Complainant

Respondent

Parties

Cora  Vernor

Accounts Service Unit 4

Complainant

Respondent

 Parties

Cora Vernor

Accounts Service

Representatives

Barry Crushell Crushell & Co Solicitors/Cillian McGovern BL

Michael Morrissey Morrissey Solicitors

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-00060633-001

20/12/2023

In a constructive dismissal complaint, the burden of proof rests with the Complainant to show that due to the unreasonable conduct of her employer and/or the breach of a core term of her contract the contract had been repudiated and in effect she was constructively dismissed. It is generally accepted that it is a high bar to achieve. It calls for the Complainant to show that the conduct complained of crossed a threshold, that an objective bystander would see as egregious as a single act or continuum of acts that cumulatively are judged to be egregious. It also arises when a fundamental term of the contract is breached such as the failure to schedule and pay for holidays.

The Complainant was hired as a bookkeeper on the 11th of October 2021.

The Complainant left her employment on the 26th of July 2023.

The Complainant has raised a complaint(s) seeking adjudication by the Workplace Relations Commission (WRC) under Section 8 of the Unfair Dismissals Act, 1977 (the Complaint(s)). The Complainant contends that she was forced to resign from her job due to continuous and relentless scrutiny, criticism and ostracization by her manager, Ms. Carty. The Complainant raised these concerns many times but was consistently dismissed

Ms. Carty frequently criticized the Complainant's handwriting, typing skills, and concentration habits, causing significant self-consciousness. In January 2022, despite promises of shadow training, the Complainant was moved to work independently. In February 2022, after Louise, another colleague, joined, the Complainant was criticized for not knowing certain procedures, although they had not been properly trained. In May 2022, the Complainant was unfairly blamed for errors made by Sona, a colleague, during her training.

On 26 July 2023, the Respondent's continued scrutiny led the Complainant to resign. This entire experience severely impacted the Complainant’s mental, emotional, and physical health, resulting in the need for medical treatment for depression and stress-related symptoms. The toxic work environment fostered by the Respondent had a profound negative impact on the Complainant’s well-being.

The Complainant is aware of the requirement to afford the Respondent an opportunity to address her concerns. The Complainant contends that she did so. In any event, formalising a grievance is not always a pre-requisite if extraneous circumstances explain such a departure from expected practice. In Office Administrator v A Manufacturer ADJ-00026208, it was held that, in the absence of a clear grievance procedure, and given the breakdown in trust and confidence between the parties, there was no need to exhaust the grievance procedure.

A constructive dismissal claim must show there was a fundamental breach in the terms that go to the root of the contract. In fact, the terms of the Complainant were enhanced not reduced with a double digit pay increase during her period of employment. There was no breach relating to any term whatsoever.

The employee never exhausted the grievance procedure and on that basis alone it must fail. The Respondent had no notice, warning, or indication that the Complainant was going to resign. While the Complainant argues that no formal procedure was in place, at a minimum she should have discussed her intent to leave. If she believed that she was being treated in such a bad way and that her terms and conditions were not being honoured, it would make sense to raise that serious grievance with her employer.  That did not occur and what has followed is entirely contrived and opportunistic.

The employment ended by reason of resignation and there was nothing unreasonable about the actions of the Respondent.

With respect it is submitted that the Respondent is a caring, professional, and competent employer who acted reasonably at all times. The requirements of legal bookkeeping are demanding and somewhat unique requiring a set of accounts for the practice and for clients’ funds. It demands a high level of attention to detail, accuracy and consistency. It may not suit everyone. However, a difficulty to adapt to those standards does not amount to a constructive dismissal.

There are several issues raised whereby the Complainant alleges a sequence of oppressive acts led to her leaving her employment.

The Complainant’s file is large and the Adjudicator references what has been emphasised as important incidents.

Soon after joining the Respondent, it is stated that a conflict arose about wearing a mask. The employer requested that all employees wear a mask to minimise any risk of infection.

It is alleged that during early 2022 the owner Ms Carty criticised the Complainant’s handwriting, accuracy of bookkeeping entries and record keeping, whereby the Complainant became self-conscious and lost confidence in her ability to accurately complete tasks.

In Autumn 2022 it is alleged that the Respondent was rude to the Complainant by interrupting a personal phone call she was making at work, which she never did to other colleagues.

In September 2022 it is alleged that she asked the Complainant to reduce her hours because of the number of errors that she was making and criticised her for being late; although she had agreed to flexi start and finishing times.

It is alleged that the owner made disparaging comments about the Irish in early 2023.

In March 2023 some of her work was reassigned to another work colleague.

Ongoing criticism of the Complainant’s work occurred, and petty incidents were exaggerated. In May 2023 the Complainant falsely was accused of damaging a wall.

In mid-May 2023 the Complainant was certified sick and was sent work emails.

When the Complainant returned to work in early July 2023 she continued to be belittled and micromanaged.

On the 17th of July 2023, Ms Carty scheduled a performance review and on the 24th of July 2023 the owner conducted a bank reconciliation review and allegedly blamed the Complainant for making very basic mistakes.

On the 26th of July 2023 the Complainant resigned alleging the employer’s conduct to be oppressive.

The Respondent states that she agreed with the Complainant a reduced working week based on the pressures of meeting family and work commitments and it was agreed to move to a 4-day week.

The Respondent stated that it was important to understand that legal bookkeeping carried with it a high obligation to accurately record both fee transactions and client funds. The monitoring that is now complained about arose due to that standard not being met and was not oppressive. The intent was always to assist and not to punish

The Complainant’s salary was increased very significantly during her period of employment and that is not the action of an oppressive employer.

The issues about making or taking personal calls during work was not unreasonably applied and the Respondent stated was applied equally to all. It was a small office and calls relating to personal matters while allowed they should be kept to a minimum during paid time.

The Complainant was assisted during her first few months and what is now described as micromanagement was a process to help the Complainant meet the required standards.

There were no reclassifying holidays as approved absence days. Any change in the working week was agreed with the Complainant.

The starting and finishing times were flexible; however, to be agreed and then fixed and not ad hoc and to be decided on each day. That would not provide the necessary cover for the office.

The Complainant was not belittled.

The Complainant did not formalise a complaint under the grievance process. This is argued to be futile by her as all concerns raised by her were brushed away as unfounded and without any merit.

Murdoch and Hunt’s Encyclopaedia of Irish Law (2016 edition) defines Constructive Dismissal as follows:

A dismissal which is inferred where it is reasonable for the employee to terminate the contract of employment because of the employer’s conduct: Unfair Dismissals Act 1977 s.1. The Employment Appeals Tribunal has recognised two forms of constructive dismissal: (1) where the employee is entitled to terminate the contract of employment and does so; this entitlement is not conferred by the 1977 Act, but rather recognised by it; and (2) where it is reasonable for the employee to terminate the contract of employment and he does so: Fitzgerald v Pat the Baker [1999 EAT] ELR 227.

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

The resignation of a manager whose position has been undermined may amount to a constructive dismissal: O’Beirne v Carmine Contractors [1990] ELR 232. A constructive dismissal may arise where an employee leaves because the employer (a) fails to relieve a bad atmosphere in the workplace: Smith v Tobin [1992 EAT] ELR 253; (b) fails to comply with a requirement of the Health & Safety Authority: Burke & Ors v Victor Collins Enterprises Ltd [1993 EAT] ELR 37; or (c) deals inadequately with complaints of bullying and harassment: Allen v Independent Newspapers [2002 EAT] ELR 84; Monaghan v Sherry Brothers Ltd [2003 EAT] ELR 293.

The Unfair Dismissals Act 1977 as amended at section 1 defines Constructive Dismissal as:

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

This statutory definition in turn has been elaborated upon to include two tests:

Redmond on Dismissal Law (Bloomsbury Professional 3rd Ed. 19.04):

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. The analysis of contractual entitlement in Chapter 21 is relevant here. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment, but its conduct may be nonetheless unreasonable.

In law there is a contract test and a reasonableness test.

In a wrongful dismissal action Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.

In Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee when assessing if constructive dismissal has in fact occurred; and the following 4 principles are also relevant in this case:

1.      The test is objective

2.      The test requires that the conduct of both employer and employee be considered

3.      The conduct of the parties as a whole and the accumulative effect must be looked at

4.      The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.

On the facts before me I have to decide if the conduct of the employer crossed a threshold as alleged by the Complainant or were legitimate directions, requests and necessary reasonable supervision.

The Complainant has not made out a case that her terms of employment were in fact breached as I find that her working hours were not unilaterally reduced, rather they were changed by agreement. I also find that she was not denied her statutory holiday entitlement.

The failure to formalise a grievance is also a key weakness in this case.

The acts as detailed by the Complainant on balance have been countered by the Respondent and do not amount to oppressive conduct.

The facts tend to describe a working environment where the detail and accuracy required to be achieved were the main driver of the difficulty between the employer and her superior. That is not a ground to establish a constructive dismissal. That maybe a reason to leave that employment and work in a less demanding environment; however, it does not ground a claim for constructive dismissal.

I also find that the Complainant left her employment without formalising her grievance and procedurally that was required and should have occurred.

On these findings I determine that the Complainant was not Unfairly Dismissed and find that the conduct of the Respondent was not oppressive and find that no fundamental breach of a contract term occurred.  I determine that the employment ended by reason of resignation.

On the facts before me I have to decide if the conduct of the employer crossed a threshold as alleged by the Complainant or were legitimate directions, requests and reasonable supervision.

The Complainant has not made out a case that her terms of employment were in fact breached as I find that her working hours were not unilaterally reduced, rather they were changed by agreement. I also find that she was not denied her statutory holiday entitlement.

The failure to formalise a grievance is also a key weakness in this case.

The acts as detailed by the Complainant on balance have been countered by the Respondent and do not amount to oppressive conduct.

The facts tend to describe a working environment where the detail and accuracy required to be achieved were the main driver of the difficulty between the employer and her superior. That is not a ground to establish a constructive dismissal. That maybe a reason to leave that employment and work in a less demanding environment; however, it does not ground a claim for constructive dismissal.

I also find that the Complainant left her employment without formalising her grievance and procedurally that was required and should have occurred.

On these conclusions I find that the Complainant was not Unfairly Dismissed and determine that the conduct of the Respondent was not oppressive and find that no fundamental breach of a contract term occurred.

The employment ended by reason of resignation and the complaint is not well founded.

Constructive dismissal