ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013998
A Photo Consultant
A Retail Company
Mr. Derek Dunne B.L. instructed by Lanigan & Curran Solicitors
Complaint 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: 27/09/2018
Workplace Relations Commission Adjudication Officer: James Kelly
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following 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 final correspondence on this matter was received on 1 November 2018.
The Complainant claims that she was treated so badly by her employer that she was left with no other option but to resign from her job as it was affecting her health and her family life, and she could not return to the Respondent’s working environment. Accordingly, she alleges she was constructively dismissed.
The Respondent claims that the Complainant, having gone through a disciplinary process and a grievance procedure, voluntarily resigned her position and there is no case of constructive dismissal.
Summary of Complainant’s Case:
The following is a summary of the Complainant’s evidence.
The Complainant claims that she went into work as normal on 18 February 2017 where she met with two members of staff who informed her that she would be called in for a disciplinary meeting. They informed her that another member of staff Ms. A had been called into an investigatory meeting in relation to the same issue. The Complainant claims that was the first time she became aware that there was a charge against her. Later that day the assistant manager Ms. B spoke to her on the shop floor and also told her she would be asked to attend an investigatory meeting for not doing her job properly in relation to cash handling. She said that she subsequently received a letter, which was left in her work locker, advising her to attend an investigatory meeting on 4 March 2017.
The Complainant said that on the day of the investigatory meeting she brought a work colleague along with her and she was asked to view CCTV footage of her and Ms. A counting cash from the till. The Complainant claims that having watched the footage, she asked Ms. B what she was supposedly doing wrong, to which she was told that Ms. A was not looking at her while she was counting the cash takings. The Complainant said that she argued her point saying that she was doing what she was supposed to be doing - counting the cash - and she did nothing wrong. However, she was told that Ms. A should have been watching her.
The Complainant said that the meeting was adjourned and after a few minutes she was called back into the office by Ms. B who told her that she was going to issue her with an oral warning. The Complainant said that she refused to take it, so the meeting ended. She said that Ms. B told her that she would need to speak to the Store Manager the following week. She said that the following week she was contacted by Ms. B who told her that she had to take the oral warning but could appeal it. The Complainant said on 10 March 2017 she sent a letter of appeal to Ms. C, Store Manager, and was then invited to an appeal hearing on 18 March 2017.
The Complainant said that she attended the appeal hearing, again accompanied by her work colleague, and from the very start Ms. C opened the meeting by using intimidating behaviour towards her, hitting her hands on the table and telling that “her decision was final” and “not to take on [the Respondent]” as they were a very large company and that she would not get very far. The Complainant said that she asked if she was not happy with her decision was there anyone else she could talk to. Ms. C said no.
The Complainant claims that she received a letter of the outcome of the appeal hearing on 4 April 2017. At this stage the Complainant was gone out on sick leave on work related stress. The outcome of the appeal was to uphold the sanction of the oral warning and Ms. C also informed the Complainant that her decision was final within the company process. The Complainant said that she was not happy that Ms. C stated in her decision letter that she took into account that there was a ‘letter of concern’ on the Complainant’s file from the previous year regarding handling of cash. She said that the note should have been gone from her file at that stage.
The Complainant claims that she sent a letter back to Ms. C informing her that she was not satisfied with the outcome and that she was seeking clarification on the matters through alterative internal avenues. She said on 10 April she contacted the Area Manager, Mr. D, and asked if he would meet
in relation to the disciplinary process. A meeting was arranged on 27 April where she filled him in on what had happened, and she told him she was too nervous to return to work as she felt as though she was being watched all the time. He told her that he would look into it and also look into the policy on the use of CCTV in her disciplinary hearing. The Complainant said that she received an email back that he did not have any updates at yet but he “would be in touch”. After some further email exchanges, a meeting was arranged on 30 May 2017, where that Complainant informed Mr. D that she would be submitting a complaint in line with the Respondent’s bullying and harassment policy against Ms. C.
A meeting was called by Mr. D for 23 June 2017 where the Complainant said she felt bullied by Ms. C, her store manager, after she had made a comment to her in the past saying “that [she was] not afraid of her” after Ms. C said that she was afraid of her store manager when she worked in England. The Complainant said that she felt that Ms. C did not like the fact that she was not afraid of her and checked CCTV footage trying to find something so that she could say the Complainant was not doing her job properly. The Complainant said that Mr. D told her that anyone that was mentioned in her complaint would also be called to an interview. Individual meetings with all the witnesses named took place and the Complainant was sent a copy of all the minutes. The Complainant said that she was “disappointed to read some of the comments from Ms. B, Assistant Manager, saying that [the Complainant] didn't take her job seriously”.
The Complainant claims that she was invited to a second meeting on 4 August 2017 where she informed Mr. D that she would not be answering any more questions or asking anymore questions. On 11 August 2017 she said that she received a letter from Mr. D, with the initial findings giving her the right to comment on the findings which she said she did. Mediation was suggested as a way forward to assist in the relationship with Ms. C but the Complainant refused as Ms. C had made a comment in her meeting that she feared for her safely around the Complainant.
The Complainant claims that on 4 September 2017 she received another letter from Mr. D offering her the opportunity to make any further comments on the initial findings, but she did not have anything else to say or add and decided to wait for the final decision. She said that she was now out of work since 25 March on stress and was waiting for a final decision which was causing her more stress. On 4 January 2018, the complainant sent a letter to HR seeking a final decision on her grievance and she finally received that a week later. She said that she felt she was left with no other option but to resign from her job as it had affected her health and family life and she said she could not return to such a working environment. She said that she was forced out of her job after sixteen years of service to them.
The Complainant said that she believes that the use of CCTV was inappropriate in the circumstances and that it was only done to make an example of her and Ms. A. She said that she deems that it was used against her on purpose for inadequate reasons and in circumstances where it was wholly inappropriate taking into account the Company policies given that CCTV would only be used in cases of theft or fraud. However, it was clearly stated to her that she was not under investigation for theft or fraud and she said that her questions regarding this were never adequately responded to. She said that she feels like she was picked on, on purpose. The reference to a letter of concern on her file, which should have been long expired, as part of refusal of her Appeal was incorrect and unnecessary and a way of further undermining her. The Complainant claims that she was constructively dismissed.
Summary of Respondent’s Case:
The Respondent claims that the Complainant commenced employment with it on 19 October 2001 and at the time of her resignation she held the role of Photo Consultant.
The Respondent claims that following a review of the Complainant’s Cash Audit procedures, it decided that she was in breach of the dual control policy on 5 February 2017 and as result she was invited to attend an investigation meeting on 4 March 2017 which was conducted Ms. B, Branch Assistant Manager. The Complainant was found to have breached the policy and she was subsequently issued with an oral warning. It noted that two older documents, two letters of concern, relating to similar cash handling errors from 2015 and 2016 were also on her file.
The Respondent said that the Complainant appealed that decision to Ms. C, Store Manager, on the basis that she was not aware that CCTV could be used against her to initiate a disciplinary procedure, she and another person were present as per the policy and that she was doing the procedure correctly and it was not within her remit to instruct her work colleague how to do her job. The appeal was held on 18 March 2017 where the decision was ultimately upheld. The Complainant wrote to the Respondent expressing her dissatisfaction at the outcome letter on 7 April 2017. She had commenced sick leave due to work related stress as of 25 March 2017.
The Respondent claims that the Complainant sent a grievance letter to the Area Manager, Mr. D, against Ms. C and citing a number of issues she had with the disciplinary process. Mr. D commenced his investigation on 23 June 2017. In relation to the issues raised, Mr. D said that he dealt with the issues in order against Ms. C and where witnesses were named he interviewed them; however, the Respondent said that none of the witnesses’ evidence supported the Complainant’s case to the extent that she claims events happened. The Respondent said Mr. D met with the parties to give them an opportunity to review the minutes of the specific meetings in the disciplinary process and to make additional comments. He then sent a draft report dated 11 August 2017 to the Complainant and asked for her comments by 28 August 2017.
Mr. D received a letter dated 14 August 2017 from the Complainant where she expressed her dissatisfaction with how her issues were addressed, that she would not be participating in any mediation and would be meeting her solicitor in the coming weeks. A further letter was sent to the Complainant on the 4 September 2017 again inviting her comments on the report, but she never replied or made contact with the Respondent again. She remained out on sick leave. A copy of the final report was sent to the Complainant on 5 January 2018, which set out the possibility of and right of appeal. The Respondent said the Complainant’s responded to the final report with a resignation letter dated 13 January 2018. The Respondent’s Area manager wrote to Complainant on 22 January 2018 and asked the Complainant to reconsider her resignation and to meet, however, no response was received.
The Respondent said in cases of constructive dismissal there is a burden of proof on the Complainant to demonstrate that the employer has acted in such a manner so as to breach a fundamental term of the employment contract, or that the employer had acted so unreasonably as to make the continuation of the employment so intolerable that it is reasonable for the employee to resign.
It said that it was reasonable for it to commence disciplinary proceedings and issue an oral sanction for serious work-related errors. This was not an isolated error. The Complainant was aware of its policy on cash counting and she last confirmed and signed that she understood on 28 May 2016.
The Respondent said that it acted fairly and in accordance with its Disciplinary procedures and it afforded the Complainant her rights to natural justice and representation. The final decision was within the band of reasonable sanctions that a reasonable employer would apply in the same circumstances. Following the completion of the disciplinary procedure the Complainant raised a grievance and an extensive investigation took place which found that there was insufficient evidence to substantiate the Complainant’s claims but made recommendations in an attempt to resolve possible animosity between her and Ms. C. The Complainant was given the opportunity to review Mr. D’s decision and comment and to appeal the decision if she wished to. However, she wrote back to say she was not satisfied with it and would not be participating in any mediation.
The Respondent said that in the final report issued by Mr. D he outlined that the oral warning that issued had expired and been taken off her file. The Respondent said that she failed to exercise her right to appeal, instead she decided to resign, and it stated that it is aware that she commenced new employment on 5 February 2018.
The Respondent cites the decision in Conway v Ulster Bank UD474/1981 in support of its case claiming that there was no “repudiation of the contract of employment”, which demonstrates “that the respondent no longer intended to be bound by the contract”. It also refers to the decision in McCormack v. Dunnes Stores UD1421/2008where the principle of fully exhausting all the internal procedures in good faith was established. It said she failed to do this in the present case as she did not appeal the decision. It further sought to rely on the decision in Terminal Four Solutions Ltd v Rahman, UD 898/2011 where it claims that the burden of proof rests with the employee to demonstrate “she had no choice but to leave her position … that her resignation was not voluntary … it is incumbent on any employee to utilise all internal remedies … unless she can show that said remedies are unfair”.
Findings and Conclusions:
The Relevant Law
Section 1 of the Unfair dismissal act defines “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, 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 term “constructive dismissal” 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:
In order to rely upon the provisions of Section 1(b) the Complainant must establish, in the first instance, that there was a termination of her contract of employment. It was not in dispute that the Complainant resigned from her position by letter on 13 January 2018.
The Complainant is claiming that she was constructively dismissed from her position as a Photo Consultant with the Respondent following a flawed disciplinary procedure and grievance procedure.
As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus or burden 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 appropriate 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 1 All E.R. 713. It comprises of two tests, often referred to as the ‘contract test’ and the ‘reasonableness test’. 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.”
According to the Supreme Court in Berber -v- Dunnes Stores E.L.R. 61], it 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.”
I am satisfied that it is not for me to establish if the Complainant was guilty of an act deserving of a disciplinary sanction or not. The Respondent has made a determination that the Complainant did commit an act that merits sanction. Rather it is for me to consider all the facts and to determine if fair procedures were applied to her during the disciplinary process and the subsequent grievance procedure and, if not, were the conditions of her employment so bad that she can rely on the claim to constructive dismissal.
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.
The Complainant claims that she effectively had lost trust in the process for investigation of her grievance. The Complainant claims that the Respondent failed from start to finish. The Complainant claims that her position ultimately became untenable and she was left with no alternative but to resign from her employment.
The Respondent disputes the claim of constructive dismissal. It said that it dealt with the disciplinary matter in line with its procedures in a fair manner and it was dealing with the Complainant’s grievance likewise. The Respondent contends that the Complainant resigned of her own volition after failing to fully exhaust the internal grievance procedures as that was still ongoing when she chose to terminate her employment. The Appeal process was still available to her, she was contacted by a senior official from the Respondent who asked her to reconsider her decision to resign but it was the Complainant who stopped engaging.
It is well established that in advancing a claim for constructive dismissal an employee is required to show that he/she had no option in the circumstances of his/her employment other than to terminate his/her employment. The notion places a very 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 grievance with his employers.
The Labour Court has held in the case of Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] 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 UDA474/1981”.
The Employment Appeals Tribunal held in the case of Travers v MBNA Ireland Ltd [UD720/2006] that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.
In considering this issue, I am satisfied that the Respondent had an established Grievance Procedure in place and the parties were working their way through that process although there were delays and there was a lack of clarity throughout. I am satisfied that the criticism can be levelled at both parties for the delays, but more so the Respondent. I would have expected that the employer would be much more professional and decisive in how it completed the investigation and could have offered clarity in the lead up to the final report. I am satisfied that in situations like this, the employer must take a decisive lead and be definite in wrapping up their conclusions in a manner leaving no scope for vagueness. Two interim reports were sent to the Complainant for her ‘views’ and effectively held up the final report that was only sent out when she requested information on it in January 2018. In saying that, I note that the Complainant was out on sick leave at the time and not depending per se on the delivery of the final report for her return to work.
In accordance with the established principles in constructive dismissal cases, I am satisfied that there was an obligation on the Complainant to invoke all internal procedures before taking the step to resign from her employment. However, based on the evidence adduced, I do not accept that the Complainant sought to fully exhaust the internal grievance procedures in relation to her workplace related grievances and decided to terminate before appealing Mr. D’s final decision. I note in that decision Mr. D informs the Complainant that the original kernel of the problems between the parties – the oral warning – has since lapsed and was removed from her record.
The evidence presented to me suggests that the Complainant felt very aggrieved for having been investigated and disciplined for a breach of procedure that she vehemently determines was not her fault. Events cascade from here; the full disciplinary procedure is activated and completed and then the parties re-engage immediately afterwards dealing with the Complainant’s grievance stemming from the disciplinary procedures and including a bullying and harassment claim.
It is clear that the Complainant felt aggrieved and did not like the multiple decisions the different decision maker had arrived at, but the process was far from complete and a different decision maker was ready to hear the appeal should she deem it necessary to make an appeal. In essence, the Complainant chose to terminate her employment while the grievance procedure was still ongoing, and I find that detrimental to her case in the circumstances, particularly since the oral warning had lapsed and was now removed from her records. There was no pressing need to terminate her employment at that specific juncture.
I note the evidence from the Complainant with regard to the historical letter of concern and the use of CCTV in the disciplinary case against her. I would have presumed that such matters would have formed part of her appeal if she chose to appeal. I do not accept that the findings on these matters by the Respondent demonstrate that the Respondent’s investigations were so flawed that she could determine that she had no option but to resign.
In the circumstances, I find that the Complainant has not established that the conduct of the Respondent was such that she had no option but to resign her position. I find that the Complainant did not give the Respondent an opportunity to address her concerns before taking the decision to resign from her employment.
I find that the Complainant has not established a case that she had no option but to resign her position. Accordingly, I find that the Complainant was not constructively dismissed from her employment.
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 position 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: 22nd May 2019
Workplace Relations Commission Adjudication Officer: James Kelly
Unfair Dismissals Act - constructively dismissed – not well founded.