ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015089
A Community Resource Worker
A Charitable Organisation
Mr. Dan Walshe BL on the instructions of Brody and Company Solicitors
Adare Human Resource Management
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 19 March, 2019 and 20 June, 2019
Workplace Relations Commission Adjudication Officer: Enda Murphy
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was employed by the Respondent as a Community Resource Worker from September, 2004 until 27 March, 2018 when she resigned from her employment. The Complainant claims that she was constructively dismissed from her employment after she was subjected to bullying/harassment in the workplace and was required to take on an excessive and unreasonable workload. The Complainant contends that she attempted to resolve these matters internally, but the Respondent failed to adequately address her concerns leaving her with no option but to resign her position.
The Respondent denies that a dismissal occurred and contends that the Complainant resigned from her position of her own volition without fully exhausting the internal procedures in relation to her grievances.
Summary of Complainant’s Case:
The Complainant commenced her employment with the Respondent as a Community Resource Worker in 2004. The Complainant initially worked four days per week but this was increased to five days per week in 2006 after she completed a Higher Diploma in the relevant discipline. The Complainant was initially based in the Midlands Region.
The Complainant submits that she did not have the same access to funding, equipment and training as other employees of the Respondent in the same position as her despite making repeated requests for such matters to be addressed. The Complainant also experienced bullying while renting a building with another organisation during the period she was assigned to the Midlands Region. This involved heating being turned off on Fridays affecting client groups, setting the alarm off while the Complainant was still in the building, blocking rooms from being booked, blocking the Complainant’s pathways by putting obstacles in her way when she was carrying equipment from the office to her car, moving of equipment from rooms booked by the Complainant, interfering with the lift while the clients were in the lift and blocking rooms and equipment. The Complainant was required to work from a building that wasn’t suitable for her requirements. The building was inaccessible for blind and vision impaired people who would be the primary users of the building and the Complainant suggested an alternative suitable building but this was dismissed.
The Complainant was not permitted to work from home despite other employees being permitted to do so and she was spoken to in a derogatory and condescending manner. These issues were brought to the attention of the Complainant’s Manager, Ms. A.
The Complainant was required to attend regional meetings periodically with her colleagues and Manager, Ms. A. The Complainant contends that these meeting were commonly referred to among her colleagues as “bash [the Complainant] over the head days” arising from the adverse manner she was treated by Ms. A at these meetings. In January, 2015, the Complainant attended a supervision meeting with Ms. A where she was accused of falsifying records, claiming mileage that she wasn’t entitled to and doing mileage that she didn’t need to do. Ms. A also asked the Complainant about activities which had taken place seven months previously and she had prepared reports regarding these activities and asked the Complainant to explain. The Complainant felt that the supervision meeting was an ambush. The Complainant was due to have another supervision meeting with Ms. A in March, 2015 and informed the HR Manager, Ms. B, that she did not feel safe to meet with Ms. A for supervision due to what happened previously.
On 5 June, 2015, the Complainant submitted a complaint of bullying against Ms. A under the Respondent’s internal grievance procedures and an investigation was subsequently conducted in relation to the matter. The Complainant was provided with the final investigation report in relation to the grievance on 9 September, 2015 which concluded that there were no grounds for her complaint. The Complainant indicated her intention to appeal and expressed her view that the report was not objective and did not take into account the information she had provided.
The Complainant was absent from work due to work related stress for parts of October, November and December, 2015. On 21 December, 2015, the Complainant responded to an internal advertisement seeking a Community Resource Rehabilitation Worker in Waterford. The Complainant submits that the Respondent had failed to adequately address the issues raised by her and as a result she had no alternative but to apply for a different work location. On 15 January, the Complainant met with Ms. C, South East Manager, and sought clarification regarding the area she would be working in the new position. The Complainant was advised that her area was Waterford City and Tramore with a focus on developing groups. Ms. C informed the Complainant that she was not happy with the internal transfer system within the Respondent and would prefer to advertise externally. The Complainant claims that this was a clear indication that Ms. C was not satisfied that she had gotten the job. The Complainant also sought clarification from Ms. C as her role was being changed to Regional Resource Worker (as opposed to the advertisement being for a Community Resource Worker). The Complainant was informed by Ms. C and subsequently by the HR Manager, Ms. B, that the role was Community Resource Worker as advertised.
In February, 2016, the Complainant was required to cover the maternity leave of a colleague, Ms. D, who was absent from January, 2016 to August, 2016. Ms. D was the Community Resource Rehabilitation Worker for South Tipperary but she had her office in Kilkenny. Ms. D did not return to work until January, 2017 as she extended her maternity leave but the Complainant was not consulted about this. The Complainant was not allowed to use Ms. D’s office in Kilkenny during this period but instead had to travel daily from her home in Carlow to Waterford City. During this period the Complainant was also required to cover Mr. E’s difficult cases while he was on leave for a month.
The Complainant hurt her back in April, 2016 and subsequently had a lump removed from her breast and these issues made her commute from home to her workplace more difficult. The Complainant raised these issues with her Manager, Ms. C, but she continued to refuse to allow her to use the Kilkenny office despite the fact that her colleague, Ms. D’s desk was vacant for the duration of her absence on maternity leave. The Complainant was ultimately allowed to work from the Kilkenny office one day per week.
In February, 2017, Mr. E left and the Complainant was told that she had to cover all of County Waterford. The Complainant informed her Manager, Ms. C, that she couldn’t manage that and that she would never have accepted the job if she had known she would be required to cover all of County Waterford as it would involve too much driving. Ms. C became annoyed and told the Complainant that she had to do it. Essentially, the Complainant was now taking on Mr. E’s part-time role as well as her own full-time role. The Complainant lives in Carlow and the Respondent’s insistence that she cover all of County Waterford constituted a significant increase in the amount of driving she was required to do. The Complainant was threatened with, and ultimately subjected to disciplinary proceedings for her refusal to cover all of County Waterford. The Complainant attended a disciplinary hearing on 29 April, 2017 and she disputed the allegations made against her. On 28 May, 2018, the Complainant was issued with a verbal warning. The Complainant claims that the Respondent did not adhere to correct procedures when giving her the verbal warning. The sanction was upheld by the Respondent on appeal.
The Complainant submits that the Respondent’s insistence that she fulfil 2.5 roles for part of 2016, 2 full-time roles for all of 2016 and 1.5 roles from early 2017 was unreasonable and bound to create an intolerable situation for her. The Respondent has offered no explanation for its failure to recruit replacements for Ms. D and Mr. E when they were absent from work. The Complainant was subsequently diagnosed with sleep apnoea in September, 2017 and was deemed unfit to drive for a period of time. Nonetheless, the Respondent continued to insist that the Complainant take on the additional part-time role and the extra driving which it entailed.
The Complainant was told by her Manager, Ms. C, that she should go on stress leave and advised that she should attend the Respondent’s Occupational Health Physician. The Complainant indicated that she would think about this and was informed by Ms. C that she should think about it in a hurry. The Complainant called the HR Manager, Ms. B, and asked why she was to attend a health assessment. Ms. B indicated that the Complainant’s Manager, Ms. C, had stated that anytime she was asked to do anything the Complainant used her health as an excuse. The Complainant stated that the only thing she ever refused to do was to cover Mr. E’s area. The Complainant explained that she had sleep apnoea and stopped breathing up to 31 times per minute and Ms. B laughed and said ”sure that’s not possible”.
The Complainant attended the Respondent’s Occupational Health Physician on 12 October, 2017 and was advised that she should only do office work with no driving. The HR Manager, Ms. B, informed the Complainant on this date that she should cancel all appointments and go on sick leave. The Complainant rang her General Practitioner and was advised that Ms. B could not dictate to her to go on sick leave. The Complainant submits that two of her colleagues worked from home regularly and with this in mind she asked Ms. C if she could work from home for two days per week. Ms. C indicated that she couldn’t sanction that, but she did sanction the Complainant working from home on Friday, 13 October and Monday, 16 October, 2017.
The Complainant underwent an operation to have a lump removed on 17 October, 2017. Although this was on the Respondent’s leave system, the work calendar and the Complainant had specifically informed Ms. C at supervision she still received a text message from her to check if she was working from the office. The Complainant rang Ms. C back and told her she was in hospital. The Complainant was on certified sick leave until 20 October, 2017.
The Complainant returned to work on 23 October, 2017 and the following day she provided a certificate to state that she was fit to drive. She also notified the Respondent that she had an appointment in relation to her sleep apnoea in Dublin.
On 26 October, 2017, the Complainant was certified by her General Practitioner as being unfit for work due to work related stress. The Complainant was on unpaid sick leave from this date until 27 March, 2017 when she resigned. The Complainant found her work situation and her treatment by Ms. C in particular had become unbearable. The Complainant became very upset at the toll this was taking on her health.
The Complainant’s pay was stopped by the Respondent on 22 December, 2017 and she was under financial pressure as she was no longer being paid. The Complainant was advised by her local social welfare office that she was owed illness benefit and contacted the Respondent to explain this. The Complainant subsequently received an e-mail stating that €400 was being sent to her. However, this was not received.
The Complainant attended the Respondent’s Occupational Health Physician on 18 January, 2018 and she indicated to the Physician that her work related difficulties remained unresolved. The Physician concluded that the Complainant was medically fit for work and recommended that the Respondent “engage with the Complainant in an attempt to address any work-related issues”. The Physician indicated that the Complainant was fit to attend a meeting and felt that the “risk of delay outweighs the risk of participation in the process and that the resolution of these unresolved issues will be of benefit to [the Complainant]”. The Physician stated that he couldn’t assess stress. The Complainant pointed out that the Physician couldn’t say she was fit to return to work if she was off work due to stress and he said that he couldn’t assess stress.
On 19 January, 2018, the Complainant attended her own GP who certified her as being unfit for work. The Respondent wrote to the Complainant on 8 February, 2018 enclosing a copy of the Occupational Health assessment which took place on 18 January, 2018. The Complainant was told that she had been deemed medically fit to attend a meeting which was proposed for Wednesday, 28 February, 2018. The Complainant was told that her Manager, Ms. C, and the HR Manager, Ms. B, would be present. On 20 February, 2018, the Complainant’s solicitor wrote to the HR Manager suggesting that the Complainant and her solicitor attend the meeting with a view to resolving the issues. On 23 February, 2018, the Complainant furnished the Respondent with a note from her GP which was intended to convey her resignation from her employment.
On 13 March, 2018, the Complainant’s solicitor wrote to the HR Manager indicating that if she failed to revert within 7 days confirming a meeting, the Complainant would activate Stage 4 of the Grievance Procedure by “externalising matters”. On 14 March, 2018, the Respondent wrote to the Complainant requesting that she attend an independent health assessment. On 20 March, 2018, the Complainant solicitor wrote to the HR Manager indicating that the Complainant would not be attending an Occupational Health assessment scheduled for 27 March, 2018. The Complainant’s solicitor requested her P45 and indicated that she would be pursuing a constructive dismissal claim.
The Complainant submits that she spent the best part of four years attempting to resolve these matters internally. The cumulative effect of all of the above was that the Respondent subjected the Complainant to an unrealistic workload which she could not be expected to maintain. It was submitted that this was to be viewed in light of her earlier bullying complaint against her Manager, Ms. A. The Respondent adopted an inflexible and unsupportive approach which eroded any trust and confidence which the Complainant had in her employer. It was submitted that the Respondent failed to address the issues raised by the Complainant over a period of years.
It was submitted that there was a complete breakdown in trust and confidence between the Complainant and the Respondent. The Complainant’s legitimate complaints regarding her workload and the amount of driving she would be required to do were ignored. The Respondent failed to take account of the Complainant’s various health concerns.
It was submitted that the circumstances outlined above, individually and collectively, satisfy both the contract and the reasonableness tests i.e. that the Respondent’s failure to comply with its legal obligations constitutes a fundamental breach of the employment contract and/or the Respondent’s conduct was such that it was reasonable for the Complainant to resign from her position.
The Complainant relied upon the following cases in support of her position, namely: O’Kane v Dunnes Stores Limited UD 1547/2003, Byrne v RHM Foods (Ire) Limited UD 69/1979, Smith v Tobin  ELR 253, O’Reilly v Oxford Ireland UD 814/1994, Maddy v Duffner Bros. Limited UD 803/86, Walton & Morse v Dorrington  IRLR, Corcoran v Central Remedial Clinic UD 7/1978, Fyfe & McGrouther Ltd. V Byrne  IRLR 29, Robinson v Crompton Parkinson Limited  IRLR 86, Cawley v South Wales Electricity Supply Board  IRLR 89, Gallery v Blarney Woollen Mills Limited  ELR 143, Walker v Josiah Wedgewood & Sons Limited  IRLR 105, McKenna v Pizza Express Restaurants Limited  19 ELR 234, Kennedy v Foxfield Inns Limited t/a The Imperial Hotel  ELR 216, Curran v Graham Anthony & Co. Limited UD 495/2006 and Daniel O’Reilly v Acuman Facilities Management Limited UD 853/2014.
Summary of Respondent’s Case:
The Respondent is a not for profit charity which offers support and services to clients across Ireland. Services are provided through regional training and resource centres where a range of courses, programmes and activities are delivered and staff provide guidance to clients.
The Complainant was employed by the Respondent as a Community Resource Worker from September, 2004 until she tendered her resignation by e-mail on 27 March, 2018. Prior to her resignation, the Complainant was on certified sick absence from 26 October, 2017 to 23 March, 2018.
The Complainant made written allegations of bullying/harassment against Ms. A, who is employed as a Regional Manager in the Midlands Region, on 23 June, 2015. This complaint was investigated in accordance with the Respondent’s Dignity at Work Policy and separate investigation meetings were conducted with the Complainant and Ms. A on 16 June, 2015 where both parties exercised their right to be accompanied. A telephone conversation was conducted with a relevant witness on 20 July, 2015. In accordance with natural justice and fair procedures all meeting notes were agreed with the parties and they were allowed to submit further supporting documentation. The witness statement was shared with both parties and comments were received on same from both parties. A draft investigation report was sent to the parties and the HR Officer on 17 August, 2015. The Complainant responded to the draft report on 28 August, 2015. The detailed investigation determined that the complaints alleged by the Complainant were not upheld.
The Complainant notified the Respondent on 9 September, 2015 that she would be appealing the decision. The Complainant was on sick leave from 12 October, 2015 to 15 December, 2015 inclusive, on 21 March, 2015 and from 4 April, 2016 to 9 April, 2016. The Appeal was heard by the Director of Policy and Advocacy, Ms. F. As a consequence of a combination of Ms. F’s role changing and the Complainant’s sick absence, she was not in a position to finalise the outcome of the appeal until late October, 2016. The appeal was not upheld and the outcome of the appeal was furnished to the Complainant on 24 October, 2016. In the interim, the Complainant requested a transfer from the Midlands region to the South East region which was acceded to by the organisation on 25 January, 2016. The Complainant commenced working in the South East Region with effect from this date and was based in Waterford.
Evidence of Ms. C, Regional Manager
Ms. C stated that she was the Complainant’s Manager during the period from January, 2016 until March, 2018 and she adduced evidence in relation to her interaction with the Complainant during this period of employment prior to her resignation. Ms. C stated that she had a meeting with the Complainant prior to her taking up the role in the South East region to explain the expectations of the role and it was clearly indicated to her that she would have to provide cover for Ms. D’s area during the period of her absence on maternity leave. Ms. C stated that it was made clear to the Complainant from the outset that she would not be expected to provide full cover for Ms. D’s area and that the situation would be regularly reviewed.
Ms C stated that it was also made clear to the Complainant before she took on this role that it wouldn’t be possible for her to be based in the Kilkenny office on a full-time basis as the role required a presence in Waterford. Ms. C disputes the Complainant’s contention that she was required to carry out two full-time roles during the material period in question and she stated that the Complainant’s workload was regularly monitored through supervision and assessments.
Ms. C states that disciplinary proceedings were initiated against the Complainant as a result of her unreasonable refusal to cover the caseload of Mr. E following his departure from the organisation. Ms. D stated that Mr. E was a part-time Community Resource Worker and his caseload was very low with only two cases having arisen in the six-month period prior to this request. Ms. D stated that the Complainant had quite a bit of spare capacity at the material time in question and that she wouldn’t have been asked to take on Mr. E’s caseload if she didn’t have the capacity to carry out the work. Ms. D stated that she was fully aware of the Complainant’s medical difficulties and she wouldn’t have been required to take on any additional driving duties as a result taking on Mr. E’s caseload.
Ms. C stated that she had several meetings with the Complainant concerning the request to take on Mr. E’s caseload but she continuously refused what was considered to be a reasonable request. Ms. C stated that a compromise was also put forward by the Respondent to try and resolve this matter whereby it was agreed that the Complainant could work two days from the Kilkenny office to ease the pressure of her daily commute. It was proposed that the arrangement for the Complainant to cover the additional workload would be reviewed after six weeks and a three-month period with a view to re-distributing the work if it transpired that the workload was seen to be over and above what was acceptable. The Complainant was also offered a period of two weeks to catch up on work that she said was still outstanding from 2016.
Ms. C stated that the Complainant refused to accept this compromise and the Respondent was left with no option but to initiate disciplinary proceedings against her in relation to her refusal to obey her manager’s reasonable instructions. Ms. C stated that a disciplinary hearing was held on 29 March, 2017 in relation to the matter and the Complainant was afforded a further period of two weeks thereafter to consider the proposed compromise as a means of resolving the matter without recourse to a disciplinary sanction. However, the Complainant refused to accept the compromise and the Respondent was left with no option but to issue a verbal warning which was to remain on her file for a period of six months. The Complainant subsequently appealed the disciplinary sanction but the appeal was not upheld.
Ms. C stated that the Complainant was informed following the conclusion of the disciplinary process that she was required to take on the additional caseload belonging to Mr. E and that she would be allowed to work two days per week from the Kilkenny office to alleviate the stress she was experienced because of her daily commute. The Complainant was also informed that the arrangement to cover the additional caseload would be reviewed as stated above.
Evidence of Ms. B, HR Manager
Ms. B stated that the Complainant had been absent on sick leave for over six weeks when the Respondent wrote to her on 11 December, 2017 requesting that she attend an appointment with its occupational health advisors. The Complainant attended this appointment on 18 January, 2018 and was deemed medically fit for work. It was stated in this medical report that the Complainant was hesitant to return to work unless her perceived work-related issues were addressed and the Physician recommended that she attend a meeting with the Respondent to try and resolve these issues.
Ms. B stated that the Respondent wrote to the Complainant on 8 February, 2018 and informed her that a meeting was arranged for 28 February, 2018 and that she was welcome to bring her union representative or a family member to the meeting. The Respondent received correspondence from the Complainant’s solicitor dated 20 February, 2018 in which it was indicated that her GP was not in agreement that she was fit to return to work. The Complainant’s solicitor indicated that the Complainant would only be in a position to attend this meeting if they were allowed to accompany her to same. The Respondent wrote to the Complainant on 21 February, 2018 to confirm that the planned meeting was an internal meeting to discuss the recent report from its occupational health advisers and to support her return to work. The Complainant confirmed to the Respondent by e-mail on 23 February, 2018 that she would not be in a position to attend the meeting on 28 February, 2018 and forwarded a letter from her GP which certified her medically unfit for work.
Ms. B wrote to the Complainant on 27 February, 2018 to acknowledge receipt of the note from her GP and indicated that what the Respondent had sought was a meeting to seek to identify how her return to work could be facilitated in the near future in light of the fact that she had been deemed fit to return to work by its occupational health advisers. Ms. B sent a further letter to the Complainant on 14 March, 2018 and requested her to attend a separate independent Occupational Health assessment to ascertain her ability to attend work/meeting to identify how her return to work can be facilitated. The Respondent received a letter from the Complainant’s solicitor dated 20 March, 2018 to indicate that the Complainant would not be attending the Occupational Health Assessment which was scheduled for 27 March, 2018. The Complainant’s solicitor requested the Respondent to forward the Complainant’s P45 and confirmed that she would be pursuing a claim for constructive dismissal.
Ms. B wrote to the Complainant on 26 March, 2018 to ask her to reconsider attending the Occupational Health assessment to allow the Respondent to support her return to work. The Complainant sent an e-mail to the Respondent on 27 March, 2018 to confirm that she had tendered her resignation and requested her P45. Ms. B sent a further letter to the Complainant on 28 March, 2018 and asked her to confirm that she had given due consideration to the matter and the Complainant replied by e-mail on 29 March, 2018 to confirm that she had.
It is the Respondent’s contention that there has been no repudiatory breach of the Complainant’s contract of employment and that the Respondent has at all times honoured the essential terms thereof. The Respondent has an established policy and procedures to deal with dignity in the workplace together with a Grievance and Disciplinary Procedure which conforms to the general principles and procedures in the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures)(Declaration) Order 2000. All of these policies were brought to the Complainant’s attention during her period of employment and were applied in respect of her formal complaint.
The Respondent also rejects the assertion by the Complainant that they have breached the “reasonableness” test wherein the employer conducts itself or its affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer. The Respondent submits that it took appropriate action and fully investigated the Complainant’s complaints in accordance with its organisational policies and the rights of natural justice and fair procedures.
The Respondent submits that the prevailing circumstances of this claim are that the organisation endeavoured to support the Complainant by facilitating her request to move the location of her work and that they tried to dissuade her from resigning her employment. At no stage did the Respondent act so unreasonably so as to make the continuation of the Complainant’ employment intolerable. The Respondent submits that there was an obligation on the Complainant to fully exhaust the internal procedures in relation to her grievance before resigning and that she clearly failed to do so.
The Respondent maintains that none of the circumstances of the Complainant’s case can be construed to constitute a situation that supports a claim of constructive dismissal.
The Respondent relied upon the following cases in support of its position, namely: Western Excavating (ECC) Limited v Sharp  IRLR 332; M Reid v Oracle EMEA Limited UD1350/2014; Zabiello v Ashgrove Facility Management Limited UD1106/2008 and Conway v Bank of Ireland Limited UD474/1981.
Findings and Conclusions:
As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.
The term “constructivedismissal” is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:
““dismissal”, in relation to an employee, means—
(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,qw2e3r45t6y7890-er567890-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.”
The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp. It comprises of two tests, referred to as the ‘contract’ and the “reasonableness” tests. It summarised the “contract test” as follows: “If the 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 other performance.” The “reasonableness test” assesses the conduct of the employer and whether it “…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 both types of situation, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment. In reaching my decision I have taken into account all of the evidence, both written and oral, submitted by the parties.
The Complainant’s claim of constructive dismissal arises from a number of events which occurred in her employment during the period from 2014 to 2018 which she contends resulted in a complete breakdown in trust and confidence between her and the Respondent. The specific events which the Complainant contends ultimately culminated with her being left with no alternative but to resign her position include that she was subjected to bullying by her Manager, Ms. A, during the period she worked in the Midlands Region and that the Respondent failed to adequately address this situation; she had no alternative but to transfer to a different region in January, 2016 as a result of this bullying but was subsequently subjected to an unrealistic and excessive workload by her Manager in the new region; the Respondent was inflexible and unsupportive following her transfer to the South East Region and she was subjected to disciplinary sanction arising from her inability to take on this excessive workload; her health was significantly affected by the treatment to which she was subjected in the workplace and the Respondent failed to take account of her health concerns.
The Complainant is relying on both tests to ground her claim. The Complainant contends that the circumstances outlined above, individually and collectively, satisfy both of the legal tests i.e. that the Respondent’s failure to comply with its legal obligations constitutes a fundamental breach of the employment contract and/or that the Respondent’s conduct was such that it was reasonable for her to resign from her position.
I will firstly consider the above matters in the context of the “contract test” to establish whether or not the Respondent’s conduct amounted to a repudiatory breach of the contract of employment such that the Complainant was entitled to regard herself dismissed.
Complaint of Bullying
It was common case that the Complainant made a complaint of bullying/harassment against her Manager, Ms. A, in June, 2015 while she was still assigned to the Midlands Region. It is not my role to make findings as to whether or not the Complainant was actually bullied or harassed by her Manager. However, I am obliged to consider the manner in which the Respondent dealt with this complaint and to examine if the process conducted complied with the principles of fair procedures and natural justice. In considering this matter, I note that this complaint was dealt with by the Respondent in accordance with the internal Dignity at Work Policy and Procedures and the allegations were not upheld following the conclusion of the investigation on 9 September, 2015. I have examined the Respondent’s Dignity at Work Policy and Procedures and I am satisfied that it conforms to the general principles and procedures enunciated in the Employment Equality Act (Code of Practice)(Harassment) Order 2012. I find that the Respondent acted in a responsible and reasonable manner towards the Complainant in so far as it provided for a thorough and professional investigation of the Complainant’s bullying and harassment complaint. Furthermore, I am satisfied that the investigation was conducted in a fair manner in accordance with its Dignity at Work Policy and Procedures.
However, I have concerns in relation to the length of time that it took to conduct and conclude the appeal process in relation to this matter. The Complainant informed the Respondent of her intention to appeal the outcome of the investigation on 9 September, 2015 and the appeal process was not concluded until 24 October, 2016. The Respondent contends that the reason for this delay arose as a consequence of a combination of the Appeal Officer’s role changing and the Complainant’s sick absences during the material period in question. While it is clear that it took an inordinate length of time to conduct the appeal, I am satisfied that the overall process adopted by the Respondent when conducting this appeal complied with fair procedures.
Having regard to the totality of the evidence adduced, I cannot conclude that the time related deficiencies in relation to the appeal process was inadequate or unfair to the degree that the overall conduct of the procedures in relation to her complaint of bullying/harassment amounted to a repudiatory breach of the Complainant’s contract of employment such that she was entitled to regard herself as having been dismissed.
Transfer of the Complainant and treatment by the Respondent thereafter
The second limb of the Complainant’s complaint of constructive dismissal relates to the allegedly unreasonable and intolerable manner that she was treated by the Respondent after her transfer to the South East Region. It was common case that the Complainant moved to the South East Region with effect from 25 January, 2016 after she applied for a transfer to an identical role within the Respondent’s organisation. It is clear that the difficulties which subsequently ensued in the working relationship between the parties thereafter related predominantly to the extent of her workload and the geographical limitations attached to the position which she assumed following the transfer.
The Complainant contends that she was required to take on a wholly unreasonable workload which entailed a significant amount of additional driving to cover locations which were outside of her contractual work area. In this regard, the Complainant contends that the area which she was contractually required to cover was Waterford City and another designated town within County Waterford. However, she contends that the Respondent also required her to cover a colleague’s period of maternity leave in South Tipperary from January, 2016 to August, 2016 and then insisted that she take on the workload of another colleague covering the remainder of County Waterford. The Complainant contends that the required workload was unrealistic and one which she could not maintain especially in light of the health difficulties that she was encountering during the material period in question. The Complainant contends that she was ultimately subjected to disciplinary proceedings for her refusal to take on the unreasonable additional workload in County Waterford.
The Respondent vehemently refutes the Complainant’s contention that she was required to take on an excessive or unattainable workload. The Respondent does not dispute that the Complainant was asked to take on work to cover other colleagues but was adamant that she had the spare capacity to do so, that this would not have necessitated any additional driving and that she was contractually obliged to cover other areas within the South East Region at the request of her Manager. The Respondent contends that the Complainant’s refusal to take on the caseload for the County Waterford area was wholly unreasonable because she had sufficient spare capacity in her own caseload and that she was provided with an undertaking the situation would be reviewed periodically to monitor the situation.
In considering this matter, I note that the Complainant was provided with a letter by the Respondent in January, 2016 which set out the relevant amendments to her contract of employment arising from the transfer to the South East Region. The Complainant signed an acceptance of the amended terms which clearly stated that her permanent office base would be in Waterford City and that “as well as covering your area you will also be expected to cover other areas within your region at the request of the South Eastern Regional Manager to whom you will report”. Having regard to the evidence adduced, I find that it is reasonable to conclude that the Complainant was fully aware that she would be required to cover areas other than her designated area within the South East Region on request of her Manager. In this regard, I note that Ms. C adduced evidence that she made it clear to the Complainant in an unequivocal manner during a meeting prior to accepting the transfer that she would be required to cover the South Tipperary area while a colleague was on maternity leave. On balance, I have found Ms. C’s evidence on this matter to be more compelling and I am satisfied that the Complainant was fully aware on accepting the transfer that she would have to provide cover for the South Tipperary area for a specific period of time in addition to her own area.
I am satisfied that there was also a concomitant obligation on the Respondent to ensure that there was equity and fairness in relation to the distribution of work to the Complainant and her other colleagues following her transfer. It is this very issue which goes to the root of the difficulties that occurred in the working relationship between the parties and it is clear that the Complainant had serious reservations and concerns in relation to the allocation of work and in particular the Respondent’s request that she take on the caseload for whole of County Waterford.
Having regard to the evidence adduced, I am satisfied that the Respondent approached this issue in a fair and reasonable manner and sought to proactively engage with the Complainant to address the concerns which she raised in relation to the distribution and allocation of work. I am satisfied that the Respondent adduced compelling evidence, both oral and documentary, in relation to the distribution of work among the cadre of Community Resource Workers within the South East Region which support its position that the Complainant was not allocated a disproportionate or excessive share of the work. I have found the evidence of Ms. C (Manager) and Ms. B (HR Manager) to be very compelling on this matter in terms of their interaction with the Complainant during the material period in question and I am satisfied that the Respondent tried to resolve this issue by consensus rather than coercion prior to the initiation of any disciplinary proceeding in relation to the matter. In this regard, I note that the Respondent agreed to put a number of measures in place by way of compromise to resolve the situation such as allowing the Complainant to work two days from the Kilkenny Office to alleviate her daily commute, affording her a period of 10 days to address outstanding work, the offer to utilise the workspace in the Carlow Office if the Community Resource Worker there was on leave and an undertaking to review the arrangement to cover County Waterford and the workload associated with this area at regular intervals.
It is clear that the Complainant declined to resolve the matter on the basis of the proposals put forward by the Respondent and the matter was ultimately dealt by way of an internal disciplinary process which concluded on 28 April, 2017 with the Complainant being issued with a verbal warning which would remain on her file for a period of six months. The Complainant appealed this sanction, but the appeal was not upheld. Having regard to the evidence adduced, I cannot conclude that the Respondent acted in an unreasonable manner towards the Complainant in relation to the decision to invoke a disciplinary process in relation to this matter. Moreover, I am satisfied that the manner in which this process was conducted complied with the principles of fair procedures and natural justice.
Having regard to the totality of the evidence adduced, I cannot conclude that the manner in which the Respondent acted towards the Complainant in relation to the allocation and distribution of work during the material period in question constituted conduct which amounted to a repudiatory breach of her contract of employment.
The Complainant ultimately resigned from her position on 27 March, 2018 after having been absent from work on sick leave since 26 October, 2017 and she contends that the Respondent’s conduct was such that it was reasonable for her to resign from her position. In the circumstances, it is also necessary to consider the Complainant’s claim of constructive dismissal in the context of the “reasonableness test”.
In order to satisfy the “reasonableness test” the Complainant must establish that the Respondent conducted its affairs in relation to her so unreasonably that she could not be expected to put up with it any longer and therefore was justified in resigning her employment. This 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 his or grievance with their employer.
The Labour Court has held in the case of Emmanuel Ranchin -v- Allianz Worldwide Care S.A. that: ”In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UD 474/1981”.
Having regard to my findings above, I am satisfied that the Complainant has failed to establish that the manner in which the Respondent conducted itself in relation to the matters concerning the alleged bullying/harassment by Ms. A and the allocation and distribution of work following her transfer up to when she went absent on sick leave on 26 October, 2017 was so unreasonable such as to make the continuation of her employment intolerable.
In considering the issue of reasonableness, I have also examined the conduct of both parties during the period from when the Complainant went absent on sick leave on 26 October, 2017 until the date of her resignation on 27 March, 2018. In this regard, I note that the Complainant was diagnosed with sleep apnoea in September, 2017 and she was referred by the Respondent to its Occupational Health Physician for assessment. This assessment concluded that the Complainant was not fit to carry out driving duties as a result of the symptoms related to her sleep apnoea and it was also recommended that the Respondent engage with her in relation to any work-related stress. The Complainant was subsequently certified unfit for work by her General Practitioner on 26 October, 2017 due to work related stress and she remained absent from work on sick leave thereafter until her resignation on 26 March, 2018. I am satisfied that the Respondent did make reasonable efforts to engage with the Complainant during the material period in question and referred her to its Occupational Health Physician for further assessment on 18 January, 2018. The Complainant was certified medically fit for work by the Physician following this assessment. The Physician also made a further recommendation that the Complainant was medically fit to attend a meeting with the Respondent for the purpose of trying and resolve any work-related stress.
I am satisfied that the Respondent subsequently attempted to act on this recommendation by arranging a meeting with the Complainant on 28 February, 2018 to discuss the medical report with a view to supporting her return to work. The Complainant was informed that she could be accompanied by her trade union representative or a family member at this meeting. However, I note that the Complainant disputed the recommendation by the Respondent’s Occupational Health Physician that she was medically fit to return to work or attend such a meeting and indicated that she would only attend if she was allowed to be accompanied by her solicitor. The Complainant confirmed on 23 February, 2018 that she would not be in a position to attend this meeting and submitted a letter from her GP stating that she was not in a position to return to work. I am satisfied that the Respondent attempted to resolve the impasse in relation to the conflicting medical opinions concerning the Complainant’s fitness to return to work by scheduling a further appointment with a separate independent Occupational Health Physician for 5 April, 2018. However, the Complainant did not attend this appointment and informed the Respondent on 27 March, 2018 that she was resigning her position. The Respondent wrote to the Complainant on 28 March, 2018 and asked the Complainant to confirm that she had given due consideration [to her resignation] and to refer back. The Complainant replied to the Respondent on 29 March, 2018 and confirmed that she had given the matter due consideration.
In accordance with the established principles in constructive dismissal cases, I am satisfied there was an obligation on the Complainant to invoke the internal grievance procedures to try and resolve the workplace related grievances which arose during her employment before taking the step to resign from her employment. I am satisfied that the Complainant failed to invoke the internal grievance procedures in relation to the workplace related grievances which occurred during the period following her transfer to the South East Region.
It is also well established that there can be situations in which a failure to invoke the internal procedures in relation to a grievance will not be fatal in circumstances where it is established that an employee could not have faith in the employer’s ability to properly or effectively address his/her grievances (see Liz Allen -v- Independent Newspapers, Moy -v- Moog Ltd, and Monaghan -v- Sherry Bros and New Era Packaging -v- A Worker). However, in the instant case, I am not satisfied that there were factors present which might excuse the Complainant’s failure to invoke the internal grievance procedures before resigning. I cannot accept the Complainant’s argument that it would have been futile for her to invoke the internal grievance procedures prior to her resignation in March, 2018 on the basis that she had already raised the issues which led to her resignation during the course of the disciplinary proceedings which concluded in April, 2017. As I have already found above, I am satisfied that the manner in which the Respondent conducted the investigation into the Complainant’s bullying harassment complaint and the disciplinary process in relation to her refusal to take on additional work complied with fair procedures and natural justice. I do not accept that the manner in which the Respondent applied the internal grievance/disciplinary procedures in relation to these matters could reasonably be found to have created a justification for the Complainant’s assessment that her grievances would not have been dealt with in an effective or fair manner.
Having regard to the two tests identified above, I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that she had no option but to resign her position or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract.
In the circumstances, I find that the Complainant resigned from her employment of her own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that her complaint cannot succeed.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that the Complainant resigned from her employment of her own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that her complaint cannot succeed.
Dated: 4th December 2019
Workplace Relations Commission Adjudication Officer: Enda Murphy
Unfair Dismissals Act 1977 – Section 1 – Constructive Dismissal – Bullying and Harassment – Internal Grievance and Disciplinary Procedures - Resignation
  1 All E.R. 713
 S.I. No. 208 of 2012
  13 ELR 84
  13 ELR 261
  14 ELR 293
  ELR 122