ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022933
Parties:
| Complainant | Respondent |
Anonymised Parties | A Youth Centre Resource Person | An Education and Training Board |
Representatives | Anthony Hanrahan BL instructed by T.R.Brennan and Co. Solicitors | Niamh Ní Cheallaigh of IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00029390-001 | 01/07/2019 |
Date of Adjudication Hearing: 25th September 13th and 14th November 2019
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,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).
Background:
The issues in contention concern an alleged Unfair Constructive Dismissal of a Resource Person by an Educational and Training Board. As context, the place of work was a Learning Centre with a client /student population that included a range of youth clients with serious and often very challenging personal issues. The overall aim of the Centre was to help these clients with their issues and hopefully reintegrate them with formal Education and or Employment. |
1: Summary of Complainant’s Case: Adjudicator Precis
The evidence given in this case was extensive and it requires that a brief Adjudicator précis be made. In essence the Complainant presented three arguments in her favour, these being 1. The Respondent failed to provide a Safe Place of Work for the Complainant - detailed examples of issues going back to 2014 were cited. The attitude of the Counsellor, Mr. B, towards not involving/advising staff in advance of particularly troubled Clients with major issues, often before the Criminal Courts, arriving at the Centre was cited. In plain English some of these clients were potentially major Health and Safety risks to staff such as the Complainant. This was not recognised in any proper way by the Employer.
Considerable legal discussion and reference to precedents regarding a number of Superior Court cases specifically McCarthy v ISS [2018] IECA 287 and Ruffley v Board of Management of St Anne’s’ School [2017] IESC 33 took place.
The argument being essentially that an employer had a Common Law /Contractual, and in this case, heightened Duty of Care towards an employee. By extension in this case an alleged failure in this fundamental duty of care, in the very difficult work environment with very challenging Clients, was a foundation for a successful breach of contract action by the Complainant. At the very least it was advanced as a very solid foundation for a Constructive Dismissal case.
2. Egregious Bullying and Harassment of the Complainant by the Centre Manager (Ms. A) and the Counsellor (Mr. B). 3. The actions and more specifically the inactions and delays of the Respondent in responding to the Complainant’s concerns were equally reprehensible. In particular the inexcusable delay in reply to her Solicitor’s letter of the 19th of December 2018 until the 8th of April 2019 was cited as a key factor. The most peculiar meeting of the 30th August 2018 attended by the TUI and its completely unsatisfactory outcome, if it could be called an outcome at all, was also cited. Taken cumulatively these complaints and the failure of the Respondent to respond in any meaningful manner left the Complainant with no reasonable option but to resign her position which she did on the 5th April 2019. The Respondent failed on both standard legal tests in a Constructive Dismissal case namely the Contract and the Reasonable behaviour grounds in regard to the Complainant. Resignation was the only reasonable step left open to the Complainant. Considerable case law was also cited in support of these arguments.
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2: Summary of Respondent’s Case: Adjudicator Precis
The evidence given in this case was extensive and it also requires that a brief Adjudicator précis be made. In essence, the Respondent made the following Rebuttal points 2:1 Staff in this employment / work environment needed to be skilled in this challenging Social Rehabilitation/Reintegration area and recognise that considerable flexibility was required depending on the contexts /individual clients involved. 2:2 The allegation that an Unsafe Place of Work existed for the Complainant was completely denied. The Respondent employer, a Statutory Agency, is governed by a wide range of both Local and National procedures. Safety is taken very seriously, and the Complainant cannot evidence concrete examples of where her physical safety was compromised. It is accepted that incidents did occur with certain clients of the Organisation which may have involved threats being made against the Complainant personally and indeed her family. However, none of these were of a nature alien to the work environment and other staff members did not appear to have issues in the same environment or the same individuals. Considerable support resources for Staff, counselling and welfare, in this challenging environment, were available. Other staff members gave evidence on this point. In particular the Centre Manager gave extensive evidence as did a close colleague of the Complainant. The issue of pre notification to staff of the possible arrival of “Troubled” clients was mentioned. The Respondent did not accept that anything remiss had happened here. All staff were always kept fully informed. 2:3 The Respondent acted at all times with the outmost probity – all employment procedures were offered and followed. A wide range of supports such as the EAP, including additional sessions, were availed of by the Complainant. The suggestion of Mediation by an outside Independent person was offered. The Occupational Health Service was utilised to the full in support of the Complainant. In addition, on receipt of her Resignation, the Employee Relations Manager (Ms D) made contact with the Complainant to see if any resolution short of a resignation could be arranged. 2:4 A very substantial effort was made to resolve issues locally at a meeting on the 30th August between the Adult Education officer (Ms. E), a TUI representative (Ms. F) and the Complainant. A range of options were presented which the Complainant appeared not to have fully considered. In a Constructive Dismissal context, the Respondent alleged that the failure of the Complainant to properly follow up on this meeting was notable. 2:5 The delays in reply to the Solicitor’s letter of the 19th December 2018 were regretted but had to be excused in the light of the serious nature of the allegations in that letter and the need for the Respondent to seek detailed legal advice and also guidance from TUSLA ( in view of child protection issues involved) before composing a proper formal reply. 2:6 Regarding allegations of Bullying and Harassment considerable evidence was given to the Hearing of the relationship between the Centre Manger (Ms. A) and the Complainant. Evidence was also given by another other staff member in relation to this point. Suffice to say that the allegations of Bullying and Harassment being made by the Complainant were not accepted. It also appeared that the contemporaneous Records made in the Centre regarding alleged incidents were considerably less alarming that those put forward regarding the same incidents in the letter of the 19th December from the Complainant’s solicitor. 2:7 Regarding Medical issues the Occupational Health referrals had always indicted that the Complainant was fit to engage in discussions with the Employer. 2:8 In summary the Respondent always maintained that they had, regarding the Legal tests, acted Reasonably and that there was absolutely no suggestion of a Breach of Contract. By contrast the Complainant had acted unreasonably in regard to utilising proper procedures and had resigned before any proper consideration of her case could be made.
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3: Findings and Conclusions:
3:1 General Points Evidence in this case was by way of extensive Written submissions and oral presentations that ran across three days of Oral hearings. Considerable medical evidence was advanced. Extensive Legal discussion took place. Numerous Legal precedents from Higher Courts and Employment bodies such as the EAT and the Labour Court were referenced. However, notwithstanding these points, in final analysis, the Complaint before the Adjudicator was a Constructive Dismissal under the Unfair Dismissals Act,1977. The Higher Court points referred to regarding Liability and the interpretation of the quoted comments of Mr. Justice O’Donnell in the Ruffley case regarding Liability are best considered at that forum. The Unfair Dismissals Act,1977 is the Legislative basis of the Complaint before the WRC and as such all that the Adjudicator can base his decision on. The well-recognised legal precedents and Tests that apply in this context must take precedence. 3:2 The Law in a Constructive Dismissal case. The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents. In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting. For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides: “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,…” As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, 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.” According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: “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.” Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances. Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002): “There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.” None the less, a certain degree of Legal caution is required here. In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment. The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000. She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that “the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”. In summary therefore, a failure to use internal Procedures prior to a Resignation must be considered carefully by an Adjudicator in any consideration of a Constructive Dismissal. However, in summary from the above Legal Precedents it is also clear that every case has to be seen in the context of its own facts and particular evidence and I will now proceed to examine these. To assist in this process, I will take the format of considering the Legal Tests (Breach of Contract and Unreasonable Behaviours) as a background to consider the evidence. I will also look at the related area of the Utilisation/Non-Utilisation of Employee Grievance /Disciplinary procedures. 3:3 Consideration of the Evidence presented. 3:3:1 Test One – Breach of Employment Contract. As stated above the Breach of Employment Contract must be absolutely egregious – so fundamentally bad such as to leave the Employee with no reasonable option but to resign. In this case the Complainant basically advanced the argument that the place of work, the Training Centre and the management of the youth clients therein, was completely negligent of her welfare, both physical and psychological. Coupled with the alleged actions/or lack of actions of the Centre Manager in reaction to her complaints the Complainant had to go absent on Sick leave and then resign. The Complainant argued that this was a complete breach of the normal Duty of Care implied in an Employment contract. Much was made of incidents relating to a seriously troubled trainee and also of an incident of major theft, while she was at work, from the Complainant. The Respondent evidence was that they had at times acted properly and no breach of contract as proposed could ever have taken palce. To the outside observer and Adjudicator, it was clear that the Centre had a work environment, unlike a normal School or Training Centre, largely predicated on the Rehabilative nature of its mission. I was particularly impressed by the Oral Evidence of a fellow Resource Co-Ordinator, Ms.C, who described working at the centre and was a colleague of the Complainant. While acknowledging that it was “not a Convent” she did not indicate that she had any major issues with the Manager or with the Clients. Some of them needed a lot of skill in management but nothing that she had ever found impossible. It was the expected nature of the required work. Regarding her personal safety she had never felt particularly at risk even with difficult clients. The Oral evidence of the Centre Manger, Ms. A was also illustrative. She had been involved with Youth Rehabilitation for over 30 years and her evidence pointed to a capable and competent Manager in a unique work situation. The incidents described were troubling but the handling of the situation by the Manager, as described from the evidence and the detailed cross examination, did not appear to sustain a Breach of Employment Contract argument in the Constructive Dismissal context. The issue of the formal Health and Safety standards and policies at the Centre , a Public Service Institution, were not in my remit but none the less appeared satisfactory to me. All things considered and having reviewed all the extensive evidence I could not see the basis of a fundamental Breach of Employment Contract sufficient to sustain a Constructive Dismissal case. 3:3:2 Test Two: Unreasonable Behaviours. Here the key Legal position is that there must be Reasonable Behaviour on both sides of the case. Taking the evidence as presented ,the Complainant had had a troubled time with a number of clients in the period 2014 to 2018 and prior to February 2018. The theft incident on the 16th February 2018 was seriously upsetting to the Complainant. She felt that taken cumulatively with previous incidents she has to take medical leave. She remained on Sick Leave for the remainder of her employment service. Looking at the Unreasonable Behaviour argument from the Complainants’ perspective she would maintain that the incidents in the period 2014 to 2018 when taken cumulatively amount to Unreasonable employer behaviours. Graphic evidence was given of a range of alleged incidents of the Complainant being verbally abused and physically threatened by Clients. Her family were also threatened. All were largely ignored, she maintained strongly, by the Respondent. The Unreasonable Behaviours complained of were the lack of what she felt was proper support for her and a dismissive /belittling attitude towards her from the Centre Manager, Ms. A and from Mr. B, the Counsellor. Mr.B, the Centre Counsellor, was not present to give evidence. However, the evidence of the Centre Manger, Ms. A and the colleague Ms.C, did not highlight , even with Complainant cross examination, any material or serious Unreasonable Behaviours towards the Complainant. Taking the oral evidence and cross examination of the colleague co-worker, Ms.C and the Centre Manager regarding the same period and the same difficult clients (as referred to above) I found it hard to see how the Respondent responses to the alleged incidents could be classified, in the context of a Constructive Dismissal case, as employer Unreasonable Behaviour. The Clients were challenging, and threats were made against the Complainant, but this pattern was part of the job environment. Rehabilitation of troubled Young Adults is not for the faint hearted. The Manager’s evidence, which was subject to full cross examination, did not appear to me to display an ongoing pattern of wilful or egregious Unreasonableness prior to February 2018. Likewise, I found it hard to see any direct or indirect evidence of a campaign of Bullying or Harassment. The situation post February 2018 involved a number of references to the Occupational Health Provider – Medmark and support from the EAP counselling service. One of the main recommendations in the Occupational Health reports was that a meeting take palce between the Respondents and the Complainant to seek a resolution of underlying issues. Allowing for various Leave and availability issues this meeting, attended by the TUI trade Union as the Complainant’s support, took place on the 30th August 2018. The Adult Education Officer, Ms.E, represented the Respondent. The TUI Representative, Ms.F, was not called to give evidence but written evidence/copy e mails from her was submitted. The meeting was the subject of considerable discussion at the Oral Adjudication Hearing. The written note from the TUI was dated the 17th September 2019 regarding a meeting that took place on the 30th August 2018. Allowing for this time lapse the key TUI paragraph was and I quote “At the meeting which was lengthy you( The Adult Education Officer) and I both listed to X (The Complainant) and advised that repairing the relationship and mediation was the recommended course of action and that a grievance could be taken and that the TUI advised that the level to enter the grievance process would be stage 2 at the most with constant recourse to mediation.” A number of options were put on the table at the meeting. 1. Mediation with the Co-Ordinator/ The Complainant’s superior. 2. Transfer to another Centre 3. Grievance Process. The Complainant, after reflection, appeared not to wish to advance these options. Issues of clarification regarding question of the involvement on the Manager, Ms. A, in the Grievance procedure were raised but it appeared not resolved satisfactorily to the Complainant’s viewpoint. Ms. E, the Adult Education Officer, gave oral evidence. The Complainant in her oral evidence maintained that she had attempted to table a written list of grievances/complaints formally to the Respondent, but the meeting had not gone this way. It could be inferred, she felt, that the TUI Representative and the Adult Education officer had “talked over her head” and her side of the story was not really appreciated. The TUI representative, in a written statement, had indicated that the meeting had been properly conducted. Reviewing the TUI e mail traffic and the oral evidence from the Adult Education Officer, Ms. E, I had to come to the clear view that the meeting had been solution focused and had offered a real prospective of a suitable solution. It appeared to me that the Complainant failed to fully utilise the support that might have been forthcoming from the TUI. There was extensive and quoted e mail traffic (In the period Feb to Sept 2018) with the TUI Representative who came across from the correspondence as a capable Industrial Relations professional who was solution focused in this case. The Complainant, at this stage, sought formal Legal Advice. This ended the TUI involvement as their policy generally precludes representation of members who are also formally Legally represented. In the context of the Unreasonable Behaviours tests for a Constructive Dismissal claim it is hard to see how the Employer was being unreasonable at this stage of the process. It appeared the Respondent Adult Education Officer was perfectly happy to engage with the Complainant and the TUI. The next major issue was the Solicitor’s letter of the 19th December 2019 and the considerable delay in reply. The letter was lengthy (7 pages) and contained a wide range of points going back over a number of years including a possible serious issue of child protection. The Respondent, being a Public Body, had to seek TUSLA assistance as required by Statute and refer the letter to their Legal Advisors for a considered reply. The Child Protection issues took precedence and were the subject of the Respondent letter of Reply of the 8th April 2018. However, by his stage the Complainant had resigned. Taking the Unreasonable Behaviour test , was the delay in reply to the letter of the 19th December 2018 serious enough to successfully ground a Constructive Dismissal claim.? To answer this properly the context must be seen – the Respondent was a Public Body and a seven-page letter of most serious grievances was never going to be answered speedily. The Child Protection issues were a major contributory factor in the delay. The Complainant was still employed, no threat had been made as regards her status and to base her resignation on the delayed reply was hard to see as reaching the “necessary high bar” as often quoted by the Labour Court in Constructive Dismissal cases. Following the letter of Resignation (5th April 2019) the Respondent Employee Relations Manager sought to contact the Complainant to arrange a meeting to see if the situation could be resolved short of a Resignation. This did not happen, and the formal end of employment was processed by the Respondent. The Employee Relations Manager gave oral evidence on this point. She was anxious to establish contact with the Complainant, but the Complainant felt, in response that the failure to reply promptly to the 19th December letter had effectively completely sundered the relationship with the Respondent. There was no point. in the Complainant’s view, at that stage, in further meetings. 3:3:2 (1) Unreasonable Behaviours Summary On reviewing all the evidence, both written and oral, I did not think the Complainant had established Unreasonable Employer Behaviours to the extent required to support the claim of Constructive Dismissal. 3:3:3 Utilisation /Non-Utilisation of Procedures. From the evidence it was clear that no formal Grievance was ever raised by the Complainant. The Respondent, being a Public Body, has a well-established set of procedures. The Grievance issue was the subject of discussion at the 30th August meeting with the TUI. The Complainant had reservations about a process she believed would be biased against her as the Grievance would be handled initially by her Manager. For this reason, among others, she declined to participate. The TUI, from their correspondence and the description of the meeting by the Adult Education Officer, whom I found to be credible in her evidence, could easily have addressed this issue. It is not at all uncommon in the employment area to have grievances against Mangers and ways can easily be found to hear Grievances with non-Involved Mangers acting as Chair Persons. The Complainant, it appeared from the evidence, decided to go the formal Legal Route in December 2019 and effectively ended the Industrial Relations/Mediation route being advocated by the TUI. The issue raised above in the Legal paragraph, Section 3:2 above, specifically the Liz Allen case, has to be considered. Was it reasonable for the Complainant to come to the view that the Grievance Procedures would be pointless as the Employer was so completely in the wrong? The evidence did not point to this conclusion – the Respondent had made efforts to resolve the issue (The August 2018 meeting) and there was no evidence that a Grievance would have a predetermined negative outcome for the Complainant. All the reports, e mails and evidence, regarding the actions of the Adult Education Officer, Ms.E, and the interactions with the TUI representative did not indicate a pre-determined outcome already decided. It did not appear that the Complainant could use the Liz Allen defence of pointless procedures in this case. The reluctance to participate with the Employee Relations Manager in April 2019 was a further negative as regards a Constructive Dismissal claim and the utilisation of procedures. In summary and taking a strictly Constructive Dismissal approach I had to come to the view that the Complainant had not fully utilised all available employment procedures. 3:4 Summary Conclusions Having heard and reviewed all the evidence, both oral and Written I came to the view that based on well-established Constructive Dismissal precedents the Complainant failed to demonstrate a Fundamental Breach of the Employment contract, did not establish egregious Unreasonable Behaviours on the part of the Employer and was not helpful to her case by her approach to Employment Procedures. Accordingly, I do not find that the claim for Constructive Dismissal is Well Founded.
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4: Decision:
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.
Please refer to Section Three above for detailed reasoning.
Complaint CA-00029390-001 seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 in Not Well Founded and fails.
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Dated: 5th February 2020
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
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