Complainant

Respondent

Anonymised Parties

A HR and Business Manager

A Company

Representatives

David O’Regan B.L. instructed by  Carmody and Company Solicitors

Conor Bunbury Bunbury Darcy Solicitors

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-00058830-001

14/09/2023

The complainant submitted a claim under Section 8 of the Unfair Dismissals Act, 1977, on the 14th of September 2023.  The complainant submits that she was constructively dismissed from her  employment with the respondent on the 13th of July 2023.

It is submitted that.

The complainant Ms. O  worked for the respondent, as human resource and business manager from 15th November 2021 to 13th July 2023. She was a member of the senior management team.

On the 21st of October 2022 Ms O had a progress meeting with the company CEO and Managing Director, Mr E where Ms. O’s relationship with other employees were discussed and the role of human resources. Two employees had proved difficult, both of which were discussed. Both have left the company. Ms. O had recommended one for the company, Mr. P  but his employment did not work out and he was terminated during his probationary period.  . The other, Mr. M had treated Ms. O in a discriminatory manner. It was acknowledged that neither situation was Ms. O’s fault. Mr E expressed satisfaction with Ms. O and acknowledged her good work up to that point.

On the 15th of December 2022, after working through lunch, Ms. O left the office at 4pm to commence her Christmas break. Mr E emailed her to leave the HR locker key with Mr L. There were communications between Ms. O, Mr L and Mr E about leaving the keys. Mr E did not wish Ms. O to return to the office that night, citing health and safety and the bad weather conditions (there was an extreme cold snap at the time).

An accusation was made that Ms. O wanted to take documents from the office. The only item Ms. O required was her diary.

 Ms. O gave Mr L the HR locker key and the building key that evening. Mr L commented that this was constructive dismissal.

The following day, Mr. L gave Ms. O her diary and she gave him the company credit card. During the grievance procedure, Mr E would also state that a reason for refusing her access to the building that night was that he did not trust her.

 Ms. O returned to work, after Christmas, on the 5th of January 2023. She had her annual review with Mr E on the 9th of January 2023. Up to this point, Ms. O had an unblemished employment record. At this meeting Mr E made unsubstantiated allegations against Ms. O. When questioned on these allegations Mr E refused to back them up.

Among other things, Mr E accused Ms. O of lying, of having a below par work ethic, body language, demeanour and overall lack of respect for the business, of making unprofessional comments to an employee, driving recklessly with two employees in the car, and looking for a new job.

 Ms. O was demoted at that meeting. Up to that point she had reported to Mr E. She signed off on Mr L’s leave. Mr E informed her that she was now to report to Mr L and Mr H a technical manager. Ms. O experienced Mr E to be aggressive in that meeting. At the end of the meeting Mr E suggested that they have an ‘off the record conversation’ and produced a ‘without prejudice’ form for her to sign. Ms. O refused to sign it.

After that meeting Ms. O felt bullied by Mr E and other members of the senior management team. She felt followed and watched at all times. On the 11th of January 2023 Ms. O saw and copied documentation concerning herself. The documents were left on Mr L’s desk detailing options for her dismissal.

On the 13th of January 2023 at a meeting to discuss recruitments, present were Mr E, Ms. O, and Mr L.   Ms. O provided updates on the current recruitment process. She was asked to handover all the CVs and notes to Mr E.    Ms. O characterised this as a handover meeting.

 Between the 9th of January 2023 and 20th January 2023 Ms. O was left in limbo. The allegations made against her by Mr E were not followed up on. She was in fear for her job.  On the 20th of January 2023, Ms. O emailed a response to Mr E’s criticisms of her at the annual review.

Thereafter there was a series of correspondence between Mr E and Ms. O up to the 9th of February 2023.

Ms. O, while defending herself against accusations made by Mr E, was also requesting mediation, which Mr E refused.

 In lieu of that Ms. O invoked the grievance procedure. On the 25th of January 2023 Ms. O again found notes on Mr L’s desk which detailed strategies to remove Ms. O from the company.

 On the 27th of January 2023 Mr L spoke with Ms. O about meeting he and Mr E had with the company’s solicitor.

 Mr L asked Ms. O to make ‘an offer’ to put to the company for a termination package. Mr L wrote down the full details for Ms. O. Later that day Ms. O found pages setting out a strategy to terminate her employment.  

 On the 8th of February 2023 Mr L compared Ms. O to ‘Enoch Burke’ as she kept coming to work every day.    Again, on the 8th of February, Ms. O saw documents detailing more strategies for her dismissal, left open on Mr L’s desk.

 Ms. O invoked the grievance procedure on the 9th of February 2023. At this point Ms. O was suffering from stress, anxiety, tearfulness, and a flare up of her eczema. She was not sleeping. Ms. O went on stress related sick leave.

An external HR person Mr. R was appointed as investigator of Ms. O’s grievance. He was to liaise with Mr L, a man who made derogatory comments about Ms. O and who had taken part in strategies to terminate her employment.

 During the course of interviews (as part of the grievance process) members of the senior management team made defamatory statements about Ms. O accusing her of making applications for jobs on Mr L’s behalf without his permission, of driving recklessly, of pestering Mr L on a daily basis, of being unprepared, unprofessional, of stating to a fellow employee that she thought he had an STD, and stating that she poached an employee from a former employer out of spite.

Mr E accused Ms. O of being a liar and reiterated that he did not have trust in her.  Mr. R issued his final report on the 14th of June 2023 in the main finding against Ms. O’s grievance.

Ms. O had no option but to resign on the 13th of July 2023.

The respondent submits that,

The complainant, Ms. O was employed by the Company as its HR and business manager from 15th November 2021 to 13th July 2023.

Mr E as the Company owner and CEO relied on Ms. O to perform her role to the best of her ability, professionally and in the best interests of the Company. Mr E carried out routine performance reviews with Ms. O from time to time during her employment with the Company to identify any issues of concern.

These reviews were also an opportunity for Mr E to develop and improve the Company’s culture and his ambition for the Company to grow. The last two reviews were carried out on the 21st of October 2022 and 9th January 2023.

 A number of issues of concern were raised by Mr E with Ms. O at the review on the 21st of October 2022 in addition to discussing a change in the existing management roles and reporting structures in the Company. It was Mr E’s reasonable hope and expectation that the issues discussed at this review would be satisfactorily addressed and implemented by Ms. O as there hadn’t been any objections raised by Ms. O.

 Ms. O was due to have her annual review in advance of the Christmas break in December 2022 but due to scheduling and sick leave difficulties, this was postponed until the 9th of January 2023.

At the annual review on the 9th of January 2023, Mr. E identified some more issues of concern with Ms. O and invited her to comment on them. Ms. O reacted badly to this review and immediately disputed many of the issues raised by Mr E demanding that Mr E provide additional detail to her as to the source of his information and that he “back up” his concerns.

Mr E explained that the review meeting was not a disciplinary meeting. Ms. O requested that Mr E send her on a copy of his notes of the review meeting for her to review, which he subsequently did.  Having concluded the review meeting on the 9th of January 2023, Mr E in an effort to have a frank and informal discussion with Ms. O then asked her if she would like to have an off the record / without prejudice conversation. In an effort to ensure that Ms. O understood and appreciated that the formal review meeting had ended, and that any subsequent discussion would be on an informal off the record / without prejudice basis, Mr E asked Ms. O to sign an acknowledgement to this effect.

Ms. O refused to engage with Mr E on an informal basis and as such Mr E concluded the meeting and both went back to work.

 Ms. O continued in her role without major incident for a period of time but then on Friday the 20th January 2023 she wrote to Mr E making certain formal complaints and allegations including that the performance review on the 9th January 2023 was somehow unfair, that she was being bullied by Mr E and others and that Mr E was trying to force her out of the office.   Ms. O also referred to obtaining legal advice.  Mr E acknowledged receipt of her formal complaint on Friday the 20th of January and having had an opportunity to fully consider her complaint he emailed her again on Monday the 23rd of January 2023 addressing each and every complaint/assertion she had made in her letter of the 20th of January. In addition to giving her a detailed response to each of her allegations/complaints, Mr E also invited her to respond urgently as she had made very serious allegations concerning both Mr E and others and he wanted to try to deal with them expeditiously.

The Complainant continued in her role and wrote again to Mr E on the 30th January 2023 in which she ignored Mr E’s request for her to reply to his detailed responses and instead suggested that there has been a misunderstanding of what she had set out in her written complaint on the 20th January and that she would like to engage in a mediation process or if that wasn’t acceptable then she would avail of the Company’s grievance procedure.

 Mr E provided Ms. O with another detailed response on the 3rd February 2023 again expressing his disappointment at Ms. O’s allegations, explaining that the Company wasn’t inclined to engage in a separate formal mediation process in all the circumstances and invited her to clarify a number of matters in anticipation of her invoking the Company’s grievance procedure.

 Throughout, Mr E continued to invite Ms. O to engage with him in an informal off the record discussion to try to resolve matters.  Ms. O responded by email on the 9th February 2023 confirming her wish to invoke the Company’s grievance procedure and clarified that the basis of her grievance was in fact her initial letter of the 20th January 2023 and another letter dated 30th January 2023 She repeated her allegations that she was being bullied and threatened by Mr E and others in the Company.

 Mr E replied to Ms. O by email on Friday 10th February 2023, utterly rejecting her assertions that she had or was being threatened with anything or that she had or was being bullied/harassed in any way.

Mr E noted that she wanted to invoke the Company’s formal grievance process and as he had previously confirmed to her, he repeated that the Company would in the circumstances arrange for an independent expert to deal with the grievance process as quickly as possible.

 Ms. O informed the Company that she was unable to attend work on Monday 13th February 2023 and submitted medical certs to confirm her absence. 13. On the 13 th and 15th February 2023, Ms. O wrote to Mr E submitting doctor’s notes confirming that she was suffering from stress and wasn’t able to return to work. She also requested that the grievance procedure commence as quickly as possible and to provide her with the details as soon as possible.

As Ms. O had contacted the Company whilst on sick leave, the Company felt it was reasonable to respond to her and Mr E replied to her on the 15th February 2023 confirming that the Company was making arrangements for the requested independent grievance procedure and also asked Ms. O to clarify her intention re’ returning to work.

 Ms. O responded on the 17th of February 2023 stating that she was suffering from stress, was anxious to get the grievance procedure underway quickly and that she hoped to return to work soon having consulted with her doctors.

 Further medical certs were submitted by Ms. O to cover her absence from work.  Mr E contacted Ms. O on the 28th of February 2023 confirming that the grievance procedure was underway, and that the independent expert would be in touch.   Mr E again requested that Ms. O clarify when she might be returning to work.  

An external consultant  Mr. R carried out the independent grievance procedure over the following months. Ms. O remained out of the office and did not return to work. The formal report issued on the 30th of June 2023 making its detailed findings.

 Mr E wrote to Ms. O on the 4th of July 2023 following the conclusion of the grievance procedure acknowledging that it had been a difficult few months and invited Ms. O to meet up outside of the office to discuss arrangements for her return to work.

 Ms. O wrote to Mr E on the 13th of July 2023 informing him that she didn’t accept the findings or conclusions of the grievance procedure and that she felt that she couldn’t return to work in the circumstances, and she tendered her resignation.

 Mr E wrote back to Ms. O on the 14th of July 2023 acknowledging her resignation letter but invited Ms. O to reconsider her position and again suggested that they meet up away from the office to discuss her return to work.

 Ms. O responded on the 20th of July 2023 confirming her decision to resign from the Company.

The Relevant Law – Constructive Dismissal

Section 1(b) provides as follows:

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

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

Significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it has to satisfy either one or a combination of both of the following “tests”.

There are two sets of circumstances in which a resignation may be considered a constructive dismissal.  The law is well settled here, and these tests are known as the “contract” test and the “reasonableness” test.  The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign.  It is now generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee. 

The reasonableness test requires that the employee must satisfactorily demonstrate that the employer behaved or acted in a manner, which was so unreasonable as to make it impossible for the employee to continue in the employment.  The employee must show that his behaviour/action in resigning was reasonable in all the circumstances. 

In Berber v. Dunnes Stores [2009] 20 ELR, the Supreme Court held as follows:

“There is 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.  The term is implied by law and is incident to all contracts of employment unless expressly excluded.  The term imposes reciprocal duties on the employer and the employee.”

In the English case of Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 Denning J stated:

“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 of more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.”

The complainant Ms. O advised the hearing that she had been  employed by the respondent since the 15th of November 2021 following which she  had a six-month probation period which she passed on the 27th of May 2022 with scores of excellent, very good and good.  The complainant stated that on the 21st of October 2022 she had a progress meeting with the respondent CEO Mr E where a number of issues were discussed including the complainant’s relationship with other employees.

Specifically, Mr. P and Mr M were discussed, these were now ex-employees of the respondent who had both proved difficult and who had since left company.   The complainant advised the hearing that she herself  had recruited Mr. P  for the company, but he hadn’t worked out and so had been terminated during his probationary period. The complainant stated that the other employee Mr. M  had treated the complainant in a discriminatory manner expecting her to look after tasks such as sorting out his laundry.   Both employees had since left the company, and the complainant advised the hearing that Mr. E had assured her that she was not to blame for either of these situations.   

The complainant advised the hearing that she later discovered that the Financial Controller, Mr. L had told Mr. E that the complainant had only hired Mr. P to get back at her former employer by whom Mr. P had also been employed.   Mr. L in his statement to external investigator,  Mr. R during a grievance process had stated that the complainant had poached Mr. P from her former employer just to get back at that employer.  Mr P had not worked out for the respondent and so his contract was terminated during his probationary period.      Ms. O  advised the hearing that there was no truth to Mr. Ls allegation that she had hired Mr. P to get back at her former employer.  Ms. O added that she had no issue with her former employer and stated that she had even used them as a reference.

The complainant, Ms O  stated that at the meeting of October 2022 the CEO Mr E had acknowledged her good work in the company up to that point.

Ms. O  advised the hearing that on the 15th of December 2022, after working through her lunch, she left  the office at 4pm to commence her Christmas break following which she received an email from Mr. E telling her to leave the HR locker key with the Financial Controller Mr L. over the Christmas break   Mr. E himself had not been in the office that day as he was off sick.

There were a number of communications between the complainant, Mr L and Mr E about her leaving the keys.

The complainant Ms O advised the hearing that she had already left the building when she received the email requesting the  keys and  she had offered to return to the building to hand them over but Mr. E had told her that he did not wish her to return to the office that night, citing health and safety and the bad weather conditions, and so Ms. O had arranged to drop the keys to Mr. L  later that evening instead.

Mr. E at the hearing did not dispute that he requested the Keys and also that he had asked Ms. O not to enter the building later on as he stated that there was a weather warning in place that day.    Mr. E in his evidence later stated that he was aware at this stage that Ms. O had  previously made a comment to Mr. L about suing the company and so he stated that he was worried about what could happen if she were to slip and fall while in the building.

The complainant Ms. O advised the hearing that she had wanted to go back into the office to obtain her diary from the locker before handing over the keys and she had advised the Financial Controller Mr. L that she had wished to do so asking him to accompany her to the building as she wished to get her diary from the office.  The complainant advised the hearing that her diary contained some personal notes which she needed for Christmas shopping etc.

The complainant advised the hearing that she was later accused of wanting to return to the building to take documents from the office and that she became aware that Mr. L  had told Mr. E that she had wanted to get a document from the office and he had not specified that it was just her Diary.   When questioned on this at the hearing Mr. L replied ‘Diary/Document’ implying that they were interchangeable.

The complainant advised the hearing that she brought  the keys to Mr L s house that evening at 8pm  and that Mr L came out of the house and sat in her car with her for a few minutes during which he  commented to her at the time that that this was ‘constructive dismissal’.  Mr. L in his evidence to the hearing claimed that it was Ms. O herself who had  mentioned that it was constructive dismissal.  

 I note from other evidence adduced that Ms. O had at this point formed the opinion that Mr L was telling stories behind her back to Mr E and so I find it unlikely that she would have raised the issue of constructive dismissal with Mr. L.     I am satisfied from all of the other evidence adduced  that it is more likely that it was Mr. L who raised the matter of a constructive dismissal.

The complainant Ms O advised the hearing that the CEO Mr. E had instructed her not to go back into the building that evening citing safety concerns’ but Ms. O stated that she later discovered  during the grievance procedure, that Mr E had told the investigator  that  the reason for refusing her access to the building that night was that he did not trust her.

Mr. L advised the complainant later that evening that Mr. E had called to his house and collected the keys that night.

The complainant advised the hearing that she returned to work, after Christmas, on the 5th of January and she had her annual review with Mr E on the 9th of January 2023.   The complainant stated that up to this point she  had an unblemished employment record but at this meeting Mr E had brought up a number of issues and allegations against  her.   Ms. O advised the hearing that when she questioned each allegation Mr E refused to back them up simply saying ‘We’ll move on’ .

The complainant advised the hearing  that during this meeting  Mr E had accused  her of lying, of having a below par work ethic, and had also raised issues in respect of her  body language, demeanour and overall lack of respect for the business.  The complainant advised the hearing that Mr E accused her  of making unprofessional comments to an employee  alleging that she  had apparently accused an employee of having an STD.  

The complainant stated that there was no truth to this at all and she was baffled at such an allegation being levelled against her.   The complainant stated that  Mr. E also accused her of driving  recklessly with two employees in her car, and referred to an incident where Mr. L and Mr. H had been in the car with her and Mr H had refused to wear his seatbelt causing the complainant to get annoyed with him following which it had been alleged that she drove recklessly.   Mr. E also accused the complainant  of looking for a new job.

Mr. E when questioned at the hearing on these matters stated that these matters had been brought tohis attention by Mr. L prior to the meeting.

The complainant advised the hearing that she later realised that the reckless driving accusation must have come from Mr. L as it referred to an occasion where Mr. L and Mr. H were in the car with the complainant.   The complainant advised the hearing that she had Mr. H to put on his seat belt which he had not done and so she had asked him again stating that she did not wish to get penalty points on her clean licence.    Ms. O stated that Mr. H was put out by her telling him to wear a seat belt and she stated that the journey continued in silence.  Ms. O later discovered that Mr. L had told Mr. E that she had driven recklessly, and he had alleged that both he and Mr. H were afraid in the car with her.

The Financial Controller Mr. L in his evidence to the hearing state that Ms. O had been annoyed over Mr. H refusing to wear his seat belt and so she had driven at speed on a windy country road.  It was  put to Mr. L that he had accused Ms. O of driving at 100 km per hour.   Ms. O a the hearing  stated that it was not even possible to do that speed on this windy narrow road and she also averted to the fact that she had a clean licence and was not willing to risk getting penalty points by having a passenger not wear a seat belt but yet it was now being alleged that she drove at 100 kmph on a narrow winding road.  Mr. L at the hearing denied that he said that it was at 100 Kmph but he was then reminded that he had in fact stated this in his statement to the investigator Mr. R which he acknowledged. 

Mr. H also gave evidence about the driving incident, and he stated that the complainant had raised her voice to him when he had refused to put on a seat belt.  He stated that in his country (Egypt) it is not compulsory to wear seatbelts in the back of the car.  Mr. H added that Ms. O had spoken to him in a disrespectful manner .   Mr. H stated that he had been afraid in the car but when asked if he said anything to Ms. O about it he stated that he had not mentioned it.

CEO of the company, Mr. E advised the hearing that it was Mr. L who had told him about the driving incident.   Mr E stated that a number of issues involving the complainant, had been brought to his attention by Mr. L    Mr. E advised the hearing that he had raised these issues with Ms. O.

The complainant advised the hearing that she had initially reported directly to the CEO Mr. E but stated that following the  meeting Mr. E had demoted her stating that she was now to report to Mr L the Financial Controller, prior to this she had reported directly to Mr. E the CEO and she had also signed off on Mr L’s leave.

The complainant advised the hearing that Mr. E was aggressive in the January meeting at the end of the which Mr E suggested that they have an ‘off the record conversation’ and he produced a ‘without prejudice’ form for her to sign which the complainant refused.    The complainant stated that she realised what this meant and that it meant termination and so she refused to sign the form.  Mr. E did not dispute that he asked the complainant for an off the record without prejudice conversation, but he stated that it did not mean termination of her employment.

The complainant advised the hearing that after this meeting she felt as if she was being watched at work all the times and two days later on the 11th of January she discovered handwritten notes left open on the Financial Controllers desk which outlined options for her dismissal. And the wording used very closely mirrored the words used by Mr. E in her review meeting.

Ms. O advised the hearing that the notes had outlined options such as Poor Review -Without Prejudice Conversation,  Agrees to go-still a risk for Unfair D.   The Financial Controller Mr. L in his evidence to  the hearing stated that these notes were not meant to be seen by the complainant, and he claimed that they were not left open on his desk, but that Ms. O must have found them in his drawer.

It was asserted at the hearing that these notes have very similar wording to that used by Mr. E in his meeting with the complainant on the 9th of January and it was asserted that the wording was almost identical to that used by Mr. E.  The complainant asserted that these notes were created before the meeting and must have been the basis for the conversation between Mr. E and the complainant.

Mr. E at the hearing denied that he had any input or involvement in these notes.

The Financial Controller, Mr. L in his evidence to the hearing stated that these were notes he had drawn up himself  between 11th and 15th of January and he stated that Mr. E had no involvement in same.   Mr. L stated that these were just his thoughts on the situation.

The complainant advised the hearing that on the 13th of January 2023 at a meeting to discuss recruitments, the complainant provided updates on the current recruitment process and was then   asked to handover all the CVs and notes to Mr E.    The complainant  characterised this as a handover meeting.

The complainant advised the hearing that between the 9th January 2023 and 20th January she was  left in limbo as the allegations which had been made against her by Mr. E were not followed up on and she was now in fear for her job having seen the notes on Mr. Ls desk outlining options to get rid of her.

The complainant advised the hearing that on the 20th of January 2023, she emailed Mr E and responded to his criticisms of her at the annual review.  It was during this correspondence that she stated that her mental health was suffering due to what was happening.   Thereafter there was a series of correspondence between Mr E and The complainant up to the 9th of February 2023.

The complainant advised the hearing that  while defending herself against accusations made by Mr E, she was also requesting mediation, to try and resolve matters which Mr E refused.   Mr. E at the hearing agreed that he had refused to engage in mediation with the complainant stating that the company policies did not provide for mediation. 

 The complainant advised the hearing that it was due to the refusal of mediation that she had invoked the grievance procedure.

The complainant advised the hearing that on the 27th of January 2023 Mr. L  informed her about a meeting that he had attended the previous day with Mr E and the company’s solicitor.     The complainant stated that Mr. L had told her that Mr. E wanted her gone, due to the fact that she had mentioned taking legal action against the company.      Ms. O stated that this referred to an occasion when she had been asked to call into the office while she was out on sick leave, and she had commented to Mr. L that she could take Mr. E to the WRC over it.   The complainant stated that this comment was made to Mr. L at a time when she had thought he was her friend as well as a colleague and before she had discovered that he was repeating everything back to Mr. E behind her back..     

The complainant told the hearing that after telling her about the meeting on the 26th of January with the company solicitor Mr. L gave her an account of the discussions which had taken place  and referred to a Constructive Dismissal claim -Mr. L advised the complainant that the company was satisfied on the basis of legal advice received that they had a strong case and could robustly defend their position.   Mr. L  also referred to a possible exit package and a ‘Breakdown in the relationship between the complainant and Mr. E.      The complainant stated that Mr. L then told her that she should go away and come back with a figure and that he would then speak to Mr. E  about it.     Ms. O stated that Mr. L had at the time said to her “I can see that this is destroying you”.     

The CEO,  Mr. E in his evidence to the hearing stated that he had felt that the relationship with Ms. O had deteriorated once he became aware  that she had  made a threat about taking them to the WRC.    Mr. E advised the hearing that he had learned about this  comment  from Mr. l. 

Mr. L in his evidence to the hearing stated that his reason for telling the complainant about the meeting with the solicitor was due to the fact that Ms. O was the HR manager and Mr. L  stated that he was conscious that he had been missing from the office while attending this meeting and he stated that he was concerned that he should have notified the complainant of his whereabouts given her position as HR manager.  The complainant disputes this reasoning submitting that the reason Mr. L told her about the meeting was in order to encourage her to leave the company by telling her that he and the CEO had met with a solicitor to discuss her and to discuss options for getting rid of her.

The complainant advised the hearing that  that Mr L suggested to the complainant that she  make ‘an offer’ to put to the company for a termination package.    In addition, at the hearing an allegation was put to Mr. L  that the conversation with Mr. E and his solicitor was legally privileged and by disclosing the contents of the meeting to the complainant ,Mr. L had broken privilege.  Mr. L asserted that he was not aware of this.   It was also asserted that Mr. L had disclosed these matters to the complainant on the instruction of Mr. E again in a bid to encourage her to leave the company. 

Mr. L denied this stating that Mr. E had no knowledge that he had disclosed the matter to the complainant.     

 Mr. E at the hearing also stated that Mr. L had acted alone in disclosing the fact of the meeting and the  conversation which took place to the complainant.   It was asserted on behalf of the complainant that it was surprising that a professional of Mr. Es many years of experience would break privilege and not understand that he was doing so  or that he should not have disclosed the  conversation to the complainant.  It was asserted that it is much more likely that Mr. L disclosed the conversation to the complainant with the blessing of Mr. E with a view to  encouraging or forcing her to leave the company.

 The complainant advised the hearing that on the 8th of February 2023, Mr L compared her  to ‘Enoch Burke’ referencing the fact that  she kept coming to work every day even though she wasn’t wanted.

In response to this  Mr, L stated that it was in a joking   manner that the reference to Ms. O being like ‘Enoch Burke’ was made.    It was asserted that at this point it should have been clear that this would not be treated a s a joke by the complainant as Mr. L had let her know that the company wanted her out.      Both parties accept that such conversations had at this point taken place between the complainant and Mr. L.

The complainant advised the hearing that again on the 8th of February she saw, left open on Mr L’s desk further documents detailing more strategies for her dismissal.   This document again outlined options such as Mediation Vs Grievance Procedure and Gross misconduct as well as reference to a possible final settlement.  These documents also contained typed notes from Mr. L to Mr E referring to the complainant’s letter of 20th of January as being a point of no return and stating that he (Mr. L ) believed that the complainant was fully aware of this.  Mr. L also opined that the complainant’s references to issues such as mental health and family displayed that her thought process was that her tenure is over.   This document also proposed that “the strongest possible rebuttal letter be issued “ to the complainant by cob the next day.   It also referred to action to be taken which included a meeting being scheduled with the complainant for the 24th  of February.   This also stated that the complainant may ask for a colleague to attend but opined that there was no requirement for this as it was not a disciplinary stating “this is just about giving a message -not a debate”.  

The complainant Ms. O advised the hearing that she had invoked the grievance procedure on the 9th of February 2023 at which point she was suffering from stress, anxiety, tearfulness, and a flare up of her eczema.   The complainant stated that she was also not sleeping and that all of this culminated in her having to go on  stress related sick leave.

The complainant advised the hearing that the respondent engaged an external HR person Mr R to carry out the investigation into her grievance.  

The respondent advised the hearing that it was Mr. L who had liaised with the external investigator Mr. R and who had sourced him as the person to undertake the investigation.   The CEO,  Mr. E advised the hearing that he had asked Mr. L to do this as he himself did not have time to find an individual to carry out the investigation.

It emerged at the hearing that it was Mr. L who had made the initial contact with Mr. R to carry out the investigation and it was Mr. L who had provided Mr. R with the terms of reference for the investigation.  

The investigation outcome was issued by Mr. R in his report dated the 14th of June 2023 in the main finding against the complainant’s grievance.    It is submitted that following this, the  complainant resigned on the 13th of July 2023.

Mr. R’s report was provided in evidence, but Mr R was not in attendance at the hearing.

The complainant advised the hearing that during the course of the investigation, members of the senior management team had made defamatory statements about her . Inter alia, she was accused of making applications for jobs on Mr L’s behalf without his permission, of driving recklessly, of pestering Mr L on a daily basis, of being unprepared, unprofessional, of stating to a fellow employee that she thought he had an STD, and it was also alleged by Mr. L that she had stated that she poached an employee Mr. P from a former employer out of spite.   

During the investigation process it can be seen that Mr. E accused the complainant of lying  on a number of occasions and in the report it is stated that  he did not have trust in the complainant.

On occasion during the investigation Mr. E was recorded  as having said that he couldn’t see how the trust could be repaired    This conflicts with his position that he did not want her to leave and had asked her to reconsider when she submitted her resignation. 

Mr. E when questioned on this at the hearing stated that he had said that he didn’t see how that trust could ‘easily’ be repaired with the emphasis on ‘easily’.  Mr. E in hi evidence to the hearing stated that he had not said that the trust could not be repaired but that it could not easily be repaired.

The respondent at the hearing argued that the  complainant had already secured another job before resigning her employment with the respondent and before she received Mr. R s final investigation report .  The complainant in response to this advised the hearing that she had received a draft report in March which contained all of the statements made by Mr. E and Mr. L and which contained defamatory statements and untruths about her.  The complainant stated that it was clear to her upon reading the draft report that that the respondent wanted to get rid of her.

The respondent advised the hearing that the complainant was given an opportunity to appeal the investigation outcome but that she chose not to do this instead resigning her position and taking up alternative employment.   Witness for the respondent M r. E when questioned about the appeal process stated that he did not know who it could be appealed to stating initially that it could be appealed to him as CEO but then changing his mind and stating that they would probably have had to engage another external person to carry out the appeal..

The complainant in her evidence stated that there was no point in appealing as her grievance was against Mr. L and Mr. E and that there was no point in appealing if it was going to be dealt with by Mr. E and there was no indication as to who other than Mr. E would deal with any appeal lodged by her.

In addition, I note that the respondent made reference to the fact that no disciplinary action was taken against Ms. O though it is unclear in what context this would or could have been taken..

In considering whether there has been a constructive dismissal I have to determine whether there has been a repudiatory breach of contract by the Respondent, or, if there has been no repudiatory breach, whether the Respondent engaged in conduct which made it reasonable for the Complainant to terminate her contract. 

The Contract Test and The Reasonableness test

On the basis of the evidence as presented to me it is clear that the complainant was left in no doubt that the respondent wanted to get rid of her and terminate her employment.  This was done through documents being left around either intentionally or unintentionally outlining options for her termination as well las Mr. L notifying the complainant that he had been to a meeting about her with Mr. E and his solicitor.

 I note that Mr. E s evidence is that this took place without his knowledge or permission but if I was to accept that Mr, L leaked all of this information to the complainant of his own accord and without the knowledge of Mr. E the CEO,  I note that there was no mention of any disciplinary action having been taken or proposed to be taken against Mr. L in this regard. 

 I note that the incident on 27th of January involved Mr. L  disclosing contents of a meeting with the company solicitor to Ms. O and again there was no mention of any consequences for Mr. L.  Accordingly, having considered all of the circumstances I find it more likely that Mr. L was acting with the permission of Mr. E in these matters.

I also note the many references during the investigation and in the notes left out by Mr. L to the trust having been broken between the respondent CEO and the complainant.  There was also a reference made to a breakdown in the relationship between the complainant and Mr. E.  I note that Mr. E had stated that he invited the complainant to reconsider her position following receipt of her resignation and it was in this context that a discussion took place around Mr. E s earlier statement that the relationship could not be repaired.   

I am satisfied from the evidence adduced that there is clear evidence to suggest that the complainant in this case was left in no doubt that the respondent wanted to terminate her employment and bring her employment contract to an end.

I also note that the complainant following the investigation outcome was offered an appeal but no details as to who to appeal and I note that the respondent had no arrangements in place for such an appeal.

I note that the complainant was demoted following a review meeting with no clear explanation or justification for such demotion and I also note that the complainant at her review meeting of 9th of January had a number of allegations raised against her which had not previously been flagged or raised with her and many of which were accepted by Mr. E as truths despite the fact that they were based on verbal accounts or allegations from Mr. L.    I note that Mr. E repeatedly referred to the complainant as having threatened to sue him even though this was also in the context of a comment allegedly made by the complainant  to Mr. L and which Mr, L then repeated to Mr. E

Having considered the evidence adduced I  ama satisfied that the Respondent acted in a manner which was so unreasonable as to make it impossible for the Complainant to continue in the employment.

I have outlined that in seeking to apply the reasonableness test an employee must show that they themselves have behaved reasonably and have sought to resolve matters internally before resigning I note that eh complainant in this case raised a grievance and participated in that process but that the outcome was a finding against her.   I note that the respondent has asserted that the complainant was offered an opportunity to appeal the investigation outcome and that she did not avail of this opportunity.   In considering this assertion I note that the respondent when questioned at the hearing could not provide any details as to whom the process could be appealed, and it seemed clear from the evidence adduced that eh offer of an appeal was not a genuine offer of an independent appeal process.  

 Accordingly, I find on balance that the complainant was entitled to consider herself constructively dismissed within the meaning of section 1 of the Unfair Dismissals Act, 1977 and thus I declare this claim to be well founded.

Redress

On the evidence before me, I find that the Complainant was unfairly dismissed within the meaning of the Acts.   In awarding compensation, I am obliged to award a “just and equitable” amount of compensation in accordance with the full circumstances of the case. 

The Relevant Law

Section 7 of the Unfair Dismissals Act which, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, 

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee, 

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, 

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, 

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, 

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

I note that the complainant in this case secured alternative employment almost immediately albeit at a considerably lower salary and entitlements than she had enjoyed with the respondent.

Having taken all of the circumstances into account I award the complainant compensation in the amount  of €30,000.

I declare this claim to be well founded, and I award the complainant the sum of €30,000 in compensation.