Complainant

Respondent

Parties

Fiona  Glynn

Comharchumann Oileán Árainn Mhór Ctr

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

Séan Boner Seán Boner & Company

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-00054809-001

31/01/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses for the respondent undertook to give their evidence under affirmation.  The parties were facilitated with cross examination.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The complainant submitted that her employer failed to implement numerous agreements following an internal mediation process. She submitted that the employer's failure in this regard caused her significant issues in the final year of my employment to the extent that she could no longer continue in her role.

The complainant stated that she was not being afforded dignity at work and was being bullied.  She stated that she was left with no option but to resign.  She stated that although there was an anti-bullying policy she did not feel safe about reporting her manager.  She formed the view that no reforms were being implemented.  She noted that her employer had no intention of engaging with her in a meaningful manner.

The complainant resigned on 1 August 2022 and started a fixed term contract on 9 September.  She confirmed that the amount of the loss of earnings is €913.12 gross.

Summary of Relevant Oral Evidence:

In her evidence the complainant noted that there had been difficulties in the workplace and that the only formal complaint she made was taken in January 2020.  She stated that she lodged a written complaint together with her letter of resignation on 1 August 2022.  She stated that she was publicly rebuked by the Chair of the respondent organisation and that this ultimately led to her resignation.  She stated that the informed the respondent of the issue but that there was no protection for her as an employee.  She stated that her manager was behind the public slighting of her reputation.

Under cross examination she confirmed that there was a grievance policy but stated that it was not adequate.  She stated that her working relationship was fine up until 9 June 2022.  She stated that the former chair slighted her when he made a reference to “cute hoorism” in a context regarding the complainant in a public place.  She stated that she contacted a person in the funding authority to tell her about what happened.  When asked why she contacted the funding organisation, she stated that she was just seeking advice but noted that the language used by the chair was ‘undermining and divisive’.  She stated that the Chair resigned a few days later.

It was put to her that she drew the maximum sick benefit allowable before resigning, then left and claimed constructive dismissal.  She stated that she was trying to consider matters.  She was then asked if she had any concrete example of engaging with the grievance procedure but was  not able to provide any example.

The complainant was asked whether she deleted thousands of emails before she left.  In response she noted that the emails were linked to her personal account and linked to her credit card or her phone.  She stated that she was not satisfied that the Data Protection protocols were strong enough.  However, it was put to her that she made a selected number of emails available since, she stated in response that she was able to retrieve some of the emails.

The respondent submitted that following a workplace difficulty, it had engaged in a mediation process with the complainant.  The mediation process resulted in a series of recommendations being made.  This process dates back to 2020. 

The respondent submitted that the complainant raised no issues regarding the mediation process until she tried to raise a nomination to sit on a council outside of her area of authority.  She did not raise her resignation until August 2022.  No communication or grievance regarding the mediation recommendations was raised by her.  The respondent submitted that no attempt was made to act on a grievance that she may have had.

The respondent also submitted that the complainant wiped thousands of emails from the system before she left her employment, thereby hampering their efforts to address this complaint.

Summary of Relevant Testimony:

The first witness for the respondent worked for the funding authority and confirmed that she had a telephone conversation with the complainant.  She noted that the complainant had made up her mind to leave the respondent organisation.  She asked her if she would like to take some time to consider matters and noted that she would have to raise this issue with the complainant’s manager.

Under cross examination the witness confirmed that the pair also mentioned some of the ongoing work projects on the call.

The second witness confirmed that the first witness told her that the complainant had indicated that she was going to resign.  Under cross examination she was asked whether she considered this to amount to a resignation, but she indicated that a formal resignation is usually in writing.  Also, there was no reason to wonder as they were not the employer, merely the funding organisation.

The third witness was the complainant’s manager.  She noted that there had been friction between them in the past but post-mediation she thought that everything was fine.  There were no incidents prior to the nomination incident that gave rise to the former Chairs comments.  She stated that she received the resignation letter on 2 August 2022.

Under cross examination she stated that she never described the complainant as ‘divisive or undermining’.  When asked was the grievance policy adequate in 2022 she stated that it was.  When asked why the policy was updated since, she noted that it needed to be.  When was asked, what actions were taken to improve governance but noted that she didn’t find that there was a lack of governance. 

The witness confirmed that she was not aware of any issue or unhappiness on the part of the complainant.  As regards the letter of resignation she stated that it was clear and noted that the Board of Management wrote back to the complainant.

When a person submits a complaint of constructive unfair dismissal the onus is on them to prove that they have exhausted all internal means to resolve matters before being left with the only possibility, that of resignation.

Under Section 1 of the Unfair Dismissal Act, 1977, dismissal is defined in the following manner:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(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

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

In the current case the complainant and her manager had a previous disagreement which resulted in mediation being availed of by the parties. The mediation agreement was drafted and implemented. The complainant suggested that conditions of the mediation agreement were not adhered to, but she never brought that to the attention of the respondent. The respondent for its part was unaware that the complainant had outstanding issues with the mediation agreement as she never raised an issue with them.

The complainant suggested that her outstanding issues with the mediation agreement provided the reason as to why she did not use the grievance procedure. She stated that she never said that there was no grievance procedure but merely that the existing one was inadequate. However, she never made this known to the respondent.

She resigned on 1 August 2022 and at the same time submitted a letter of complaint. Having regard to the existence of a grievance procedure, whether the complainant herself considered it to be inadequate or not, does not mean that she can simply disregard its existence, submit a resignation letter and thereafter claim constructive unfair dismissal. She did not try to avail of the internal grievance mechanism nor complained about it.  She submitted a letter of complaint at the same time but did not await any outcome from that letter of complaint. This undermines her contention that she had nowhere else to turn other than resignation.

The issue of the complainant deleting thousands of emails before she left further undermines her position that she was left with nowhere else to turn other than resignation.

The complainant took a complaint internally in early 2020 and preceded to engage with the mediation process. She seems not to have made her dissatisfaction with the outcome of that process known to the respondent at any stage.  I find that a reasonable for person would have submitted a grievance or waited for action to be taken on her complaint.  I find that she did not exhaust all avenues open to her before submitting her resignation and in light of the foregoing I find that the complainant was not unfairly dismissed.

Having regard to all the written and oral evidence submitted in relation to this matter, my decision is that the complainant was not unfairly dismissed.

Unfair dismissal – constructive unfair dismissal – has not explored all avenues open – no unfair dismissal