Complainant

Respondent

Parties

Vanda  Brady

Cavan Volunteer Centre CLG

Representatives

Aaron Shearer B.L. instructed by  Paul Brady & Co. LLP

Kudos HRM

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00063799-001

29/05/2024

The complainant was employed by the respondent as a manager from 6th June 2022 until her resignation on 15th March 2024. The complaint alleging constructive unfair dismissal was referred to the Workplace Relations Commission (WRC) on 29th May 2024.

Note: The complainant resigned on 15th March 2024 and was asked to reconsider by the respondent and to provide a response by 27th March 2024. The complainant missed the deadline for response and her resignation was accepted by the respondent on 3rd April 2024.

The complaint relates to an alleged constructive unfair dismissal. The complaint arises following the complainant’s resignation in circumstances where she alleges that the conduct of the respondent towards her rendered the employment relationship untenable leaving her with no option but to resign.

The complainant stated that the backdrop to the resignation was the posting of a Facebook message that was brought to the attention of the chairman of the board by a service user. In addition, a video played by a Ukrainian author at an event hosted by the respondent was deemed to be politically based and comments made by the complainant herself at the event were deemed to be at variance with the organisation’s stance on political neutrality.

The complainant’s representative stated that the complainant was subject to a negative performance appraisal at the meeting of 11th March 2024 with Ms Gilbert and was certified as unfit to attend work thereafter due to workplace stress. The complainant subsequently resigned and although the respondent offered the complainant the option to reconsider, the complainant was unaware of this as she was absent on sick leave and did not know of the offer until the deadline for response had passed. Once she became aware of the offer to reconsider, she withdrew her resignation and sought a meeting concerning a return to work and a process to address her grievances.

Summary of evidence

The complainant’s representative outlined that the complainant was employed by the respondent since June 2022 and was performing well in her role. The issues leading up to the resignation relate to accusations that the complainant was in breach of the respondent’s policy on political neutrality. The first issue relates to a Facebook post which the complainant addressed with the staff member who posted it, and the post was removed. Two further issues arose and were discussed at a meeting with the complainant and a new board member, Ms Gilbert. The complainant’s representative stated that a video shown by a Ukrainian author at the event, and a seemingly supportive comment made by the complainant were also seen to be at variance with the organisations policy on political neutrality. The complainant canvassed other organisations in relation to the situation as she did not accept that she had behaved inappropriately or breached the relevant policy and had sought the views of similar organisations within the volunteer sector. The complainant welcomed the support of her peers from other organisations but felt aggrieved at her treatment by the board in relation to the issue and attended her GP due to ill health.  The complainant was immediately certified unfit to attend work due to workplace stress. As the board did not support the complainant and in the absence of any possibility to raise a grievance, the complainant resigned on 15th March 2024.

The board acknowledged the resignation on 22nd March 2024 and sought a meeting with the complainant seeking that she would reconsider her resignation and utilise the organisation’s grievance procedures. As the complainant was absent on sick leave, she did not see the email of 22nd March 2024 and when she became aware of the offer, she sought to rescind her resignation and meet with the board to discuss her grievances and return to work. The complainant was denied a meeting, and her resignation was accepted on 3rd April 2024.

The complainant’s representative questioned the bona fides of the respondent’s offer to meet with the complainant and for her to reconsider her resignation. If this was a genuine attempt to bring about her return to work, it was questionable that no meeting was facilitated, and the resignation was accepted on 3rd April 2024 especially in circumstances where the complainant had been genuinely absent on sick leave due to her treatment by the respondent and particularly the chairman of the board.

Oral Evidence

The complainant did not give oral evidence at the adjudication hearing. Having heard the submissions of the complainant, the respondent’s representative did not wish to respond and did not raise any disputes of fact that would require the complainant to give evidence beyond what was provided in her submission. On the basis that the complainant’s submission was accepted in its totality, the complainant was not required to give further evidence, and the complaint would be decided upon in terms of the established tests concerning claims of constructive dismissal. This approach was accepted by both sides.

Former Board Member – Fintan McCabe

A former board member of the respondent organsiation gave evidence by affirmation. The witness stated that he had been a board member for two years. The witness stated that in early March 2024, the chairman of the board had been contacted by a service user in relation to concerns surrounding the posting of a political statement on Facebook. The witness stated that it was decided at a meeting that he would meet the complainant to discuss the issues of concern, and a further meeting would then be arranged for members of the board to discuss issues relating to political neutrality. The witness stated that he had not asked Ms Gilbert to speak to the complainant in relation to the issues of concern following the contact made by the service user to the chairman of the board. The witness stated that he disagreed with how the board had treated the complainant in respect of those issues and the suggestions that she had behaved inappropriately or breached the respondent’s policy on political neutrality. The witness confirmed that he and another board member resigned because of the complainant’s treatment by the board.

The witness confirmed in cross examination that the meeting of 11th March 2024 was not arranged for the purpose of conducting a performance appraisal of the complainant. The witness confirmed that the report of the meeting was very detailed, reflecting that the meeting itself was to discuss the day to day running of the centre, issues such as induction as well as the issues of concern and the political slogans/messages and political neutrality etc.

The respondent representative refutes the claim of constructive unfair dismissal and outlined the legal framework relating to constructive unfair dismissal and the applicable legal tests in establishing same. The respondent’s position is that it behaved appropriately towards the complainant at all times but that the complainant behaved unreasonably leading up to, during and following her resignation.

The respondent outlined the three issues that had caused some minor concerns in respect of the organisation’s political neutrality and the way that these concerns should be addressed. Three of the board members decided that one of them would speak with the complainant in relation to the Facebook post and for another board member to drop in and meet the complainant informally to ensure that the relevant policies had been signed. The respondent stated that following the meeting of 11th March 2024 concerning the policies surrounding the political neutrality of the organisation, the complainant contacted several external organisations seeking views on her actions in respect of the respondent’s stance on political neutrality. The complainant forwarded all responses to the board and was then emailed by the chairman instructing her to cease such contact with external organisations without the board’s approval. The respondent stated that by the time the email issued, the complainant had already gone out on certified sick leave.

The respondent stated that there was no further contact with the complainant until her resignation was received on 15th March 2024. The respondent, by email and letter dated 22nd March 2024, asked the complainant to reconsider her resignation and utilise the respondent’s grievance procedures. As the complainant did not respond, the respondent accepted the complainant’s resignation on 3rd April 2024 and sought the return of all property belonging to the employer.

The respondent concluded its submission by stating that the complainant must show that she acted reasonably before resigning and she has not done so. The respondent argued that the complaint is without merit and should fail.

Evidence

Board Chairman – Stanley Nwaneri

The chairman of the board gave sworn evidence at the adjudication hearing on 26th September 2024. The witness stated that apart from the issues around the organisation’s political neutrality, he was concerned about the complainant disclosing internal matters to external third parties. The witness stated that he emailed the complainant to cease making contact externally on internal matters, but the complainant had already commenced a period of certified sick leave. The witness also stated that the complainant had been encouraged to raise her grievances to the board, and she did not do this prior to her resignation.

It was put to the witness in cross examination that the complainant had not disclosed internal matters externally and that no breach of policy had been identified. In terms of attempting to resolve the complainant’s grievances, it was put to the witness that no efforts were made by the board; mediation had not taken place, and the resignation had been accepted even though the complainant was absent on sick leave and was not aware of the respondent’s request for her to reconsider. It was also put to the witness that the complainant had not seen the email in question and had not received the letter supposedly sent by registered post in relation to her reconsidering her position.

Board Member – Grace Gilbert

A further board member gave sworn evidence at the adjudication hearing on 4th February 2025. The witness stated that she had been a board member since early February 2024. The witness stated that the issue of the Facebook post arose after a service user contacted the chairman of the board in relation to same. The witness stated that due to concerns surrounding the organisations political neutrality, a steering group was set up to investigate the matter. The steering group comprised of three people. Another board member on the group was to meet with the complainant to discuss the Facebook post as the complainant was the manager of the probationary employee who had posted the message. The witness confirmed that the Facebook post was removed and that she herself sought clarity at the meeting on 11th March 2024 on whether the author of the post had signed the neutrality policy when she commenced her employment.

The witness stated that the meeting of 11th March 2024 with the complainant was informal in nature and was to discuss a number of operational matters. The witness stated that there was some discussion around political neutrality, but the meeting involved mostly casual conversation. The witness stated that the complainant raised issues about the probationary employee not having a driving licence and for this to be conveyed to the board. The witness stated that despite the meeting being a quick visit during lunch time, the complainant sent multiple emails criticising the board and the witness. The witness stated that terrible things were said about her and the board by the complainant which she took personally and found very upsetting.

The complainant’s representative confirmed with the witness in cross examination that she had written to the WRC in respect of her evidence. Specifically, the witness had confirmed that her evidence would be that the meeting with the complainant was informal, dealt mostly with administrative matters and that there was no performance appraisal of the complainant or inappropriate behaviour towards her. The witness confirmed this had been the case and stated that the complainant was aware of the meeting scheduled to take place on 11th March 2024 as Mr McCabe had mentioned the meeting to the complainant and the complainant was aware of the purpose of the meeting and it was the complainant herself who arranged when it would take place and had all the relevant files with her at the meeting. The witness continued that when Mr McCabe had asked her to meet the complainant, the witness confirmed with the chairman of the board that the board had given permission for the meeting to take place.

In respect of the witness remaining on the board, the witness stated that she couldn’t see herself staying because of what had been said about her and other board members to approximately 25 other volunteer centres but she herself was satisfied she had done nothing wrong and decided to remain on as a board member.

The complaint relates to an alleged constructive unfair dismissal. It is not disputed that the complainant resigned and did not utilise internal grievance procedures. The complainant’s position was that the employment became untenable and in the circumstances of the respondent’s behaviour, there was no possibility of raising a grievance prior to resignation.

Note: Both parties submitted additional information post hearing which although not solicited has been considered in the adjudication process. The report provided by Ms Gilbert to the board after her meeting with the complainant on 11th March 2024, was submitted to the WRC in error and without the board or the author’s permission. As the author of the report also gave direct evidence at the adjudication hearing on 5th February 2025, it is that evidence I have considered and not the contents of the report.

The Applicable Law

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 as follows:

the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer.

There are two tests in relation to proving that a Constructive Unfair Dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is 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 as discharged from any other performance.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

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

The requirement to exhaust internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd (UD 474/1981) whereby the EAT said that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Mitigation of Loss

The complainant was certified unfit for work from 12th March 2024 until end April 2024. In that period, there were no losses accruing to the complainant. I note that the complainant’s subsequent losses were quantified at approximately €28,000k at the date of the adjudication hearing in February 2025. I am satisfied from reviewing the lists of job applications, that the complainant, albeit while building her new consultancy business, made significant efforts in seeking to mitigate her losses by applying for more than 60 jobs following her resignation and period of ill health.

Conclusions

The parties to the complaint were both represented and provided written submissions at the adjudication hearing and supplemental documentation thereafter. Evidence was also provided by oath/affirmation where required. For the complaint to succeed, the complainant must demonstrate that due to the actions of the employer she had no option but to resign from her employment.

It is not disputed that the complainant did not utilise internal grievance procedures stating that there was no point in doing so given the behaviour of the board and its members towards her. The complainant’s position is that due to the conduct of the board, she had no other option but to resign. The issues that led to the complainant’s resignation arise from a Facebook post which was posted by a probationary employee. The post brought into question the political neutrality of the organisation, but this issue was addressed, and the post was removed. The other issues such as the video that was played at an event hosted by the respondent and a general comment made by the complainant at that event resulted in a meeting with the complainant and a board member where the complainant took great offence when it was raised to her and subsequently sought the agreement of outside organisations in respect of her actions, went on certified sick leave and then resigned. The canvassing of external organisations on internal matters caused great concern to the board and particularly the chairman of the board.

The complainant resigned on 15th March 2024 due to a negative performance appraisal that she says occurred at the meeting with Ms Gilbert on 11th March 2024 and as a result of her treatment by the board. From my consideration of the matters before me, I do not find that a performance appraisal took place at that meeting. I accept the evidence of Ms Gilbert as honest and credible and that the issues surrounding the Facebook post, the video and the comments made by the complainant were matters that required the reflection of the complainant in terms of the organisation’s policy on political neutrality. I do not find that the meeting of 11th March 2024 was an appraisal of the complainant, or a negative review as perceived by the complainant prior to commencing a period of sick leave.

Following the resignation, the board asked the complainant to reconsider by email dated 22nd March 2024 and set a deadline of 27th March 2024 for the complainant to respond. The complainant did not see the email as she was absent on sick leave and so she missed the deadline. When she did see the email, she responded and sought to enter discussions around her return to work, but the deadline had passed, and the resignation was accepted by the board on or 3rd April 2024.

It is unfortunate that the complainant missed the deadline, and I note that a letter supposedly sent to her by registered post, which was later confirmed to have been sent by ordinary post, was not received by the complainant. I also accept the point made by the complainant’s representative that if the offer was genuine, the respondent would have, in my view, followed up on its offer and take into the account the complainant’s absence on sick leave and the fact that she may not have seen the email or received the respondent’s letter.

Irrespective of the issues around the complainant reconsidering her resignation and the timeline of same, the fact of the resignation within the context of claiming constructive unfair dismissal must have been, in the view of the employee, the only available option to her. The fact that the complainant sought to return to her employment (albeit belatedly) informs my view that her resignation was not the only option available to her. I do not find that the respondent behaved in such a way that rendered the employment relationship untenable as the complainant was willing to return to her employment.

In conclusion, I find that the complainant should have utilised the internal grievance procedures and attempted to resolve her issues with the respondent before resigning. As she did not do this, and in line with the precedent caselaw cited above, I find that the complaint of constructive unfair dismissal cannot succeed.  

For the reasons stated above, I find that the complaint is not well founded.

Constructive unfair dismissal