Complainant

Respondent

Parties

Joanna  Canney

Inland Fisheries Ireland

Complainant

Respondent

Anonymised Parties

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Representatives

IBEC

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-00054425-001

10/01/2023

The complainant submits that she was left with no alternative but to resign her position owing to the behaviour of the respondent and that she was bullied, smeared and humiliated.

Preliminary Issue #1:

The complainant submitted that she wished for the decision to be anonymized owing to previous publicity that arose from media articles and the impact that they had on her.

Preliminary Issue #2

The complainant objected to the request by the respondent that a decision be made in relation to whether the complainant had met the burden of proof before proceeding with the respondent’s evidence.

Substantive Issue:

The complainant commenced employment on 07/03/2007 and her employment ended on 19/08/2022 and her gross was €31,247 and she worked as an administrator.  She submits that she was constructively dismissed owing to the behaviour of the respondent and that she was bullied, smeared and humiliated in relation to a private arrangement and that information was leaked to the press by the respondent with media reports appearing that caused her severe distress.  She advised the respondent how distressing the matter was and nothing was done to support her and her worries and concerns were dismissed and she was left with no alternative but to resign her position.

The complainant submitted that in 2015 she and her husband submitted a tender to take over a commercial property belonging to the respondent comprising of a lodge and two cottages and were unsuccessful. However, in 2017 they were successful in securing an agreement to manage the holiday cottages on behalf of the respondent while it remained on the open market and they received an agreed fee until such time as the property was sold. The complainant continued in her role as an employee and managed the cottages with her husband, in their own time, without incident, for five years.

In 2020 a new CEO, Francis O’Donnell, was appointed and the complainant received constant phone calls regarding the property which included cottages and an unopened Lodge and Mr O’Donnell would phone four to five times a week, both inside and outside her part time working hours. Furthermore, the complainant was emailed at her work address about the property throughout the period, 2020-2022 despite the complainant requesting Mr O’Donnell by text in February 2020, to only direct any correspondence regarding the property to the official property email.  The complainant attended her doctor the next day and explained the undue pressure to engage with the CEO around the property on work time and it was impacting her mental and physical health and she had become quite ill. Her GP instructed her to call a counselling service and to present in A&E the following morning and signed the complainant off work for several weeks. When the complainant returned to work Mr O’Donnell told her he was the CEO and could ignore her request.

On 06/05/2021 the Financial Director Mr A, emailed her work email, serving notice on the cottages  offering the opportunity to tender for the lodge for a 4 – 6-month period which was not a legitimate tender process. As parties were invited to tender, the complainant felt coerced into offering an unrealistic price and was told the amount to match or better and an FOI request has been sent to IFI, requesting the tender documents.  On 06/06/2022 the complainant received email informing that they were the successful tender and significant monies was demanded by the respondent to be paid for upgrades to a sewage system and continued to send email to the complainant at her work email address regarding the property.  On 25/06/2022 the complainant advised that they were pulling out of the agreement and received a series of forceful phone calls determined that she go ahead and she conceded as they were at an advanced stage of preparing for opening. On 23/07/2021 an agreement was drawn up and it appeared that the Chairperson and Mr O’Donnell wished to hold a board meeting at the property despite the board later saying that they had no knowledge of the letting arrangement.

On 26/08/2021 the complainant received a lease agreement at her work email, cc’ing her line manager Mr B and Mr O’Donnell (CEO) which had been drawn up by the respondent’s solicitors and looking for July’s remittance. As the respondent was unable to supply a secure water or wastewater system and there was no finalised agreement until the 27th of July, the complainant advised there was no remittance and felt extreme exhaustion no longer able to handle the cross over between the day job and this private commercial arrangement.

On 8/09/2021 Mr C Director of Operations entered her office and questioned her about the property and when the complainant advised that she did not want to talk about it and was upset, he got very angry.  When she asked him to leave, he said to her to remember who she was talking to and then told her she had lost all professionalism and refused to leave her office., despite her asking 12 times that he should leave and he refused . The complainant’s line manager Mr B did not intervene, nor enquire if she was ok and joked to others that the shouts could be heard from the cathedral. Ten weeks later in November 2021, Mr B approached her and said he wanted to do a formal sit down to discuss the incident from September with Mr C The complainant advised that the matter was nothing to do with her employment as it was to do with the properties and they ignored this and on 18/11/2021 she attended a meeting with them and the complainant brought a colleague Liam Gavin, and read a prepared statement which details exactly what she had gone through over the last few months and in particular the stress and pressure caused by the conflating of her roles at the respondent and the commercial arrangement in respect of the properties.

The complainant was accused of causing Mr C distress and that he had claimed to have developed asthma due to the incident. The complainant advised that she was alone in a closed office space, repeatedly asking a man to leave the room and was shocked that the respondent was suggesting that they were the victims.  Over the coming weeks she submitted she felt side-lined for tasks including no longer taking minutes at meetings and this was noticed by other employees. 

On 30/03/2022 the complainant received an email from HR regarding a journalists request on the leasing arrangements of the property and there was a media report on 08/05/2022 regarding alleged irregularities within the respondent and it was also claimed that a Victorian country house in Co Mayo, was leased to a staff member for use as a guest house on a local arrangement with no transparency over the transaction or financial accounts. The Minister commissioned an independent review with intense national media interest and a highly politicised and paranoid atmosphere there was fallout among senior management and the complainant’s private information was intentionally shared with a third party despite being told, categorically, by the CEO Francis O’Donnell that they would not release it, as the request formed part of the same smear campaign. 

On 18/05/2022 the complainant received an anonymous letter, dated 02/05/2022 at her workplace with correspondence between a board member and the Minister whereby the board said they had no knowledge of the leasing arrangement despite a lease drawn up by respondent’s solicitors, an apparent tender process conducted by the Financial Director and the board asking to hold a board meeting there during the lease agreement. The complainant on the advice of the Data Controller showed the letter to the CEO, Mr O’Donnell who advised the complainant to keep her knickers on and stop feeling sorry for myself.  When she requested if she could go home she was advised she could not and the letter was then without her consent brought to the attention of the Garda as evidence of a staff member being intimidated.

On 08/06/2022 the complainant received a call from HR and advised them how distressed she was and how intolerable the workplace was and advised Ms Brophy of explosive arguments and anonymous mail and there was no offer of help and Ms Brophy sent an email including 3 other people on the email and referencing the complainant’s mental health. On 07/06/2022 the complainant attended her doctor and signed off for several weeks and as she no longer felt safe in her workplace she commenced looking for alternative work owing to serious mental ill health because of the stress. The complainant secured another job and resigned her position on 27/06/2022.  When she returned to the office on 27/07/2022 she was asked in front of seven national directors, to take the 12-year-old son of the Director of Operation’s downtown for an Ice-cream.

The complainant asked if the FOI had been released and was advised it had been released while she was on stress leave but that a decision was taken not to inform the complainant and over 52 documents were released to the third party, including commercially sensitive information and a data breach. On 12/08/2022 she received a call from Mr O’Donnell acknowledging how badly she had been treated by the respondent and saying he expected she would take a case to the WRC and that he would co-operate fully. For the next 9 months, as the internal disputes rage on, repeatedly News articles report on the informal leasing of the property to an employee without the board of the respondent knowing and with no financial oversight added additional continued stress to the complainant and her family detrimental to her reputation in the area.

The complainant submitted that there were numerous occasions whereby she brought her concerns to the attention of the Respondent. Notwithstanding such, she felt she could not raise a grievance procedure as many of the behaviours were directly related to the lease agreement and felt she could not ‘rock the boat’ and did not feel able to begin a complaint against the CEO but that senior management and staff were repeatedly told and acknowledged what was going on.

Evidence of Complainant:

She worked for 15 years with the respondent and then there was a public tender and the respondent decided to sell the properties and asked for the cottages to be available for the public while the sale was happening and herself and her husband applied and were successful and ran them.  Mr O’Donnell in 2020 asked her about them when he came on board and seemed very interested in them.  When she considered taking on a job as a PA she was dissuaded by him and was told it might impact on continuing with her involvement with the cottages.  She said she felt in a threatening situation in April 2021 and was served notice on the cottages and was offered to take a lease agreement for 4 months and there was a demand for €3,600 and they decided not to take on the lodge but were persuaded to go ahead with the lease and it was a disaster as the insurance company decided to pull out of the Irish market.  After an email was sent by her from the Ashley lodge email address to Mr C within 40 mins he called to her office and when she said she did not want to talk about it she was told by him to listen and remember who she was talking to and she asked him to leave 11 times and it was upsetting that her manager told staff her shouts could be heard at the Cathedral.  A meeting was called by Mr B and Mr C and she was told that she was portraying herself as a victim and that they were the victims and that Mr C claimed he developed asthma as a result of the incident and this was in November 2021 and she felt isolated.  The complainant received an anonymous letter about the cottages without board overview and her and her husband were subjected to this and they had done nothing wrong.  Mr O Donnell told her to keep her knickers on and several weeks later he said he took the letter to the garda.  She said there was also an FOI request and she was told that her information would not be released and she begged that it would not and went on stress related leave and there was nothing but lies and misrepresentation and nothing done to clear her name.  She wished to work out her four week notice and was asked to take a 12-year-old for ice cream and was grateful for the call from Norma Brophy and sent her resignation while she was out sick.  She was never told they would release the info under FOI while she was out and worked her notice form home.  The complainant took a pay cut and commenced employment on 28/08/2022 working 24 hours a week.  She said she cannot stay on this salary long term and she will have to look for other jobs owing to the loss.

Cross Examination of Complainant:

Under cross examination the complainant said she worked 3 days per week and had a commercial engagement with the respondent.  It was not conventional to get commercial emails sent to her work email address.  She accepted that there are rules and corporate governance applying to the respondent and said there should have been but there was not.  From 31/08/2021 there was no longer a commercial relationship between herself and the respondent and she was at the WRC because of conflation of the rules and disagreed that it was because of the commercial matters that she resigned.  She had asked that all communication be through commercial email address and there was only one occasion where she used the work email address for the commercial matters but that the respondent kept using her work email address despite her requests.  She did enjoy running the cottages and denied that she was screaming at the meeting of 08/09/2021 with Mr C and that she had asked him to leave and he did not and she was angry.  She advised on 18/11/2021 that she wished to draw a line in the sands and that she wished to move on.  Dignity at work was raised 10 times and raised at that meeting of 18/11/2021 and raised 7 or 8 incidents that had occurred. 

She accepted the respondent is covered by FOI and confirmed that Ms Fortune did offer to meet with her and go through it and she was denied the right to make submissions and Ms Brophy did phone her to offer support.  The respondent was not communicated with about her gp visits as she had raised it previously and had told Ms Brophy that the matter was very serious.  Her letter of resignation was a dignified letter after raising on 10 occasions the matters and that she could not have left without a job lined up.  She reiterated that Mr O’Donnell said to keep her knickers on and told her to stop feeling sorry for herself.  The complainant did not agree that it was unreasonable to resign and to have a job lined up.  She said that she was used as a decoy for media speculation.

Evidence of Liam Gavin:

Mr Gavin confirmed he was asked to attend a meeting on 18/11/2021 as an observer and that the complainant read her statement.  He said that Mr B opened the meeting talking about the cottage and her role and that the tone at the beginning was opening and welcoming but that when the complainant read her statement it became more hostile.  He said he was sympathetic to what the complainant was saying but the two people present were not and he said it went from an open meeting to an aggressive meeting and he had to interject.  They said they would follow up afterwards and he did not know if they did and said he still works there.

Cross Examination of Mr Liam Gavin:

The meeting was scheduled he understood by Mr B and that they seemed at the start of the meeting to be open to clearing the air.

Evidence of Richard Bowens:

Mr Bowens said he is the complainant’s husband and that prior to Mr O’Donnell’s involvement himself and the complainant were left to get on with things but when Mr O’Donnell took up his role he seemed to have an immediate interest including whether there were bookings.  It was not possible for Mr O’Donnell not to know about the running of the cottage as he booked in 20 people to stay there.  He said he saw constant texts and emails from March 2021 till August 2021 following the media interest and it put severe pressure on the complainant.

Cross Examination of Richard Bowens:

There was no cross examination.

Case law cited include Joanne Maher v Kerr’s Tyres Ireland Ltd, Brendan Phelan v Irish School of Motoring, Tara Cassidy v Bank of Ireland.

Preliminary Issue #1:

The respondent submitted that they had no objection to anonymising the decision and requested that if the complainant’s name was anonymised they requested that the respondent’s name also be anonymised.

Preliminary Issue #2:

The respondent requested that a decision be made on whether the complainant had met the burden of proof before proceeding with their evidence:

Substantive:

It was submitted that the Respondent refutes this claim and submits that the complaint does not meet the burden of proof to substantiate a claim for constructive dismissal. The Complainant resigned of her own volition, working out her notice period, having secured another job without initiating or exhausting the internal grievance procedures in advance of doing so.

The Complainant commenced employment on 07/03/2007 and on 22/02/2021 moved to a 3-day working week with a pro-rata salary of €30,766.93 and submitted her letter of resignation 28/07/2022 and worked her notice period until her final day of employment 19/08/2022  and commenced new employment on 24/08/2022.

The respondent employs approximately 320+ employees and was bequeathed a property adjacent to a respondent’s operational base with two cottages and a large house called ‘The Lodge’ managed directly by the respondent for the angling community for more than a decade up to 2017.  Rather than leave the cottages vacant, the company investigated a third party taking over the operation of the cottages as short-term holiday lets on a temporary basis. April 2017 an ‘expression of interest’ in this commercial arrangement was sent and the complainant and her husband, were successful in coming to an agreement to run the cottages with the  term of the commercial contract  for one year initially. A decision was made to sell the properties and unfortunately no offers were proceeded to sale so the Board decided to withdraw the properties from the market at a Board meeting in December 2020 and the lessees’ commercial agreement continued on.

Summer of 2021, the Head of Finance Mr A received an offer from the former selling agent to rent ‘The Lodge’ for the summer and to ensure good corporate governance and in line with public sector procurement rules, two other quotes were sought (i.e., one from another letting agent and one from the lessees). The lessees, the complainant and her husband were successful in their bid to lease ‘The Lodge’. On 25/06/2021  the lessees sent an email to the Head of Finance advising they were pulling out of the commercial arrangement on the basis that the expectations for managing ‘’The Lodge’’ were too high. Following discussions, the lessees came back to the table and agreed to run ‘The Lodge’  The lessees sent an email to the local operations manager in Galway Mr BB  to advise that they had ‘’blocked out bookings on AirBnB’’ and they would also be ‘’taking down the website today’’, essentially withdrawing from their role as lessees.

In subsequent emails from the lessees to the Respondent, it would become apparent that the term of lease and the potential future of the cottages was the key reason for the withdrawal of services. The tone of the emails following the withdrawal became unprofessional. On 08/09/2021, the complainant and Mr C had a conversation in the complainant’s office in respect of the leasing of the ‘Lodge’. During this conversation the complainant became irate, quite vocal and used inappropriate body language not conducive to the appropriate conduct expected of all employees of the respondent while in the workplace.

On 18/11/2021  a meeting was held between the complainant and Mr B and Mr C to discuss that meeting and the complainant outlined that a decision to cease operating the cottages and the lodge was a difficult one for her and that the decision coincided with her decision to turn down a promotional opportunity at the respondent. The complainant felt that she wanted ‘to draw a line under the issue’ and indicated that any loose ends as regards her time leasing any properties from the respondent would be dealt with in a separate communication channel to that of her employment relationship.  The commercial arrangement was concluded by October 2021.  

The complainant received income from the cottages and separate from the commercial arrangement continued in her role as a part-time administrative assistant as she had done historically. In May 2022, a Freedom of Information Act (FOI) request was received by the Respondent seeking information specifically on the leasing agreement of property encompassing all ‘mails, correspondence and lease documents.’ Being a state agency, the Respondent is explicitly covered by the Freedom of Information Acts 1997-2014 and is obliged to respond comprehensively to such requests. The Respondent’s compliance manager along with multiple other employees, was immediately contacted and informed of the detail of the request. The complainant was asked to identify, search, and retrieve any records falling under the request and copy them to a shared folder. The Respondent has an established process, to manage these types of requests, to search, collate and assess the information which is relevant to an FOI request and then to release such information.  On 18/05/2022 the complainant received an e-mail from the compliance team which set out the FOI request in full and provided instruction on which information to collate and how to do so. A deadline of 07/06/2022 was issued to her by the Compliance Team for the supply of the information requested. The Respondent also extended an offer to the complainant to contact the compliance team if she had any queries and that they were happy to answer same / explain the process etc.

The complainant, who was an employee of the Respondent but was also a hitherto private business owner who had engaged in a commercial arrangement with the Respondent on the properties which were the specific subject of the FOI request, had concerns about the information which may be released and informed the compliance team that she felt that the FOI request could be ‘frivolous and vexatious’ and should not be complied with on that basis. The complainant was concerned that the information released could make its way into the public domain and she had concerns about the reputational impact on her.

On 08/06/2022 Ms Emma Fortune, Board Secretariat and Compliance Manager, e-mailed the complainant to set out the process and the complainant was offered an opportunity to meet once the exercise had been completed.  The complainant responded she wanted her husband, her ‘business partner’ in the commercial arrangement, to be present at the proposed meeting and was advised that the meeting was for the complainant in her capacity as an employee and was not to be confused with interacting with her in her external capacity as a business owner. The complainant declined to attend the meeting. The Respondent complied with the FOI request as obliged by law, having received specific legal advice to ensure the information released was correct and appropriate and the information did not personally identify the Complainant.  Separately, 07/06/2022 the complainant outlined concerns with Norma Brophy, HR regarding the FOI request and it was noted that it was ‘an upsetting time’ and complainant was offered support and was advised of the company Employee Assistance Programme (EAP)

The complainant did not make any claim or reference to any grievances or workplace issues outside of the FOI request.  On 13/06/2022 the Complainant commenced absence with medical certificates that did not make any reference to work related issues. On 21/07/2022 the Complainant submitted letter of resignation with no reference to any work-related issues which could allegedly have led to her resigning her employment. The complainant indicated that she would work out her full notice period and stated in her resignation letter: ‘I’d like to take this opportunity to thank you for the many wonderful years I have spent in fisheries. In many ways it was more than a job.’ She returned to work on 28/07/2022 and worked out her notice period until her last day on 19 August 2022. On 24/11/2022 the Respondent received two letters from Ms Canney’s legal advisors, one indicated that the Complainant wished to take a claim for Constructive Dismissal setting out previously unraised allegations which allegedly occurred in the years before the Complainant resigned. These had not been raised to the Respondent in advance of this letter being submitted.

The second letter, referred to the Freedom of Information Act and suggested the Complainant may have grounds to take the matter to the Data Protection Commissioner or the Circuit Court. The document also inquired whether an ‘agency agreement’ was released as part of the FOI request.  On 19/12/2022 and 23/12/2022 the Respondents’ legal advisors, responded to the Complainant’s solicitors outlining the complainant had never raised complaints related to an alleged bullying campaign by management and outlining how the FOI was handled and that the respondent was satisfied it complied with all of its obligations

It was submitted that Respondent at all times operated within the terms of the contract of employment between the parties. No contractual violation occurred.  It was also submitted that the respondent acted reasonably and fairly at all times, in accordance with its policies, best practice, and appropriate conduct. Complying with a statutory provision cannot be seen as anything other than reasonable behaviour. It is the Respondent’s position that in advance of the Complainant furnishing her resignation, she should have fully utilised internal procedures to resolve any grievance, which she failed to do. Working out her full notice period demonstrates that her workplace was not ‘intolerable’ such that she had no option but to resign. The Complainant made no reference in her letter of resignation to any negative issues which were causing her resignation. In conclusion, the Respondent’s in no way repudiated the contract of employment but operated the employment relationship at all times within the parameters of that contractual relationship. Furthermore, the Respondent’s interactions with the Complainant were at all times reasonable, and that, conversely, the Complainant’s action in failing to utilise the internal grievance procedures before resigning was unreasonableness on her part. In light of that, it is the Respondent’s position that the Complainant was not dismissed, constructively or otherwise, from her employment.

Case law cited include Travers v MBNA UD720/2006, Conway v Ulster Bank, McCormack v Dunnes Stores.

Evidence of Mr Francis O’Donnell:

He is CEO SINCE November 2020 and a director previous to that.  In Spring 2020 he got to know complainant and got on well with her and as director he would have been aware of the cottages and that the respondent had gone to tender previously and that there was a lease with the complainant.  He said that they had to engage in re-tendering as proper procurement had not been done.  He was Mr B’s line manager in September 2021 who advised him of an interaction with the complainant and was upset and he was aware of the meeting of 18/11/2021.  He said that she did an interview and was #1 following the interview and they discussed it and it was a demanding job and that he thought that she was exceptional and she had been working 3 days a week and she declined the role.  The complainant was an employee and there was a cross over with email for her day job and the commercial role.  He said that on 18/05/2022 he was at Galway and was approached by her about the anonymous letter and that he took the matter of an anonymous letter seriously as he had also been subject to similar letters and contacted the Chair of the Board and brought the letter to the garda.  He never made any mention to the complainant’s underwear.

Cross Examination of Mr Francis O’Donnell:

He knew the complainant was involved with the tender and there were three others and that he could not speak to allegations of gazumping.  It was possible that he tried to book the lodge.  He denied that he said the anonymous letter was part of a smear campaign and should not be released and that there was a conversation about FOI and that there they would protect the complainant as much as possible but never said that the information would not be released as he could not say that.  Contacting the complainant was appropriate through her work email as she contacted the respondent about the property during her day job.  The leasing should have gone out to tender and the process was wrong and it was not the complainant’s fault and confirmed that he had communicated with the complainant about meeting for lunch in August 2022 after her resignation.  Mr O’Donnell said that any failures with tendering were not the fault of the complainant and that he accepted it was good practice to email a commercial partner through the commercial email address.

Evidence of Emma Fortune:

She was compliance manager with the respondent at the time and there are obligations that the respondent must meet under FOI as a state agency.  This involves making an assessment and identifying if valid and then they get a subject matter expert and FOI requests cannot be ignored and personnel info might be redacted.  They have received many hundreds of FOI requests and they are very experienced in dealing with them and are trained decision makers.  In May 2022 a request came in and finance had the information and a member of staff was identified as having some relevant information.  Requests are very rarely refused because of being vexatious or frivolous and they rely on members of staff .  The complainant had 8 records and it would not be normal to meet a commercial partner about FOI but that she was an employee and that it would be unusual for people to meet her about this but she offered to meet the complainant.  There would have been a blurring of lines allowing the complainant’s husband to attend as the obligations are for FOI and it would not have been appropriate and the complainant did not take up the offer to meet.

Cross Examination of Emma Fortune:

The complainant was asked to identify records of the agency regarding her job and it would not have been expected that there would be any records in her capacity as an employee.  The standard operating procedure (SOP) is 100 pages and to utilise FOI takes a huge amount of work and she was not aware of anyone else who was a staff and also commercially involved and that the board would have been aware that the cottages were leased and would not have known who or if they had known that it was a member of staff they might not know who specifically it was.  It would have been expected that business matters would use business email addresses and it was incorrect for senior management to communicate to the complainant regarding commercial matters through her employee email address in that manner.  It was appropriate for an FOI request to be brought to her attention in her capacity as an employee and the witness would not have known that the work email was used in that manner.  It was her opinion that she did not think it was appropriate for an employee to be asked to bring a child to town for ice-cream.  It was reasonable and appropriate when the complainant said she wanted emails to be sent to the business email address as the complainant was acting properly separating business and employment.

Evidence of Ms Norma Brophy:

She was HR Business Partner from February 2022 till 3rd quarter of 2022 and covered Galway.  There is a grievance procedure and a dignity at work procedures and staff would be familiar with them and all staff have these policies.  She was not familiar with any contact from the complainant regarding grievances.  Following an email from the complainant on 07/06/2022 she checked in with the complainant to see if she needed support and this email had only talked about FOI and made reference to the newspapers and it was limited in what could be done.  The complainant only talked about the FOI request and did not mention anything about colleagues and no mention was made in the letter of resignation that the complainant was unhappy and if it would have helped she possibly would not have included everyone on the email regarding the complainant’s mental health.

She said she was not involved in the FOI requests and said that she did not get in touch with the complainant despite her email of 08/06/2022 saying she would check in.  She did not do an exit interview as she had an increased workload and there was no red flags on her letter of resignation.  Normally employees out sick for such a length of time would be referred to OH but the complainant was not as Ms Brophy’s workload got in the way.

Cross Examination of Ms Norma Brophy:

Grievances are dealt with informally or with HR or through mediation and there are formal routes also.  .  An employee would mostly bring a grievance or a colleague might encourage them to do so.  Some of the matters raised by the complainant could be considered a grievance but she did not believe that the complainant brought a grievance.  The complainant was struggling with the FOI request and there is a procedure for FOI and that has to be followed and that she would not have thought of telling the complainant to raise a grievance about the FOI process as it is a process.  She confirmed that there was no exit interview and no follow up to the resignation letter and that might have been a slip through the cracks.

Preliminary Issue #1:

The complainant requested that the decision be anonymized owing to previous negative publicity that she experienced and the respondent had no objection to same and requested that if the complainant’s name was anonymized then the respondent should also be anonymized.

WRC hearings involving the administration of justice, namely all WRC cases save for those for disputes under s.13 Industrial Relations Act 1969, are conducted in public unless the relevant Adjudication Officer decides, of their own motion, or following an application from a party to the proceedings, that due to the existence of ‘special circumstances’, the proceedings should be conducted in private.  Taking into consideration all the circumstances, I find that I do not consider the circumstances of previous publicity to be special circumstances and advised parties that this decision would not be anonymised and would not be held in private and the hearing, therefore, proceeded.

Preliminary Issue #2:

The respondent requested that a decision be made in the first instance regarding whether the complainant had met the burden of proof before they proceeded with their evidence.  Parties were advised that considering all the circumstances of the case and without prejudice to the parties, that the hearing would proceed in full, with submissions and evidence from all witnesses.

Substantive:

The complainant submits that she was left with no alternative but to resign her position owing to the behaviour of the respondent.  The respondent denies the complaint and submits that the complainant did not raise a grievance, secured another role, resigned her position and worked her notice.

Section 1(b) of the Act defines a constructive dismissal for the purposes of the Act as follows: -

“(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”.

Section 6(1) of the Act states:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The initial burden of proof rests upon the complainant to establish facts which prove that she would not have resigned from her employment but for her employer’s behaviour.  Section 1, above, delineates the circumstances in which a resignation may amount to what is commonly termed an unlawful constructive dismissal.  Constructive dismissal can arise where the employer’s conduct amounts to a repudiatory breach of the contract of employment which would “entitle” the employee to resign her position, often referred to as the “contract test”.  As held in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332, a repudiatory breach of the contract arises where an 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 as discharged from any further performance”

Secondly, 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 her employment. This test of reasonableness, when applied to the within matter, asks whether the employer conducted its affairs in relation to the employee so unreasonably that the Complainant could not fairly be expected to put up with it any longer.

It was not disputed that the complainant worked in a part-time capacity and engaged in a commercial arrangement with the respondent along with her husband and this continued mostly uneventfully from 2017 until 2021.  It was not disputed that the respondent communicated mostly through the complainant’s work email address despite requests from the complainant that this should cease. The complainant in the main communicated regarding the commercial activity through the commercial email address.  I note the credible evidence of Ms Fortune who outlined that the complainant acted properly in requesting that communication regarding the commercial arrangement should have been through the commercial email address.  The complainant should be commended for her professionalism in requesting the appropriate manner to communicate regarding a commercial matter and the response by the respondent appears to have been disparaging of her request especially when one considers that there is clearly an unbalanced power dynamic between directors and the role of an administrator which the complainant held.  This request and other matters spilled over into what was clearly a very upsetting interaction between Mr C  and the complainant on 08/09/2021.  At the follow up meeting of 18/11/2021 I note Mr Gavin’s credible evidence that the complainant’s submission regarding her unhappiness was not warmly received by the respondent.  That said, it should be highlighted that the complainant’s own evidence was she was willing to put a line under the sand and with the commercial relationship having now ended, she was willing to move on.

It does not appear that anyone could have expected that early to mid 2022 the respondent would receive  an FOI request and the follow-up publicity that ensued regarding the property that the complainant had been commercially involved in.  While  it was extremely upsetting for the complainant to have to face media scrutiny to the extent which she did, in the manner in which she had to, and to also deal with an anonymous letter, through no fault of her own; it is unclear what if anything the respondent could do about this as they had responsibilities to deal with FOI requests. There was most certainly at times lack of empathy from senior management who could have checked in with the complainant regarding the impact of such undesired and undeserved media exposure, including following up when she was out sick.  The complainant did raise some concerns on 07/06/2022 which mostly appear to be in relation to the FOI request and it would appear that Ms Fortune did recognise the impact that such an FOI request might have and it is unfortunate that the complainant did not take up the offer of a meeting where some of her concerns might have been alleviated.  The complainant never raised a grievance regarding the matter and no reference was made in her sick certs to any such matters and while on her sick leave, she secured employment, resigned her position on 28/07/2022 without raising any grievance, worked her notice and left the organisation on 19/08/2022.

Conway v Ulster Bank Limited UDA474/1981 outlined the expectation that employees pursue a grievance through procedures laid down in the contract of employment and the EAT in Beatty v Bayside Supermarkets UD142/1987, referencing Conway v Ulster Bank Limited 475/1981 determined:

“It is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981.  In this case the Tribunal considers that the procedure was not followed by the complainant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the complainant’s resignation he was not constructively dismissed”.

In all the circumstances, while the behaviour of the respondent up to November 2021 lacked at times professionalism, a line was drawn by the complainant and I cannot find that the conduct of the respondent, thereafter, was a contractual breach or was unreasonable or could justify the Complainant terminating her employment without utilising the appropriate procedures.  Accordingly, I find that the complainant resigned her position and was not unfairly dismissed.

Taking into consideration all the submissions and evidence, I find that the complainant resigned her position and was not unfairly dismissed.

Freedom of information, constructive dismissal, bullying, media publicity, commercial arrangements