Complainant

Respondent

Parties

Siobhán Murray

Fingal Leader Partnership Clg

Representatives

Gordon Walsh BL

Eoin Martin BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00049029-002

06/03/2022

The objective of Leader Partnerships is to promote local development and social inclusion in the areas in which they are established.  Each Leader Partnership is a grant-making organisation, under the direction of the Department of Rural and Community Development and managed by a voluntary board of directors.

The complainant commenced working as a rural development officer with Fingal Leader Partnership on June 24th 2019.  She was a full-time and permanent employee, and, by the time her employment concluded, her weekly wage was €662.91. 

When she commenced in her job, the complainant reported to the chief executive officer (CEO).  From March 2021, she and her colleague, Ms Dunne, reported to the rural development co-ordinator.  The complainant and Ms Dunne applied for this role, but another colleague, who I will refer to as “Ms A,” was appointed.  Previously, all three reported to the CEO.  In her evidence, the complainant said that she had a difficult relationship with Ms A from before she started reporting to her, but that the situation worsened from then on.

In July 2021, the CEO introduced a weekly progress report for the rural development team, with details of timelines for projects and checklists for work to be done.  Arising from this, in August 2021, the complainant told the CEO that she felt that her work was being questioned and undermined.  The complainant said that she was suffering from anxiety and stress and she looked for an informal investigation into her grievance.

At the same time, in August 2021, Ms A reported that she was distressed because of the conduct of the complainant and Ms Dunne, who, she claimed, embarrassed her in front of other employees and conspired to record two of their team meetings on a mobile phone.  Ms A also sought an informal investigation into her grievance.

In September 2021, the board of directors appointed an external consultant, Ms Sonia Brody, to investigate Ms A’s complaint against the complainant.  While the complainant met with Ms Brody, in November, she objected to Ms Brody leading the investigation, claiming that she wasn’t independent, that Ms Brody had breached her right to confidentiality of information and that she had not agreed to her appointment.  On November 25th and 26th, the complainant submitted grievances to the chairperson of the board of directors, regarding the conduct of Ms A and the CEO respectively.

In August 2021, the complainant had swapped responsibilities with Ms Dunne and rather than handling project applications, she was dealing with claims.  In February 2022, Ms Dunne left the organisation and the complainant wasn’t invited to a meeting that she had attended when she was responsible for applications.  She complained that she was excluded.

That same month, the complainant selected Ms Helena Broderick, from a list of three possible investigators, to examine the grievance submitted by Ms A the previous August.  In a letter to the chairperson on February 18th 2022, she complained that the board had failed to advance her own complaints.

On March 6th 2022, the complainant submitted a grievance to the WRC, for consideration under the Industrial Relations Act 1969.  She complained of significant workplace stress because of the actions of her employer. 

On March 8th at 17.46, the complainant was copied on an email from the chairperson of a local community group to the minister at the Department of Rural and Community Development.  The substance of the email was a threat of legal action regarding the establishment of a new, and possibly competing community group.  The email was copied to 19 individuals, including several local councillors.  The content of the email was clearly very serious for the respondent, but it was not copied to the CEO.  The following morning, the CEO was at meetings and, in her evidence at the hearing, she said that she received about 10 missed calls about the email, about which she knew nothing.  Around 10.15, Ms A asked the complainant if she had received an email from the community group the previous day and the complainant sent it on to her.  Ms A then sent the email to the CEO.

The complainant went absent the following day.  She submitted a medical certificate stating that, due to work-related stress, she would be unfit for work for four weeks; however, she did not return to work.  On May 31st 2022, she was requested to attend an appointment with the organisation’s occupational health specialist on June 14th.  She resigned on June 13th, stating that the respondent “made it completely untenable” for her to return to her role and that she had been constructively dismissed.

For the respondent, Mr Martin, submitted that they conducted themselves fairly and in conformity with the principles of natural justice.  He said that the respondent had to be mindful of its obligations towards Ms A in relation to her complaint of bullying against the complainant.  By failing to engage with the investigation process, and by resigning before her grievance had been investigated by the WRC, Mr Martin argued that the complainant failed to act reasonably.

Summary of the Complainant’s Written Submission

For the complainant, Mr Walsh submitted that Statutory Instrument 674/2020, the Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020, provides guidance to support the complainant’s claim of bullying, harassment, and exclusionary treatment.

It is the complainant’s case that she was bullied by Ms A, in the way she was micro-managed, given conflicting instructions on deadlines, shouted at, undermined with clients and unjustifiably criticised.  The complainant attempted to have her grievance dealt with informally in the first instance, but in August 2021, when Ms A submitted a grievance about the complainant, this was treated as a formal grievance and an external consultant was appointed to conduct an investigation.  The complainant’s concerns were not investigated.

On behalf of the complainant, Mr Walsh submitted that, since she informed the CEO about her grievance, the respondent engaged in continuous breaches of employment procedures which have been detrimental to her and prejudiced her ability to effectively contest Ms A’s claims.  The respondent has also acted with disregard for the complainant’s mental health, as there was no intervention, even after the complainant submitted her grievance to the WRC in March 2022. 

When she spoke to the CEO in August 2021 about feeling stressed and anxious, and about her difficulties with Ms A, the complainant suggested that the issues might be resolved by mediation.  On September 7th, she was informed that her request had been brought to the board of management for their consideration and she assumed that her concerns would be dealt with.  The complainant asserts that this was the first of several breaches of trust and confidence by the CEO.  Ms A had lodged a grievance against the complainant on August 16th 2021, but the complainant was not informed about this until September 17th.  A formal investigation was initiated into Ms A’s complaint of bullying, but no action was taken with regard to the complainant’s’ grievance.  Contrary to Statutory Instrument 674/2020, the Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020), there was no attempt to informally resolve the complainant’s grievance.  It appears that there was no initial examination of the complainant’s grievance, which is a breach of the respondent’s own policy on preventing bullying in the workplace and a denial of fair procedures.  

The complainant was shocked and upset by what occurred and she was on sick leave for four weeks from the beginning of October 2021.  She objected to the investigation being carried out by Ms Sonia Brody on the following grounds:

§    She felt that she was misled regarding her request for mediation;

§    There was a delay informing her about Ms A’s complaint;

§    There was no provision in the terms of reference for the investigation into Ms A’s complaint for her own grievance to be examined;

§    The respondent failed to comply with its own procedures;

§    There was no effort to resolve her grievance informally;

§    Ms Brody was on the interview panel which appointed Ms A to the job of rural development co-ordinator;

§    Ms Brody posted documents related to the investigation on the office portal, and the complainant thought that this made them accessible to her colleagues;

§    The respondent’s approach was having a severe effect on the complainant’s mental health.

Following the submission of her complaints on November 25th and 26th 2021, regarding how she was treated by Ms A and the CEO, the complainant was informed that a sub-committee of the board of directors was established to deal with her complaints.  The complainant asserts that the respondent’s procedures do not provide for the establishment of a sub-committee and that this was a further breach of procedures.  She argues that, with two different entities operating in parallel, there was a lack of clarity which resulted in her concluding that the process was unfair.

Terms of reference for the investigation into Ms A’s complaints were amended in March and April 2022.  Arising from the complainant’s objection to Ms Brody continuing as an investigator, a new investigator was appointed.  However, the complainant’s other concerns were not addressed.  In particular, an investigation into the complainant’s grievance about the conduct of Ms A was not provided for.  The new terms of reference refer to the respondent’s Dignity at Work Policy, but it appears that there is no such policy.

Shortly after the complainant lodged her grievance under the Industrial Relations Act with the WRC, she was informed that Ms Helena Broderick had been appointed to carry out an independent investigation.  She was also informed that the investigation would proceed, with or without her participation.  On behalf of the complainant, Mr Walsh submitted that this was a fundamental breach of fair procedures, on the basis of the fact that the respondent knew that the complainant was struggling with her mental health.  He argued that it was also a breach of trust and a failure to adhere to the respondent’s values and obligations as set out in its policy on Safety Welfare and Hygiene.  In February 2022, the complainant was not invited to a meeting that she previously attended on a regular basis.

By May 2022, when she received a request to attend a medical examination, the complainant felt that the respondent would continue to pursue its intention to conclude an investigation, no matter what she did.  She had lost all trust, faith and confidence and Mr Walsh said that she “saw no point in going on.”  She resigned on June 13th and she adjusted her grievance under the Industrial Relations Act to a complaint under the Unfair Dismissals Act.

Legal Submission

Having regard to their conduct over a period of time, a question arises about whether the complainant could be confident about how the respondent was handling her grievances.  Mr Walsh cited the decision of the former Employment Appeals Tribunal (EAT) in its determination in Allen v Independent Newspapers[1], where the Tribunal agreed with Ms Allen that she could have no confidence in her employer to properly address her grievance.  Mr Walsh referred also to the decision of the EAT in O’Donoghue v Watchford Limited[2] where it was held that the claimant “was entitled to consider herself constructively dismissed by virtue of the lack of fair procedures, the respondent’s failure to follow its own stated procedures, the defective investigation and disciplinary process and the harsh sanction applied, relative to the circumstances and in light of the claimant’s senior position and long service.”

Mr Walsh argued that, where a grievance procedure is insufficient to effectively deal with the issues submitted by an employee, her complaint will not fail simply because she has failed to participate in the process.  This was the finding in A Worker (Mr O) v An Employer (No. 2)[3] where the Labour Court found in favour of Mr O, although he did not make a formal complaint before resigning.

Mr Walsh referred to the decision of the adjudicator, Stephen Bonnlander, in A Financial Manager v A Utility Company[4] as a useful example of the application of how the outcome of the decision of the High Court in Berber v Dunne’s Stores[5] is applied in disputes under the Unfair Dismissals Act. 

Concluding his written submission on behalf of the complainant, Mr Walsh submitted that the statutory definition of constructive dismissal is met when total regard is had to the fractious work environment, the failure to adhere to the health and safety policy, the six-month delay in organising the medical assessment and the relentless progression of two flawed investigations, neither of which complied with company procedures and the inter-relationship of which has not been clarified.  In the light of all these matters, the complainant was entitled to and acted reasonably in terminating her contract of employment.

Evidence of the Complainant

In her direct evidence, the complainant said that Ms A’s “treatment of me deteriorated” from around the end of December 2020, when she suspects that Ms A discovered that she was on a higher salary than her.  When she was appointed to the role of rural development co-ordinator and became the complainant’s line manager, the complainant said that Ms A micro-managed her and was abrupt and engaged in “a couple of outbursts.”  When she was working from home, the complainant said that the problems were less obvious, and more apparent in the office.  From the onset of the Covid-19 pandemic in March 2020, the complainant worked from home, but she went into the office to file documents when necessary.  In November 2021, she returned to the office for three days a week.

Describing how she felt she was micro-managed by Ms A, the complainant said that she “hounded me to do things,” that she queried what was in her diary and that she constantly phoned her.  On one occasion, the complainant said that Ms A had an outburst on the phone and that she later sent her a text message to apologise.  The complainant said that this treatment made her anxious and distressed.

On Thursday, July 15th 2021, the complainant attended a team meeting which the CEO also attended.  The complainant said that the CEO made changes to how the work was to be done by the rural development team.  Following the meeting, the CEO sent the complainant, Ms A and Ms Dunne an email with the following text:

“Hi All,

Thank you for the meeting earlier. 

Please find attached the Agenda with Action Items highlighted in red.  I have also attached the LEADER Weekly Progress Report and steps in the word document of how to complete.  It is also saved on the shared drive in individual folders.  If you have any queries, please let me know.

Thank you

Kind Regards,

Eilish”

The complainant replied the following day:

“Good afternoon Eilish,

Just with regards to this, I feel it is in my best interests to get someone to look at this for me.

I trust you understand.

Regards,

Siobhán.” 

The CEO replied and asked the complainant what she needed to have looked at and she said that she was available after lunch for a discussion.  The two had a telephone conversation that afternoon and the complainant said that she told the CEO that she was stressed from working with Ms A.  A meeting took place in the office on August 10th, when the CEO had returned from holidays.  The CEO followed up this meeting with an email on the evening of August 10th, to which she attached the employee handbook and the grievance procedure.  She asked the complainant to let her know if she wanted her concerns dealt with by using a formal or informal process.

In her evidence at the hearing, the complainant said that she thought that mediation was the best option. 

On August 13th, the complainant replied to the CEO’s email of August 10th.  She said that she felt that her work was being undermined and questioned and that this related to the CEO questioning her calendar entries, referring to “cross-examination” and casting doubts on her work ethic.  Regarding her concerns about Ms A, the complainant said that she would like to deal with that matter informally, but that she wanted to wait until she got advice from someone who was on holidays.

On August 16th, Ms A sent a letter to the CEO, outlining her concerns about how she was treated by the complainant and her colleague, Ms Dunne.  Ms A said that she was raising a grievance to be dealt with informally.  The complainant was not informed about this until four weeks later.  A copy of the letter was included in the respondent’s book of documents and the complainant referred to it in her evidence.

In her letter, Ms A said that, on two occasions, the complainant and her colleague put her on speaker when she phoned one of them.  At team meetings on July 19th and 26th, Ms A said that the complainant recorded the meeting.  She said that she was briefly asked for her consent, but that she was, “put on the spot” and didn’t know if recording the meeting was the right thing to do.  When she was on holidays for the next meeting, it wasn’t recorded.  She also complained that the complainant inserted comment in her computer-based calendar notes, on May 7th 2021, “outburst A – phone call” and on June 29th, “outburst A – wondered what I was actually doing, told of pressure, anxiety.”  A copy of the calendar notes was also included in evidence.

In response to questions from Mr Walsh, the complainant said it’s normal to have people on speaker phone.  She said that Ms A did not object to the recording of their team meetings.  She said that the reason for the recording is because Ms A’s minutes were not an accurate record of the meetings. 

On August 27th, it appears that the complainant and the CEO spoke on the phone and afterwards, the CEO wrote to the complainant to confirm that she had brought her request for mediation between herself and Ms A to the attention of the board of directors.  On Monday, August 30th, the chairman of the board of directors sent an instruction to the CEO to appoint a HR specialist urgently to:

§    Handle Ms A’s informal grievance;

§    Act as a mediator in response to the request for mediation from the complainant and Ms Dunne;

§    Investigate any breach of company policy and procedures;

§    Issue a report to the board.

On September 7th, the CEO wrote again to the complainant to let her know that the board were in the process of recruiting an external HR consultant and that this person would contact her to discuss her request for mediation.  In a second email, she confirmed to the complainant that she had not spoken to Ms A about the complainant’s request for mediation.

At this point, the complainant had still not been informed that Ms A had submitted a grievance about how she was treated by her and Ms Dunne, and Ms A’s request for an informal investigation.  An independent consultant, Ms Sonia Brody was selected to do the work set out above and on September 17th, the CEO met the complainant to inform her that Ms A had complained about how she was treated by her and Ms Dunne.  The CEO told the complainant that a formal investigation into the matter had begun.  In her evidence, the complainant said that she was “floored” by this news and that she felt that the ground was pulled from under her.  In the terms of reference provided to her for the investigation, there was no mention of mediation and no reference to the priority given to an informal investigation in the organisation’s bullying policy.  The CEO followed up after this meeting and sent the complainant a copy of Ms A’s complaint, she confirmed the name of the investigator and she provided the complainant with a copy of the company’s bullying prevention and grievance procedures.

On Monday, September 20th, the complainant attended work and had a meeting with the rural development team.  She said that she was experiencing stress and anxiety and, from then on, she was on edge the entire time.  She went out sick on October 4th and she returned to work on November 1st. 

On November 17th, the complainant wrote to the CEO in response to her communication on September 17th.  By mid-November, Ms Brody had had meetings with Ms A, the complainant, the CEO, and the IT manager.  In her letter, the complainant expressed her concern that, while the board had approved the management of her grievance by mediation, no action had been taken to progress this.  She complained that Ms A’s complaints had been “fast-tracked for immediate action.” 

The complainant objected to the appointment of Ms Brody as the investigator, claiming that this was not in compliance with the bullying policy, as the complainant had not agreed to her appointment.  She complained that Ms Brody was not independent, because she had a commercial relationship with the respondent and she was on the interview panel that selected Ms A for the co-ordinator role.  Finally, she complained about a “most serious and egregious breach of confidentiality.”  This related to the fact that, when she invited her to a meeting on her Outlook calendar, Ms Brody attached witness statements.  The complainant accepted the invitation, but, because she did not mark the meeting as “private,” the documents could have been accessed by others. 

Later, on November 17th, the CEO replied to the complainant to tell her that she would bring her concerns to the attention of the board of directors at a meeting that evening.  The complainant was out sick for a week due to stress and, on November 26th, the following exchange of email correspondence took place between the complainant and the chairperson of the board:

10.32:  The chairperson wrote to the complainant to ask her to continue to engage in the investigation commenced by Sonia Brody.  He said that mediation would commence after the investigation into Ms A’s grievance was completed. 

10.33:  The chairperson wrote to the complainant to address her concerns about a data breach.  He told her that an investigation was conducted into the accessibility of documents sent to her on November 10th.  He said that IT investigator could find no evidence that any other staff member had access to the documents.

10.55:  The complainant submitted two formal complaints regarding how she had been treated by the CEO and by Ms A.

On November 30th, the chairperson wrote to the complainant to inform her that a sub-committee of the board of directors had been set up to deal with her complaints.  In her evidence, the complainant said that the two investigations, Ms A’s complaint about her, and her complaints about Ms A and the CEO, were being conducted completely differently.  She said that she began to suffer from anxiety and had panic attacks due to stress.

In her evidence, the complainant referred to a letter from a member of the board sub-committee, Ms Hennessy, on December 7th 2021.  The purpose of the letter was to ask the complainant to attend for a medical assessment with the company’s occupational health consultant (OHC), to ensure that she was capable of engaging in an investigation into her complaints.  The letter states that,

“Any ongoing processes you are involved in will be temporarily paused pending the outcome of the Occupational Health referral, as the Board views your well-being as taking precedent (sic).”

Due to a Covid risk, the complainant couldn’t attend the OHC appointment arranged for December 21st.  When she returned to work on January 10th, she sent an email to Ms Hennessy to let her know that she could attend an appointment with the OHC “any time from now.”  She said that afterwards, no effort was made to determine her fitness to engage in an investigation. 

On January 28th, Ms Hennessy sent the complainant a letter outlining the procedure being followed by the sub-committee and the names of three independent HR consultants for her to select one to conduct the investigations into her complaints about the CEO and Ms A.  In her evidence, the complainant said that she had no idea what the relationship was between the two procedures, the investigation into Ms A’s complaint and the investigation into her complaints.  She said that she didn’t understand what was going on. 

The complainant replied to Ms Hennessy on February 18th, and selected one of the named investigators, “under strong protest,” alleging that the conduct of the sub-committee was in breach of fair procedure, lacked proper judgement, and was being conducted without due regard for its duty of care towards her.  On the same day, she wrote to the chairperson of the board setting out her concerns about the way in which Ms A’s grievance about her was handled, and about how her complaints were handled by the sub-committee.  Her concerns may be summarised as follows:

§    There is no provision in any company policy for the establishment of a sub-committee of the board of directors to manage complaints;

§    There was no response to her request for mediation to resolve matters between her and Ms A;

§    She was not informed about Ms A’s complaint until four weeks after it was given to the CEO;

§    No initial examination of the complaint was carried out, as provided for in the company’s grievance procedure.

§    In her letter, the complainant also requested certain information to be provided to her.

In February, the complainant said that relationships at work continued to deteriorate and that she was excluded from a meeting of an independent evaluation committee that she expected to attend.  Ms Dunne left the organisation around this time.

On February 22nd 2022, Ms Hennessy wrote to the complainant to confirm that her choice of Helena Broderick was confirmed by the sub-committee as the investigator into her complaints.  The letter stated that the investigation would proceed to a conclusion even without her input.  The complainant said that this was completely at odds with a previous undertaking that the complainant’s health and welfare was a priority.  At this point, a new appointment had not been made for her to be assessed by the OHC.

On March 6th 2022, the complainant submitted a grievance to the WRC, for investigation under the Industrial Relations Act 1969.

On March 8th, Ms Hennessy sent terms of reference to the complainant with regard to what was now referred to as a “formal complaint” by Ms A against her.  The terms of refence stated that the investigation would take place in accordance with the respondent’s Dignity at Work Policy; however, the complainant said that she was not aware that such a policy existed.  That evening, the complainant was involved in a work-related event and she said that she got no support from her colleagues with regard to the organisation of the event and that, afterwards, no one asked her how it went.  On the morning of March 9th, the CEO sent her an email in which she said, “well done on the event” but she also criticised the complainant for “acting mainly in a solo capacity” and for not involving her or other colleagues.

Also, on the morning of March 9th, the complainant said that she read the email from the chairperson of the local community group in which he threatened to take legal action regarding the respondent’s support for a rival group.  Ms A asked the complainant to send her the email, and she passed it to the CEO.  The CEO wrote to the complainant and accused her of not acting in a professional manner by withholding it from the programme manager and from her, as the CEO of the organisation.  The complainant said that felt excluded, picked on, and as if she couldn’t do anything right.  She said that she felt “lashed” by the allegation that she had caused reputational damage to the organisation.  She told Ms A that she was having a panic attack.  She said that she was “struggling hugely” and she left the office and went to her doctor.  On March 10th, the complainant commenced a period of absence from work due to work-related stress.  The same day, she wrote to Ms Hennessy to inform her that she did not accept the terms of reference for the investigation into Ms A’s grievance about her.  She set out a number of reasons, but particularly the reference to the non-existent Dignity at Work Policy.  Revised terms of reference were drafted, but the new document still referred to a Dignity at Work Policy. 

On April 15th 2022, Ms Hennessy wrote to the complainant, telling her that the investigation into Ms A’s grievance would proceed, with or without her input.  Ms Hennessy stated that bullying is a breach of a person’s right to respect and dignity, which is referred to in the staff handbook.  It is apparent that, on some date in April 2022, the investigator interviewed Ms A. 

The complainant was due to return to work on June 1st and, on May 31st, she was asked to attend an appointment with the OHC, to determine her fitness to engage in the investigation.  On June 13th, she sent a letter of resignation to the CEO.

Asked by Mr Walsh what led her to resign on June 13th 2022, the complainant said that she thought she would never get a fair hearing, her mental health was at rock-bottom and that leaving was the only thing she could do to save herself.  She said that in October and November 2021, she had tried to get another job, but she had no confidence looking for a job.  On November 7th 2022, she returned to work in an organisation where she worked previously, and she said that she feels safe there.

Cross-examining of the Complainant

Mr Martin opened his questions by referring to the project behind the email of March 8th 2022.  I do not intend to examine this issue in any detail, apart from acknowledging that it was a cause of some distress to the complainant and of serious concern to the organisation.

Mr Martin asked the complainant why her LinkedIn profile described her, until October 2022 as a regional business development manager with the respondent, but the complainant was not able to explain why she used this job-title, even after she resigned.

The complainant accepted that she was disappointed when she was unsuccessful in her application for the job of rural development co-ordinator in February 2021.  She said that she understood that Ms A had more experience, but she refuted that she suggested that she was not the right person for the job.  She said that relations between her and Ms A deteriorated before Ms A was appointed to the job.  Mr Martin said that witnesses will state that the complainant was offensive to Ms A and that her attitude to Ms A changed after she was promoted.  Mr Martin referred to the recording of meetings on July 19th and 26th, taking Ms A by surprise.  Mr Martin referred to the fact that a meeting on August 9th was not recorded, because Ms A was on holidays.  He suggested that the purpose of the recordings was to intimidate Ms A.  The complainant replied, “she didn’t tell me she was upset.”

Explaining the reason for recording the meetings, the complainant said, “we were given actions from team meetings, not deadlines.”  She said that Ms A produced minutes with deadlines.  In response to a question from Mr Martin, she said that she didn’t complain to the CEO about unacceptable deadlines.

Referring to the medical certificates which were included in the respondent’s book of documents, Mr Martin said that they indicate that the complainant was “unwell” and “unfit for work.”  The only cert that refers to work-related stress was issued on March 10th 2022.

Addressing the changes to the roles of the complainant and Ms Dunne in July 2021, the complainant said that she felt that this resulted in a “narrowing of her role.”  She said that she thought that it occurred because Ms A suggested to the CEO that she wasn’t doing her job.  She wrote to the CEO the next day and said that she wanted to speak to someone about the proposed changes.  In response to Mr Martin’s question, she said that she wanted to speak to her brother.

Mr Martin referred to the complainant’s contract of employment and the provision that she is required to be flexible in her job and that her responsibilities are subject to change.  The complainant said that, when she was unsuccessful for the co-ordinator’s position, she got feedback telling her that she had no leadership experience.  Now she felt that her job was being reduced.

In a telephone call on the afternoon of July 16th, the complainant said that she told the CEO that she was stressed because of how she was being treated by Ms A.  Mr Martin put it to the complainant that she cut the phone call short and that she didn’t expand to any degree about problems with Ms A.  On August 9th, after she returned from holidays, the CEO invited the complainant to a meeting to discuss the issues she was concerned about.  Following their discussion, the CEO asked the complainant to indicate in writing how she wanted to proceed.  If she had concerns about how she was being treated by the CEO, the complainant was also advised to contact the chairperson.

The complainant said that she spoke to the CEO on July 16th and August 10th about her mental health, and about the stress and anxiety she was suffering and her concerns were not considered.  She said that she thought that the solution was through mediation.

Mr Martin asked the complainant why she resisted putting her concerns in writing.  She replied that she didn’t think that the CEO was someone she could trust.

Mr Martin asked, if this was the case, why the complainant didn’t contact the chairperson.  She did not reply to this question.

Mr Martin referred to the difficulties the complainant had with childcare responsibilities in November 2021, when arrangements were being made for staff to return to work.  The complainant said that the CEO told her that if she didn’t return to working in the office, she would be in breach of her contract and she could lose her job.  She said that she was in anxiety and despair over this.

Referring to the engagement of Sonia Brody to investigate Ms A’s complaint, the complainant said that Ms Brody contacted her on September 29th.  She said that she didn’t think Ms Brody was independent and she disagreed with Mr Martin’s suggestion that she objected to Ms Brody’s involvement only after she saw the notes of her meetings with other witnesses.  The complainant said that she didn’t engage with Helena Broderick because Ms Broderick never contacted her.  She said that the respondent made no effort to ensure that she was medically assessed as fit to engage with Ms Broderick.

Evidence of the Complainant’s Colleague, Ms Judy Dunne

Ms Dunne joined the respondent organisation in March 2018.  In September that year, she moved from a job in reception and administration to work in the rural development team as a rural development officer.  She left in February 2022.

Ms Dunne said that she initially worked on claims, and that, when the complainant joined the organisation, most of her training, in the form of “shadowing” was with Ms A.  She said that everyone seemed to get on well.  During Covid-19, Ms Dunne said that there wasn’t much interaction between staff.

Ms Dunne worked on claims and Ms A and the complainant worked on projects.  She said that they both had a heavier workload than her.  Ms Dunne said that late in 2021, relations between Ms A and the complainant deteriorated, with Ms A “picking apart” the complainant’s work.  She said that Ms A queried the order in which the complainant scanned documents, where she put stamps on envelopes, her diary was questioned.  Ms Dunne said that, at times, the complainant was very upset and she avoided coming in to meet Ms A.  Ms Dunne said that Ms A was frustrated also.  She said that she told her on one occasion that she was very hard on the complainant.

Ms Dunne said that Ms A knew that the complainant earned more than her, and that she was informed of by the former finance officer.

Referring to Ms A’s complaint about the conduct of Ms Dunne and the complainant, Ms Dunne said that she was shocked when she was told about the complaint.

Asked who decided to record the meetings on July 19th and 26th 2021, Ms Dunne said that it was her decision.  She said that she was annoyed because the minutes of the meetings did not reflect the timelines that were produced afterwards and she wanted her feedback recorded.  She said that she got consent from Ms A to do so.

In the summer of 2021, Ms Dunne said that she spoke to the CEO and told her that the team needed help.  She said that her own preference was informal mediation.  She said that she thought they were going down the mediation route until she had a meeting with Sonia Brody.  She said that she doesn’t know how it became a formal investigation. 

Referring to the independent evaluation committee meetings, Ms Dunne said that, when she worked on claims, she attended these meetings to take notes.  When the complainant moved to claims, she was not invited to the meetings. 

Ms Dunne said that she and the complainant were shocked on September 16th 2021, when they were informed about Ms A’s complaint and they sought advice from the solicitor, the late Mr Richard Grogan.  Ms Dunne said that she left the organisation in February 2022.  She said that she didn’t feel she could stay when someone had accused her of bullying.

Cross-examining of Ms Dunne

Mr Martin referred to an email Ms Dunne sent to the CEO on August 12th 2021.  This followed a meeting on August 6th, at which the CEO clarified changes to her role.  In her email, Ms Dunne said that she feels that her work “is being continually undermined and questioned.”  Ms Dunne met the CEO on August 17th, following which the CEO wrote to her and sent her a copy of the employee handbook and the grievance procedure.  She said that the options for resolving the problems were an informal or formal process or a “meeting / mediation” with the co-ordinator.  In her evidence, Ms Dunne said that she was seeking a “chat” to deal with issues, but she was asked to follow up in writing.  Ms Dunne replied on August 20th and said that she would like to try mediation.  She was not aware at this point, that, on August 16th, Ms A had submitted a formal complaint.  The CEO replied and said that her request for mediation had been brought to the attention of the board of directors “and they are recruiting an external HR consultant who will be in touch with you soon to discuss next steps in the process.”

Concluding her evidence, Ms Dunne said that she asked for mediation and she was offered mediation.  She said that Ms A asked for an informal investigation into her concerns.  She said that she doesn’t know why mediation didn’t happen.

Concluding Remarks on behalf of the Complainant

Summing up the complainant’s case, Mr Walsh said that the issue for consideration by me, as the adjudicator in this matter, is that of procedures.  He submitted that the cumulative conduct of the employer with regard to how they dealt with the complainant between July 2021 and March 2022 leads to a breach of her contract of employment.  He said that Ms Harrington knew that the complainant was under strain on July 29th 2021.  At that time, he said that everyone wanted an informal resolution and that this is provided for in the company handbook and in the grievance procedure. 

By early 2022, when Helena Broderick was appointed, Mr Walsh said that it seemed that she was running one process and that the sub-committee was running a different process.  He said that there is no reference to the complainant’s November 2021 complaints in the terms of reference for the investigation to be chaired by Ms Broderick.  Mr Walsh submitted that this was the third failed attempt to mend the terms of reference.

Mr Walsh said that the complainant submits that matters reached a “last straw” stage on March 9th when she received an email from Ms Harrington which seemed to question her performance regarding the event on the evening of March 8th.  On the same day, she received an email from Ms A concerning the email from the chairperson of the community group in which he wrote to the minister at the Department of Rural and Community Development threatening legal action.  Thirdly, at 22.18 on March 9th, Ms Hennessy sent the complainant terms of reference which were defective and which referred to a non-existent dignity at work policy.  Mr Walsh said that the complainant could have no faith in the process and that she had lost trust in the organisation. 

Mr Walsh referred to the Code of Practice for Employers and Employees on the Prevention of Bullying at Work (Statutory Instrument 674/2020) which promotes the primacy of mediation.  He said that all the parties to the conflict sought an informal resolution at every stage.

Mr Walsh submitted that further correspondence from the respondent to the WRC indicates a complete disregard by them for this former employee.

The complainant left her job on June 14th 2022 and she commenced in a new role on November 22nd.  Mr Walsh said that, while the complainant claimed Social Welfare illness benefit, this should not be taken into account when calculating her losses, because her illness was caused by how she was treated by her employer.  He said that the complainant’s losses are 21 weeks’ pay. 

The sequence of events leading to the complainant’s resignation on June 13th 2022 has been set out in the “Background” section above.  I intend therefore to include some pertinent issues from the respondent’s submission which have not yet been noted.

Ms A was appointed as the co-ordinator of the rural development team in mid-March 2021.  She had formerly been a team member, and she competed with her two colleagues, Ms Dunne and the complainant for the job.  She was the person with the longest service.  As co-ordinator, Ms Dunne and the complainant started reporting to Ms A.  As part of an on-going training plan, in August 2021, the complainant swapped roles with Ms Dunne, moving from project applications to claims.  As she was no longer involved in applications, the respondent’s position is that she was not required to attend independent evaluation committee meetings.

The appointment of Ms A to the job of co-ordinator coincided with a change in how all employees across the organisation reported on their work and, in general, their daily productivity.  An email included in the respondent’s book of documents from the CEO dated March 24th 2021, shows that detailed recording of workloads was to be entered into Microsoft Outlook calendars and that clocking in and out was to be strictly adhered to using a software application known as “Blip.”

In June and July 2021, the CEO became aware that Ms Dunne and the complainant had sought to undermine Ms A, by questioning her decisions and recording team meetings.  The complainant refused to speak to Ms A unless there was another person present.  At a meeting with the CEO, the complainant suggested that the issues between her and Ms A might be resolved by mediation.

The respondent’s submission states that, on August 16th 2021, Ms A submitted a formal grievance to the CEO “detailing instances of what amounted to bullying” by the complainant and Ms Dunne.  However, the copy of Ms A’s letter to the CEO dated August 16th 2021 is clear and states as follows:

“Unfortunately, in the past couple of months, a tense atmosphere has been created withing the LEADER team and I would like to raise an informal grievance procedure to solve these issues positively as soon as possible.”

A special meeting of the board of directors on August 27th 2021 resulted in a direction to the CEO to appoint an independent HR consultant to deal with Ms A’s complaint and with the request for mediation from Ms Dunne and the complainant.  The respondent’s submission states that, in the process of tendering for a consultant, the CEO was advised that an investigation into a complaint and mediation should not be carried out at the same time.

On September 17th, the complainant was informed of the appointment of Ms Sonia Brody to investigate Ms A’s complaint.  The complainant met Ms Brody and she was provided with the notes of Ms Brody’s meetings with Ms A and the CEO.  She challenged the appointment of Ms Brody, for reasons which have been set out in the previous section under the heading, “Summary of the Complainant’s Case.” 

On November 25th and 26th, the complainant submitted formal complaints regarding how she was treated by Ms A and by the CEO.  A sub-committee of the board of directors was established to deal with these complaints.  The complainant selected Ms Helena Broderick to investigate her complaints; however, as she was absent due to illness from March 10th 2022, Ms Broderick did not contact her, but proceeded with the investigation.  On May 31st, a member of the sub-committee, Ms Maureen Hennessy, wrote to the complainant to ask her to attend an appointment with the respondent’s OHC.  The purpose of the appointment was to determine if the complainant was fit to participate in an investigation into Ms A’s complaint.  The complainant resigned on June 13th.

It is the respondent’s case that it has conducted itself fairly and in accordance with natural justice and fair procedures and it rejects the complainant’s assertions to the contrary.  The respondent has to be mindful of its obligations to Ms A and her complaint of bullying against the complainant.  The respondent argues that the complainant has failed to act reasonably, to engage in properly constituted investigations and has failed to wait for the outcome of her referral to the WRC on March 6th 2022 before resigning from her job.

Legal Precedents in Support of the Respondent’s Position

The Contract Test:

Adam Berber v Dunnes Stores Limited[6]

In this decision of the Supreme Court, Mr Justice Finnegan found that the conduct of the employer did not amount to a repudiation of Mr Berber’s contract. 

It is the respondent’s position that it was appropriate and in keeping with the advice received that the investigation into Ms A’s complaint should be concluded before deciding if mediation was appropriate and before considering the formal complaints submitted by the complainant in November 2021.  The complainant did not respond to the first investigator and the second investigator could not engage with her because she was on sick leave.  The respondent did not in any way seek to repudiate the complainant’s contract of employment and acted reasonably with regard to her, while also being reasonable regarding its duty to the employee who made the complaint about her.

The Reasonableness Test:

An Employee v An Employer[7]

In this determination of the former Employment Appeals Tribunal, the claimant succeeded in his complaint of unfair dismissal.  However, in a dissenting opinion of one of the members, Mr Morrison, he remarked that, in cases of constructive dismissal, “a high level of proof in needed to justify the claimant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary.”

In the case under consideration here, Mr Martin said that the complainant needs to satisfy me that her working conditions were such that she had no option but to resign, having exhausted all the steps in the employer’s grievance procedure to deal with her difficulties.

Julianne Kirwan v Primark[8]

Finding against Ms Kirwan in her claim of constructive dismissal, the Tribunal members concluded that she was “going through the motions” and that she did not make a genuine attempt to use her employer’s grievance procedures to resolve her concerns about her job.

Mr Martin submitted that the complainant here was simply going through the motions to stop or deflect from the complaint of bullying by her line manager.  She was clearly informed that the issues she raised would be dealt with at the conclusion of the investigation into that matter.  The complainant decided not to pursue the investigation of her grievance at the WRC.  In these circumstances, Mr Martin submitted that the situation did not amount to one in which the respondent had conducted its affairs in a manner that the complainant could not be expected to put up with any longer.

Evidence of the Chairperson of the Board of Directors, Mr Chris Harmon

Responding to questions from Mr Martin, Mr Harmon said that the board met over Zoom on August 27th 2021 to consider the informal grievance submitted by Ms A and the request for mediation from the complainant and Ms Dunne.  Arising from this meeting, and, following a tendering process, the CEO appointed Ms Sonia Brody to do the work.

Mr Harmon referred to the correspondence he received from the complainant on November 26th 2021, and her formal complaints against the CEO and Ms A.  The board met on November 29th, again over Zoom and a sub-committee was set up to deal with the two formal complaints.

Cross-examining of Mr Harmon

In response to Mr Walsh, Mr Harmon said that the role of the board is to provide governance to the organisation, not to manage day-to-day issues.

Mr Walsh referred to the situation in August 2021, when it was first brought to the attention of the board of directors that Ms A had asked for her grievance to be dealt with informally and the complainant and Ms Dunne looked for mediation.  Mr Harmon said that the view of the board was that Ms A’s grievance had to be dealt with before mediation was considered.  He said that the board members had little experience of human resources matters and that they looked for advice from their employer’s representative body.  Considering his instructions to the CEO on August 30th 2021, to appoint an independent consultant to deal with Ms A’s informal grievance and to act as a mediator in response to the request for mediation from the complainant and Ms Dunne, Mr Walsh asked how the situation progressed to a formal investigation.  Mr Harmon said that the board engaged Ms Brody to give advice and followed her advice.

Mr Walsh asked how it was that the terms of reference for Ms Brody’s investigation make no mention of mediation.  Mr Harmon said that an informal or a formal approach to a grievance depends on the issue in dispute.  He said that, in his view, it is always preferable to deal with issues on an informal basis in the first instance, but that Ms A’s letter made the situation somewhat formal.  He said, “we had gone beyond the point of informality.”

Mr Walsh asked what the purpose was of setting up a sub-committee of the board of directors and Mr Harmon responded that it was to deal with the complainant’s formal complaints against Ms A and the CEO.  Mr Harmon said that the sub-committee was bound by the provisions of the company handbook, but Mr Walsh countered that the handbook doesn’t provide for the establishment of a sub-committee of the board to deal with grievances.

Mr Walsh referred to the organisation’s grievance procedure and the procedure for dealing with bullying and he commented that both procedures recommend an informal approach to a resolution.

Mr Walsh referred to section 6(i) of the document submitted by the respondent to the WRC to object to the investigation under the Industrial Relations Act.  In this section, the respondent asserts that the complainant made complaints only in response to an allegation of bullying against her by Ms A.  Mr Walsh remarked that the complainant raised her concerns about how she was treated by Ms A with the CEO long before the formal investigation commenced. 

Mr Harmon said that he wasn’t aware of the minutiae of events and that he didn’t know that the complainant didn’t attend a medical in December.  He said that the sub-committee of the board acted correctly when they asked the complainant to attend for a medical in June 2022.

Mr Walsh referred to the incident with the chairman of the community organisation in March 2022 that resulted in a letter to the minister for Rural and Community Development.  Mr Harmon said that he shared the view of the CEO that the organisation could have suffered reputational damage because of this issue.

Evidence of the Chief Executive Officer, Ms Eilish Harrington

At the opening of her evidence, Ms Harrington described the structure of the organisation, from the perspective of its objectives, the parent department and its operating guidelines.  Fingal County Council is the organisation’s implementing partner.

At the commencement of her employment in June 2019, Ms Harrington said that the complainant “shadowed” Ms A, and Ms Dunne to a lesser extent.  She said that in-depth training was provided.   Ms Harrington said that, during the Covid-19 lockdown, while Ms Dunne decided to come to work every day, the complainant worked from home but went into the office regularly to maintain hard-copy files.  In March 2020, Ms Harrington said that the County Council brought to her attention some errors in the complainant’s work.  Ms Harrington said that when she spoke to the complainant about this, she declined further training.  She said that the errors were due to working from home and not having proper IT equipment.  Ms Harrington said that the complainant was provided with a desk and chair and screens to connect to her laptop.

In February 2021, the job of rural development co-ordinator was advertised internally to all staff.  Ms Harrington described the process for recruiting the co-ordinator.  The complainant, Ms Dunne and Ms A applied and Ms A was selected. 

A document included in the respondent’s booklet is titled “Office incident” and was written by Ms A after she spoke to Ms Harrington on June 30th 2021.  The incident occurred the previous day when Ms A and the complainant were in the office.  Ms A had sent the complainant an email on Friday, June 25th about moving projects to stage 6 and she followed up on the email on Tuesday, June 29th.  In her note, she said that the complainant said that her projects would not be at stage 6 and that she was very anxious after reading the email.  She told Ms A that she made her feel very anxious and that she had been treating her differently to others over the last couple of months.

On June 30th 2021, Ms A told Ms Harrington what had occurred between her and the complainant the previous day and she wrote a note to record the events.  In her note, Ms A said that she would like to have a meeting with the complainant and Ms Harrington.

Ms Harrington said that she was getting calls from the County Council about projects and she decided to introduce checklists.  She said that the objective was to improve the quality and efficiency in relation to moving projects to approval stage.  She had a meeting with the rural development team on July 15th and, later that day, she sent them an email with a weekly progress report and steps on how to complete it.  The next day, Friday, July 16th, the complainant sent an email to Ms Harrington to let her know that she would consult someone about the changes.  We know from her evidence at the hearing that she intended to consult her brother. 

Ms Harrington said that she was due to go on holidays for two weeks and she phoned the complainant on the afternoon of Friday, July 16th.  She said that they had a brief conversation, because the complainant said that she was under pressure to complete work.  The complainant told Ms Harrington about the incident with Ms A on June 29th.  Ms Harrington said that she advised the complainant that she could raise a grievance, by using the procedures in the company handbook.

When she returned from holidays on August 3rd, Ms Harrington said that she heard from the IT department that meetings of the rural development team had been recorded using a mobile phone.  She discovered that the meetings that were recorded were on July 19th and 26th, which were attended by Ms A, Ms Dunne and the complainant.  A meeting on August 9th, when Ms A was on holidays, was not recorded.

Ms Harrington had a meeting with the complainant on August 10th.  The complainant said that she had been feeling stressed and anxious.  She spoke about the incident on June 29th and she said that Ms A made her feel stressed about deadlines.  The complainant mentioned her view that Ms A knew how much she, the complainant was paid, and that this caused difficulties between them.

On August 12th, Ms Harrington had a meeting with Ms A, at which Ms A told her about a few incidents at work over the previous few months which made her feel uncomfortable.  Ms Harrington directed Ms A to the employee assistance programme and the grievance procedure. 

On August 13th, the complainant wrote to Ms Harrington.  In this email, she said that she felt that her work was being undermined and questioned, but by Ms Harrington herself, in the way she questioned calendar entries.  Regarding her difficulties with Ms A, the complainant said that she would like to “go down the informal route” but that she was waiting to get advice about how to proceed.  Ms Harrington said that she wasn’t sure what the complainant’s grievance was about and, on August 16th, she wrote to her and asked her to put her concerns in writing. 

Also on August 16th, Ms A sent Ms Harrington her request for an informal investigation under the grievance procedure.

In her evidence, Ms Harrington referred to the meeting of the board of directors which took place over Zoom on August 27th.  She referred to the instructions from the chairman to urgently appoint an independent HR consultant to deal with Ms A’s informal grievance and the request for mediation from the complainant and Ms Dunne.  Ms Harrington said that, in the process of tendering for the HR consultant, she was advised to deal with Ms A’s grievance first.

Mr Martin referred to the exchange of emails on September 7th 2021 between the complainant and Ms Harrington.  In an email at 8.45, Ms Harrington told the complainant that her request for mediation had been brought to the attention of the board of directors.  When the complainant asked if “the other party” was amenable to mediation, Ms Harrington replied at 8.59 to say that the HR consultant will deal with that matter.

On September 16th, Ms Harrington met the complainant to inform her about Ms A’s complaints about her.  The following day, she wrote to the complainant to tell her that a formal investigation had commenced into Ms A’s grievance.

Ms Harrington gave evidence about the process of informing staff about returning to return to work in the office, with the lifting of many of the Covid-19 restrictions. 

The complainant was absent due to illness from October 4th until November 1st 2021.  She was under pressure to source childcare, because the creche her son attended before the pandemic had closed.  She was able to return to the office on Mondays and Wednesdays, but not on Thursdays.  Ms Harrington postponed a full return to work until the end of November.

On November 16th, the HR consultant, Ms Brody, sent the complainant notes of her meetings with Ms A and others that she interviewed during her investigation into Ms A’s complaint.  We know that the complainant was concerned that the notes may have been accessible to staff in the organisation.  On the same day, she wrote to Ms Harrington, objecting to Ms Brody’s appointment, because her agreement had not been sought beforehand.

Ms Harrington referred to the event on the evening of March 8th 2022, which the complainant attended to represent the organisation.  She said that she was not informed in advance about this event, which, she said, was organised by a separate entity.

On the morning of March 9th, Ms Harrington said that she became aware of an email from the chairperson of a community group to the minister at the Department for Rural and Community Development.  The email was copied to 20 individuals, including county councillors.  The complainant was the only person in the respondent’s organisation who was copied on the email.  At 10.25, Ms Harrington wrote to the complainant, offering her view that the complainant did not act in a professional manner by withholding it from her immediate manager and from her.  The complainant went absent due to illness and did not return to work before resigning on June 13th 2022.

Cross-examining of Ms Harrington

Opening his cross-examining of Ms Harrington, Mr Walsh asked if she could point to the time when the difficulties started between the complainant and Ms A.  Ms Harrington said that she thought that the problems were rooted in the fact that Ms A was appointed to the co-ordinator role.  Ms Harrington referred to a telephone conversation she had with Ms A on June 30th 2021, during which she asked her to put her concerns in writing.  Ms Harrington said that she was advised not to intervene in the conflict between the two employees. 

Ms Harrington said that she had no doubts about the complainant’s abilities.  Regarding the project with the community group, Ms Harrington said that they had a team meeting about it and that they needed to ensure that internal quality checks had been carried out.

Mr Walsh asked Ms Harrington what the complainant told her on July 16th 2021 with regard to what occurred between her and Ms A on June 29th.  Ms Harrington said that the complainant told her that she felt that her role was being eroded because of processes and checklists.  She said that there had been an incident in the office and that Ms A had been abrupt with her.

On August 10th, when they had both returned from holidays, Ms Harrington said that she had a meeting for about an hour with the complainant, and then a follow-up meeting with Ms A and the complainant together for about a half an hour.  She said that she delved into what happened on June 29th.  It was apparent that the complainant had issues with deadlines.  Ms Harrington said that she discovered that the complainant went on a site visit that had no significance, and that a deadline was missed.  She said that the crux of the problem was missing the deadline.

Ms Harrington addressed the issue of the recording of meetings on July 19th and 26th.  She spoke to the complainant and Ms Dunne about this and they said that the reason for recording the meetings was because the minutes taken by Ms A were inaccurate.  She said that she felt that this was a breach of company policy.  Ms Dunne or the complainant never spoke to her about minutes being inaccurate. 

Ms Harrington said that, in a phone call with the complainant on July 16th, she mentioned the incident with Ms A on June 29th.  When they met on August 10th, the complainant told Ms Harrington that Ms A knew how much she earned.  She also told Ms Harrington that she was suffering from stress.

Mr Walsh asked Ms Harrington why, in her email of August 10th, she referred to a deadline of August 17th for the complainant to respond.  Ms Harrington said that she was advised to give the complainant a week to respond.

After the recordings came to light, on August 12th, Ms Harrington said that she phoned Ms A and that she was upset. 

Mr Walsh referred to “matters developing” when Ms A submitted a grievance about the conduct of the complainant.  He referred to the email Ms Harrington sent to the complainant on September 17th 2021 in which she informed the complainant that “a formal investigation into this matter has begun.”  He said that it seems that Ms A, the complainant and Ms Dunne, all wanted the issues to be resolved informally.  Mr Walsh asked how the issues ended up being considered under the policy on the prevention of bullying.  Ms Harrington said that this was the decision of the HR consultant.

Mr Walsh referred to an email Ms Harrington sent to the complainant on August 25th, in which she acknowledged that the complainant was seeking an informal resolution of the issues between her and Ms A.  Mr Walsh asked Ms Harrington if she can understand why the complainant was surprised to find out that a formal approach was being pursued.  Ms Harrington replied that, during the tender process, they were advised to deal with the issues formally.

Referring to the establishment of the sub-committee in November 2021 to deal with the complaints against her and Ms A, Ms Harrington said that she was informed that the sub-committee’s remit was to deal with all the issues raised by the complainant in September and the two formal complaints submitted in November.

Asked why the complainant was excluded from evaluation committee meetings, Ms Harrington said that, at a meeting on August 20th, it was decided that the co-ordinator would take minutes at that meeting and that there was no need for the person dealing with claims to attend.  

Asked about the event on the evening of March 8th 2022, Ms Harrington said that the complainant was the development officer on the project.  The event was hosted by another organisation.  On February 17th, Ms Harrington said that the complainant asked her if she was available to attend the event.  She said that she could have attended if the event was in a different venue, as she had a conflicting appointment that evening.  At a meeting with the complainant on March 3rd, Ms Harrington said that she asked the complainant a lot of questions about the event.  At 17.46 on the evening that the event took place, the complainant was copied on an email from the chairperson of a local community group to the minister at the Department of Community and Rural Development.

Mr Walsh said that the complainant was in work the next day at 8.00am.  As she was reading the email, she was approached by Ms A.  Ms Harrington said that the complainant should have sent her the email immediately.  She was at a meeting that morning during which she received numerous calls from people asking her about it, but she had not seen the email.

Asked by me why it took four weeks from August 17th to inform the complainant about Ms A’s complaint about her, Ms Harrington said that three team members were involved and that she took no action about Ms A’s complaint until it was presented to the board of directors on August 27th.  Then there was a tender for HR consultancy services and this was followed by the selection of Ms Brody to do the work.

Evidence of Ms Maureen Hennessy, Current Chairperson of the Board of Directors

Referring to the meeting of the board of directors on August 27th 2021, Mr Martin asked Ms Hennessy how the issues of conflict on the rural development team moved from being dealt with informally to formally.  Ms Hennessy said that she would have preferred to deal with matters by mediation, but one of the board members said that, because Ms A’s complaint was in writing, mediation could not be used.  Ms Hennessy said that the board got the same advice from Ms Brody.

Ms Hennessy said that the sub-committee was formed arising from the complainant’s formal complaints on November 25th and 26th.  The purpose of having a sub-committee was to try to move quickly to deal with the complaints.

Mr Martin asked Ms Hennessy about the letter she sent to the complainant on January 28th 2022 in which she offered the complainant three options with regard to external HR consultants.  Ms Hennessy said that they were getting conflicting legal advice and the offer of three consultants was the outcome of alternative legal advice.

Mr Martin referred to revised terms of reference which were included in the respondent’s book of documents.  Ms Hennessy said that the complainant replied to her on March 10th 2022 and rejected the terms of reference. 

Cross-examining of Ms Hennessy

Ms Hennessy agreed with Mr Walsh that, when they were first informed about Ms A’s grievance and the complainant’s and Ms Dunne’s request for mediation, they wanted to deal with matters informally.  She said that they felt ill-equipped to deal with the complexity of the issues as they developed and one of the board members advised that Ms A’s complaint had to be dealt with formally.

When the complainant agreed that she would accept Ms Helena Broderick as the consultant to investigate her complaints, Ms Hennessy said that it was her understanding that Ms Broderick would deal in the first instance with Ms A’s complaint of August 17th 2021.  Mr Walsh asked Ms Hennessy to identify where it states that Ms Broderick was appointed to investigate the complainant’s complaints.

Ms Hennessy agreed that she had not seen the organisation’s dignity at work policy.

Concluding Remarks on behalf of the Respondent

For the respondent, Mr Martin submitted that the complainant has provided no evidence that she was suffering from stress.

Mr Martin said that the respondent owed a duty of care to Ms A, as well as to the complainant, and that it was appropriate to investigate her complaint in the first instance.  He suggested that it was only after the complainant had access to Ms Brody’s documents of her meetings with Ms A and others, that she made technical complaints about the process.  Mr Martin referred again to the decision in Berber (footnote 5), arguing that there was no breach of the complainant’s contract of employment to amount to a repudiation of her contract.  He said that, as was demonstrated in the decision in Western Excavating (ECC) Limited v Sharp[9] , to meet the contract test, the complainant must show that her employer had no intention of complying with the terms of her contract. 

Mr Martin said that the sub-committee’s role was not to investigate the complainant’s complaints, but to over-see the process.

Mr Martin referred to section 1(b) of the Unfair Dismissals Act which provides that, if an employer’s conduct is so adverse, an employee is entitled to resign without notice.  He noted that the complainant was out of work from March 10th until she resigned on June 13th.  He argued that the delay is too long for her to prove that she had to resign because of the conduct of her employer.

The Relevant Law

It is the complainant’s case that she was constructively dismissed, meaning that she had to leave her job because of the conduct of her employer.  The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

[D]ismissal, in relation to an employee means -

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 without giving prior notice of the termination to the employer…

On behalf of the complainant, Mr Walsh said that this complaint is about the failure of the respondent to follow procedures and to manage the complainant’s grievance informally in the first instance.  This is the approach set out in the company handbook and recommended in the Code of Practice on Grievance and Disciplinary Procedures (Statutory Instrument 146 of 2000).  The crux of the complainant’s case is that her employer did not respond to her request for mediation and priority was given to addressing her manager’s grievance about her.  She also complains that, in November 2021, when she submitted formal complaints about how she was treated by Ms A and the CEO, the process was entirely flawed.

Context

Before addressing the cause of the complainant’s resignation, I wish to examine the context in which life at work started to become problematic for her.  A significant aspect of the setting in which these events occurred is Covid-19 and the fact that, between March 2020 and November 2021, staff were working from home.  I understand that, during this period, the complainant went into the office regularly to do work that couldn’t be done from home but that, most of the time, she was at home and communicating with her line manager and the CEO via Zoom meetings, email and phone.

Ms A was promoted to the role of co-ordinator in March 2021, a job that the complainant felt that she was well-equipped for herself.  It is understandable that the relationship between the two might have become strained at that point.  Ms A began her new role managing her team remotely, which must have been a challenge for her.  It is apparent that the complainant found Ms A to be critical and she described feeling “hounded” to get work done.  For her part, Ms A found that the complainant was disrespectful and that she pushed back when she asked her to get work done according to certain deadlines.

Around the same time that Ms A was promoted, the CEO introduced a new process across the organisation to make projects and progress more transparent.  In an email in which she instructed Ms A, Ms Dunne and the complainant to “capture your workload with details,” she said that, rather than daily or weekly meetings, the calendar in Microsoft Outlook was to be used to report on meetings, the nature of the work being done and progress on projects.  Staff were also instructed to use a software programme known as “Blip” to record their working time.  It seems to me that, one year into the Covid-19 remote working arrangements, the purpose of this was to increase visibility around the work that employees were engaged in, to monitor progress and to maintain a record of working time.

On June 30th 2021, Ms A spoke with the CEO and reported that she had had an encounter with the complainant the previous day.  She said that, when she read Ms A’s email reminding her to prioritise her work and to have certain projects at a specific stage of completeness by close of business on the 29th, the complainant was shaking and very anxious.  Ms A sent a note to the CEO later on June 30th, in which she summarised this encounter with the complainant.  Although the note was sent to the CEO, Ms A refers to her as if she was a third party.  English is not Ms A’s first language and nothing turns on this, but it explains the concluding sentence in her note:

“Eilish was ringing me to discuss other LEADER items on Wednesday 30/06/21 and I expressed all of the above by asking her to have a meeting on Friday 3rd June (sic – should be July) 2021, together with Siobhán and Eilish.”

It is apparent that Ms A and the complainant were not getting on well.  Ms A was trying to make progress and to get projects completed and the complainant was feeling under pressure.  There was no evidence that the CEO arranged the meeting that Ms A requested in this note. 

The next meeting at which all three were present (with Ms Dunne) was on July 15th, when the CEO introduced the weekly progress reports.  In a telephone call with the CEO the following day, the complainant said that she was concerned about this initiative.  In her evidence, the complainant said that the processes and checklists resulted in changes to her role.  She also said that she needed guidance about Ms A.  The CEO was about to go on holidays and she advised the complainant that she could raise a grievance about her concerns and she referred her to the company handbook. 

Grievances and Complaints

The CEO was on holidays for the second half of July and the complainant was on holidays for the first week of August.  On August 9th, the CEO became aware that the complainant and Ms Dunne recorded their meetings with Ms A on July 19th and 26th but that the meeting of August 9th, when Ms A was on holidays, was not recorded.  On August 10th, the complainant told the CEO that she was stressed and anxious.  She referred to the encounter with Ms A on June 29th, when she was asked to have her projects at a certain stage.  The CEO advised the complainant that the employee assistance programme was available to help her.  She also referred her to the employee handbook if she wished to submit a grievance.  The CEO’s position was that, to deal with the complainant’s concerns, she had to put her position in writing:

“As discussed at the meeting, for me to pursue these matters could you please follow up to me in writing how you would like to proceed.  The two options in the procedure which are available to you are the informal process and the formal process.”

The CEO asked the complainant to respond in writing by August 17th, and she said that if she didn’t hear from her by that date “the company will consider the matter resolved.”

Two days later, the CEO had a meeting with Ms A, during which Ms A described some incidents that made her feel uncomfortable at work.  The CEO advised Ms A that the company had an employee assistance programme which was available to help her.  Giving the same advice to Ms A as she had given to the complainant, on August 12th, the CEO wrote:

“As discussed at the meeting, for me to pursue these matters could you please follow up to me in writing how you would like to proceed.  The two options in the procedure which are available to you are the informal process and the formal process.”

The CEO asked Ms A to put her concerns in writing by August 18th, and she said that if she didn’t hear from her by that date “the company will consider the matter resolved.”

In cross-examining by Mr Walsh, the CEO said that she was advised not to intervene in the conflict between two employees.  It is my view that this was bad advice.  As Ms A’s direct line manager, the CEO had a responsibility to help her to manage her team and to deal with the push-back when she set deadlines.  The CEO’s insistence that the complainant and Ms A put their concerns in writing, and her assumption that their failure to do so meant that their problems were resolved was not helpful. 

Ms A put her concerns in writing in a letter to the CEO on August 16th 2021.  She referred to the recording of the meetings on July 19th and 26th and the “tense atmosphere” in her team.  She said that she “would like to raise an informal grievance procedure to solve these issues positively as soon as possible.”  On August 25th, the complainant wrote to the CEO and said, “Please take this email as confirmation that I would like mediation with a third party that is entirely unconnected and impartial, so that the resolution would be favoured by all those involved.” 

It is clear therefore, that both employees were seeking help to resolve the conflict between them, and that they both wanted the problem to be resolved other than by way of a formal investigation.  As the complainant asked for mediation by an independent third party, I see no reason why this could not have also been proposed to Ms A as an informal way of helping her with her difficulties with the complainant (and Ms Dunne).

Although Ms A submitted her grievance on August 16th, the CEO did not inform the complainant at that time.  Three weeks later, on September 7th, when she sent her an email to give her an update on her request for mediation, she told her that an independent HR consultant would be in touch with her soon to discuss the next steps in the process.  It is understandable therefore, that when she received the email from the CEO on September 16th to invite her to a meeting “to outline a complaint the company has received against you” the complainant was “floored.”  It is my view that, as soon as she became aware, the CEO ought to have informed the complainant and Ms Dunne that they were causing Ms A to be distressed and upset.  In her evidence, the CEO said that, following a meeting of the board of directors on August 27th, she was instructed to engage an independent consultant to mediate between the complainant and Ms A and to investigate Ms A’s grievance.  She said that she waited until the tendering process was complete on September 16th before she told the complainant about Ms A’s grievance.  She said that she was also advised that Ms A’s complaint would have to be dealt with first, because it was in writing.

The commitment of pen to paper does not elevate a complaint to a higher level of importance than a verbal complaint.  In the circumstances in which two employees asked for help on an informal basis to resolve their difficulties, it is my view that the board was badly advised when a decision was made to give priority to Ms A’s complaint because it was in writing.  It seems to me that the logical approach was to start with mediation.

On September 17th, following the meeting at which the CEO informed the complainant that Ms A had submitted a complaint about her, the CEO wrote to the complainant “to inform you that a formal investigation into this matter has begun.”  She told the complainant that the formal investigation was being initiated under the Bullying Prevention Policy.  This is not what Ms A asked for in her letter of August 16th, in which she said that she would like to “raise an informal grievance procedure to solve these issues positively as soon as possible.”

In response to cross-examining by Mr Walsh on how Ms A’s grievance became a formal complaint, the CEO said that, during the tender process, they were advised to deal with the issues formally.  In her letter of August 16th, Ms A said that she was feeling uncomfortable and upset and that the situation was distressing.  She did not mention bullying and Mr Walsh asked the CEO how her grievance came to be investigated under the Bullying Prevention Policy.  The CEO said that this was decided by the HR consultant, Ms Brody.  It is my view that this was entirely the wrong approach and that it caused a breakdown of trust between the complainant and the CEO. 

As part of the formal investigation into Ms A’s complaint, the complainant met Ms Brody.  In early October, she had difficulties with respondent’s decision that everyone should start returning to the office on a phased basis and she was absent due to illness for four weeks from October 4th.  On November 1st, she wrote to the CEO about the instruction to be in the office on Mondays, Wednesdays and Thursdays, saying that this has “caused me anxiety and despair.” 

When she returned to work in early November, the complainant received copies of the notes of Ms Brody’s meetings with Ms A, the CEO and Ms Dunne.  Although she had been engaged in the investigation for two months at that point, on November 16th, the complainant objected to the appointment of Ms Brody, claiming that she was not independent.  She also complained that, by sending her the notes of her meetings via Outlook, Ms Brody had breached her right to confidentiality; however, I am satisfied that the documents were not released to people other than those to whom they were sent.  The complainant’s decision to object to Ms Brody when her investigation was well under way, leads me to conclude that she was unhappy with the evidence that emerged in Ms Brody’s notes of her meetings with witnesses.  In my view, this was a tactical objection to cause a delay and to circumvent the possibility of a critical finding regarding her treatment of Ms A.  On November 26th, the chairman of the board of directors wrote to the complainant and said that the board was satisfied that the investigation was being carried out by Ms Brody “in a fair, impartial and professional manner and that no conflict of interest arises.”  Later that day, the complainant submitted a formal complaint about how she was treated by Ms A and a second formal complaint about how she was treated by the CEO. 

As the adjudicator of the complainant’s case that she was constructively dismissed, it is not my role to investigate her complaints about Ms A and the CEO.  My role is to consider her case that the conduct of her employer was such that it was reasonable for her to conclude that their relationship had broken down to the extent that it was not possible for her to continue at work.  Part of the complainant’s difficulties relate to the way her November 2021 complaints were handled.

A sub-committee of the board of directors was set up to manage the investigation of the complainant’s complaints about the CEO and Ms A.  Although the complainant argued that there is no provision in the respondent’s policies for the establishment of a sub-committee, I find that this was a reasonable and practical approach to dealing with what was becoming an increasingly complicated dispute.

On January 28th 2022, a member of the sub-committee, Ms Maureen Hennessy, wrote to the complainant.  Before they embarked on any consideration of the November 2021 complaints, Ms Hennessy repeated the CEO’s position that a formal complaint of bullying had been made by Ms A and that this took precedence over an informal grievance.  In this way, Ms Hennessy solidified what was, in my view, an inflammatory approach by seeking to conduct a formal investigation into what started out as an informal grievance and, to take no account of the complainant’s request to resolve her difficulties with Ms A through mediation.  Ms Hennessy also offered the complainant the opportunity to select, from three options, an alternative consultant to commence a new investigation into Ms A’s complaint.  This was an unnecessary reversal of the position set out by the chairman in November 2021. 

The complainant replied on February 18th requesting confirmation that the investigation commenced by Sonia Brody was “at nought” and expressing her “deep dissatisfaction” with the delay progressing her two formal complaints of November 2021.  Under protest, she selected one of the three consultants proposed to carry out an investigation into Ms A’s “formal complaint of bullying.”  On February 22nd, Ms Hennessy wrote to the complainant and said that the investigation into Ms A’s complaint of August 2021 took precedence over the issues raised by the complainant in November.  Ms Hennessy concluded her letter saying,

“Once this process is completed, if still appropriate, consideration will be given to the issues formally raised by you.”

In her evidence, Ms Hennessy said that the board of directors felt ill-equipped to deal with the issues facing them and it seems that they were getting advice from various sources.   

On March 6th, the complainant submitted a complaint to the WRC, for adjudication under the Industrial Relations Act 1969.  The respondent objected to this complaint being heard, but their objection was sent after the 21-day deadline.  It occurs to me that, at this point, the parties could have benefited from the assistance of the WRC and that a more constructive outcome may have resulted if the hearing under the Industrial Relations Act had proceeded.  In any event, the complainant resigned before a hearing was scheduled.

The complainant was absent from March 9th 2022, when she said that she had a panic attack at work.  It is reasonable to assume that this was triggered by the email sent at 5.45pm the previous day by the chairman of the community group to the minister at the Department of Rural and Community Development and copied to 20 others including the complainant.  Although it was an important and urgent email, the complainant didn’t inform the CEO because she didn’t read the email until she arrived in work on March 9th.

On March 10th, the complainant wrote to Ms Hennessy in response to a request to review new terms of reference for the investigation into Ms A’s complaint.  She replied to Ms Hennessy saying, “Please do not seek to engage with me further until you are advised that I have returned to work.”  The complainant resigned on June 13th, in advance of a medical assessment which was arranged for the following day. 

The Burden of Proof in Constructive Dismissal Cases

As both representatives pointed out at the hearing of this matter, an employee who claims that they have been constructively dismissed must satisfy two tests, known as the “contract test” and the “test of reasonableness.”  As a third component of this burden of proof, an employee who decides to resign and who argues that their resignation was because of the conduct of their employer, is generally expected to try to have their grievances addressed, by utilising their employer’s grievance procedures. 

In Western Excavating (ECC) Limited v Sharp  (footnote 9) the contract test was summarised 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 discharged from any further performance.”

The reasonableness test also assesses the conduct of the employer, and whether,

“…the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with any longer…If so, the employee is justified in leaving.”

Mr Walsh cited the decision of the Equality Tribunal in A Financial Manager v A Utility Company (footnote 4) in which the Equality Officer, Mr Stephen Bonnlander, addressed the circumstances in which a breach of contract was a breach of the implied term of trust and confidence:

“In cases like the one within, where the alleged breach of contract is one of the implied contractual term of trust and confidence, the two tests for constructive dismissal are rather like describing related unlawful conduct on a gradient: unreasonable behaviour is bound to lead to loss of trust and confidence eventually, and no worker would lose trust in an employer which comported itself perfectly reasonably at all times.”

It is an established principle that trust is an intrinsic component of the contractual employment relationship.  As I understand the point being made by Mr Bonnlander in the case referred to above, when an employer’s conduct is so unreasonable that it causes an employee to lose trust and confidence, the burden of proving a contractual breach is already achieved.   There are numerous examples where employees have been found to be not unfairly dismissed because of conduct that causes a loss of their employer’s trust in them.  In the case of this employee, her trust in her employer was severely damaged when she was not informed in mid-August 2021 that her manager had raised an informal grievance about her.  When she was informed, in mid-September, she was told that her manager had made a formal complaint of bullying.  I find that the conversion of Ms A’s informal grievance into a formal complaint and the delay telling the complainant about it, in circumstances where she had asked for mediation to mend their relationship, had the effect of eroding any trust she could have in her employer.

Conclusion

I have given serious consideration to all the evidence submitted during the hearing of this complaint.  I mentioned earlier the context in which difficulties arose between the complainant, Ms A and the CEO, and that fact that people were working from home and not in normal contact with each other.  It seems to me that a level of distrust developed between the Ms A and the CEO on the one hand, and the complainant on the other.  We learned during the hearing that the complainant was minding her child while she was working from home.  We know that she had considerable difficulties returning to the office in November 2021 because her son’s crèche had closed.  For a manager, the prospect of an employee working from home while taking care of a child must raise doubts about that person’s ability to do their job effectively.  Even though this was never raised directly with the complainant, her ability to meet deadlines seems to have been a constant cause of friction between her and Ms A. 

The test in the Supreme Court decision in Berber (footnote 5) requires us to consider the conduct of the employer and the employee to determine if there has been a breach of the implied terms of mutual trust and confidence. Considering the conduct of the employer and the employee in the case under consideration, it is clear to me that, sadly, there was poor behaviour on both sides.  The complainant resisted being managed by Ms A, and was disrespectful towards her.  She also pushed back against the CEO’s efforts to introduce controls and transparency in the “virtual” workplace.  For its part, the organisation failed to manage the conflict between three employees.  The CEO’s approach by insisting that everything was committed to writing was a mistake.  Something less formal and more constructive was needed, with all sides having an opportunity to have their concerns heard. 

Considering Mr Walsh’s assertion that the events of March 9th were a “last straw” incident, I find that it was certainly reasonable for the complainant to be upset by the email from the chairman of the community group on March 8th.  For any person, a mention of legal action is unsettling, but for this communication to be sent to a minister in a government department and copied to every member of the county council must have been overwhelming.  Mr Walsh submitted that the follow-up emails sent by Ms A and the CEO were the last straw for the complainant and resulted in her decision to resign.  I do not fully accept this assertion, because the complainant didn’t resign until three months later, although, while she was out sick, she may not have intended to return.

In conclusion, I find that the trust that is necessary between an employer and an employee started to seriously unravel in September 2021, when the complainant was informed that Ms A made a formal complaint about her.  The complainant had looked for mediation and Ms A looked for help through an informal investigation.  I find that the respondent’s failure to arrange mediation and to give Ms A an opportunity, with the support of a mediator, to raise her concerns about the complainant’s conduct to be a serious breach of trust and negligent in relation to both Ms A and the complainant.

I find that the conduct of the complainant contributed to an escalation of the conflict between her and her employer, but that it is the responsibility of the employer to act responsibly and to deal with conflict fairly and in accordance with the accepted procedures.  I find that, because of the conduct of her employer, it was reasonable for the complainant to resign.  I also think that it would have been reasonable for her to resign shortly after September 17th 2021, and I find it difficult to understand why she remained on.  In response my questioning about this, she said that she started to look for another job in November, but that she didn’t feel confident enough to pursue an application and go for interviews.

It is often the case in a complaint of constructive dismissal that an employee doesn’t succeed because they fail to invoke their employer’s grievance procedure.  I note the decision of the Labour Court in A Worker (Mr O) v An Employer (No. 2) (footnote 2) which found that this was “not a fixed or universally applicable rule.”  In the circumstances in which the complainant had submitted formal complaints for investigation, and, when her employer had rejected her application to have her concerns addressed under the Industrial Relations Act, it is my view that it was not unreasonable for her not to raise any further grievances in advance of her resignation.

I have concluded that the complainant has discharged the burden of proof that shows that it was reasonable for her to resign and that the cause of her resignation was the failure of her employer to properly deal with her request for mediation in circumstances where her manager needed assistance to manage her.  I am satisfied therefore, that she was constructively dismissed.

I have decided that this complaint is well-founded.  Considering the amount to be awarded in redress, I find that, by her actions, the complainant contributed to the grievances that resulted in the termination of her employment.  As she started a new job in November 2022, she was unemployed for 21 weeks.  I decide therefore that, based on her annual salary at the date of termination of €45,900, the respondent is to pay the complainant compensation of €9,700, equivalent to 11 weeks’ gross pay.  This award is in the form of loss of earnings and is subject to the normal deductions of tax, PRSI and USC.

Constructive dismissal, grievance procedure, fair procedures

Complainant

Respondent

Parties

Siobhán Murray

Fingal Leader Partnership Clg

Representatives

Gordon Walsh BL

Eoin Martin BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00049029-002

06/03/2022

The objective of Leader Partnerships is to promote local development and social inclusion in the areas in which they are established.  Each Leader Partnership is a grant-making organisation, under the direction of the Department of Rural and Community Development and managed by a voluntary board of directors.

The complainant commenced working as a rural development officer with Fingal Leader Partnership on June 24th 2019.  She was a full-time and permanent employee, on an annual salary of €40,700. 

When she commenced in her job, the complainant reported to the chief executive officer (CEO).  From March 2021, she and her colleague, Ms Dunne, reported to the rural development co-ordinator.  The complainant and Ms Dunne applied for this role, but another colleague, who I will refer to as “Ms A,” was appointed.  Previously, all three reported to the CEO.  In her evidence, the complainant said that she had a difficult relationship with Ms A from before she started reporting to her, but that the situation worsened from then on.

In July 2021, the CEO introduced a weekly progress report for the rural development team, with details of timelines for projects and checklists for work to be done.  Arising from this, in August 2021, the complainant told the CEO that she felt that her work was being questioned and undermined.  The complainant said that she was suffering from anxiety and stress and she looked for an informal investigation into her grievance.

At the same time, in August 2021, Ms A reported that she was distressed because of the conduct of the complainant and Ms Dunne, who, she claimed, embarrassed her in front of other employees and conspired to record two of their team meetings on a mobile phone.  Ms A also sought an informal investigation into her grievance.

In September 2021, the board of directors appointed an external consultant, Ms Sonia Brody, to investigate Ms A’s complaint against the complainant.  While the complainant met with Ms Brody, in November, she objected to Ms Brody leading the investigation, claiming that she wasn’t independent, that Ms Brody had breached her right to confidentiality of information and that she had not agreed to her appointment.  On November 25th and 26th, the complainant submitted grievances to the chairperson of the board of directors, regarding the conduct of Ms A and the CEO respectively.

In August 2021, the complainant had swapped responsibilities with Ms Dunne and rather than handling project applications, she was dealing with claims.  In February 2022, Ms Dunne left the organisation and the complainant wasn’t invited to a meeting that she had attended when she was responsible for applications.  She complained that she was excluded.

That same month, the complainant selected Ms Helena Broderick, from a list of three possible investigators, to examine the grievance submitted by Ms A the previous August.  In a letter to the chairperson on February 18th 2022, she complained that the board had failed to advance her own complaints.

On March 6th 2022, the complainant submitted a grievance to the WRC, for consideration under the Industrial Relations Act 1969.  She complained of significant workplace stress because of the actions of her employer. 

On March 8th at 17.46, the complainant was copied on an email from the chairperson of a local community group to the minister at the Department of Rural and Community Development.  The substance of the email was a threat of legal action regarding the establishment of a new, and possibly competing community group.  The email was copied to 19 individuals, including several local councillors.  The content of the email was clearly very serious for the respondent, but it was not copied to the CEO.  The following morning, the CEO was at meetings and, in her evidence at the hearing, she said that she received about 10 missed calls about the email, about which she knew nothing.  Around 10.15, Ms A asked the complainant if she had received an email from the community group the previous day and the complainant sent it on to her.  Ms A then sent the email to the CEO.

The complainant went absent the following day.  She submitted a medical certificate stating that, due to work-related stress, she would be unfit for work for four weeks; however, she did not return to work.  On May 31st 2022, she was requested to attend an appointment with the organisation’s occupational health specialist on June 14th.  She resigned on June 13th, stating that the respondent “made it completely untenable” for her to return to her role and that she had been constructively dismissed.

For the respondent, Mr Martin, submitted that they conducted themselves fairly and in conformity with the principles of natural justice.  He said that the respondent had to be mindful of its obligations towards Ms A in relation to her complaint of bullying against the complainant.  By failing to engage with the investigation process, and by resigning before her grievance had been investigated by the WRC, Mr Martin argued that the complainant failed to act reasonably.

Summary of the Complainant’s Written Submission

For the complainant, Mr Walsh submitted that Statutory Instrument 674/2020, the Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020, provides guidance to support the complainant’s claim of bullying, harassment, and exclusionary treatment.

It is the complainant’s case that she was bullied by Ms A, in the way she was micro-managed, given conflicting instructions on deadlines, shouted at, undermined with clients and unjustifiably criticised.  The complainant attempted to have her grievance dealt with informally in the first instance, but in August 2021, when Ms A submitted a grievance about the complainant, this was treated as a formal grievance and an external consultant was appointed to conduct an investigation.  The complainant’s concerns were not investigated.

On behalf of the complainant, Mr Walsh submitted that, since she informed the CEO about her grievance, the respondent engaged in continuous breaches of employment procedures which have been detrimental to her and prejudiced her ability to effectively contest Ms A’s claims.  The respondent has also acted with disregard for the complainant’s mental health, as there was no intervention, even after the complainant submitted her grievance to the WRC in March 2022. 

When she spoke to the CEO in August 2021 about feeling stressed and anxious, and about her difficulties with Ms A, the complainant suggested that the issues might be resolved by mediation.  On September 7th, she was informed that her request had been brought to the board of management for their consideration and she assumed that her concerns would be dealt with.  The complainant asserts that this was the first of several breaches of trust and confidence by the CEO.  Ms A had lodged a grievance against the complainant on August 16th 2021, but the complainant was not informed about this until September 17th.  A formal investigation was initiated into Ms A’s complaint of bullying, but no action was taken with regard to the complainant’s’ grievance.  Contrary to Statutory Instrument 674/2020, the Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020), there was no attempt to informally resolve the complainant’s grievance.  It appears that there was no initial examination of the complainant’s grievance, which is a breach of the respondent’s own policy on preventing bullying in the workplace and a denial of fair procedures.  

The complainant was shocked and upset by what occurred and she was on sick leave for four weeks from the beginning of October 2021.  She objected to the investigation being carried out by Ms Sonia Brody on the following grounds:

§    She felt that she was misled regarding her request for mediation;

§    There was a delay informing her about Ms A’s complaint;

§    There was no provision in the terms of reference for the investigation into Ms A’s complaint for her own grievance to be examined;

§    The respondent failed to comply with its own procedures;

§    There was no effort to resolve her grievance informally;

§    Ms Brody was on the interview panel which appointed Ms A to the job of rural development co-ordinator;

§    Ms Brody posted documents related to the investigation on the office portal, and the complainant thought that this made them accessible to her colleagues;

§    The respondent’s approach was having a severe effect on the complainant’s mental health.

Following the submission of her complaints on November 25th and 26th 2021, regarding how she was treated by Ms A and the CEO, the complainant was informed that a sub-committee of the board of directors was established to deal with her complaints.  The complainant asserts that the respondent’s procedures do not provide for the establishment of a sub-committee and that this was a further breach of procedures.  She argues that, with two different entities operating in parallel, there was a lack of clarity which resulted in her concluding that the process was unfair.

Terms of reference for the investigation into Ms A’s complaints were amended in March and April 2022.  Arising from the complainant’s objection to Ms Brody continuing as an investigator, a new investigator was appointed.  However, the complainant’s other concerns were not addressed.  In particular, an investigation into the complainant’s grievance about the conduct of Ms A was not provided for.  The new terms of reference refer to the respondent’s Dignity at Work Policy, but it appears that there is no such policy.

Shortly after the complainant lodged her grievance under the Industrial Relations Act with the WRC, she was informed that Ms Helena Broderick had been appointed to carry out an independent investigation.  She was also informed that the investigation would proceed, with or without her participation.  On behalf of the complainant, Mr Walsh submitted that this was a fundamental breach of fair procedures, on the basis of the fact that the respondent knew that the complainant was struggling with her mental health.  He argued that it was also a breach of trust and a failure to adhere to the respondent’s values and obligations as set out in its policy on Safety Welfare and Hygiene.  In February 2022, the complainant was not invited to a meeting that she previously attended on a regular basis.

By May 2022, when she received a request to attend a medical examination, the complainant felt that the respondent would continue to pursue its intention to conclude an investigation, no matter what she did.  She had lost all trust, faith and confidence and Mr Walsh said that she “saw no point in going on.”  She resigned on June 13th and she adjusted her grievance under the Industrial Relations Act to a complaint under the Unfair Dismissals Act.

Legal Submission

Having regard to their conduct over a period of time, a question arises about whether the complainant could be confident about how the respondent was handling her grievances.  Mr Walsh cited the decision of the former Employment Appeals Tribunal (EAT) in its determination in Allen v Independent Newspapers[1], where the Tribunal agreed with Ms Allen that she could have no confidence in her employer to properly address her grievance.  Mr Walsh referred also to the decision of the EAT in O’Donoghue v Watchford Limited[2] where it was held that the claimant “was entitled to consider herself constructively dismissed by virtue of the lack of fair procedures, the respondent’s failure to follow its own stated procedures, the defective investigation and disciplinary process and the harsh sanction applied, relative to the circumstances and in light of the claimant’s senior position and long service.”

Mr Walsh argued that, where a grievance procedure is insufficient to effectively deal with the issues submitted by an employee, her complaint will not fail simply because she has failed to participate in the process.  This was the finding in A Worker (Mr O) v An Employer (No. 2)[3] where the Labour Court found in favour of Mr O, although he did not make a formal complaint before resigning.

Mr Walsh referred to the decision of the adjudicator, Stephen Bonnlander, in A Financial Manager v A Utility Company[4] as a useful example of the application of how the outcome of the decision of the High Court in Berber v Dunne’s Stores[5] is applied in disputes under the Unfair Dismissals Act.  

Concluding his written submission on behalf of the complainant, Mr Walsh submitted that the statutory definition of constructive dismissal is met when total regard is had to the fractious work environment, the failure to adhere to the health and safety policy, the six-month delay in organising the medical assessment and the relentless progression of two flawed investigations, neither of which complied with company procedures and the inter-relationship of which has not been clarified.  In the light of all these matters, the complainant was entitled to and acted reasonably in terminating her contract of employment.

Evidence of the Complainant

In her direct evidence, the complainant said that Ms A’s “treatment of me deteriorated” from around the end of December 2020, when she suspects that Ms A discovered that she was on a higher salary than her.  When she was appointed to the role of rural development co-ordinator and became the complainant’s line manager, the complainant said that Ms A micro-managed her and was abrupt and engaged in “a couple of outbursts.”  When she was working from home, the complainant said that the problems were less obvious, and more apparent in the office.  From the onset of the Covid-19 pandemic in March 2020, the complainant worked from home, but she went into the office to file documents when necessary.  In November 2021, she returned to the office for three days a week.

Describing how she felt she was micro-managed by Ms A, the complainant said that she “hounded me to do things,” that she queried what was in her diary and that she constantly phoned her.  On one occasion, the complainant said that Ms A had an outburst on the phone and that she later sent her a text message to apologise.  The complainant said that this treatment made her anxious and distressed.

On Thursday, July 15th 2021, the complainant attended a team meeting which the CEO also attended.  The complainant said that the CEO made changes to how the work was to be done by the rural development team.  Following the meeting, the CEO sent the complainant, Ms A and Ms Dunne an email with the following text:

“Hi All,

Thank you for the meeting earlier. 

Please find attached the Agenda with Action Items highlighted in red.  I have also attached the LEADER Weekly Progress Report and steps in the word document of how to complete.  It is also saved on the shared drive in individual folders.  If you have any queries, please let me know.

Thank you

Kind Regards,

Eilish”

The complainant replied the following day:

“Good afternoon Eilish,

Just with regards to this, I feel it is in my best interests to get someone to look at this for me.

I trust you understand.

Regards,

Siobhán.” 

The CEO replied and asked the complainant what she needed to have looked at and she said that she was available after lunch for a discussion.  The two had a telephone conversation that afternoon and the complainant said that she told the CEO that she was stressed from working with Ms A.  A meeting took place in the office on August 10th, when the CEO had returned from holidays.  The CEO followed up this meeting with an email on the evening of August 10th, to which she attached the employee handbook and the grievance procedure.  She asked the complainant to let her know if she wanted her concerns dealt with by using a formal or informal process.

In her evidence at the hearing, the complainant said that she thought that mediation was the best option. 

On August 13th, the complainant replied to the CEO’s email of August 10th.  She said that she felt that her work was being undermined and questioned and that this related to the CEO questioning her calendar entries, referring to “cross-examination” and casting doubts on her work ethic.  Regarding her concerns about Ms A, the complainant said that she would like to deal with that matter informally, but that she wanted to wait until she got advice from someone who was on holidays.

On August 16th, Ms A sent a letter to the CEO, outlining her concerns about how she was treated by the complainant and her colleague, Ms Dunne.  Ms A said that she was raising a grievance to be dealt with informally.  The complainant was not informed about this until four weeks later.  A copy of the letter was included in the respondent’s book of documents and the complainant referred to it in her evidence.

In her letter, Ms A said that, on two occasions, the complainant and her colleague put her on speaker when she phoned one of them.  At team meetings on July 19th and 26th, Ms A said that the complainant recorded the meeting.  She said that she was briefly asked for her consent, but that she was, “put on the spot” and didn’t know if recording the meeting was the right thing to do.  When she was on holidays for the next meeting, it wasn’t recorded.  She also complained that the complainant inserted comment in her computer-based calendar notes, on May 7th 2021, “outburst A – phone call” and on June 29th, “outburst A – wondered what I was actually doing, told of pressure, anxiety.”  A copy of the calendar notes was also included in evidence.

In response to questions from Mr Walsh, the complainant said it’s normal to have people on speaker phone.  She said that Ms A did not object to the recording of their team meetings.  She said that the reason for the recording is because Ms A’s minutes were not an accurate record of the meetings. 

On August 27th, it appears that the complainant and the CEO spoke on the phone and afterwards, the CEO wrote to the complainant to confirm that she had brought her request for mediation between herself and Ms A to the attention of the board of directors.  On Monday, August 30th, the chairman of the board of directors sent an instruction to the CEO to appoint a HR specialist urgently to:

§    Handle Ms A’s informal grievance;

§    Act as a mediator in response to the request for mediation from the complainant and Ms Dunne;

§    Investigate any breach of company policy and procedures;

§    Issue a report to the board.

On September 7th, the CEO wrote again to the complainant to let her know that the board were in the process of recruiting an external HR consultant and that this person would contact her to discuss her request for mediation.  In a second email, she confirmed to the complainant that she had not spoken to Ms A about the complainant’s request for mediation.

At this point, the complainant had still not been informed that Ms A had submitted a grievance about how she was treated by her and Ms Dunne, and Ms A’s request for an informal investigation.  An independent consultant, Ms Sonia Brody was selected to do the work set out above and on September 17th, the CEO met the complainant to inform her that Ms A had complained about how she was treated by her and Ms Dunne.  The CEO told the complainant that a formal investigation into the matter had begun.  In her evidence, the complainant said that she was “floored” by this news and that she felt that the ground was pulled from under her.  In the terms of reference provided to her for the investigation, there was no mention of mediation and no reference to the priority given to an informal investigation in the organisation’s bullying policy.  The CEO followed up after this meeting and sent the complainant a copy of Ms A’s complaint, she confirmed the name of the investigator and she provided the complainant with a copy of the company’s bullying prevention and grievance procedures.

On Monday, September 20th, the complainant attended work and had a meeting with the rural development team.  She said that she was experiencing stress and anxiety and, from then on, she was on edge the entire time.  She went out sick on October 4th and she returned to work on November 1st. 

On November 17th, the complainant wrote to the CEO in response to her communication on September 17th.  By mid-November, Ms Brody had had meetings with Ms A, the complainant, the CEO, and the IT manager.  In her letter, the complainant expressed her concern that, while the board had approved the management of her grievance by mediation, no action had been taken to progress this.  She complained that Ms A’s complaints had been “fast-tracked for immediate action.” 

The complainant objected to the appointment of Ms Brody as the investigator, claiming that this was not in compliance with the bullying policy, as the complainant had not agreed to her appointment.  She complained that Ms Brody was not independent, because she had a commercial relationship with the respondent and she was on the interview panel that selected Ms A for the co-ordinator role.  Finally, she complained about a “most serious and egregious breach of confidentiality.”  This related to the fact that, when she invited her to a meeting on her Outlook calendar, Ms Brody attached witness statements.  The complainant accepted the invitation, but, because she did not mark the meeting as “private,” the documents could have been accessed by others. 

Later, on November 17th, the CEO replied to the complainant to tell her that she would bring her concerns to the attention of the board of directors at a meeting that evening.  The complainant was out sick for a week due to stress and, on November 26th, the following exchange of email correspondence took place between the complainant and the chairperson of the board:

10.32:  The chairperson wrote to the complainant to ask her to continue to engage in the investigation commenced by Sonia Brody.  He said that mediation would commence after the investigation into Ms A’s grievance was completed. 

10.33:  The chairperson wrote to the complainant to address her concerns about a data breach.  He told her that an investigation was conducted into the accessibility of documents sent to her on November 10th.  He said that IT investigator could find no evidence that any other staff member had access to the documents.

10.55:  The complainant submitted two formal complaints regarding how she had been treated by the CEO and by Ms A.

On November 30th, the chairperson wrote to the complainant to inform her that a sub-committee of the board of directors had been set up to deal with her complaints.  In her evidence, the complainant said that the two investigations, Ms A’s complaint about her, and her complaints about Ms A and the CEO, were being conducted completely differently.  She said that she began to suffer from anxiety and had panic attacks due to stress.

In her evidence, the complainant referred to a letter from a member of the board sub-committee, Ms Hennessy, on December 7th 2021.  The purpose of the letter was to ask the complainant to attend for a medical assessment with the company’s occupational health consultant (OHC), to ensure that she was capable of engaging in an investigation into her complaints.  The letter states that,

“Any ongoing processes you are involved in will be temporarily paused pending the outcome of the Occupational Health referral, as the Board views your well-being as taking precedent (sic).”

Due to a Covid risk, the complainant couldn’t attend the OHC appointment arranged for December 21st.  When she returned to work on January 10th, she sent an email to Ms Hennessy to let her know that she could attend an appointment with the OHC “any time from now.”  She said that afterwards, no effort was made to determine her fitness to engage in an investigation. 

On January 28th, Ms Hennessy sent the complainant a letter outlining the procedure being followed by the sub-committee and the names of three independent HR consultants for her to select one to conduct the investigations into her complaints about the CEO and Ms A.  In her evidence, the complainant said that she had no idea what the relationship was between the two procedures, the investigation into Ms A’s complaint and the investigation into her complaints.  She said that she didn’t understand what was going on. 

The complainant replied to Ms Hennessy on February 18th, and selected one of the named investigators, “under strong protest,” alleging that the conduct of the sub-committee was in breach of fair procedure, lacked proper judgement, and was being conducted without due regard for its duty of care towards her.  On the same day, she wrote to the chairperson of the board setting out her concerns about the way in which Ms A’s grievance about her was handled, and about how her complaints were handled by the sub-committee.  Her concerns may be summarised as follows:

§    There is no provision in any company policy for the establishment of a sub-committee of the board of directors to manage complaints;

§    There was no response to her request for mediation to resolve matters between her and Ms A;

§    She was not informed about Ms A’s complaint until four weeks after it was given to the CEO;

§    No initial examination of the complaint was carried out, as provided for in the company’s grievance procedure.

§    In her letter, the complainant also requested certain information to be provided to her.

In February, the complainant said that relationships at work continued to deteriorate and that she was excluded from a meeting of an independent evaluation committee that she expected to attend.  Ms Dunne left the organisation around this time.

On February 22nd 2022, Ms Hennessy wrote to the complainant to confirm that her choice of Helena Broderick was confirmed by the sub-committee as the investigator into her complaints.  The letter stated that the investigation would proceed to a conclusion even without her input.  The complainant said that this was completely at odds with a previous undertaking that the complainant’s health and welfare was a priority.  At this point, a new appointment had not been made for her to be assessed by the OHC.

On March 6th 2022, the complainant submitted a grievance to the WRC, for investigation under the Industrial Relations Act 1969.

On March 8th, Ms Hennessy sent terms of reference to the complainant with regard to what was now referred to as a “formal complaint” by Ms A against her.  The terms of refence stated that the investigation would take place in accordance with the respondent’s Dignity at Work Policy; however, the complainant said that she was not aware that such a policy existed.  That evening, the complainant was involved in a work-related event and she said that she got no support from her colleagues with regard to the organisation of the event and that, afterwards, no one asked her how it went.  On the morning of March 9th, the CEO sent her an email in which she said, “well done on the event” but she also criticised the complainant for “acting mainly in a solo capacity” and for not involving her or other colleagues.

Also, on the morning of March 9th, the complainant said that she read the email from the chairperson of the local community group in which he threatened to take legal action regarding the respondent’s support for a rival group.  Ms A asked the complainant to send her the email, and she passed it to the CEO.  The CEO wrote to the complainant and accused her of not acting in a professional manner by withholding it from the programme manager and from her, as the CEO of the organisation.  The complainant said that felt excluded, picked on, and as if she couldn’t do anything right.  She said that she felt “lashed” by the allegation that she had caused reputational damage to the organisation.  She told Ms A that she was having a panic attack.  She said that she was “struggling hugely” and she left the office and went to her doctor.  On March 10th, the complainant commenced a period of absence from work due to work-related stress.  The same day, she wrote to Ms Hennessy to inform her that she did not accept the terms of reference for the investigation into Ms A’s grievance about her.  She set out a number of reasons, but particularly the reference to the non-existent Dignity at Work Policy.  Revised terms of reference were drafted, but the new document still referred to a Dignity at Work Policy. 

On April 15th 2022, Ms Hennessy wrote to the complainant, telling her that the investigation into Ms A’s grievance would proceed, with or without her input.  Ms Hennessy stated that bullying is a breach of a person’s right to respect and dignity, which is referred to in the staff handbook.  It is apparent that, on some date in April 2022, the investigator interviewed Ms A. 

The complainant was due to return to work on June 1st and, on May 31st, she was asked to attend an appointment with the OHC, to determine her fitness to engage in the investigation.  On June 13th, she sent a letter of resignation to the CEO.

Asked by Mr Walsh what led her to resign on June 13th 2022, the complainant said that she thought she would never get a fair hearing, her mental health was at rock-bottom and that leaving was the only thing she could do to save herself.  She said that in October and November 2021, she had tried to get another job, but she had no confidence looking for a job.  On November 7th 2022, she returned to work in an organisation where she worked previously, and she said that she feels safe there.

Cross-examining of the Complainant

Mr Martin opened his questions by referring to the project behind the email of March 8th 2022.  I do not intend to examine this issue in any detail, apart from acknowledging that it was a cause of some distress to the complainant and of serious concern to the organisation.

Mr Martin asked the complainant why her LinkedIn profile described her, until October 2022 as a regional business development manager with the respondent, but the complainant was not able to explain why she used this job-title, even after she resigned.

The complainant accepted that she was disappointed when she was unsuccessful in her application for the job of rural development co-ordinator in February 2021.  She said that she understood that Ms A had more experience, but she refuted that she suggested that she was not the right person for the job.  She said that relations between her and Ms A deteriorated before Ms A was appointed to the job.  Mr Martin said that witnesses will state that the complainant was offensive to Ms A and that her attitude to Ms A changed after she was promoted.  Mr Martin referred to the recording of meetings on July 19th and 26th, taking Ms A by surprise.  Mr Martin referred to the fact that a meeting on August 9th was not recorded, because Ms A was on holidays.  He suggested that the purpose of the recordings was to intimidate Ms A.  The complainant replied, “she didn’t tell me she was upset.”

Explaining the reason for recording the meetings, the complainant said, “we were given actions from team meetings, not deadlines.”  She said that Ms A produced minutes with deadlines.  In response to a question from Mr Martin, she said that she didn’t complain to the CEO about unacceptable deadlines.

Referring to the medical certificates which were included in the respondent’s book of documents, Mr Martin said that they indicate that the complainant was “unwell” and “unfit for work.”  The only cert that refers to work-related stress was issued on March 10th 2022.

Addressing the changes to the roles of the complainant and Ms Dunne in July 2021, the complainant said that she felt that this resulted in a “narrowing of her role.”  She said that she thought that it occurred because Ms A suggested to the CEO that she wasn’t doing her job.  She wrote to the CEO the next day and said that she wanted to speak to someone about the proposed changes.  In response to Mr Martin’s question, she said that she wanted to speak to her brother.

Mr Martin referred to the complainant’s contract of employment and the provision that she is required to be flexible in her job and that her responsibilities are subject to change.  The complainant said that, when she was unsuccessful for the co-ordinator’s position, she got feedback telling her that she had no leadership experience.  Now she felt that her job was being reduced.

In a telephone call on the afternoon of July 16th, the complainant said that she told the CEO that she was stressed because of how she was being treated by Ms A.  Mr Martin put it to the complainant that she cut the phone call short and that she didn’t expand to any degree about problems with Ms A.  On August 9th, after she returned from holidays, the CEO invited the complainant to a meeting to discuss the issues she was concerned about.  Following their discussion, the CEO asked the complainant to indicate in writing how she wanted to proceed.  If she had concerns about how she was being treated by the CEO, the complainant was also advised to contact the chairperson.

The complainant said that she spoke to the CEO on July 16th and August 10th about her mental health, and about the stress and anxiety she was suffering and her concerns were not considered.  She said that she thought that the solution was through mediation.

Mr Martin asked the complainant why she resisted putting her concerns in writing.  She replied that she didn’t think that the CEO was someone she could trust.

Mr Martin asked, if this was the case, why the complainant didn’t contact the chairperson.  She did not reply to this question.

Mr Martin referred to the difficulties the complainant had with childcare responsibilities in November 2021, when arrangements were being made for staff to return to work.  The complainant said that the CEO told her that if she didn’t return to working in the office, she would be in breach of her contract and she could lose her job.  She said that she was in anxiety and despair over this.

Referring to the engagement of Sonia Brody to investigate Ms A’s complaint, the complainant said that Ms Brody contacted her on September 29th.  She said that she didn’t think Ms Brody was independent and she disagreed with Mr Martin’s suggestion that she objected to Ms Brody’s involvement only after she saw the notes of her meetings with other witnesses.  The complainant said that she didn’t engage with Helena Broderick because Ms Broderick never contacted her.  She said that the respondent made no effort to ensure that she was medically assessed as fit to engage with Ms Broderick.

Evidence of the Complainant’s Colleague, Ms Judy Dunne

Ms Dunne joined the respondent organisation in March 2018.  In September that year, she moved from a job in reception and administration to work in the rural development team as a rural development officer.  She left in February 2022.

Ms Dunne said that she initially worked on claims, and that, when the complainant joined the organisation, most of her training, in the form of “shadowing” was with Ms A.  She said that everyone seemed to get on well.  During Covid-19, Ms Dunne said that there wasn’t much interaction between staff.

Ms Dunne worked on claims and Ms A and the complainant worked on projects.  She said that they both had a heavier workload than her.  Ms Dunne said that late in 2021, relations between Ms A and the complainant deteriorated, with Ms A “picking apart” the complainant’s work.  She said that Ms A queried the order in which the complainant scanned documents, where she put stamps on envelopes, her diary was questioned.  Ms Dunne said that, at times, the complainant was very upset and she avoided coming in to meet Ms A.  Ms Dunne said that Ms A was frustrated also.  She said that she told her on one occasion that she was very hard on the complainant.

Ms Dunne said that Ms A knew that the complainant earned more than her, and that she was informed of by the former finance officer.

Referring to Ms A’s complaint about the conduct of Ms Dunne and the complainant, Ms Dunne said that she was shocked when she was told about the complaint.

Asked who decided to record the meetings on July 19th and 26th 2021, Ms Dunne said that it was her decision.  She said that she was annoyed because the minutes of the meetings did not reflect the timelines that were produced afterwards and she wanted her feedback recorded.  She said that she got consent from Ms A to do so.

In the summer of 2021, Ms Dunne said that she spoke to the CEO and told her that the team needed help.  She said that her own preference was informal mediation.  She said that she thought they were going down the mediation route until she had a meeting with Sonia Brody.  She said that she doesn’t know how it became a formal investigation. 

Referring to the independent evaluation committee meetings, Ms Dunne said that, when she worked on claims, she attended these meetings to take notes.  When the complainant moved to claims, she was not invited to the meetings. 

Ms Dunne said that she and the complainant were shocked on September 16th 2021, when they were informed about Ms A’s complaint and they sought advice from the solicitor, the late Mr Richard Grogan.  Ms Dunne said that she left the organisation in February 2022.  She said that she didn’t feel she could stay when someone had accused her of bullying.

Cross-examining of Ms Dunne

Mr Martin referred to an email Ms Dunne sent to the CEO on August 12th 2021.  This followed a meeting on August 6th, at which the CEO clarified changes to her role.  In her email, Ms Dunne said that she feels that her work “is being continually undermined and questioned.”  Ms Dunne met the CEO on August 17th, following which the CEO wrote to her and sent her a copy of the employee handbook and the grievance procedure.  She said that the options for resolving the problems were an informal or formal process or a “meeting / mediation” with the co-ordinator.  In her evidence, Ms Dunne said that she was seeking a “chat” to deal with issues, but she was asked to follow up in writing.  Ms Dunne replied on August 20th and said that she would like to try mediation.  She was not aware at this point, that, on August 16th, Ms A had submitted a formal complaint.  The CEO replied and said that her request for mediation had been brought to the attention of the board of directors “and they are recruiting an external HR consultant who will be in touch with you soon to discuss next steps in the process.”

Concluding her evidence, Ms Dunne said that she asked for mediation and she was offered mediation.  She said that Ms A asked for an informal investigation into her concerns.  She said that she doesn’t know why mediation didn’t happen.

Concluding Remarks on behalf of the Complainant

Summing up the complainant’s case, Mr Walsh said that the issue for consideration by me, as the adjudicator in this matter, is that of procedures.  He submitted that the cumulative conduct of the employer with regard to how they dealt with the complainant between July 2021 and March 2022 leads to a breach of her contract of employment.  He said that Ms Harrington knew that the complainant was under strain on July 29th 2021.  At that time, he said that everyone wanted an informal resolution and that this is provided for in the company handbook and in the grievance procedure. 

By early 2022, when Helena Broderick was appointed, Mr Walsh said that it seemed that she was running one process and that the sub-committee was running a different process.  He said that there is no reference to the complainant’s November 2021 complaints in the terms of reference for the investigation to be chaired by Ms Broderick.  Mr Walsh submitted that this was the third failed attempt to mend the terms of reference.

Mr Walsh said that the complainant submits that matters reached a “last straw” stage on March 9th when she received an email from Ms Harrington which seemed to question her performance regarding the event on the evening of March 8th.  On the same day, she received an email from Ms A concerning the email from the chairperson of the community group in which he wrote to the minister at the Department of Rural and Community Development threatening legal action.  Thirdly, at 22.18 on March 9th, Ms Hennessy sent the complainant terms of reference which were defective and which referred to a non-existent dignity at work policy.  Mr Walsh said that the complainant could have no faith in the process and that she had lost trust in the organisation. 

Mr Walsh referred to the Code of Practice for Employers and Employees on the Prevention of Bullying at Work (Statutory Instrument 674/2020) which promotes the primacy of mediation.  He said that all the parties to the conflict sought an informal resolution at every stage.

Mr Walsh submitted that further correspondence from the respondent to the WRC indicates a complete disregard by them for this former employee.

The complainant left her job on June 14th 2022 and she commenced in a new role on November 22nd.  Mr Walsh said that, while the complainant claimed Social Welfare illness benefit, this should not be taken into account when calculating her losses, because her illness was caused by how she was treated by her employer.  He said that the complainant’s losses are 21 weeks’ pay. 

The sequence of events leading to the complainant’s resignation on June 13th 2022 has been set out in the “Background” section above.  I intend therefore to include some pertinent issues from the respondent’s submission which have not yet been noted.

Ms A was appointed as the co-ordinator of the rural development team in mid-March 2021.  She had formerly been a team member, and she competed with her two colleagues, Ms Dunne and the complainant for the job.  She was the person with the longest service.  As co-ordinator, Ms Dunne and the complainant started reporting to Ms A.  As part of an on-going training plan, in August 2021, the complainant swapped roles with Ms Dunne, moving from project applications to claims.  As she was no longer involved in applications, the respondent’s position is that she was not required to attend independent evaluation committee meetings.

The appointment of Ms A to the job of co-ordinator coincided with a change in how all employees across the organisation reported on their work and, in general, their daily productivity.  An email included in the respondent’s book of documents from the CEO dated March 24th 2021, shows that detailed recording of workloads was to be entered into Microsoft Outlook calendars and that clocking in and out was to be strictly adhered to using a software application known as “Blip.”

In June and July 2021, the CEO became aware that Ms Dunne and the complainant had sought to undermine Ms A, by questioning her decisions and recording team meetings.  The complainant refused to speak to Ms A unless there was another person present.  At a meeting with the CEO, the complainant suggested that the issues between her and Ms A might be resolved by mediation.

The respondent’s submission states that, on August 16th 2021, Ms A submitted a formal grievance to the CEO “detailing instances of what amounted to bullying” by the complainant and Ms Dunne.  However, the copy of Ms A’s letter to the CEO dated August 16th 2021 is clear and states as follows:

“Unfortunately, in the past couple of months, a tense atmosphere has been created withing the LEADER team and I would like to raise an informal grievance procedure to solve these issues positively as soon as possible.”

A special meeting of the board of directors on August 27th 2021 resulted in a direction to the CEO to appoint an independent HR consultant to deal with Ms A’s complaint and with the request for mediation from Ms Dunne and the complainant.  The respondent’s submission states that, in the process of tendering for a consultant, the CEO was advised that an investigation into a complaint and mediation should not be carried out at the same time.

On September 17th, the complainant was informed of the appointment of Ms Sonia Brody to investigate Ms A’s complaint.  The complainant met Ms Brody and she was provided with the notes of Ms Brody’s meetings with Ms A and the CEO.  She challenged the appointment of Ms Brody, for reasons which have been set out in the previous section under the heading, “Summary of the Complainant’s Case.” 

On November 25th and 26th, the complainant submitted formal complaints regarding how she was treated by Ms A and by the CEO.  A sub-committee of the board of directors was established to deal with these complaints.  The complainant selected Ms Helena Broderick to investigate her complaints; however, as she was absent due to illness from March 10th 2022, Ms Broderick did not contact her, but proceeded with the investigation.  On May 31st, a member of the sub-committee, Ms Maureen Hennessy, wrote to the complainant to ask her to attend an appointment with the respondent’s OHC.  The purpose of the appointment was to determine if the complainant was fit to participate in an investigation into Ms A’s complaint.  The complainant resigned on June 13th.

It is the respondent’s case that it has conducted itself fairly and in accordance with natural justice and fair procedures and it rejects the complainant’s assertions to the contrary.  The respondent has to be mindful of its obligations to Ms A and her complaint of bullying against the complainant.  The respondent argues that the complainant has failed to act reasonably, to engage in properly constituted investigations and has failed to wait for the outcome of her referral to the WRC on March 6th 2022 before resigning from her job.

Legal Precedents in Support of the Respondent’s Position

The Contract Test:

Adam Berber v Dunnes Stores Limited[6]

In this decision of the Supreme Court, Mr Justice Finnegan found that the conduct of the employer did not amount to a repudiation of Mr Berber’s contract. 

It is the respondent’s position that it was appropriate and in keeping with the advice received that the investigation into Ms A’s complaint should be concluded before deciding if mediation was appropriate and before considering the formal complaints submitted by the complainant in November 2021.  The complainant did not respond to the first investigator and the second investigator could not engage with her because she was on sick leave.  The respondent did not in any way seek to repudiate the complainant’s contract of employment and acted reasonably with regard to her, while also being reasonable regarding its duty to the employee who made the complaint about her.

The Reasonableness Test:

An Employee v An Employer[7]

In this determination of the former Employment Appeals Tribunal, the claimant succeeded in his complaint of unfair dismissal.  However, in a dissenting opinion of one of the members, Mr Morrison, he remarked that, in cases of constructive dismissal, “a high level of proof in needed to justify the claimant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary.”

In the case under consideration here, Mr Martin said that the complainant needs to satisfy me that her working conditions were such that she had no option but to resign, having exhausted all the steps in the employer’s grievance procedure to deal with her difficulties.

Julianne Kirwan v Primark[8]

Finding against Ms Kirwan in her claim of constructive dismissal, the Tribunal members concluded that she was “going through the motions” and that she did not make a genuine attempt to use her employer’s grievance procedures to resolve her concerns about her job.

Mr Martin submitted that the complainant here was simply going through the motions to stop or deflect from the complaint of bullying by her line manager.  She was clearly informed that the issues she raised would be dealt with at the conclusion of the investigation into that matter.  The complainant decided not to pursue the investigation of her grievance at the WRC.  In these circumstances, Mr Martin submitted that the situation did not amount to one in which the respondent had conducted its affairs in a manner that the complainant could not be expected to put up with any longer.

Evidence of the Chairperson of the Board of Directors, Mr Chris Harmon

Responding to questions from Mr Martin, Mr Harmon said that the board met over Zoom on August 27th 2021 to consider the informal grievance submitted by Ms A and the request for mediation from the complainant and Ms Dunne.  Arising from this meeting, and, following a tendering process, the CEO appointed Ms Sonia Brody to do the work.

Mr Harmon referred to the correspondence he received from the complainant on November 26th 2021, and her formal complaints against the CEO and Ms A.  The board met on November 29th, again over Zoom and a sub-committee was set up to deal with the two formal complaints.

Cross-examining of Mr Harmon

In response to Mr Walsh, Mr Harmon said that the role of the board is to provide governance to the organisation, not to manage day-to-day issues.

Mr Walsh referred to the situation in August 2021, when it was first brought to the attention of the board of directors that Ms A had asked for her grievance to be dealt with informally and the complainant and Ms Dunne looked for mediation.  Mr Harmon said that the view of the board was that Ms A’s grievance had to be dealt with before mediation was considered.  He said that the board members had little experience of human resources matters and that they looked for advice from their employer’s representative body.  Considering his instructions to the CEO on August 30th 2021, to appoint an independent consultant to deal with Ms A’s informal grievance and to act as a mediator in response to the request for mediation from the complainant and Ms Dunne, Mr Walsh asked how the situation progressed to a formal investigation.  Mr Harmon said that the board engaged Ms Brody to give advice and followed her advice.

Mr Walsh asked how it was that the terms of reference for Ms Brody’s investigation make no mention of mediation.  Mr Harmon said that an informal or a formal approach to a grievance depends on the issue in dispute.  He said that, in his view, it is always preferable to deal with issues on an informal basis in the first instance, but that Ms A’s letter made the situation somewhat formal.  He said, “we had gone beyond the point of informality.”

Mr Walsh asked what the purpose was of setting up a sub-committee of the board of directors and Mr Harmon responded that it was to deal with the complainant’s formal complaints against Ms A and the CEO.  Mr Harmon said that the sub-committee was bound by the provisions of the company handbook, but Mr Walsh countered that the handbook doesn’t provide for the establishment of a sub-committee of the board to deal with grievances.

Mr Walsh referred to the organisation’s grievance procedure and the procedure for dealing with bullying and he commented that both procedures recommend an informal approach to a resolution.

Mr Walsh referred to section 6(i) of the document submitted by the respondent to the WRC to object to the investigation under the Industrial Relations Act.  In this section, the respondent asserts that the complainant made complaints only in response to an allegation of bullying against her by Ms A.  Mr Walsh remarked that the complainant raised her concerns about how she was treated by Ms A with the CEO long before the formal investigation commenced. 

Mr Harmon said that he wasn’t aware of the minutiae of events and that he didn’t know that the complainant didn’t attend a medical in December.  He said that the sub-committee of the board acted correctly when they asked the complainant to attend for a medical in June 2022.

Mr Walsh referred to the incident with the chairman of the community organisation in March 2022 that resulted in a letter to the minister for Rural and Community Development.  Mr Harmon said that he shared the view of the CEO that the organisation could have suffered reputational damage because of this issue.

Evidence of the Chief Executive Officer, Ms Eilish Harrington

At the opening of her evidence, Ms Harrington described the structure of the organisation, from the perspective of its objectives, the parent department and its operating guidelines.  Fingal County Council is the organisation’s implementing partner.

At the commencement of her employment in June 2019, Ms Harrington said that the complainant “shadowed” Ms A, and Ms Dunne to a lesser extent.  She said that in-depth training was provided.   Ms Harrington said that, during the Covid-19 lockdown, while Ms Dunne decided to come to work every day, the complainant worked from home but went into the office regularly to maintain hard-copy files.  In March 2020, Ms Harrington said that the County Council brought to her attention some errors in the complainant’s work.  Ms Harrington said that when she spoke to the complainant about this, she declined further training.  She said that the errors were due to working from home and not having proper IT equipment.  Ms Harrington said that the complainant was provided with a desk and chair and screens to connect to her laptop.

In February 2021, the job of rural development co-ordinator was advertised internally to all staff.  Ms Harrington described the process for recruiting the co-ordinator.  The complainant, Ms Dunne and Ms A applied and Ms A was selected. 

A document included in the respondent’s booklet is titled “Office incident” and was written by Ms A after she spoke to Ms Harrington on June 30th 2021.  The incident occurred the previous day when Ms A and the complainant were in the office.  Ms A had sent the complainant an email on Friday, June 25th about moving projects to stage 6 and she followed up on the email on Tuesday, June 29th.  In her note, she said that the complainant said that her projects would not be at stage 6 and that she was very anxious after reading the email.  She told Ms A that she made her feel very anxious and that she had been treating her differently to others over the last couple of months.

On June 30th 2021, Ms A told Ms Harrington what had occurred between her and the complainant the previous day and she wrote a note to record the events.  In her note, Ms A said that she would like to have a meeting with the complainant and Ms Harrington.

Ms Harrington said that she was getting calls from the County Council about projects and she decided to introduce checklists.  She said that the objective was to improve the quality and efficiency in relation to moving projects to approval stage.  She had a meeting with the rural development team on July 15th and, later that day, she sent them an email with a weekly progress report and steps on how to complete it.  The next day, Friday, July 16th, the complainant sent an email to Ms Harrington to let her know that she would consult someone about the changes.  We know from her evidence at the hearing that she intended to consult her brother. 

Ms Harrington said that she was due to go on holidays for two weeks and she phoned the complainant on the afternoon of Friday, July 16th.  She said that they had a brief conversation, because the complainant said that she was under pressure to complete work.  The complainant told Ms Harrington about the incident with Ms A on June 29th.  Ms Harrington said that she advised the complainant that she could raise a grievance, by using the procedures in the company handbook.

When she returned from holidays on August 3rd, Ms Harrington said that she heard from the IT department that meetings of the rural development team had been recorded using a mobile phone.  She discovered that the meetings that were recorded were on July 19th and 26th, which were attended by Ms A, Ms Dunne and the complainant.  A meeting on August 9th, when Ms A was on holidays, was not recorded.

Ms Harrington had a meeting with the complainant on August 10th.  The complainant said that she had been feeling stressed and anxious.  She spoke about the incident on June 29th and she said that Ms A made her feel stressed about deadlines.  The complainant mentioned her view that Ms A knew how much she, the complainant was paid, and that this caused difficulties between them.

On August 12th, Ms Harrington had a meeting with Ms A, at which Ms A told her about a few incidents at work over the previous few months which made her feel uncomfortable.  Ms Harrington directed Ms A to the employee assistance programme and the grievance procedure. 

On August 13th, the complainant wrote to Ms Harrington.  In this email, she said that she felt that her work was being undermined and questioned, but by Ms Harrington herself, in the way she questioned calendar entries.  Regarding her difficulties with Ms A, the complainant said that she would like to “go down the informal route” but that she was waiting to get advice about how to proceed.  Ms Harrington said that she wasn’t sure what the complainant’s grievance was about and, on August 16th, she wrote to her and asked her to put her concerns in writing. 

Also on August 16th, Ms A sent Ms Harrington her request for an informal investigation under the grievance procedure.

In her evidence, Ms Harrington referred to the meeting of the board of directors which took place over Zoom on August 27th.  She referred to the instructions from the chairman to urgently appoint an independent HR consultant to deal with Ms A’s informal grievance and the request for mediation from the complainant and Ms Dunne.  Ms Harrington said that, in the process of tendering for the HR consultant, she was advised to deal with Ms A’s grievance first.

Mr Martin referred to the exchange of emails on September 7th 2021 between the complainant and Ms Harrington.  In an email at 8.45, Ms Harrington told the complainant that her request for mediation had been brought to the attention of the board of directors.  When the complainant asked if “the other party” was amenable to mediation, Ms Harrington replied at 8.59 to say that the HR consultant will deal with that matter.

On September 16th, Ms Harrington met the complainant to inform her about Ms A’s complaints about her.  The following day, she wrote to the complainant to tell her that a formal investigation had commenced into Ms A’s grievance.

Ms Harrington gave evidence about the process of informing staff about returning to return to work in the office, with the lifting of many of the Covid-19 restrictions. 

The complainant was absent due to illness from October 4th until November 1st 2021.  She was under pressure to source childcare, because the creche her son attended before the pandemic had closed.  She was able to return to the office on Mondays and Wednesdays, but not on Thursdays.  Ms Harrington postponed a full return to work until the end of November.

On November 16th, the HR consultant, Ms Brody, sent the complainant notes of her meetings with Ms A and others that she interviewed during her investigation into Ms A’s complaint.  We know that the complainant was concerned that the notes may have been accessible to staff in the organisation.  On the same day, she wrote to Ms Harrington, objecting to Ms Brody’s appointment, because her agreement had not been sought beforehand.

Ms Harrington referred to the event on the evening of March 8th 2022, which the complainant attended to represent the organisation.  She said that she was not informed in advance about this event, which, she said, was organised by a separate entity.

On the morning of March 9th, Ms Harrington said that she became aware of an email from the chairperson of a community group to the minister at the Department for Rural and Community Development.  The email was copied to 20 individuals, including county councillors.  The complainant was the only person in the respondent’s organisation who was copied on the email.  At 10.25, Ms Harrington wrote to the complainant, offering her view that the complainant did not act in a professional manner by withholding it from her immediate manager and from her.  The complainant went absent due to illness and did not return to work before resigning on June 13th 2022.

Cross-examining of Ms Harrington

Opening his cross-examining of Ms Harrington, Mr Walsh asked if she could point to the time when the difficulties started between the complainant and Ms A.  Ms Harrington said that she thought that the problems were rooted in the fact that Ms A was appointed to the co-ordinator role.  Ms Harrington referred to a telephone conversation she had with Ms A on June 30th 2021, during which she asked her to put her concerns in writing.  Ms Harrington said that she was advised not to intervene in the conflict between the two employees. 

Ms Harrington said that she had no doubts about the complainant’s abilities.  Regarding the project with the community group, Ms Harrington said that they had a team meeting about it and that they needed to ensure that internal quality checks had been carried out.

Mr Walsh asked Ms Harrington what the complainant told her on July 16th 2021 with regard to what occurred between her and Ms A on June 29th.  Ms Harrington said that the complainant told her that she felt that her role was being eroded because of processes and checklists.  She said that there had been an incident in the office and that Ms A had been abrupt with her.

On August 10th, when they had both returned from holidays, Ms Harrington said that she had a meeting for about an hour with the complainant, and then a follow-up meeting with Ms A and the complainant together for about a half an hour.  She said that she delved into what happened on June 29th.  It was apparent that the complainant had issues with deadlines.  Ms Harrington said that she discovered that the complainant went on a site visit that had no significance, and that a deadline was missed.  She said that the crux of the problem was missing the deadline.

Ms Harrington addressed the issue of the recording of meetings on July 19th and 26th.  She spoke to the complainant and Ms Dunne about this and they said that the reason for recording the meetings was because the minutes taken by Ms A were inaccurate.  She said that she felt that this was a breach of company policy.  Ms Dunne or the complainant never spoke to her about minutes being inaccurate. 

Ms Harrington said that, in a phone call with the complainant on July 16th, she mentioned the incident with Ms A on June 29th.  When they met on August 10th, the complainant told Ms Harrington that Ms A knew how much she earned.  She also told Ms Harrington that she was suffering from stress.

Mr Walsh asked Ms Harrington why, in her email of August 10th, she referred to a deadline of August 17th for the complainant to respond.  Ms Harrington said that she was advised to give the complainant a week to respond.

After the recordings came to light, on August 12th, Ms Harrington said that she phoned Ms A and that she was upset. 

Mr Walsh referred to “matters developing” when Ms A submitted a grievance about the conduct of the complainant.  He referred to the email Ms Harrington sent to the complainant on September 17th 2021 in which she informed the complainant that “a formal investigation into this matter has begun.”  He said that it seems that Ms A, the complainant and Ms Dunne, all wanted the issues to be resolved informally.  Mr Walsh asked how the issues ended up being considered under the policy on the prevention of bullying.  Ms Harrington said that this was the decision of the HR consultant.

Mr Walsh referred to an email Ms Harrington sent to the complainant on August 25th, in which she acknowledged that the complainant was seeking an informal resolution of the issues between her and Ms A.  Mr Walsh asked Ms Harrington if she can understand why the complainant was surprised to find out that a formal approach was being pursued.  Ms Harrington replied that, during the tender process, they were advised to deal with the issues formally.

Referring to the establishment of the sub-committee in November 2021 to deal with the complaints against her and Ms A, Ms Harrington said that she was informed that the sub-committee’s remit was to deal with all the issues raised by the complainant in September and the two formal complaints submitted in November.

Asked why the complainant was excluded from evaluation committee meetings, Ms Harrington said that, at a meeting on August 20th, it was decided that the co-ordinator would take minutes at that meeting and that there was no need for the person dealing with claims to attend.   

Asked about the event on the evening of March 8th 2022, Ms Harrington said that the complainant was the development officer on the project.  The event was hosted by another organisation.  On February 17th, Ms Harrington said that the complainant asked her if she was available to attend the event.  She said that she could have attended if the event was in a different venue, as she had a conflicting appointment that evening.  At a meeting with the complainant on March 3rd, Ms Harrington said that she asked the complainant a lot of questions about the event.  At 17.46 on the evening that the event took place, the complainant was copied on an email from the chairperson of a local community group to the minister at the Department of Community and Rural Development.

Mr Walsh said that the complainant was in work the next day at 8.00am.  As she was reading the email, she was approached by Ms A.  Ms Harrington said that the complainant should have sent her the email immediately.  She was at a meeting that morning during which she received numerous calls from people asking her about it, but she had not seen the email.

Asked by me why it took four weeks from August 17th to inform the complainant about Ms A’s complaint about her, Ms Harrington said that three team members were involved and that she took no action about Ms A’s complaint until it was presented to the board of directors on August 27th.  Then there was a tender for HR consultancy services and this was followed by the selection of Ms Brody to do the work.

Evidence of Ms Maureen Hennessy, Current Chairperson of the Board of Directors

Referring to the meeting of the board of directors on August 27th 2021, Mr Martin asked Ms Hennessy how the issues of conflict on the rural development team moved from being dealt with informally to formally.  Ms Hennessy said that she would have preferred to deal with matters by mediation, but one of the board members said that, because Ms A’s complaint was in writing, mediation could not be used.  Ms Hennessy said that the board got the same advice from Ms Brody.

Ms Hennessy said that the sub-committee was formed arising from the complainant’s formal complaints on November 25th and 26th.  The purpose of having a sub-committee was to try to move quickly to deal with the complaints.

Mr Martin asked Ms Hennessy about the letter she sent to the complainant on January 28th 2022 in which she offered the complainant three options with regard to external HR consultants.  Ms Hennessy said that they were getting conflicting legal advice and the offer of three consultants was the outcome of alternative legal advice.

Mr Martin referred to revised terms of reference which were included in the respondent’s book of documents.  Ms Hennessy said that the complainant replied to her on March 10th 2022 and rejected the terms of reference. 

Cross-examining of Ms Hennessy

Ms Hennessy agreed with Mr Walsh that, when they were first informed about Ms A’s grievance and the complainant’s and Ms Dunne’s request for mediation, they wanted to deal with matters informally.  She said that they felt ill-equipped to deal with the complexity of the issues as they developed and one of the board members advised that Ms A’s complaint had to be dealt with formally.

When the complainant agreed that she would accept Ms Helena Broderick as the consultant to investigate her complaints, Ms Hennessy said that it was her understanding that Ms Broderick would deal in the first instance with Ms A’s complaint of August 17th 2021.  Mr Walsh asked Ms Hennessy to identify where it states that Ms Broderick was appointed to investigate the complainant’s complaints.

Ms Hennessy agreed that she had not seen the organisation’s dignity at work policy.

Concluding Remarks on behalf of the Respondent

For the respondent, Mr Martin submitted that the complainant has provided no evidence that she was suffering from stress.

Mr Martin said that the respondent owed a duty of care to Ms A, as well as to the complainant, and that it was appropriate to investigate her complaint in the first instance.  He suggested that it was only after the complainant had access to Ms Brody’s documents of her meetings with Ms A and others, that she made technical complaints about the process.  Mr Martin referred again to the decision in Berber (footnote 5), arguing that there was no breach of the complainant’s contract of employment to amount to a repudiation of her contract.  He said that, as was demonstrated in the decision in Western Excavating (ECC) Limited v Sharp[9] , to meet the contract test, the complainant must show that her employer had no intention of complying with the terms of her contract. 

Mr Martin said that the sub-committee’s role was not to investigate the complainant’s complaints, but to over-see the process.

Mr Martin referred to section 1(b) of the Unfair Dismissals Act which provides that, if an employer’s conduct is so adverse, an employee is entitled to resign without notice.  He noted that the complainant was out of work from March 10th until she resigned on June 13th.  He argued that the delay is too long for her to prove that she had to resign because of the conduct of her employer.

The Relevant Law

It is the complainant’s case that she was constructively dismissed, meaning that she had to leave her job because of the conduct of her employer.  The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

[D]ismissal, in relation to an employee means -

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 without giving prior notice of the termination to the employer…

On behalf of the complainant, Mr Walsh said that this complaint is about the failure of the respondent to follow procedures and to manage the complainant’s grievance informally in the first instance.  This is the approach set out in the company handbook and recommended in the Code of Practice on Grievance and Disciplinary Procedures (Statutory Instrument 146 of 2000).  The crux of the complainant’s case is that her employer did not respond to her request for mediation and priority was given to addressing her manager’s grievance about her.  She also complains that, in November 2021, when she submitted formal complaints about how she was treated by Ms A and the CEO, the process was entirely flawed.

Context

Before addressing the cause of the complainant’s resignation, I wish to examine the context in which life at work started to become problematic for her.  A significant aspect of the setting in which these events occurred is Covid-19 and the fact that, between March 2020 and November 2021, staff were working from home.  I understand that, during this period, the complainant went into the office regularly to do work that couldn’t be done from home but that, most of the time, she was at home and communicating with her line manager and the CEO via Zoom meetings, email and phone.

Ms A was promoted to the role of co-ordinator in March 2021, a job that the complainant felt that she was well-equipped for herself.  It is understandable that the relationship between the two might have become strained at that point.  Ms A began her new role managing her team remotely, which must have been a challenge for her.  It is apparent that the complainant found Ms A to be critical and she described feeling “hounded” to get work done.  For her part, Ms A found that the complainant was disrespectful and that she pushed back when she asked her to get work done according to certain deadlines.

Around the same time that Ms A was promoted, the CEO introduced a new process across the organisation to make projects and progress more transparent.  In an email in which she instructed Ms A, Ms Dunne and the complainant to “capture your workload with details,” she said that, rather than daily or weekly meetings, the calendar in Microsoft Outlook was to be used to report on meetings, the nature of the work being done and progress on projects.  Staff were also instructed to use a software programme known as “Blip” to record their working time.  It seems to me that, one year into the Covid-19 remote working arrangements, the purpose of this was to increase visibility around the work that employees were engaged in, to monitor progress and to maintain a record of working time.

On June 30th 2021, Ms A spoke with the CEO and reported that she had had an encounter with the complainant the previous day.  She said that, when she read Ms A’s email reminding her to prioritise her work and to have certain projects at a specific stage of completeness by close of business on the 29th, the complainant was shaking and very anxious.  Ms A sent a note to the CEO later on June 30th, in which she summarised this encounter with the complainant.  Although the note was sent to the CEO, Ms A refers to her as if she was a third party.  English is not Ms A’s first language and nothing turns on this, but it explains the concluding sentence in her note:

“Eilish was ringing me to discuss other LEADER items on Wednesday 30/06/21 and I expressed all of the above by asking her to have a meeting on Friday 3rd June (sic – should be July) 2021, together with Siobhán and Eilish.”

It is apparent that Ms A and the complainant were not getting on well.  Ms A was trying to make progress and to get projects completed and the complainant was feeling under pressure.  There was no evidence that the CEO arranged the meeting that Ms A requested in this note. 

The next meeting at which all three were present (with Ms Dunne) was on July 15th, when the CEO introduced the weekly progress reports.  In a telephone call with the CEO the following day, the complainant said that she was concerned about this initiative.  In her evidence, the complainant said that the processes and checklists resulted in changes to her role.  She also said that she needed guidance about Ms A.  The CEO was about to go on holidays and she advised the complainant that she could raise a grievance about her concerns and she referred her to the company handbook. 

Grievances and Complaints

The CEO was on holidays for the second half of July and the complainant was on holidays for the first week of August.  On August 9th, the CEO became aware that the complainant and Ms Dunne recorded their meetings with Ms A on July 19th and 26th but that the meeting of August 9th, when Ms A was on holidays, was not recorded.  On August 10th, the complainant told the CEO that she was stressed and anxious.  She referred to the encounter with Ms A on June 29th, when she was asked to have her projects at a certain stage.  The CEO advised the complainant that the employee assistance programme was available to help her.  She also referred her to the employee handbook if she wished to submit a grievance.  The CEO’s position was that, to deal with the complainant’s concerns, she had to put her position in writing:

“As discussed at the meeting, for me to pursue these matters could you please follow up to me in writing how you would like to proceed.  The two options in the procedure which are available to you are the informal process and the formal process.”

The CEO asked the complainant to respond in writing by August 17th, and she said that if she didn’t hear from her by that date “the company will consider the matter resolved.”

Two days later, the CEO had a meeting with Ms A, during which Ms A described some incidents that made her feel uncomfortable at work.  The CEO advised Ms A that the company had an employee assistance programme which was available to help her.  Giving the same advice to Ms A as she had given to the complainant, on August 12th, the CEO wrote:

“As discussed at the meeting, for me to pursue these matters could you please follow up to me in writing how you would like to proceed.  The two options in the procedure which are available to you are the informal process and the formal process.”

The CEO asked Ms A to put her concerns in writing by August 18th, and she said that if she didn’t hear from her by that date “the company will consider the matter resolved.”

In cross-examining by Mr Walsh, the CEO said that she was advised not to intervene in the conflict between two employees.  It is my view that this was bad advice.  As Ms A’s direct line manager, the CEO had a responsibility to help her to manage her team and to deal with the push-back when she set deadlines.  The CEO’s insistence that the complainant and Ms A put their concerns in writing, and her assumption that their failure to do so meant that their problems were resolved was not helpful. 

Ms A put her concerns in writing in a letter to the CEO on August 16th 2021.  She referred to the recording of the meetings on July 19th and 26th and the “tense atmosphere” in her team.  She said that she “would like to raise an informal grievance procedure to solve these issues positively as soon as possible.”  On August 25th, the complainant wrote to the CEO and said, “Please take this email as confirmation that I would like mediation with a third party that is entirely unconnected and impartial, so that the resolution would be favoured by all those involved.” 

It is clear therefore, that both employees were seeking help to resolve the conflict between them, and that they both wanted the problem to be resolved other than by way of a formal investigation.  As the complainant asked for mediation by an independent third party, I see no reason why this could not have also been proposed to Ms A as an informal way of helping her with her difficulties with the complainant (and Ms Dunne).

Although Ms A submitted her grievance on August 16th, the CEO did not inform the complainant at that time.  Three weeks later, on September 7th, when she sent her an email to give her an update on her request for mediation, she told her that an independent HR consultant would be in touch with her soon to discuss the next steps in the process.  It is understandable therefore, that when she received the email from the CEO on September 16th to invite her to a meeting “to outline a complaint the company has received against you” the complainant was “floored.”  It is my view that, as soon as she became aware, the CEO ought to have informed the complainant and Ms Dunne that they were causing Ms A to be distressed and upset.  In her evidence, the CEO said that, following a meeting of the board of directors on August 27th, she was instructed to engage an independent consultant to mediate between the complainant and Ms A and to investigate Ms A’s grievance.  She said that she waited until the tendering process was complete on September 16th before she told the complainant about Ms A’s grievance.  She said that she was also advised that Ms A’s complaint would have to be dealt with first, because it was in writing.

The commitment of pen to paper does not elevate a complaint to a higher level of importance than a verbal complaint.  In the circumstances in which two employees asked for help on an informal basis to resolve their difficulties, it is my view that the board was badly advised when a decision was made to give priority to Ms A’s complaint because it was in writing.  It seems to me that the logical approach was to start with mediation.

On September 17th, following the meeting at which the CEO informed the complainant that Ms A had submitted a complaint about her, the CEO wrote to the complainant “to inform you that a formal investigation into this matter has begun.”  She told the complainant that the formal investigation was being initiated under the Bullying Prevention Policy.  This is not what Ms A asked for in her letter of August 16th, in which she said that she would like to “raise an informal grievance procedure to solve these issues positively as soon as possible.”

In response to cross-examining by Mr Walsh on how Ms A’s grievance became a formal complaint, the CEO said that, during the tender process, they were advised to deal with the issues formally.  In her letter of August 16th, Ms A said that she was feeling uncomfortable and upset and that the situation was distressing.  She did not mention bullying and Mr Walsh asked the CEO how her grievance came to be investigated under the Bullying Prevention Policy.  The CEO said that this was decided by the HR consultant, Ms Brody.  It is my view that this was entirely the wrong approach and that it caused a breakdown of trust between the complainant and the CEO. 

As part of the formal investigation into Ms A’s complaint, the complainant met Ms Brody.  In early October, she had difficulties with respondent’s decision that everyone should start returning to the office on a phased basis and she was absent due to illness for four weeks from October 4th.  On November 1st, she wrote to the CEO about the instruction to be in the office on Mondays, Wednesdays and Thursdays, saying that this has “caused me anxiety and despair.” 

When she returned to work in early November, the complainant received copies of the notes of Ms Brody’s meetings with Ms A, the CEO and Ms Dunne.  Although she had been engaged in the investigation for two months at that point, on November 16th, the complainant objected to the appointment of Ms Brody, claiming that she was not independent.  She also complained that, by sending her the notes of her meetings via Outlook, Ms Brody had breached her right to confidentiality; however, I am satisfied that the documents were not released to people other than those to whom they were sent.  The complainant’s decision to object to Ms Brody when her investigation was well under way, leads me to conclude that she was unhappy with the evidence that emerged in Ms Brody’s notes of her meetings with witnesses.  In my view, this was a tactical objection to cause a delay and to circumvent the possibility of a critical finding regarding her treatment of Ms A.  On November 26th, the chairman of the board of directors wrote to the complainant and said that the board was satisfied that the investigation was being carried out by Ms Brody “in a fair, impartial and professional manner and that no conflict of interest arises.”  Later that day, the complainant submitted a formal complaint about how she was treated by Ms A and a second formal complaint about how she was treated by the CEO. 

As the adjudicator of the complainant’s case that she was constructively dismissed, it is not my role to investigate her complaints about Ms A and the CEO.  My role is to consider her case that the conduct of her employer was such that it was reasonable for her to conclude that their relationship had broken down to the extent that it was not possible for her to continue at work.  Part of the complainant’s difficulties relate to the way her November 2021 complaints were handled.

A sub-committee of the board of directors was set up to manage the investigation of the complainant’s complaints about the CEO and Ms A.  Although the complainant argued that there is no provision in the respondent’s policies for the establishment of a sub-committee, I find that this was a reasonable and practical approach to dealing with what was becoming an increasingly complicated dispute.

On January 28th 2022, a member of the sub-committee, Ms Maureen Hennessy, wrote to the complainant.  Before they embarked on any consideration of the November 2021 complaints, Ms Hennessy repeated the CEO’s position that a formal complaint of bullying had been made by Ms A and that this took precedence over an informal grievance.  In this way, Ms Hennessy solidified what was, in my view, an inflammatory approach by seeking to conduct a formal investigation into what started out as an informal grievance and, to take no account of the complainant’s request to resolve her difficulties with Ms A through mediation.  Ms Hennessy also offered the complainant the opportunity to select, from three options, an alternative consultant to commence a new investigation into Ms A’s complaint.  This was an unnecessary reversal of the position set out by the chairman in November 2021. 

The complainant replied on February 18th requesting confirmation that the investigation commenced by Sonia Brody was “at nought” and expressing her “deep dissatisfaction” with the delay progressing her two formal complaints of November 2021.  Under protest, she selected one of the three consultants proposed to carry out an investigation into Ms A’s “formal complaint of bullying.”  On February 22nd, Ms Hennessy wrote to the complainant and said that the investigation into Ms A’s complaint of August 2021 took precedence over the issues raised by the complainant in November.  Ms Hennessy concluded her letter saying,

“Once this process is completed, if still appropriate, consideration will be given to the issues formally raised by you.”

In her evidence, Ms Hennessy said that the board of directors felt ill-equipped to deal with the issues facing them and it seems that they were getting advice from various sources.    

On March 6th, the complainant submitted a complaint to the WRC, for adjudication under the Industrial Relations Act 1969.  The respondent objected to this complaint being heard, but their objection was sent after the 21-day deadline.  It occurs to me that, at this point, the parties could have benefited from the assistance of the WRC and that a more constructive outcome may have resulted if the hearing under the Industrial Relations Act had proceeded.  In any event, the complainant resigned before a hearing was scheduled.

The complainant was absent from March 9th 2022, when she said that she had a panic attack at work.  It is reasonable to assume that this was triggered by the email sent at 5.45pm the previous day by the chairman of the community group to the minister at the Department of Rural and Community Development and copied to 20 others including the complainant.  Although it was an important and urgent email, the complainant didn’t inform the CEO because she didn’t read the email until she arrived in work on March 9th.

On March 10th, the complainant wrote to Ms Hennessy in response to a request to review new terms of reference for the investigation into Ms A’s complaint.  She replied to Ms Hennessy saying, “Please do not seek to engage with me further until you are advised that I have returned to work.”  The complainant resigned on June 13th, in advance of a medical assessment which was arranged for the following day. 

The Burden of Proof in Constructive Dismissal Cases

As both representatives pointed out at the hearing of this matter, an employee who claims that they have been constructively dismissed must satisfy two tests, known as the “contract test” and the “test of reasonableness.”  As a third component of this burden of proof, an employee who decides to resign and who argues that their resignation was because of the conduct of their employer, is generally expected to try to have their grievances addressed, by utilising their employer’s grievance procedures. 

In Western Excavating (ECC) Limited v Sharp  (footnote 9) the contract test was summarised 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 discharged from any further performance.”

The reasonableness test also assesses the conduct of the employer, and whether,

“…the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with any longer…If so, the employee is justified in leaving.”

Mr Walsh cited the decision of the Equality Tribunal in A Financial Manager v A Utility Company (footnote 4) in which the Equality Officer, Mr Stephen Bonnlander, addressed the circumstances in which a breach of contract was a breach of the implied term of trust and confidence:

“In cases like the one within, where the alleged breach of contract is one of the implied contractual term of trust and confidence, the two tests for constructive dismissal are rather like describing related unlawful conduct on a gradient: unreasonable behaviour is bound to lead to loss of trust and confidence eventually, and no worker would lose trust in an employer which comported itself perfectly reasonably at all times.”

It is an established principle that trust is an intrinsic component of the contractual employment relationship.  As I understand the point being made by Mr Bonnlander in the case referred to above, when an employer’s conduct is so unreasonable that it causes an employee to lose trust and confidence, the burden of proving a contractual breach is already achieved.   There are numerous examples where employees have been found to be not unfairly dismissed because of conduct that causes a loss of their employer’s trust in them.  In the case of this employee, her trust in her employer was severely damaged when she was not informed in mid-August 2021 that her manager had raised an informal grievance about her.  When she was informed, in mid-September, she was told that her manager had made a formal complaint of bullying.  I find that the conversion of Ms A’s informal grievance into a formal complaint and the delay telling the complainant about it, in circumstances where she had asked for mediation to mend their relationship, had the effect of eroding any trust she could have in her employer.

Conclusion

I have given serious consideration to all the evidence submitted during the hearing of this complaint.  I mentioned earlier the context in which difficulties arose between the complainant, Ms A and the CEO, and that fact that people were working from home and not in normal contact with each other.  It seems to me that a level of distrust developed between the Ms A and the CEO on the one hand, and the complainant on the other.  We learned during the hearing that the complainant was minding her child while she was working from home.  We know that she had considerable difficulties returning to the office in November 2021 because her son’s crèche had closed.  For a manager, the prospect of an employee working from home while taking care of a child must raise doubts about that person’s ability to do their job effectively.  Even though this was never raised directly with the complainant, her ability to meet deadlines seems to have been a constant cause of friction between her and Ms A. 

The test in the Supreme Court decision in Berber (footnote 5) requires us to consider the conduct of the employer and the employee to determine if there has been a breach of the implied terms of mutual trust and confidence. Considering the conduct of the employer and the employee in the case under consideration, it is clear to me that, sadly, there was poor behaviour on both sides.  The complainant resisted being managed by Ms A, and was disrespectful towards her.  She also pushed back against the CEO’s efforts to introduce controls and transparency in the “virtual” workplace.  For its part, the organisation failed to manage the conflict between three employees.  The CEO’s approach by insisting that everything was committed to writing was a mistake.  Something less formal and more constructive was needed, with all sides having an opportunity to have their concerns heard. 

Considering Mr Walsh’s assertion that the events of March 9th were a “last straw” incident, I find that it was certainly reasonable for the complainant to be upset by the email from the chairman of the community group on March 8th.  For any person, a mention of legal action is unsettling, but for this communication to be sent to a minister in a government department and copied to every member of the county council must have been overwhelming.  Mr Walsh submitted that the follow-up emails sent by Ms A and the CEO were the last straw for the complainant and resulted in her decision to resign.  I do not fully accept this assertion, because the complainant didn’t resign until three months later, although, while she was out sick, she may not have intended to return.

In conclusion, I find that the trust that is necessary between an employer and an employee started to seriously unravel in September 2021, when the complainant was informed that Ms A made a formal complaint about her.  The complainant had looked for mediation and Ms A looked for help through an informal investigation.  I find that the respondent’s failure to arrange mediation and to give Ms A an opportunity, with the support of a mediator, to raise her concerns about the complainant’s conduct to be a serious breach of trust and negligent in relation to both Ms A and the complainant.

I find that the conduct of the complainant contributed to an escalation of the conflict between her and her employer, but that it is the responsibility of the employer to act responsibly and to deal with conflict fairly and in accordance with the accepted procedures.  I find that, because of the conduct of her employer, it was reasonable for the complainant to resign.  I also think that it would have been reasonable for her to resign shortly after September 17th 2021, and I find it difficult to understand why she remained on.  In response my questioning about this, she said that she started to look for another job in November, but that she didn’t feel confident enough to pursue an application and go for interviews.

It is often the case in a complaint of constructive dismissal that an employee doesn’t succeed because they fail to invoke their employer’s grievance procedure.  I note the decision of the Labour Court in A Worker (Mr O) v An Employer (No. 2) (footnote 2) which found that this was “not a fixed or universally applicable rule.”  In the circumstances in which the complainant had submitted formal complaints for investigation, and, when her employer had rejected her application to have her concerns addressed under the Industrial Relations Act, it is my view that it was not unreasonable for her not to raise any further grievances in advance of her resignation.

I have concluded that the complainant has discharged the burden of proof that shows that it was reasonable for her to resign and that the cause of her resignation was the failure of her employer to properly deal with her request for mediation in circumstances where her manager needed assistance to manage her.  I am satisfied therefore, that she was constructively dismissed.

I have decided that this complaint is well-founded.  Considering the amount to be awarded in redress, I find that, by her actions, the complainant contributed to the grievances that resulted in the termination of her employment.  As she started a new job in November 2022, she was unemployed for 21 weeks.  I decide therefore, that the respondent is to pay the complainant compensation of €8,600, equivalent to 11 weeks’ gross pay.  This award is in the form of loss of earnings and is subject to the normal deductions of tax, PRSI and USC.

Constructive dismissal, grievance procedure, fair procedures