UDD2034

1. An appeal of an Adjudication Officer's Decision No: ADJ-00023272

BACKGROUND:

2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 6 January 2020 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 6 October 2020. The following is the Determination of the Court:-



DETERMINATION :

This is an appeal by Barbara Gallivan (the Appellant) against an Adjudication Officer’s Decision given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a complaint that she was unfairly constructively dismissed by her former employer, St Marks SNS (the Respondent). The Adjudication Officer found that the complaint was not well founded.

Background

The Appellant was employed by the Respondent school as a Special Needs Assistant until the termination of her employment on 28^th January 2019. In that letter she stated that she was resigning so that she could take up a position as a part time school secretary on 4^th February 2019.

The fact of dismissal is in dispute.

Summary position of the Appellant

The Appellant submitted that a series of events had occurred in the period from June 2014 which amounted to commentary and actions by various individual members of school staff and which often contained innuendo. She submitted that on her return to work in September 2017 she found an extremely hostile environment.

She submitted that a range of individual members of the Respondent’s staff continued to make commentary to her including commentary as regards her family and her private circumstances.

The Appellant named a number of staff of the Respondent and attributed statements and actions to them which she stated were directed at her and which, in her view, were suggestive of dishonesty on the part of the Appellant on at least one occasion. She submitted that a priest had made a statement at a mass which had particular relevance to her. On another occasion another priest made comments during a mass while looking in the direction of the Appellant. Following that experience the Principal had specifically asked the Appellant on her return to school if she had enjoyed mass.

A further series of events occurred involving various staff of the Respondent which were directed at the Appellant including a further statement by a priest in the mass attended by the school.

Following a period of illness, the Appellant returned to work after Easter 2018 and whereas everybody was exceptionally nice, events occurred again in June 2018 which were directed at her.

On return to work in September 2018 a further series of events occurred including the making of remarks by the Principal which were personal in nature and referred to her family circumstances. Such events continued until the Appellant left the Respondent school in January 2019.

She felt she had to leave the Respondent school as quickly as possible. She commenced employment in another job very quickly after leaving the Respondent’s employment.

She submitted that she was not aware of the detail of the grievance procedure in place in the employment. In any event she was unable to raise a grievance with the principal who was a person against whom a grievance existed. In response to a question from the Court the Appellant stated that she secured legal advice on her return to work in 2018.

She advised the Respondent on leaving the employment that she had secured a part time job closer to her home. She sought a shortened notice period in order to allow her to take up the other job and this was afforded to her by the Respondent.

Summary position and testimony on behalf of the Respondent

The Respondent submitted that no dismissal had occurred in January 2019. The Appellant had resigned her employment by letter dated 28^th January and stated that she was commencing a new position on 4^th February. The employment of the Appellant was governed by the circulars of the Department of Education and Skills and in particular the circular 72/2011 which deals with grievance and disciplinary procedures. The Respondent submitted that the Appellant had the option under those procedures to raise a grievance with a nominee of the Board of Management if she did not wish to do so with the school principal. The Respondent submitted that the Appellant had never raised a grievance.

The Respondent refuted the allegations of the Appellant in their entirely and insofar as actions or statements attributed by the Appellant to individual staff of the Respondent were concerned, the Respondent rejected those allegations in their entirety.

The Respondent submitted that an onus rests upon the Appellant to establish that a dismissal had taken place at all. In addition, the Appellant bore the burden of establishing that the behaviour of the Respondent was so unreasonable as to leave the Appellant with no alternative but to terminate her employment.

The Respondent also submitted that it is well established in law that before terminating her employment, it was incumbent upon the Appellant to utilise the available grievance procedure so as to give the Respondent the opportunity to address any issue which she might raise.

The Respondent submitted that the Appellant’s resignation was not reasonable in the circumstances and that she resigned before raising any grievance with the Respondent.

A total of four staff of the Respondent gave evidence to the Court. In each case the witness had been named by the Appellant as having made a statement or acted in a manner which the Appellant found objectionable. In each case the witness denied in evidence that he or she had carried out the action or made the statement complained of.

The Law

Section 1 of the Act defines a dismissal which is commonly termed 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

• 6.(1) 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.

Dismissal as a fact is in dispute and consequently it is for the Appellant to establish as a matter of probability that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where conduct of the employer amounts to a repudiatory breach of the contract of employment an employee could be entitled to regard herself as having been dismissed. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held by the Employment Appeals Tribunal that, to meet this test,

• 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”

Similarly, a line of authorities has established that an employee who seeks to rely upon the Act must demonstrate that she also behaved reasonably in concluding that she is entitled to terminate her employment. In particular, the authorities make clear that an employee must seek to utilise the available grievance procedures in the employment before terminating her employment or else demonstrate why such a course of action would not have been reasonable or practicable.

In Beatty v Bayside Supermarkets UD 142/1987 for example, the Employment Appeals Tribunal held:-

• “The Tribunal considers that 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 UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

In this case the Appellant resigned her position by letter dated 28^th January 2018. With the co-operation of the Respondent and at her request, she resigned with immediate effect and cited the fact that she had secured alternative employment to support her request to the Respondent in this respect.

Her letter of resignation discloses no allegation of bad behaviour by the Respondent. Neither had the Appellant raised any such contention through available procedures prior to her resignation.

The Appellant has, in her submission to this Court, set out a narrative describing alleged statements, behaviours and actions of a number of teaching staff, the school principal and two priests including one whose identity was unknown to her, to support her contention that she was left with no alternative but to resign her position. The submission of the Appellant refers to events between 2014 and January 2018.

The Court has been unable to discern the basis for the Appellant’s concerns as regards the statements and actions contained in her extensive set of allegations submitted to the Court. She has not provided the Court with a basis upon which it could interpret the alleged behaviours and actions as having a particular or general relevance to the Appellant.

In any event, a series of witnesses before the Court who were alleged to have carried out actions or made statements which contributed to the Appellant’s decision to resign, denied under oath having made the statements or carried out the alleged actions.

The Court must give weight to sworn testimony and could find no reason to impugn the evidence tendered on behalf of the Respondent. No evidence was tendered by the Appellant.

The Court notes the existence of comprehensive grievance procedures in the employment and accepts that staff of the Respondent were aware that such procedures existed. The Court notes in particular the Appellant’s assertion that she had secured legal advice in 2018 and is satisfied that she had the means and opportunity to be aware of the existence and detail of the grievance procedure in place in the employment.

Having regard to the written and oral submissions of the Appellant and the submissions and evidence given to the Court on behalf of the Respondent, the Court concludes that the Appellant has not established that she was unfairly constructively dismissed. She has, in the view of the Court, failed to establish that any behaviour of the Respondent could reasonably be interpreted as having entitled the Appellant to terminate her employment in a manner which could be found to amount to constructive dismissal.

Determination

The Court determines that the complaint is not well founded. The appeal fails and the decision of the Adjudication Officer is affirmed.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
4 November 2020	Chairman