ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011466
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: 24/09/2018
Workplace Relations Commission Adjudication Officer: Gerry Rooney
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 as a Development Officer with the Respondent, a Voluntary Body. She resigned from her position on 15th September 2017 and after 16 years of employment alleging Constructive Dismissal. The Respondent refuted that the Complainant was constructively dismissed and maintained the Complainant resigned from her role before exhausting the Respondent’s procedures.
Summary of Complainant’s Case:
The Complainant commenced her employment with the Respondent in October 2001and at the time of her departure she was employed as a Development Officer on a wage of €33,034.56 gross per annum plus travel expenses (€1,000 to €1,300.00 per annum approximately). The Complainant holds a Certificate in Community Development and Leadership, a Higher Certificate in Youth Work, a Specialist Certificate in Youth Health Promotion, and various FETAC level courses together with all of the experience and knowledge accumulated during her tenure.
The Complainant submitted that her job entailed a number of duties and responsibilities including inter alia all the training delivery including volunteers, youth, sexual health and child protection training; interviewing of new volunteers; checking references; keeping account of volunteers and their training; Garda vetting; acting as the designated Garda liaison person; planning and executing all seasonal camps; planning a youth participation day; and representing the Respondent at meetings.
The Complainant reported to a Regional Director and submitted that she previously enjoyed a strong working relationship with the Regional Director where they discussed matters regularly pertaining to work, where they ate lunch together regularly and where they discussed all aspects of the workplace activities and projects on a regular basis. This relationship also extended beyond a professional relationship to a personal friendship.
On the 8th June 2016the Complainant first approached the Regional Director to voice her concerns about what she perceived to be as another employee interfering with and overlapping her role and function. Examples of this overlapping included liaising with and replying to organisations that the Complainant was the point of contact for. The Complainant maintained this employee did not have the requisite training, skills or experience to fulfil this function. Furthermore, she alleged that the employee would not inform her when organisations had been in contact looking for the Complainant to answer queries or concerns. This was a cause of concern to the Complainant and she submitted this was causing her certain distress.
The Complainant spoke to the Regional Director in an effort to resolve matters and trusted that her concerns would be addressed in line with the Respondent’s policies. The Complainant also spoke to the Regional Director during her one to one meeting in the last week of work before Christmas 2016 to again voice her concerns and frustrations about her colleague and how he was assuming some of her duties and functions without the required training or qualifications. The Complainant believed these actions would result in the service users receiving insufficient care and deficient advice, guidance, and support. The Complainant informed the Regional Director of her concerns and indicated that she was contemplating leaving her position because of the actions of this employee and the Regional Director’s failure to act on her concerns. The Complainant also informed the Regional Director that the employee was ignoring her that this had a detrimental effect in the workplace.
The Complainant maintained that the Regional Director accepted that the atmosphere in work was undesirable and that action was required. At that time the Complainant was encouraged to remain, and to be patient. Accordingly, the Complainant believed the Regional Director would act on her concerns.
The Complainant advised that at her January 2017 one-to-one meeting with the Regional Director she continued to voice her concerns and requested that her role be defined so as to clearly delineate between her role and that of the other employee to avoid any further confusion. The Complainant submitted that the Regional Director did not comply with this request. Again, the Complainant believed that the regional Director should have responded in line with the Respondent’s policy and dealt with her concerns.
The Complainant submitted that on the 23rd February 2017she addressed the Board of Directors at a meeting to describe her role to the Board members. The Complainant indicated that from this point there was a demonstrable change in the Regional Director’s interactions with her where the friendly relationship that previously existed evaporated. The Complainant felt ostracised at work and maintained that she was excluded from work projects including an Anti-smoking project; a send-off event; not being invited to a national event on 26th April 2071; being excluded from a diversity training course despite applying for same; not being invited to a presentation night on 10th May 2017; her Role in a project was not being recognised by the Regional Director who directed praise to another employee instead; and STEM training not offered to the Complainant but it was to other employees. According to the Complainant these issues caused significant personal and professional distress to her where she could not fathom why this was happening, and further could not understand why the Respondent was acting this way towards her.
The Complainant maintained at her one-to-one meeting on 14th April 2017 sheagain voiced her concerns and was assured by the Regional Director that her concerns would be addressed and that the other employee would be spoken to. The Complainant maintained that she spoke to the Regional Director in line with the employee policies and trusted that her concerns would be addressed.
The Complainant submitted that at a staff meeting on 21st June 2017she heard the employee openly speak about performing her role with regard to providing leadership training, and the Complainant raised this with the Regional Director who confirmed that the employee would be spoken to. Then on the 22nd June2017 the Complainant said a heated conversation took place between the Complainant and the employee about his actions in encroaching on her role and taking the lead in providing training on an assignment when that was part of her role. The Complainant indicated that she was then invited by the employee to tag along to the training if she wanted to. The Complainant immediately spoke to the Regional Director about this behaviour and the Complainant alleged that the Regional Director smirked at her and was dismissive of her concerns. At that point the Complainant indicated that she would raise the matter and the Regional Director’s failure to address what had been occurring in the workplace for the last number of months with a Board member.
When the Complainant left the Regional Director’s office she alleged a verbal confrontation then ensued between the Complainant and the employee. The Complainant said she challenged the employee for encroaching on her role and cited examples of how he did not have sufficient training and qualifications to carry out such tasks. The Complainant submitted that the Regional Director immediately spoke to her about this confrontation in private. The Complainant reiterated her concerns and her frustrations and made reference to two former colleagues who had left because of what the Complainant understood to be as issues with the same employee. The Complainant contended that the Regional Director again failed to address any of the substantive issues.
Arising out of the confrontation the Complainant advised all members of staff were invited to participate in an investigation to be conducted by a Board Member on the 13th July 2017. The Complainant attended an investigation meeting and in the course of that meeting the Complainant maintained that she handed a prepared document setting out her concerns about what was happening to her in the workplace. The Complainant had felt she was listened to during her meeting with the Board Member. The Complainant advised that the outcome of the meeting was communicated to all members of staff by letter dated the 8th August 2017 where a number of recommendations were set out to be adopted in the workplace which included a need for clear updated role descriptions for all staff members; a memo outlining to all staff members which detailed the expected behaviours from staff whilst at work; that the Board will visit client organisations serviced by the Respondent to show visible support; that each employee will be asked to make a presentation to the Board over the coming months regarding their roles and responsibilities, along with their concerns; and that contact details of the board members would be circulated to all staff. The Complainant advised that this was precisely what she had been seeking for almost a year from the Respondent and from the Regional Director.
The Complainant then attended a one to one on 16th August 2017with the Regional Director, however the Regional Director did not discuss the proposed actions with her at this meeting. The Complainant therefore concluded that the recommendations of the Board had not been acted on and no updated role descriptions had been provided. The Complainant submitted that she was crestfallen and devastated. As a consequence, the Complainant handed her resignation letter to the Regional Director, giving one month’s notice.
The Complainant submitted that a subsequent meeting took place on the 18th August 2017 between the Complainant and a Board representative to discuss the Board’s concerns about the Complainant’s resignation, and the Complainant was told that the Board had discussed matters and did not want the Complainant to leave. The Complainant maintained at this meeting with the Board member she had not lodged a formal grievance on the matter but that the Board was offering mediation by a third party. The Complainant noted the Board’s position but did not withdraw her resignation as she said her faith in her employer had been so significantly damaged. The Complainant also submitted that during her notice period the Respondent did not implement or act upon the recommendations as set out in the letter dated the 8th August 2017. The Complainant also advised the hearing that in 2014 another staff member had raised concerns against the Regional Director and this staff member had left- this she believed demonstrated the loyalty the Board had towards the Regional Director and was a concern to her. Whilst she had felt positive about her meeting with the eh Board member she felt nothing would change.
The Complainant advised that on 29th August 2018 as she was serving her resignation notice the Regional Director asked her for her picture badge and key, and this was very upsetting for her. She then went to her doctor and received a sick note.
As a consequence of the alleged difficulties where the Complainant maintained that the Regional Director failed to address matters; and the subsequent failure of the Bord to act on their recommendations, the Complainant submitted that she was constructively dismissed from her position. The Complainant submitted that had the Board’s recommendations been adapted then these actions could have resolved matters. As they were not adopted the Complainant felt she had no alternative but to resign.
The Complainant worked out her notice period until the 15th September 2017 and she advised even by then the recommendations had not been put in place. As a consequence, she submitted that the essential elements of trust and confidence between her employer and herself was irreparably damaged. It was contended by the Complainant that she gave the Respondent sufficient and ample opportunity to address her complaints and that the Respondent failed to avail of the opportunity in a reasonable time frame.
At the hearing the Complainant acknowledged that she did not read the organisation’s grievance procedure and she maintained that she did not think she had a reason to read it because she had brought her concerns to the Regional Director, and where she had told the Regional Director that she was unhappy and if things did not change she would have to leave. The Complainant also maintained that she had never been given a written copy of the Grievance Procedure, and the fact that it was noted as being available was just a box ticking exercise.
Summary of Respondent’s Case:
The Respondent refuted that it failed to deal appropriately with the Complainant’s concerns. It maintained that when it was in the process of enacting its recommendations in August 2017 the Complainant had left and that her resignation was unnecessary. It maintained that the Complainant had not been constructively dismissed but that she had notified the Respondent of her intention to resign in a letter on 18th August 2017.
In response to the allegation that a fellow employee was allowed to take over key areas of the Complainant’s role and responsibilities, the Respondent responded to the events surrounding what had happened regarding the Anti-smoking project; a send-off event; about the Complainant not being invited to a national event on 26th April 2071; regarding the Complainant being excluded from a diversity training course despite applying for same; in relation to not being invited to a presentation night on 10th May 2017; in respect of the Complainant’s role in a project not being recognised by the Regional Director and who allegedly directed praise to another employee instead, and with regard to STEM training not offered to the Complainant but where it was alleged to have been offered to other employees.
In this regard evidence was presented of records which noted the details of a series of meetings that were held between the Complainant and the Regional Director from July 2015 to May2017, and where for example the Respondent indicated that the comments noted as being made by the Complainant on these issues did not reflect the complaint she had raised to the WRC. The Respondent maintained that the Complainant had not raised any concerns about being excluded and the only issues that had been discussed was some overlapping problems regarding the work being conducted by the employee in question. Regarding the anti-smoking project, the Respondent submitted that the Complainant was not involved in this project initially but when she asked to be included she was. With regard to the national event, the Respondent maintained that all staff were invited to the event and that no specific invitations were given to any member of staff. The Respondent advised that the office diary would highlight upcoming events and it was for the Complainant to decide whether or not to go. The Respondent advised that the Complainant was not excluded from the diversity training, and that she did attend. It also maintained that the Complainant was not excluded from the event in May 2017, that the presentation that night had been posted on the whiteboard in the office and anybody could have attended. The Respondent also maintained that the Complainant was not excluded from the STEM training, that she had been asked twice and she told the Regional Director she had two events booked and therefore she was not interested in the training. The Respondent contended that the Complainant had never told the Respondent that she was unhappy with not being invited to attend the STEM training.
In response to the allegation that another employee was taking over the roles and responsibilities of the Complainant, the Respondent advised that this employee was an experienced youth worker and that he worked in an open plan office with only one phone. The Respondent outlined that the phone would ring and he would answer the phone and where possible would give a response to the issues being asked. This would have occurred regarding information on insurance and the Respondent maintained that the issue was a minor issue and that the employee had spoken to the Regional Director about that matter.
The Respondent was advised at the hearing that the Complainant believed the employee had provided wrong information at a training event in February 2017 and that it was not the role of the employee to provide this information. In response to the complaint from the Complainant that these questions should have been directed towards her to respond to, the Respondent advised that this matter had not been raised specifically with the Respondent at the time and the Respondent asked the Complainant how the matter was dealt with, and in what way it had undermined her. At the hearing the Complainant advised she could not recall the issue, and the employee who provided evidence at the hearing, also advised that he could not recall the issue.
In response to the alleged difficulty between staff that occurred in June 2017, the Respondent advised that the employee in question had not taken over the Complainant’s job. It advised at his time the Complainant would have attended a training event as an observer and he was not attending as a trainer as alleged by the Complainant. The Respondent also advised that the Complainant had been given the opportunity in June 2016 to replace the employee has a representative of the Respondent to attend these functions but that had not occurred and therefore it was in the employee’s job description to attend this event in order to observe the training.
In response to the allegation that the Respondent failed to address the Complainant’s complaint, in her evidence the Regional Director advised that at a one-to-one meeting with the Complainant on 7th June 2016 there was no mention of the employee taking over her duties. The Respondent maintained that the Complainant never invoked a formal complaint, and when the Complainant had raised the difficulty regarding her roles and responsibilities the Regional Director committed to speak to the employee in question. The Respondent advised that the Complainant had told the Regional Director in December 2016 at an informal meeting that she wanted to leave.
The Respondent advised that the only issue regarding the overlapping of duties occurred in June 2017 in relation to the training event. The Regional Director had spoken to the employee in question and the Regional Director was satisfied the employee did not stray into the roles and responsibilities of the Complainant. The Respondent reiterated that the Complainant had previously been asked if she wanted to make an official complaint against the employee, but she was not willing to do so. The Respondent also explained that the employee was very upset when the Complainant had accused him of not been qualified. The Respondent advised that an altercation occurred between the Complainant and the employee on 22nd June 2017 and there was raised voices in the office. The Respondent contended that it offered mediation at that stage but the Complainant refused to engage in a mediation process.
The Respondent advised that the grievance procedure stated all formal grievances were to be presented in writing, and as the Complainant was not prepared to make a formal grievance at the time of the alleged events the Regional Director found the issue difficult to deal with. She was of the view that the notes of the one to one meetings supported the belief that the Complainant was not prepared to progress matters formally. For her part the Regional Director would have spoken to the employee in question and in general did not believe the roles were overlapping in the manner presented in the Complainant complaint and submission at the hearing. In attempting to address the matters on 26th June 2017 the Regional Director had asked the Complainant if she wanted to make a formal complaint and again she said no.
Evidence provided by the Respondent and through the cross-examination by the Complainant indicated that the employee in question at times felt intimidated by the Complainant and that the employee felt he was being challenged in front of others by the Complainant. The Complainant would also have described the employee as being moody.
The Respondent advised that the Board discussed the matter on 28th June 2017 and a Board Member invited staff meetings in July 2017. The purpose of that process was to investigate the morale in the organisation and the process was not to investigate any individual as not formal complaint had been raised. The Complainant attended a meeting with the Board Member on 13th July 2917. Having considered matters the Board then issued correspondence to staff on 8th August 2017 where it identified five action points to be implemented to address the concerns.
The Respondent acknowledged that a meeting took place between the Regional Director and the Complainant on 15th August 2017, and where at the end of this meeting the Complainant provided a prepared letter where she advised she was resigning. The Regional Director went on planned annual leave the following day. The Respondent confirmed that the Complainant then met with the Board Chairperson on 18th August 2017 and where the Complainant stated that she would stay if the Regional Director was to go. The Complainant also sought a redundancy at this meeting. The Respondent advised that the Chairperson then wrote to the Complainant on 3rd September 2017 asking her not to leave and to give the Board a chance to implement the action points it had identified, and where the Chairperson also suggested to the Complainant that if she had a grievance she could raise it and the Board would consider it, and that the Board would also offer a third party mediation to address her concerns. The Respondent advised that the Complainant did not follow up on this option.
The Respondent submitted that it was entitled to be provided with an opportunity to consider the issues raised by the Complainant before she had decided to resign and allege constructive dismissal. However, when the Complainant was invited to formally submit her grievance and to have matters formally reviewed she refused to engage in that process. It therefore contended it was not provided with the opportunity to formally consider the Complainant specific grievances and that her decision to resign was premature as the Complainant had not engaged in either mediation that was proposed, or in submitting a formal grievance when she was invited to do so by the Chairperson on September 2017.
Findings and Conclusions:
In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, there were substantial grounds for justifying the dismissal”.
The breach of a contract of employment is a very serious matter and which in cases of unfair dismissal, requires an examination of whether an employer acted fairly. This test is a demanding one involving a mix of both procedural and substantive issues. The onus falls on the employer in such cases to justify any termination. In cases where an employee breaks the contract and then seeks to pursue the employer for constructive unfair dismissal, as in this case, the bar is set just as high. Likewise, the burden of proof, which now passes to the employee, is set at a high level.
Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the Complainant’s resignation, and something that represents a repudiation of the contract of employment. In this regard The Supreme Court has said that: ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’ (Finnegan J in Berber v Dunne’s Stores  E.L.R. 61).
In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.
In the case within, the Complainant maintained that the Regional Director, her manager, was aware of difficulties the Complainant had been having since June 2016 regarding another employee overlapping her role and in doing parts of her job. The essence of the Complainant’s contention was that she was so undermined by this behaviour it needed to be addressed. She maintained the Regional Director failed to address her concerns, and after the matter was looked at by the board in July/August 2017 the Regional Director again failed to implement the changes required. This led to a lack of trust by the Complainant in her manager and the Board to the point that she felt she had no option but to resign after 16 years of loyal service. It was evident at the hearing that the Complainant was emotional and upset with the situation she found herself in.
On the other hand, the Respondent maintained that the Complainant never once raised a formal complaint about her concerns. The Board became aware of difficulties between the Complainant and an employee, and of the discontent that this was having between the parties and for the Regional Director in trying to deal with the matter. As there was no formal complaint to address, in July 2017 the Board decided to review matters and meet with each member of staff, after which it produced an action plan to address concerns. Some of the proposed actions would have addressed the Complainant’s concerns. However, the Complainant was not satisfied with the Regional Director’s response to the plan and submitted her resignation on 15th August 2017, and where the Regional Director left for planned annual leave the following day. The Complainant then met with the Board Chairperson who invited the Complainant to raise a formal complaint if her concerns remained, and where in an email from the Chairperson sent to the Complainant on 3rd September 2017 the Complainant was invited to make a formal complaint. However, the Complainant decided it was too late for this to happen and resigned her position.
With reference to Flynn v TUSLA The Child and Family Agency (UDD 1810) it was stated that in normal circumstances a Complainant who seeks to involve the reasonable test in a constructive dismissal 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 the grievance through the procedures laid down in the contract of employment before taking the step to resign (Conway v Ulster Bank Ltd). The Court held that an employer cannot be expected to address an employees’ grievance in circumstances where the employee failed to notify it of their issues and concluded that the Complainant had not been constructively dismissed where she had failed to address grievances before resigning.
Constructive dismissal cases are based on the entitlement test and the reasonableness test. Under the entitlement test the Complainant must succeed in arguing that she is entitled to terminate the contract on the grounds that the Respondent has breached a fundamental condition that goes to the root of the contract. In general, this arises where the actions of the Respondent demonstrates to the Complainant that the Respondent no longer intends to be bound by one or more of the essential terms of the contract of employment. Referring to the test being applied in Western Excavating (ECC) Ltd V Sharp (1978); as was applied further in Murray V Rockabill Shellfish Ltd (2012) ELR 331 a significant breach of the Complainant’s contract should be evident. In effect the question is whether it was reasonable for the employee to terminate her contract on the basis of the employer’s behaviour. In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery. Indeed the EAT has made it clear in a series of decisions, as followed by the WRC Adjudication Service, that failure to use company procedures to address a grievance is a necessity in upholding complaints of Constructive Dismissal.
Having considered the written and aural evidence provided by the parties, I find that the complaint never raised a formal complaint about the alleged behaviour. I also find that once the Respondent was aware of issues in the workplace it conducted a review of matters and on 8th August 2017 issued recommendations for action. However, before the Respondent was provided with an opportunity to implement these actions the Complainant decided to resign, and issued a letter of resignation on 16th August 2017. The Complainant was subsequently offered to submit a formal grievance, or for a mediation process to be set up, however she decided not to engage with these options and progressed with her resignation. I also acknowledge the Complainant was highly regarded by the Board as is demonstrated in the references provided to her by the Respondent after her departure and also as expressed in correspondence she received from the Chairperson on 3rd September 2017.
I find that the Complainant did not engage in the formal grievance process offered to her by the Respondent. I find the Respondent, by facilitating a meeting between the Complainant and the Chairperson of the Board in asking the Complainant to submit a formal grievance was reasonable in its behaviour to address the concerns. I acknowledge the Complainant felt aggrieved by what she was experiencing, but she did not take the opportunity to submit a formal complaint. I also acknowledge that the Complainant maintained she did not receive a written copy of the Grievance procedure; however, she was invited to make a formal grievance and to reconsider her decision to resign, but she chose not to make a grievance at that stage.
I therefore do not find the Respondent behaved unreasonably. I find that the Complainant did not pursue her grievance through the procedures laid down, procedures which were offered to her on a number of occasions before she resigned. For the aforementioned reasons I do not find that the Respondent was in breach of its obligations under the Unfair Dismissals Act, 1977.
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.
In order to prove constructive dismissal, the claimant must clearly show that there was no other alternative option open to her other than leave her employment. It must be demonstrated that all reasonable alternatives have been considered. In this case the Complainant has not demonstrated that she made a reasonable attempt to exhaust the internal procedures.
Therefore, the case of unfair dismissal is not upheld.
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Unfair Dismissal, Constructive Dismissal