation into the allegations that she made against the Area Manager and the alleged instruction to move her to their premises in Dundrum.

In assessing the reasonableness of the Respondent’s conduct, I do not accept the Complainant’s suggestion that the way in which the investigation was conducted was unreasonable. It is worth noting that the Complainant resigned before the investigation was completed and did not fully cooperate with the Respondent, despite the Respondent's repeated efforts to secure her participation in the process.

I also prefer the evidence of the Respondent that the offer of a job in Dundrum was a request and not an instruction. I make this finding because I found much of the Complainant’s evidence to be contradictory.

I also noted that it was not disputed the Complainant received a copy of the Respondent’s grievance procedure on 8 September 2023 but that she did not raise a grievance in respect of any concerns she had with either the investigation into the allegations she made against the Area Manager or the alleged instruction to transfer her employment to Dundrum.

In assessing the reasonableness of her conduct, I note that the requirement on a Complainant to exhaust the Respondent’s grievance procedure, prior to a resignation, in order to succeed in a claim of unfair dismissal was highlighted by the Employment Appeals Tribunal (EAT) Conway v Ulster Bank Ltd (UD 474/1981). In that case, it was 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.”

Considering all of the foregoing, I find that the Complainant was not constructively dismissed.   

I find that the termination of the Complainant’s employment was not an unfair dismissal within the meaning of the Act.