ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023272
Special Needs Assistant
Ms Catherine Kelly Solicitor
Mason Hayes & Curran
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: 17/10/2019
Workplace Relations Commission Adjudication Officer: Brian Dalton
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 as amended following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The issue in contention concerns the alleged constructive dismissal of the complainant.
Summary of Complainant’s Case:
The claimant alleges that because of the conduct of her employer she had no alternative but to terminate her employment.
The claimant was employed as a Special Needs Assistant in a Primary School.
The claimant detailed several examples where she believed that teachers or priests made undermining comments about her based on her financial affairs. These comments were made at school masses where the priest appeared to single her out for attention as he addressed the wider congregation. There were also school exercises where the teacher made up a story containing references to banks, solicitors and barristers. The complainant believes that these references were targeted at her, in order to make the complainant uncomfortable and threatened. Colleagues shouted at her and warned her about the serious consequences of making a complaint. The dates of these interactions could not be exactly detailed.
She was forced by numerous instances of vitriol, attack and innuendo, about what the complainant perceived as attacks on her relating to her private financial affairs, to leave her employment as a Special Needs Assistant on or about the 31st January 2019. She states that in order to protect her own health she had no other option but to leave her employment. She instances two examples of a priest at a school mass targeting her in his sermon about the consequences of not paying your debts and at another mass the priest saying that people needed to stay quiet or the consequences would be dire.
Another instance relates to a class game and passing a toy; however, the context of that story was a bank, an accountant, a solicitor and a barrister and their bad client of the good bank. This happened in a classroom where the claimant was a special needs assistant and the teacher was directing her attention on the claimant as she told the children about the different characters. In the teachers break room, a teacher said to her that if she went to court you will be recognised by the wrong people. Another incident related to a talks given by a Psychologist to staff and then to staff and parents, where at one talk he made reference to being lucky enough not to owe money and at the second talk, the school principle pointed at her- and she overheard the principle saying: “There she is”. The school principle had shouted at her calling her a Sociopath and a Psychopath.
The complainant went to the school principal about these matters, who said that the he was the designated person under the grievance procedure.
In summary the complainant stated that most of her time at the school was good and that a low level bullying went over her head. Then a teacher gave a lesson on bankruptcy. Then that bullying intensified. The complainant became sick and received treatment. The claimant had to think long and hard before taking the claim and waited until she was in a position to do so.
Summary of Respondent’s Case:
The claimant voluntarily resigned from the school. She was held in high regard. While a 3 month notice period was normally required, the claimant suggested an alternative option, to retain another colleague who was available to fill her vacancy. The school principle based on her suggestion about another colleague taking up her role and that the complainant also stated that her new role of part-time temporary clerical work suited her better, agreed to waive the normal contractual notice period. That was the practice generally, if the school could facilitate an employee who wished to leave earlier, it would, having regard to backfill options.
The respondent stated that the claimant at no time availed of the grievance procedure and cited Conway v Ulster Bank UD  474 as authority that an employee had a duty to initiate the internal grievance process before taking the final step to resign. This duty was also recently affirmed in the determination of the Labour Court in Caci Non-Life Limited v Daniela Paone. The claimant had failed to raise any grievance. The school principle was aware of no grievance. The first time the school became aware of the complainant’s grievance and alleged constructive dismissal was when they received notification from the Workplace Relations Commission about the complaint.
The Complainant resigned by way of letter dated 28th January 2019 and stated that she was commencing a new position as part time school secretary on Monday 4th February 2019.
Three colleagues whom the complainant made allegations against gave evidence to the contrary. At no time were school exercises reframed around banks and solicitors and accountants in order to undermine and belittle the complainant. Colleagues did not attack, shout, or in any way make the statements as alleged by the Complainant. The colleagues denied that the alleged attacks and remarks about the claimant’s financial affairs were made about her at school talks for staff; parents or that priests singled the Complainant out for warning at school masses.
Findings and Conclusions:
Section 1 of the Unfair Dismissals Act 1977 as amended defines constructive dismissal as:
“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”
The burden of proof on the balance of probabilities rests with the employee. The employee must present evidence that shows that a fundamental breach or repudiation of the contract by the employer took place or ‘because of the conduct of the employer, the employee was or would have been entitled…’ to terminate the contract.The claimant in this case alleges that because of the conduct of her employer, who had a responsibility to ensure that her working environment was free of verbal attacks, innuendo and moral blame based on her private financial affairs and the failure of her employer to stop this targeted hostility towards her, she had no alternative but to terminate her contract. She states that she did complain to the school principal who only said that he was the designated person but failed to do anything about it.
The respondent states the complainant voluntarily resigned. No complaints whatsoever were received from her and if there were complaints they would have been investigated. The accounts that the claimant has given relating to attacks by school colleagues, or priests, or a guest speaker or education exercises reframed to embarrass and humiliate the complainant concerning her financial affairs never occurred.
There is an obligation on the employee, in most circumstances, to avail of the grievance procedure as referenced in the Labour Court decision Caci Non-Life v Daniela Paone, before terminating their contract, this did not take place in this case.
The claimant must prove that the Employer breached her contract in a way that went to the heart or root of the contract and or acted so unreasonably that she couldn’t be expected to put up with it any longer.
The claimant has not presented proof to show that her employer broke a fundamental term of her contract and/or acted in such an unreasonable way that she had no alternative but to leave her employment.
There was an obligation on the complainant to raise her grievance with the principle and to use the disciplinary procedures to progress her complaints, this did not happen.
On balance I prefer the respondent’s evidence and conclude that the claimant has not presented evidence to support her claim that she had no alternative but to resign based on the conduct of her employer. As the burden of proof rests with the claimant and that burden has not been met, the claim is dismissed.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals act as amended requires that I make a decision in relation to the claim consisting of an award of redress in accordance with Section 7 or the dismissal of the claim; I find that the claim is not well founded.
Dated: 4th December 2019
Workplace Relations Commission Adjudication Officer: Brian Dalton
Constructive dismissal; colleagues' behaviour; safe working environment.