FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : REHAB GROUP (REPRESENTED BY IBEC) - AND - MS ANNETTE ROBERTS (REPRESENTED BY MS APRIL DUFF B.L.) DIVISION :
SUBJECT: 1.An appeal of an Adjudication Officer's Decision No(s)ADJ-00015280 CA-00019894-001 This is an appeal by Ms. Roberts, ‘the Complainant’, of a Decision of an Adjudication Officer, ‘AO’, that found against her claim of a constructive dismissal under the Unfair Dismissals Act, ‘the Act’, by the Rehab Group, ‘the Respondent’. The Complainant was employed by the Respondent as a Training Co-Ordinator/Instructor and commenced in that role in September 2001. She worked 22.5 hours per week. The Complainant contends that she worked in a toxic and dysfunctional atmosphere due to the behaviour of a colleague. Note—as allegations regarding this colleague’s conduct have never been investigated, her identity is anonymised in this Determination and she is described as Ms. X. The Complainant contends that Ms. X had a history of bullying and abusive behaviour towards colleagues and that from late 2017 she focused her attention on the Complainant. The Complainant cites a specific incident on 4 January 2018, which gave rise to a complaint by her to her manager, Ms. Lisa Haugh. As a result of this incident, the Complainant states that she was required to take sick leave due to work related stress. It is the Complainant’s contention that, despite a number of subsequent inter-actions with her manager, her complaint was never dealt with and that, as a result, she had no option but to resign by letter to the Respondent on 20 April 2018. The Respondent contends that the Complainant had indicated initially when reporting the incident that is alleged to have occurred on 4 January 2018 that she did not wish to make a formal complaint and that, following a conversation between the Complainant and Ms. Haugh on 15 January 2018, the Complainant was to consider how she wished the matter to proceed and that it was not until a meeting on 22 March 2018 that the Complainant clarified that she wished her complaint to be investigated formally. The Respondent had then begun the process of appointing an investigator, or investigators, when the resignation of the Complainant was received. The Complainant lodged a claim of constructive dismissal. The AO found that the claim was not well founded and the Complainant appealed to the Court. Appeals by the Complainant under the Employment Equality Acts and the Protected Disclosure Act were withdrawn before the hearing commenced. Complainant’s Arguments There was a pattern of bad behaviour by Ms. X towards colleagues. One colleague reported this and then left because of it. Another colleague was assured before taking a career break that the issues would be addressed but they were not. Ms. X appeared to dislike the Complainant and would ask her ‘Who do you think you are?’. This was reported to management but was not addressed. On 4 January 2018, the Complainant was subjected to an aggressive verbal attack by Ms. X. One of the Complainant’s colleagues reported this to Ms. Haugh. On 5 January 2018, the Complainant emailed Ms. Haugh to have the matter dealt with and believed that, by putting the report in writing, this was a formal complaint. The Complainant subsequently felt unable to return to work and commenced sick leave due to work-related stress. On 12 February 2018, the Complainant attended the Respondent’s medical advisor, who advised that the Complainant would be unfit to return to work for some weeks but that the Respondent could engage with her in that time. On 22 March 2018, the Complainant met with Ms. Haugh and Ms. Rebecca Eivers, the Respondent’s HR business Partner .They discussed the incident on 4 January 2018 and other concerns. It was agreed that management would meet Ms. X and revert to the Complainant by 9 April 2018 but it was clear that they were reluctant to meet Ms. X. On 12 April 2018, Ms. Haugh contacted the Complainant with good news regarding one of her clients. The Complainant asked for an update on the complaint made in January. Ms. Haugh advised that she was waiting on HR to revert and confirmed that the process had yet to start. This delay severely undermined the Complainant’s trust in her employer. She submitted her letter of resignation on 20 April 2018. The Respondent failed to address the behaviour reported by the Complainant on numerous occasions and failed to follow its own Dignity at Work Procedure in which managers and supervisors have an obligation to deal promptly and effectively with complaints of bullying and harassment. Section 1 of the Act provides that constructive dismissal occurs when the conduct of the employer renders it reasonable for an employee to terminate their employment and case law cited indicates that the question for the Court is to decide if the decision to terminate employment was reasonable. In the case ofAllen v Independent Newspapers (2001) 2 JIEC 0501the Complainant established that she was subjected to inappropriate treatment and that her complaints were not addressed. The Employment Appeals Tribunal also accepted that a prolonged period of illness subsequent to the dismissal, during which the Complainant was unable to work, was attributable to the employer’s actions and that, therefore, the loss of income to the Complainant in that period should be compensated by the employer. In the instant case, the Complainant was in receipt of Illness Benefit from May 2018 to October 2019. This illness was caused by the Respondent. Even prior to the incident on 4 January 2018, the Complainant had raised concerns regarding Ms. X’s behaviour, including reporting to Ms. Haugh an incident that occurred on 24 December 2017, in which the Complainant was subjected to an aggressive and foul-mouthed verbal attack. This was just the latest in a whole series of bad behaviours of which the Respondent was aware. Respondent’ Arguments When the Complainant spoke to her manager, Ms. Haugh, following the alleged incident on 4 January 2018, she was asked to put the details in writing. She did so and Ms. Haugh spoke to her again the following day. The email did not specify how the Complainant wished to proceed and in their conversation the Complainant said that she did not wish to make a formal complaint but that she would like somebody in management to speak to Ms. X. On 10 January 2018, the Complainant advised that she was ill and a medical certificate was received on 15 January 2018. Ms. Haugh contacted her and explained the requirement for an Occupational Health Assessment. She also outlined to the Complainant the informal and formal procedures available to resolve the complaint. It was agreed that the Complainant would consider her options and then revert to Ms. Haugh. On 16 January 2018 the Respondent scheduled an occupational health assessment for the Complainant, which she attended on 12 February 2018. The Complainant was deemed to be unfit for work for a 4-6 week period but she was deemed fit to engage with the Respondent for any perceived work-related concerns. Ms. Rebecca Eivers, HR Business Partner, contacted the Complainant on 6 March 2018 and a meeting was arranged for 22 March 2018, to discuss the occupational health report. At this meeting Ms. Eivers suggested a facilitated conversation between the Complainant and Ms X. but this was declined by the Complainant, who confirmed that she now wished to proceed on the basis of a formal complaint for which her email of 5 January 2018 could be used as the necessary details of the complaint. On 12 April 2018, the Complainant enquired of Ms. Haugh if the investigation had commenced. Ms. Haugh confirmed that it had not as the Respondent had only been requested to conduct a formal complaint on 22 March 2018 and that HR were in the process of appointing an investigation team. On 20 April 2018, the Complainant submitted her resignation giving one month’s notice. On 23 April 2018, Ms. Haugh contacted the Complainant to ask her to re-consider and to give the Respondent the opportunity to investigate her complaint. The Complainant declined to do so. The burden on the Complainant is to establish that she was entitled to resign due to a breach of contract or such unreasonableness by her employer that it was reasonable for her to resign. The Respondent did not violate any term of the Complainant’s contract. On the test of reasonableness, in the case ofMcCormack v Dunnes Stores UD 1421/2008the Employment Appeals Tribunal had noted the high burden of proof on an employee in a case of constructive dismissal, including the need to demonstrate that all internal grievance procedures had been exhausted. The Respondent acted reasonably at all times in accordance with its policies, best practice and appropriate conduct. The Complainant first notified a wish for a formal investigation on 22 March 2018 but then submitted her resignation on 20 April 2018 before the Respondent could initiate an investigation. The Complainant did not exhaust the processes of the Respondent’s Dignity at Work Procedure before resigning. Several cases were cited by the Respondent’s representative including the case ofConway v Ulster Bank UD474/1981in which it had been held that a Complainant had not acted reasonably by resigning before having substantially utilised the relevant internal procedures. The Respondent disputes, for the record, allegations made regarding other employees who are said to have left this employment due to alleged bullying that was not addressed by management. Witness Evidence Ms. Annette Roberts, ‘the Complainant’ , gave evidence of the behaviour of Ms. X, which created a bad working climate in a small unit. She said that management were well aware of this but that no action had been taken. She said that Ms. Haugh had asked on occasions ‘who is she going to have a hop off today?’. The witness said that three different colleagues had confided in her about serious issues but that there was a complete refusal to address Ms. X’s bad behaviour . In late 2017, the witness said that, on the request of Ms. Haugh, she gave a presentation on Ms. X’s programme. Ms. X was very angry and became verbally abusive to her, using foul language. On the last working day of that year, when the witness indicated to colleagues that she had been given a planning day by Ms. Haugh immediately following the Christmas break, Ms. X had ‘let fly’, cursing and calling her names and speaking of favouritism. The witness was ‘very shook’ and advised Ms. Haugh, with whom she had a good relationship. She was not aware of any follow up. When the witness returned to work on 4 January 2018, she was subjected to an attack of vile abuse by Ms. X, in which she was called a ‘f#####g b###h and other names and in the course of which Ms. X made reference to ‘golden girls’. A colleague witnessed this attack and brought it to Ms. Haugh’s attention. Then, later that day. Ms. X approached her and called her by saying ‘Come her you’ then ‘don’t give me that f#####g face, I am trying to f#####g apologise’ and she also said ‘I don’t know why I am taking it out on you’. When the witness spoke to Ms. Haugh, she was advised that she had to put the complaint in writing. In her conversation with Ms. Haugh she stated that this behaviour had to be addressed and that Ms. X needed to be spoken to by management. The witness said that she just wanted the matter resolved in this way and that she could not return to work until it was resolved. She emphasised that all she wanted was somebody to address Ms. X’s behaviour by speaking to her. She was advised by her doctor not to return to work until the matter was addressed. She believed that, by putting her concerns in writing on 5 January 2018, this had formalised the complaint and that somebody would speak to Ms X. The witness said that when she attended the meeting on 22 March 2018, she hoped and expected that she would be told that Ms. X had been spoken to and that it was safe for her to return to a job that she loved. She said that she never saw the Respondent’s minutes of the meeting but she recalled Ms. Haugh saying that matters had gone beyond a facilitated discussion. Her overall feeling was that the two managers were making light of her concerns and that their attitude was that if she came back to work, everything would be all right. The witness said that she agreed at the meeting that a formal enquiry would be the best course in the hope that somebody would speak to Ms. X about her behaviour. She was promised that somebody would get back to her regarding this enquiry by 9 April 2018. When she learned on 12 April 2018 that the enquiry had not commenced, she just felt that she was not being supported and she lost faith in her employer. She felt that she could not return to work unless the matter was resolved and, although Ms. Haugh was devastated to receive her resignation, she did not believe that her concerns would be tackled, so she declined the offer to re-consider. The witness stated that she was on Illness Benefit from her resignation in May 2018 until October 2019, at which point she set up her own business which, due to the Covid pandemic, had closed down in March 2020, since when she had received the Covid support payment. She estimated that she had made about €3,000 income from her business when it was open. Note-the Court noted, and shared, the concern of the Respondent’s representative regarding the fact that the Complainant’s representatives had produced no income details or other relevant information for the Court to consider regarding attempts to mitigate loss . In response to a question in cross examination, the witness said that prior to 5 January 2018, she thought that she may have brought her concerns to attention in e-mails but that she had certainly done so verbally. The Respondent’s representative noted that no such emails had been produced to the Court, even though the Respondent had co-operated with a data access request. When questioned about whether she had made it clear that she did not want a formal investigation following her email of 5 January 2018, the witness said that she wanted the matter resolved by somebody speaking to Ms. X about her unacceptable behaviour. She said also that it was clear that this was a case of bullying and not just a grievance. While she accepted that she may have indicated to Ms. Haugh in January that she did not want a formal process, all she ever wanted was that somebody would speak to Ms. X and she could return to work without fear. She said that she had trusted that her complaint would be followed up. The witness said that at the meeting on 22 March 2018, the two managers were looking for her to write something down but she had refused because she had set out her complaint on 5 January 2018. The witness said that she did not believe at the time of that meeting that anybody had spoken to Ms. X. She said that the delay after that meeting was not the reason she had resigned but that, rather, this led her to conclude that there was no reason to believe that her concerns and her wish to have Ms. X spoken to would ever be addressed. In response to questions from the Court, the witness said that she believed that Ms. Haugh was uncomfortable with the idea of speaking to Ms. X. It was put to the witness that her note of the meeting on 22 March 2018 in referring to an undertaking to speak to Ms. X and to revert to the witness then did not tally with the Respondent’s record. The witness said that she had not seen the Respondent’s minutes. She said that she did not know if the complaint had ever been put to Ms. X. The witness reiterated that all she ever wanted was for Ms. X to be confronted regarding her behaviour. When she lost faith that this would ever happen, she said that she felt she had no option but to resign. Ms. Lisa Haugh gave evidence for the Respondent. The witness explained that she was an Area Manager to whom both the Complainant and Ms. X reported. She stated that there was a team of six in the location. She described her relationship with the Complainant as ‘good’. The witness said that she was aware that there were differences between Ms. X and the Complainant but that she was not aware that the situation had worsened appreciably in late 2017. With regard to the alleged incident before Christmas 2017, the witness said that she was aware that Ms. X had an issue regarding a planning day and it was her impression that the Complainant had simply wanted the witness to know about Ms. X’s view on this. The witness said that she did not recall ever having spoken about who Ms. X might ‘hop off’. She said that she was not aware of 3 other staff members making complaints about Ms. X and that Ms. X had never been the subject of a formal complaint. The witness said that when she spoke to the Complainant after the incident on 4 January 2018, it was clear that she did not wish to make a formal complaint but that she did want the matter addressed. She said that she had outlined to the Complainant, in a subsequent discussion on 15 January 2018, the various options available to her under the Respondent’s Dignity at Work Procedure. As there was not a formal complaint, the witness said that she felt unable to conduct an investigation of the reported incident on 4 January 2018. She had spoken to Ms. X regarding the matter that had, allegedly, given rise to the incident that was the subject of the complaint and told her that if she had any difficulties with decisions taken by the witness she should raise them with her and not with her colleagues. She did not get into any detail about the alleged incident itself. The witness said that at the meeting on 22 March 2018, the Complainant had declined mediation as an approach. The witness said that she could not recall having said that the issue was beyond a facilitated discussion and she had simply outlined the options but the Complainant was clear that she could not return to work until the matter was addressed . The witness confirmed that the Complainant had not received minutes of the meeting. The witness said that she wanted the Complainant to return to work and wanted to resolve the problems. While she was aware of some tensions between the Complainant and Ms. X previously, she felt that they were no more than the normal inter-personal frictions that occur often between colleagues and they had been resolved and the parties had moved on. The witness accepted that an undertaking was given to revert to the Complainant by 9 April 2018 but, in fact, both Ms. Eivers and herself went on annual leave the meeting and only returned on that date. The matter had been referred for the attention of HR before they went on leave. The witness said that she rang the Complainant after her resignation and asked her to re-consider. In response to questions in cross examination, the witness confirmed that the Complainant had been good at her job and was a valuable member of staff. She denied ever witnessing Ms. X being aggressive in the manner claimed. In her view, people had different ways of communicating and there were differences in this regard between the Complainant and Ms. X. She denied ever asking the Complainant for advice on how to deal with Ms. X, as this would not have been appropriate. With regard to suggestions that other staff members had complained about Ms. X, the witness said that she was not aware of any formal complaints. When it was put to her that other staff were ‘treading on eggshells’ around Ms. X, the witness said that this was not her experience. The witness said that she was not aware that Ms. X had been put out by the fact that the witness had asked the Complainant to make a presentation regarding Ms. X’s programme. The witness said that it was not her understanding that the Complainant had resigned because of Ms. X and she was aware that the Complainant was unhappy that she had been unsuccessful in her application for some other jobs within the organisation. When asked what she understood the Complainant had meant when, in her email of 5 January 2018, she had pointed out that this was not the first occurrence of this type involving Ms. X, ‘as you are aware’, the witness said she did not know what other alleged occurrences were being referenced. When asked why she had requested of the Complainant that she set out details of the incident on 4 January 2018 in writing, the witness said that she needed to know the facts. When put to her, the witness accepted that the Complainant made clear that she wanted the matter dealt with but she said that it was not clear at the time whether she wished it to be dealt with through formal or informal means. She said that she had consulted HR who had reminded her that the Respondent’s policy had different options and she had asked the Complainant which one she wanted to utilise. She accepted that the Complainant wanted Ms. X spoken to and she had done so on 25 January 2018 but she had been careful about referring to the incident on 4 January 2018 in case there was a subsequent investigation, so she did not feel tasked to have a discussion about what was alleged to have occurred and she could not accuse Ms. X. The witness acknowledged that the minutes of the meeting on 22 March 2018 make no reference to the Complainant being made aware of the witness’s discussion with Ms. X on 25 January 2018. The witness denied the accuracy of a description of Ms. X as ‘scary’. In response to questions from the Court, the witness said that there had been no formal complaints about Ms X prior to this. When pressed as to whether she was aware of any unhappiness about Ms. X’s behaviour, the witness said that any issues had been resolved. The witness said that she would not countenance any bad language from staff members if it was brought to her attention. It was drawn to the attention of the witness that the only reference to complaints being put in writing under the Respondent’s procedure was in the section dealing with formal complaints, to which the witness responded by stating that she needed details to be set down before anything could be done. The witness was asked if she was satisfied that as a manager she had dealt ‘promptly’ with the complaint as was required specifically of managers in the Respondent’s policy, to which she responded that she never had the opportunity as it was not clear how the Complainant wished to proceed. The witness said that she did not view the email of 5 January 2018 as a complaint but, rather, as an outline of an incident. She said that she wanted to be sure to take the right action. While the Complainant made clear that she wanted Ms. X spoken to, the witness needed to be clear which process she wanted used. When the witness referred to her surprise at the intensity of emotion on the part of the Complainant, she was asked if she had then felt the need to confront Ms. X, to which she replied that she could not do so simply on the basis of one person’s report as a process was needed to deal with the incident. Ms. Rebecca Eivers gave evidence that she is a HR Business Partner with the Respondent. The witness said that her role was to follow up the occupational health assessment of the Complainant, as a result of which the meeting on 22 March 2018had been arranged both to review the assessment and to look at any supports that might assist the Complainant in returning to work. The witness said that the Complainant was clear that she wanted Ms. X spoken to, that she wanted the matter ‘sorted’ and that she had told Ms. Haugh and herself to ‘do what you need to do’ in this regard. The Complainant had agreed that the most appropriate next step was a formal investigation. The witness did not accept that there was any reluctance to deal with Ms. X and she denied making any comment about being nervous to meet Ms. X, saying that she would have no difficulties doing so. The witness said that, when the Complainant was asked about returning to work, she made clear that she wanted Ms. X spoken to before she felt able to do so. The witness said that a commitment was given to revert to the Complainant by 9 April 2018. Prior to going on leave after the meeting, the witness had contacted the Head of Employment Relations and asked that an investigation be arranged. She did not return from annual leave until 9 April 2018. In response to questions in cross examination, the witness said that she thought that her minutes of the meeting on 22 March 2018 were accurate. When it was put to her that they made no reference to a meeting between Ms. Haugh and Ms. X on 25 January 2018, the witness said that she did not recall that being mentioned. The witness said that she was not aware of any previous incidents involving Ms. X. The witness said that she sensed the Complainant’s frustration at the meeting and that she had been clear in stating that she needed the matter dealt with before she could return to work. In response to questions from the Court, the witness accepted that, in hindsight, the Complainant should have been made aware of what was happening subsequent to the meeting on 22 March 2018, when a promise had been made to revert by 9 April 2018. She said that the initial suggestion had been that the witness and Ms. Haugh would conduct the investigation but that they had been clear in advising that this would not have been appropriate, in their view. The witness stated that the occupational health report was dated 12 February 2018 but was not received until early March and that this partly explained the delay in meeting the Complainant but she accepted that the whole sequence of events might have been advanced quicker. The witness accepted that there was still no reference to any investigation in the letter to the Complainant accepting her resignation dated 3 May 2018 and that from the date on which the matter was first brought to attention on 4 January 2018 to that date, no action had been taken to comply with the Complainant’s wish that somebody would speak to Ms. X about her behaviour. The applicable law Unfair Dismissals Act Definitions Section 1 ‘dismissal’ 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,….. Redress for unfair dismissal.
a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid Deliberation and Determination In the course of the hearing, various allegations were made against a colleague of the Complainant, Ms. X. As noted in the ‘Background’ above, these allegations have never been investigated. It is not a matter for this Court to conduct such an investigation and nothing in what follows is intended to suggest that these allegations have either been proved or disproved. Ms. X is not a party to the case before the Court and, therefore, the Court offers no observations whatsoever regarding the allegations, in themselves. The matter for the Court to consider is whether the manner in which the complaint made by the Complainant was handled by the Respondent warranted her resignation in accordance with the standard set out in s.1 of the Act, as quoted above. There are two tests for determining if a constructive dismissal has occurred. The first test is the ‘Contract Test’. In considering this test the Court has to consider if a term of an employee’s contract was breached by the actions of the employer such as to make it reasonable for an employee to determine that the contract had been terminated. The second test is the ‘Reasonableness Test’, in which there is a burden of proof on a Complainant to establish that the behaviour of an employer was so unreasonable that it was reasonable for the employee to terminate their contract of employment. It is on the latter test that the Court has focused in assessing the circumstances of the instant case. As the Respondent pointed out in their submission, it is well established in law that in a claim by a Complainant, which is assessed under the Reasonableness Test , it is usually necessary for the Complainant to display that they have exhausted all internal procedures for dealing with complaints before resigning from their employment. As the Employment Appeals Tribunal put it inTravers v MBNA Limited (UD720/2006)‘it is incumbent for an Appellant to utilise all internal remedies’, something that was set out clearly in the earlier case ofConway v. Ulster Bank (UD474/1981) Ordinarily, therefore, an employee, such as in the instant case, who has not exhausted all internal procedures is unlikely to find acceptance by this Court that they have been constructively dismissed. However, there are features of this case that require consideration by the Court. It is axiomatic that the Court would expect an employer to operate its own procedures for dealing with complaints. In the instant case, the Respondent has a first class procedure for dealing with complaints of bullying. The concern of the Court is that it was not operated. The evidence of all three witnesses to the Court was that the Complainant had made clear from the very outset that she wished nothing more or less than that somebody in management would speak to Ms. X about her behaviour. The evidence of Ms. Haugh to the effect that she required clarity when she received the email on 5 January 2018 about whether the Complainant did, or did not, wish to pursue her complaint formally is at odds with the fact that she had requested that the complaint be put in writing and the fact that the Procedure itself only requires written complaints in the event that any such complaints are formal in nature. The Respondent appeared to be of the view that it would not be possible to have any conversation with Ms. X unless or until the Complainant had clarified subsequently that she wished to make a formal complaint. This is, self evidently, not the case. Any manager who receives a complaint is entitled to speak to the person against whom such complaint is made. Indeed, were that not the case, it could be argued that there is no need to provide for an informal approach to the resolution of such matters. In the instant case, a strict interpretation of the Respondent’s Procedure gives rise to the conclusion that a formal complaint was made by email on 5 January 2018 and prompt attention to that complaint might reasonably be expected. It was accepted by the Complainant, however, then and subsequently throughout the remainder of her employment that all she wanted was for a conversation to take place with Ms. X. Therefore, it was open to the Respondent to arrange for such a conversation under the informal process provided for in their Procedure. Whichever approach was decided upon, it was not, in the view of the Court, either reasonable or in accordance with the Respondent’s own Procedure, which provides for such complaints to be dealt with ‘promptly’, for the Complainant to be left in a position where no action whatsoever was taken by the Respondent in respect of a complaint made in early January right up until her resignation was accepted four months later, in early May. The fact that the Complainant was out on sick leave during this period compounds the sense that a lack of care was shown to her by her employer in the handling of her complaint. A decisive intervention by the Respondent could have assisted in an early resolution of this matter and might possibly have facilitated a return to work by the Complainant. It is unclear to the Court why an occupational health assessment on 12 February 2018 was not the subject of a meeting with the Complainant until 22 March 2018. Given the circumstances, it would be reasonable to expect a much speedier approach, something that, to be fair, was acknowledged by Ms. Eivers in evidence. At that meeting, the Complainant made clear that all she wanted was to have the matter dealt with so that she could return to work. It appears from the description given by all three witnesses that she was largely indifferent as to the means to this end and, it would seem, that she went along with the idea of a formal investigation in the belief that this was, in the view of Ms. Haugh as related in evidence, the best way of securing what she wanted. A promise was made to the Complainant at that meeting that the Respondent would revert to her by 9 April 2018. Even allowing for the circumstances of annual leave and the need to arrange for an investigation team, the fact that the Complainant found out three days after that promised date, in the course of a conversation about a different matter, that the matter had not been progressed compounded what, by then, was an inevitable sense on her part that her employer was not willing to show any priority to having her concerns addressed. It is scarcely surprising, therefore, that the Complainant should have felt let down by her employer to the point that she felt she had no option but to resign from her employment. The Court is clear that the behaviour of the Respondent in not dealing with a complaint by the Complainant was unreasonable behaviour such that it was reasonable for the Complainant to resign from her employment. The Court determines that this is a case of constructive dismissal. The Court does not consider that the remedies of re-instatement or re-engagement are appropriate given the breakdown in the relationship. Unfortunately, the Complainant’s representatives provided the Court with scant evidence of lost earnings on which the Court might calculate an appropriate figure in compensation. The Complainant’s gross wage was €607.47. She was unable to work and was in receipt of Illness Benefit until October 2019. The Complainant’s Counsel argued that in line with the case ofAllen v Independent Newspapers (2001) 2JIEC 0501the Court should take account of the difference between the Complainant’s earnings when employed and the rate of Benefit applicable on the grounds that, as in that previous case, the Respondent had caused the illness that led to the Complainant’s inability to work. As this Court notes with regularity, it is not in possession of medical expertise and if any party wishes to make an argument regarding medical matters, the very least that is required is substantive medical evidence to be provided to the Court. As this has not been done in the instant case, the Court, in accordance with its standard approach has to disregard any lost earnings in a period when the Complainant was not available for work. Furthermore, neither the Court nor the representative of the Respondent were assisted by the vague detail of earnings in the period from October 2019 until the pandemic shut down in March 2020. Again, in respect of the period since, the Complainant was not, and is not, available for work and that period has to be disregarded. Taking all factors into account, including future lost earnings, the Court determines that compensation in the amount of €10,000 should be paid to the Complainant. The Decision of the AO is overturned.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |