Complainant

Respondent

Parties

Anita Swan

Office and Industrial Cleaning Limited

Representatives

Catherine Ardagh, Ardagh McCabe Solicitors LLP

Lian Rooney, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00065529-001

21/08/2024

The respondent is a commercial cleaning company which was established in 1982.  The complainant started working with them on March 2nd 2020, and was assigned to a cleaning role in the headquarters of a supermarket multiple.  She generally worked four hours a day from Monday to Friday at an hourly rate of €13.30.  Her main job was the cleaning of a test kitchen.  The complainant generally worked from 10.00am until 2.00pm; however, on the evening of August 22nd 2023, she filled in for a colleague on a later shift.  Around 7.30pm that evening, while she was cleaning a different kitchen, she was assaulted by a security guard.  The complainant notified the respondent of the assault and, the following day, accompanied by the managing director, Ms Susan McEwan, she went to her local Garda station to report what happened.

The complainant was absent due to stress for four weeks and she returned to work on September 20th 2023.  In her evidence at the hearing, she said that she didn’t return to work until November, but, in an email to Ms McEwan on September 5th 2023, she said that she was ready to come back to work the following Monday.  In her evidence, she also said that, when she was waiting for the bus on her first day back, she couldn’t get on the bus because of stress and she didn’t go back until a couple of weeks later.

On November 23rd 2023, the complainant was issued with a verbal warning because of her conduct.

In May 2024, the complainant was absent due to surgery, but she had used up all her sick leave and she wasn’t paid when she was out sick.  In an email about this on May 30th to the accounts and HR departments and her service manager, she included a screenshot of a text message to the HR manager.  She had saved the name of the HR manager in her phone as “HR Covid Cunt.”  When she was questioned about this, the complainant said that she received this contact name and number from her previous supervisor.

On June 4th 2024, the respondent’s client services manager, Ms Mihaela Grumazescu, reported that the complainant had been aggressive and disrespectful to her supervisor, Ms Natalia Cosofret and that she referred to her by offensive names in front of colleagues.  On June 13th, Ms Cosofret wrote a long letter in which she said that she had been threatened by the complainant and that she had referred to her by the same offensive name that Ms Grumazescu referred to in her letter on June 4th.  Ms Cosofret said that complainant had no respect for her and that she was afraid of her.

On the same day that Ms Cosofret submitted her grievance, the complainant made a complaint about her, alleging that Ms Cosofret attempted to take a photograph of her while she was on a smoking break.

On June 17th, the complainant was suspended with pay, pending an investigation into the complaints submitted by Ms Grumazescu and Ms Cosofret.  On June 25th, the HR and quality manager, Ms Anazstazia Horvath, wrote to the complainant to invite her to a meeting on June 28th.  In her letter, Ms Horwath notified the complainant that the issues to be discussed were the email of May 30th, the complaints of Ms Grumazescu and Ms Cosofret and her complaint about Ms Cosofret.

The complainant attended the meeting on June 28th accompanied by a colleague.  She denied saving the HR manager’s name under the offensive moniker.  She said that she was unable to push tables because she had a bad back and she said that her relationship with Ms Cosofret “wasn’t great.”  At the meeting, Ms Horvath told the complainant that, while she was employed by the respondent, staff of the client company, the retail headquarters, complained about her taking smoking breaks, raising her voice and using her mobile phone during working time.

A disciplinary hearing was held on July 11th 2024, hosted by the respondent’s financial controller.  The complainant attended this meeting on her own.  She was subsequently issued with a first written warning arising from her aggressive behaviour, misconduct and her impact on the working environment.  The complainant was informed that she would be relocated to a different client’s site.  She appealed against the severity of the written warning and an appeal meeting was scheduled for July 25th.  She did not attend the appeal meeting because the respondent refused to allow her to be represented by her solicitor and informed her instead that she could be represented by a trade union official or a colleague.  On the day that the appeal meeting was scheduled to take place, the complainant sent an email to Ms McEwan to inform her that she had decided to resign “due to the ill treatment I have received.”  Ms McEwan wrote to the complainant and asked her to consider finalising the appeal process before resigning.  The complainant did not reply.

It is the complainant’s case that she was denied fair procedures during the disciplinary process and that she was refused proper representation and that this compounded her stress, with the result that she had to resign from her job.  The respondent’s position is that the complainant was unreasonable in failing to return to work and failing to engage with her employer to address her complaints or to bring the appeal process to a conclusion.

On behalf of the complainant, Ms Ardagh said that her resignation arose because of the direct consequences of the respondent’s treatment of her following the assault in August 2023.  Ms Ardagh said that the respondent failed to provide the complainant with support and that she was re-traumatised when she was expected to work on the same floor where the assault occurred.  Ms Ardagh said that the respondent attempted to reduce the complainant’s working hours in April 2024 and that she was refused paid sick leave and bereavement leave.  She submitted that the complainant was denied the right to proper representation at her appeal meeting and that these cumulative actions breached the trust and confidence owed to her, creating an intolerable working environment and leaving her with no reasonable choice but to resign.  

In support of her position that the complainant’s resignation is a constructive dismissal, Ms Ardagh referred to the following legal precedents:

M Reid v Oracle EMEA Limited[1].  In this decision of the former Employment Appeals Tribunal (EAT), the chairman held that employers are required to adhere to fair and transparent disciplinary procedures.

Harkin v Guinness Storehouse[2].  In this determination, also by the former EAT, the outcome was a finding that an employee is justified in resigning if their employer has failed to uphold their trust and confidence.

Ms Ardagh concluded her submission by asserting that the respondent’s actions rendered the working environment intolerable and that the complainant had no reasonable alternative but to resign.

Evidence of the Complainant

The complainant said that she started working for the respondent during the first Covid-19 lockdown in March 2020, when she was assigned to the retail HQ.  She was re-located to a school in Crumlin for one year and then she went back to the retail HQ.  At the start of her employment, she worked in the evenings and then she moved to a shift from 10.00am until 2.00pm from Monday to Friday.

The complainant described the incident with the security guard on August 24th 2023, as a result of which she said that she was very distressed.  On New Year’s Day 2024, the complainant heard from the Director of Public Prosecutions that the security guard would be charged with assault.

Following the assault, the complainant said that the managing director, Ms McEwan, told her to take as long as she wanted before she felt able to return to work.  She was paid for the time she was out sick.  She said that she returned to work in November 2023, although the text message she sent to Ms McEwan on September 5th 2023 indicates that she returned to work shortly after that date.

For about three months before she was absent due to the assault, in addition to her normal 10.00am to 2.00pm shift, the complainant worked for an extra two hours each week breaking down cardboard boxes.  When she went back to work, a colleague was doing this job and she said that she started to help to break the boxes.  She said that there was a row between her supervisor and the person who was doing the boxes when she was absent.

Ever since she went back to work after the assault, the complainant said that she thinks that the directors are watching her.  She thinks that this is because she has initiated a personal injuries claim.

On May 15th 2024, the complainant said that her father-in-law died.  She wasn’t permitted to take paid bereavement leave and she said that the reason for this is because the company doesn’t pay bereavement leave for the death of in-laws unless the employee is married to the son or daughter of the person who died.  She said that she didn’t make a complaint about this, although she asked for a copy of the grievance procedure on three occasions.

The complainant said that she “got off to a bad start” with her supervisor, because no one informed her supervisor that she started work normally at 9.30am and not 10.00am.  She said that her supervisor picked on her because she wasn’t able to lift or move heavy items.

The complainant referred to the decision of the company to assign her to a different location when she was issued with the written warning.  She said that part of her reason for leaving was because one of the places she was offered was in Leixlip.  She said that the cost of taking buses to Leixlip was too much.  She received an offer of a job for three hours a day in a different location, but the stress was too much for her and she decided to “leave it.”

Cross-examining of the Complainant by Ms Rooney

The complainant agreed with Ms Rooney that she was issued with a copy of the company’s employment policies and procedures when she was issued with her contract.  Ms Rooney asked the complainant why she didn’t raise a grievance before she decided to resign.  The complainant replied that she had an argument with a colleague about the cardboard boxes and she felt that she was “in the middle of every row.”  Referring to the problem of her hours being reduced, the complainant said that this is related to the cardboard box work being taken from her.

When she returned to work in September 2023, the complainant said that she asked not to work on the second floor and her supervisor said that that was okay. 

After she was issued with the written warning, the complainant was informed that she was being re-located and she asked for an alternative to the job offers of four hours in Leixlip and three hours in Santry.  The complainant said that she asked for an alternative location and that she got a message back to say that the person to whom she sent her email was on annual leave.  Ms Rooney reminded the complainant that she was also offered three options in Ballymount and other options in Tara Street, Ballsbridge and Browns Barn.  The complainant replied that her wages would have gone on bus fares.

Referring to her sick leave in May 2024, the complainant said that her sick leave was used up and she asked for approval to take holidays, but this request was refused.  She said that she didn’t inform her supervisor or anyone in the HR department that the reason that she needed the holidays was because she had to have surgery.

The complainant said that her supervisor told her that she was being watched by the management and that they weren’t happy with her because she was taking a case against the company. 

Referring to her request for bereavement leave, the complainant said that she was informed that if she had been married to her partner, she would have been paid.

The complainant said that she was on sick leave when the appeal of her disciplinary warning was scheduled.  She agreed with Ms Rooney that Ms McEwan asked her to re-consider her decision to resign.  She said however, that the situation was stressing her out too much and that it was better to “just walk away.”

In her submission, Ms Rooney set out the background to the events up to June 2024, when the client services manager alleged that the complainant was aggressive to her supervisor and had been calling her by derogatory names.  The supervisor also submitted a complaint in which she alleged that the complainant was threatening and she had used inappropriate language to her.  The complainant alleged that her supervisor photographed her when she was smoking a cigarette.

The complainant was suspended pending an investigation into these complaints and a meeting took place on June 28th 2024.  This was followed by a disciplinary meeting on July 10th 2024, following which, the complainant was issued with a first written warning.  In the letter of warning, the complainant was informed that, following her suspension, she would be moved to a new site.

The complainant appealed against the outcome of the disciplinary investigation and she was invited to attend a meeting on July 25th.  When she requested that her solicitor attend the appeal meeting with her, she was informed that she could be represented by a colleague or trade union official.  The meeting was subsequently postponed because, on July 23rd, the complainant informed Ms McEwan that she couldn’t attend due to stress.  She resigned two days later.  in an email to Ms McEwan, she said that she had discussed the matter with her family and friends that she had decided to resign “due to the ill treatment” she had received.  The complainant did not reply to a letter from Ms McEwan suggesting that the appeal hearing could be postponed until she felt better and was able to attend.

Legal Submission

Ms Rooney referred to the well-established tests that determine the entitlement of a complainant to resign from their job and to claim that they have been constructively dismissed.  In relation to the contract test, relying on the outcome of the determination of the former Employment Appeals Tribunal (EAT) in Conway v Ulster Bank[3], Ms Rooney asserted, in the case under consideration here, no contractual violation occurred.  The complainant produced no evidence to show that her employer no longer intended to be bound by her contract and no change occurred to make it “so radically different from what it was before.”

Ms Rooney submitted that the respondent acted reasonably at all times, in accordance with their own procedures and best practice for dealing with disciplinary issues.

Considering the responsibility of the complainant to also act reasonably, Ms Rooney said that she had an obligation to notify her employer of any concerns about how she was treated in the workplace and she could have used the grievance procedure to resolve her complaints.  It is the respondent’s position that the complainant acted in an unreasonable and hasty manner by resigning before she notified her employer in advance of her concerns and by failing to exhaust their internal procedures.

In relation to the test of reasonableness, Ms Rooney referred to the decision of the EAT in the case of McCormack v Dunnes Stores[4].  Considering the reasonableness of an employee’s decision to terminate his or her employment, the EAT in that case concluded that:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his or her employers.  The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make continuation of employment with the particular employer intolerable.” 

In support of the respondent’s position, Ms Rooney referred to several other precedents, including Travers V MBNA Ireland Limited[5] where the Tribunal found that Mr Travers’ failure to exhaust the grievance procedure was fatal to his case that he had been constructively dismissed.  She also quoted from Jabczuga v Ryanair Limited[6], where the Tribunal held that the complainant did not act reasonably “by affording her employer an opportunity to address and remedy any grievance.”

The complainant made an allegation of sexual assault against a member of the security staff where she was employed.  The respondent supported the complainant throughout this ordeal, including paying her wages when she was absent due to the stress that resulted from the incident.  The disciplinary investigation conducted by the respondent into the complainant’s conduct was not related to the assault.

In her claim that she was unfairly treated by the respondent, the complainant claims that she was refused sick leave and bereavement leave.  Ms Rooney said that the complainant did not inform her employer that she needed to take time off to have surgery.  She provided no information to confirm the death of her father-in-law and she submitted no grievance concerning how she was treated in relation to these incidents.

Conclusion

It is the respondent’s position that the complainant’s contract of employment was not repudiated in any way and that their treatment of her was reasonable at all times.  Conversely, the complainant’s failure to use the respondent’s grievance procedure to deal with the issues that she claims caused her to be stressed, was unreasonable on her part.  For these reasons, the respondent’s position is that the complainant was not constructively dismissed.

Constructive Dismissal

The definition of dismissal at s.1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

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 without giving prior notice of the termination to the employer…”

Taking into consideration the conduct of the respondent in relation to this former employee, and considering that, in the year before her resignation, she never raised a grievance about the conduct of her employer or any other matter, the issue I must consider is, was it reasonable for her, or was she entitled to terminate her employment?

The Reasonableness of the Employee’s Decision to Resign

In her evidence, the complainant said that she resigned because she was stressed out and she decided not to continue the appeal of her written warning and instead, she decided “just to leave it.”  She said that she consulted her family and friends before she resigned.

We know from the case law regarding constructing dismissal, that for a claim to succeed, a number of tests must be satisfied.  An employee will succeed where he or she can establish that the employer has breached a fundamental aspect of their contract of employment.  Consistent with the authority provided by the EAT in the Conway v Ulster Bank case (footnote 1), I find no evidence that this occurred in the case under consideration here and indeed, the complainant made no inference in this respect.

In some instances, employees have successfully made out a case that their employer acted so unreasonably that they could not be expected to remain at work for a minute longer.  However, the complainant was out sick when she resigned, so she had the space and time to consider how to deal with the discomfort she was feeling at work.  She also been offered a different place of work, which would have provided an opportunity for a new start with a different supervisor.  While the complainant found her relationship with her supervisor stressful, this was in the context of complaints about her taking too many smoking breaks, raising her voice in the workplace and being on her mobile phone when she was meant to be working.  In the circumstances where she was the subject of a disciplinary investigation, it was perfectly normal for the complainant to feel anxious, but it is apparent to me that the cause of her anxiety was her own behaviour.  Unlike the circumstances described in the case of Reid v Oracle (footnote 2), to which Ms Ardagh referred, the respondent carried out the disciplinary investigation in accordance with their disciplinary procedure and the complainant was provided with a reasonable opportunity to challenge the outcome.  The complainant has submitted no evidence that her employer acted unreasonably on foot of the complaints that were made by her colleagues and it is my view that any reasonable employer faced with similar circumstances would have issued a written warning. 

The third test, as set out in the seminal case of Travers V MBNA case (footnote 3) which was referred to by Ms Rooney, is that, before reaching a decision to resign and claim constructive dismissal, a complainant must show that they have used the procedures available to address the grievance being complained about.  As I have noted already, the complainant here decided not to try to have her grievance resolved through the normal channels.  She she claimed that she hadn’t got a copy of the grievance procedure, although this was included in her contract of employment.  I am satisfied that, if she had wanted to submit a grievance for investigation, she would have located a copy of the procedure and her excuse that she hadn’t got the procedure is without merit.

Findings

It is well established that the burden of proof required in cases of constructive dismissal is a high bar for a complainant.  It’s clear from her evidence that the complainant was unhappy with the relationships in the place where she worked.  She was perfectly entitled to resign if she wanted to remove herself from what she considered to be a difficult situation.  For her to succeed in a complaint of unfair dismissal however, the complainant was required to demonstrate that her employer inflicted a fundamental breach on her contract of employment or, that they acted so unreasonably, that she had no alternative but to resign.  This complainant has not shown that her employer was in breach of her contract, or, that they acted unreasonably in their treatment of her.

Reasonableness is required from both parties, and it is my view that, by resigning, the complainant did not act reasonably before giving her employer a chance to deal with her grievance, and, before exercising her rights under the company’s grievance procedure so that the matter could be resolved in a more constructive manner.

In conclusion therefore, I find that the complainant has not made out the standard of the burden of proof required that demonstrates that the conduct of her employer was such that she had no alternative, but to leave her job.

I have concluded that the complainant has not shown that her employer breached a fundamental term of her contract of employment, or behaved so unreasonably, that she had to resign from her job.  As a result of this finding, I have decided that her complaint under the Unfair Dismissals Act is not well founded.

Constructive dismissal, failure to use grievance procedures