INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015
TUSLA THE CHILD & FAMILY AGENCY
(REPRESENTED BY ARTHUR COX)
- AND -
Chairman: Mr Hayes
Employer Member: Mr Marie
Worker Member: Mr Shanahan
1. An appeal of Adjudication Officer Decision no: r-159510-ud-14/EH
2. The Worker appealed the decision of The Adjudication Officer to the Labour Court in accordance with Section 9(1) of the Unfair Dismissals Act, 1977 to 2015 on the 4th April 2016. A Labour Court hearing took place on the 6th July 2016. The following is the Determination of the Court:
This is an appeal under section 9(1) of the Unfair Dismissals Act 1977 to 2015, by Ms Lorraine Whelan (the Complainant) against a decision of the Adjudication Officer in which he decided that her resignation from her employment with TUSLA The Child and Family Agency (the Respondent) was not in the nature of a constructive dismissal within the meaning of the Act. The Complainant appealed against that decision to this Court. The appeal came before the Court on 6 July 2016.
The Respondent was established in January 2014. The Complainant had previously worked for the HSE and was transferred to the new Agency on its establishment. Prior to that, she worked in the section of the HSE that subsequently became the new dedicated agency.
The Complainant was employed as a part time Clerical Assistant providing administrative support to a number of “Trainers” in the Agency. She shared these duties with another part time work. When that other worker retired she was not replaced due to the financial emergency in the State and the consequent recruitment embargo in the public service. That resulted in additional work pressures on the complainant which necessitated a restructuring and reprioritisation of duties for all staff including the complainant. All of the trainers, with one exception, co-operated with the restructured duties.
Tensions between that one trainer and the complainant mounted and gave rise to considerable disharmony in the workplace. The Complainant approached her management regarding the deteriorating work environment and raised a number of grievances. However each time she did so she believed that she received assurances from either her manager or advice from her Union that the matter was in hand and would be resolved. However on each occasion she was disappointed with what she considered inaction by management.
The situation deteriorated further until the complainant filed a complaint with the Agency under the Dignity at Work Policy. This complaint was assessed and deemed not to come within the scope of that policy. She was advised that it was an inter-personal dispute with another employee and should be addressed through the grievance procedures.
She sought protection from Management and complained of bullying. Her health deteriorated and she started to miss increasing amounts of time from work. Management attempted to address the problem by developing a “Memorandum of Understanding” through which the complainant’s workload was managed. However that memorandum did not find favour with the complainant as it did not address the bullying issue and imposed an additional level of administrative complexity on her already overburdened workload.
A mediation arrangement was put in place to try to resolve the disharmony between the Complainant and the Trainer against whom she had filed a bullying complaint. Mediation was not successful.
At that point the Complainant had been experiencing deteriorating health and missing increasing amounts of time at work. She decided she could not tolerate the situation any longer and decided to resign her position.
When she returned to work from a period of illness of 22 June 2015 she handed in her notice and vacated her post six week later.
The Complainant submits that management failed to provide her with a safe workplace or to protect her from the bullying behaviour of another employee. She submits that she took all reasonable efforts to bring the matter to management’s attention. She co-operated with all efforts they made to resolve the problem but that it failed to address her complaint or to implement effective solutions. She submits that she suffered increasing periods of sickness as a result of work related stress and that her health was becoming more compromised by management’s failure to address her concerns or protect her at work. She submits that in order to protect herself against complete breakdown she had no option but to terminate her employment. She submits that having brought about that situation management had in effect fundamentally breached its contractual commitment to provide her with a safe place of work and to protect her against the treatment she was subjected to. She submits that her resignation in those circumstances amounted to constructive dismissal.
The Respondent submits that as a result of the embargo all staff had to adapt and accommodate change and adjustment to the new financial realities. The Complainant was no more or less affected than others in that regard. Accordingly when her co-worker retired she was not replaced and the complainant was required to adjust her work patterns to ensure that the service continued. It submits that this revised arrangement worked well with three of the four trainers with whom she worked. It did not work well with another trainer.
It acknowledges that there were issues between the complainant and that trainer. The complainant made a complaint under the Dignity at Work Procedure against her and this was referred to the HSE for processing. However the HSE advised that it did not come within the scope of that procedure and should be dealt with as an interpersonal issue and progressed locally or through the grievance procedure. It submits that the Complainant was so advised. However while the Complainant initiated a number of grievances against that trainer she did not maintain any of them through the procedure.
It submits it put in place a Memorandum of Understanding (MoU) to deal with all of the work related issues that arose as a result of the staff reduction and embargo on recruitment that affected the complainant.
It submits that it provided the Complainant with access to mediation in an effort to address the interpersonal issues that had arisen. It acknowledged that mediation however was not successful in this case.
It submits that after mediation failed it decided to offer the complainant alternative duties away from the person with whom she had interpersonal difficulties so as diffuse the inter personal dispute that gave rise to the complainant’s grievances. However before it could explore those options with the complainant she decided to resign and would not entertain the alternative position offered.
It submits that it acted reasonably in difficult circumstances to resolve the complainant’s issues. It submits that it took all reasonable steps to progress the matter to a satisfactory conclusion for both members of staff.
Finally it submits that the Complainant did not process a grievance through the agreed procedures and consequently acted peremptorily by resigning her position. It submits that she worked for six weeks after she submitted her resignation and refused to withdraw the resignation despite being offered alternative duties away from the person with whom she had interpersonal difficulties.
It submits that it did not dismiss the complainant and that she had a range of alternative options other than resignation but which she opted for in this case.
Section (1) of the Act defines constructive dismissal in the following terms
- (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, or
The question for the Court to decide is whether, 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.
There are two well established tests that are employed when answering this question. They are what are known as the “contract test” (Western Excavating (ECC) Ltd v Sharp  ICR 221, 226 and the “reasonableness test” also referred to in Western Excavating (ECC) Ltd v Sharp.
The first requires that an employer 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”.
The reasonableness test requires that “the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer”. If so the employee “is justified in leaving”.
In this case the Complainant raised a number of concerns with management. She was clearly indicating that she felt her health and well being were being compromised and that she required protection. She sought to progress her concerns through the Dignity at Work Policy and through the Grievance Procedure. However the Dignity at Work Policy did not encompass the complaint and she was advised to utilise the grievance procedure in the alternative. She was assured that her concerns were being or would be dealt with. On that basis she continued at work and sought to have her concerns addressed. However she found that the pace at which management was addressing the issues was not satisfactory and that her health was deteriorating. She finally decided she had no option but to resign in order to protect herself against further damage to her health. She gave six weeks’ notice to her employer and left her employment.
The respondent submits that it took all reasonable steps to address her concerns. The Complainant sought to progress matters through the Dignity at Work Policy and when that was not an option it so notified her that she was entitled to pursue the matter through the grievance procedure. It submits that she chose not to do so.
It submits that it developed a memorandum of understanding to govern the flow of work and to monitor the workload but that the complainant resisted it because it did not address the interpersonal issues she had raised. It submits it was not designed to do that but rather to ensure that her workload was managed and reasonable.
It submits that it arranged mediation to attempt to resolve the interpersonal issue. It further submits that when that failed it began the process of seeking alternative employment duties for her away from the person with whom she had issues.
It submits that the complainant had a number of options that she could have exercised and that she chose not to and instead resigned her position.
The Court has considered the totality of the evidence and information before it. The Court finds that the complainant had issues that she raised with her employer. It finds that the employer managed those issues less than perfectly. However there is a clear progressive effort on its part to find solutions that could work in the difficult environment that existed at that time. It further finds that having exhausted the procedural mechanisms available to it Management began the process of identifying alternative employment opportunities within the Agency. It had begun the process of putting those options to the complainant at the meeting at which she resigned.
The Court notes that the complainant continued in employment for a further six weeks during which she could have engaged with the respondent to find alternative employment. However she took the position that resignation was the only option she would consider and acted accordingly. She did so when the respondent was willing to explore alternative means of separating the two employees and assigning her work in another area. While the initial offer was not ideal it did address the interpersonal issue at the root of the complainant’s concerns and indicated that the respondent was not seeking to terminate the contract of employment. Quite the contrary.
In all the circumstances therefore, the Court finds that while the respondent’s behaviour was less than perfect it was not so unreasonable as to justify the complainant’s decision to leave nor was it such as to show that it no longer intended to be bound by one or more of the essential terms of the contract of employment.
Accordingly the Court upholds the decision of the Adjudication Officer. The appeal is not allowed.
The Court so determines.
Signed on behalf of the Labour Court
8 JULY 2016Deputy Chairman
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.