Complainant

Respondent

Parties

Susan  Coates

Kildare Education Support Centre

Representatives

Ms Rachel Duffy instructed by Patrick Dawson H.G. Donnelly & Son Solicitors

Mr Barry O’Mahony instructed by  Arag Legal Protection Limited

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-00062205-001

13/03/2024

The complainant submits that she was constructively dismissed on the 11/10/2023.

contrary to the provisions of the Unfair Dismissals Acts 1977-2015.

 The complainant was employed as an Accounts Administrator on a part time basis with the respondent education provider from 25th May 2021 until the date of her dismissal on 11 October 2023

The complainant worked 14 hours/ 2 days per week, on a flexible basis.

Her gross pay was €15,714 per annum.

The complainant submitted her complaint to the Workplace Relations Commission on the 30th of March 2024.

The Respondent’s treatment of the complainant coupled with the lengthy delay in offering her a fair and impartial process for the hearing of her complaints led her to submit her resignation on the 10/10/23.

The complainant is an Accounts Administrator earning €15,714, gross per annum. She works 14 hours a week on a flexible pattern.

When she took up her role, there was little or no handover resulting in a huge amount of work.

She was contacted outside of working hours for unnecessary details on the day of her mother’s death.  These could have been attained at another time even though the respondent knew her mother had died.

She was criticised needlessly because of work not done by colleagues.

The bulk of the complainant’s complaint is the respondent lack of fairness towards her, their failure to adhere to codes and the absence of impartiality in the execution of the grievance procedure.

Evidence of complainant given under affirmation.

The complainant stated that she had a contract for 14 hours a week; it was flexible.

The complainant itemised the elements of her grievance submitted to the respondent who failed to provide an impartial avenue for a resolution within a reasonable time frame.

Absence of a Handover on taking up her appointment in 2021.

At the time of interview, she asked if she would receive a handover from the person leaving. She received no answer to this question. The Director was one of a 3-person interview board.

After appointment, she did meet her predecessor who was unable to provide her with the answers to her questions and was evasive. She had a lot of questions about finances. The Director didn’t know the answers to the questions put to her.

The complainant discovered an auditor’s report from 2020 which raised serious questions about how the respondent’s accounts had been kept.

The respondent never told her that accounts were in a mess. It took her 6 months to clean up accounts for which she did a lot of overtime. In 2022, the Director thanked her for the tidying up work which she had done.

Disrespectful behaviour

In Feb 2022 the Director was sneering at the complainant because of her stammer.

The adjudicator noted that that this was not in the complainant’s submission.

Delay in payment of salary increases due in February 2022.

On 1/2/22, the complainant was doing the payroll. Staff had not received the pay increase. Colleagues had asked the Director on 5 occasions about the delay in payment. The increases were paid in June 2022.She should not have had to wait 17 weeks for a pay increase due under national wage agreement

Christmas lunch, December 2022.

The complainant always worked on Monday and Thursdays. The Director asked her if she was going to the staff do which was held on a Tuesday. She felt the Director in holding it on a day when she did not work was discriminating against her as a part time worker.

Text message to the complainant on the day of her mother’s death.

The Director messaged the complainant seeking the Pin code for the banking app for purposes of payment of salaries.  These details which were sought while her mother was dying or had died did not have to be provided on a Friday. They could have been sought on the following Monday or Tuesday.

She gave the director the pin at 3pm. Her mother had died at 8.30.

She was deeply offended by this contact.

Request to the complainant to fill out an application form for force majeure.

 On 18/1/23 the complainant told the Director that she would not be in work that day as her mother’s death was imminent. On 20/1/23 the complainant’s mother died.

The complainant returned to work on the following Thurs or Friday. The Director asked her if she wanted to take compassionate leave or force majeure leave in respect of her absence prior to her mother’s death. The Director asked her to fill in a force majeure form. She stated that they had to get things right.

This was unnecessary and insensitive.

Needless Criticism of complainant’s work

On 31/3/23 the Director told the complainant that creditors had not been paid within 15 days of submission of their invoices- date of stamping the invoices. The complainant felt that the Director was picking on her and had an issue with her notwithstanding that the Chairperson of the Management Committee told her that he had heard she was “doing a great job.”

Facial Recognition technology.

The respondent introduced this technology for clocking in and out of work. The complainant contacted the WRC who told her that this technology was not mandatory. Due to this expenditure in 20/6/22, there was no money in the bank to pay creditors.

The Director told her to sit in on a meeting in June 2022 with two officials from the Department of Education re funding. The department spoke to the Director about misappropriation of funds.

The Grievance Procedure.

The respondent’s failure to ensure that her grievance was investigated.

She wanted her complaint that she had not been treated with dignity and respect to be addressed. She wanted to do her job without being monitored or undermined. Accordingly, she lodged her grievance on 31/3/23, expanded it to include further items or elaborations on 3/5/2023 and again on the 28/5/2023.

The respondent notified her on 5/4/23 that they would engage an external HR company to examine her complaints.

On 13/4/23, the complainant informed the respondent that she did not wish to engage with Company B as she had concerns about their capacity to act impartially.

The complainant requested mediation as she wanted the WRC to conduct mediation as an impartial entity. The respondent failed to accede to this request.

She believed that the respondent should recruit someone who was not from Company B. She knew that Company B was a sister company to Company A who provided HR services to the respondent and dealt with the Director frequently. She advised the Chairperson of this concern on 28/5/23. She asked the Chairperson to identify which company would be addressing her grievance and within what time frame. She provided dates for a meeting with the HR company in early June.

As the month of June progressed, the complainant was confused about the next steps in having her grievance heard as she had received an email from the chairperson on the 1/6/23 stating that he would bring her request to the Management Committee for an investigator from a company other than Company B. That was her understanding of the respondent’s intentions. She felt messed about as since 10/5/23, the Chairperson had stated he was sourcing an alternative and now, on 11 June, the respondent was still searching for an alternative investigator.

The complainant was on sick leave from 14 – 30 June.

 On 23 /6/23 the Respondent advised her that they had accepted the assurances given to them by Company B that they would deal with the complaints in a fair and impartial manner, and they were engaging Company B. On 23/6, the complainant agreed to engage with Company B on the basis that they would assure her that the nominated investigator would have had no previous dealings with the respondent.  A meeting with the investigator was scheduled for early July.

Company B sent the terms of reference for the investigation to the complainant on the 1/7/23.

On 10/7/23, the complainant wrote to the investigator seeking confirmation that the terms of reference had been amended. They were amended buy she decided to have her solicitor make contact with the respondent about an alternative investigator.

On 6/9/23, the respondent ultimately agreed to engage an investigator from a third company, Company C.

A new investigation was offered 5 months after she had lodged her grievance. She wanted to get a fair hearing.

On return to work in September none of the staff were speaking to her. She raised this matter with the Chairperson. The complainant had to take two weeks sick leave on 29/9/23.

The complainant stated that she ultimately resigned due the hostile work environment, the aggression of the Director towards her and the failure of the respondent to provide a time frame for the investigation of her grievance.

She submitted her resignation on the 10/10/23. The respondent asked her to rescind her resignation, but she felt resignation was imperative.

Cross examination of complainant.

Elements of her grievance

The complainant confirmed that the Grievance Procedure does not provide for an external party to conduct the investigation into a grievance.

Concerning the complainant’s assertion that the Director sneered at her stammer, the complainant stated that this did not happen at the interview but later. She looked at the complainant with disdain on occasions.

The complainant confirmed that the respondent facilitated flexible hours so as to enable her to pursue her studies in UCD.

She stated that she was well qualified for the role which she held.

When questioned as to the existence of any issues either at interview or during her employment, the complainant said that she recalls the Director sneering at her when she stammered; it was very humiliating. As to why she did not raise this issue during her performance reviews, she stated that she was just trying to get on with the job. She was glad to have the job. When asked if she might have misinterpreted a facial expression to be sneering, she stated that it is difficult to misinterpret her feeling at those moments and instances.

The state of the respondent’s accounts.

This forms part of the complainant’s grievance.

She could not recall if her predecessor had been employed at a grade 3 level. 

Concerning the handover from her predecessor, her predecessor was unable to answer the complainant’s questions. For example, she had not been told of the auditor’s report.

The witness stated that at the probationary review, she raised the issue of the state of the accounts with the Director and the then Chairperson. They told her that they were unaware of the accounts, but they must have known from the auditor’s report that there was an issue with accounts. She was not told she would have to tidy up the 2021 accounts within 6 months. She was not being told the truth. When her description of the accounts was contested, she stated her description was truthful and accurate.

The witness disputed Mr O’Mahony’s refutation that the Department had accused the Director of a misappropriation of funds. She disputes that she was making an untrue allegation.. Misappropriation was the word which the witness heard used at a meeting in June 2023 by Departmental officials. The Director had spent money wrongly.

The witness stated that she did not know that expenditure of €3000 had to be approved by Committee and that the Director had no authority to disburse these monies. Hence she is the wrong target for her criticism.

The complainant states that in July 2023 there were no monies to pay creditors because of the Director’s expenditure on facial recognition technology. The complainant accepts that the Director went to the Department to get additional monies.

The complainant stated that she believed it appropriate to state in her grievance document that she had educated the Director as to how accounts and payroll should be maintained as unlike the director, she had training in accounts.

The complainant confirmed that she submitted monthly cash flow reports to the management committee. She submitted year end accounts to the committee also.

She accepted that the Director commended her for her work.

Delay in payment of salary increases.

The complainant could not state if salary increases had to be sanctioned by the Management Committee. She believed that the Director could authorise these payments.

The witness’s understanding was that salaries were funded by the Department of Education, and she was not aware that a portion was funded locally. She was not aware of local union management decisions re salary increases. She states that she was not undermining the Director when she contacted the Department of Education about salaries

She states that it was not unfair of her to take issue with the Director as opposed to the Board as the Director never explained to the witness why there was a delay of 17 weeks in implementing pay increases. She is not withdrawing that complaint against the Director.

Contact outside of working hours.

There were 3 instances of being contacted outside of her working hours.

The complainant confirmed that she did engage with the respondent on 28/10/22 who sent her a get-well type of message. She stated that she does not like being contacted outside of working hours for non- operational reasons. As to why she did not object at the time, she stated that she was on sick leave at the time, and she just wanted to get on with doing her job.

Concerning the complainant’s out of hours emails to the Chairperson on 28/5, 2 and 11/6/23 at 22.00, and if it was incongruous of her to be complaining about a practice which she, herself, employed, the complainant stated that she did not think, she just wanted to send the email.

Offer of access to the employee assistance service.

She confirmed the accuracy of the note of the meeting on 31/10/2022. She confirmed that she took issue with the Director’s offer of the employee assistance service on return from sick leave. She found the suggestion that she might require psychological assistance to be demeaning.

Timing of the Christmas party.

The complainant confirmed that the selection of a date for the Christmas lunch on a day when she was not working was an element of her grievance. The complainant does not accept that the timing was designed to suit the staff and the needs of the centre and believes the day was selected to target her. She cannot remember if the Director asked her which days did she want to work on that week; she had flexibility.

Attempt to deprive the complainant of public holiday entitlements.

The complainant first stated that she did not assert that the Director was trying to deprive her of public holiday payments and then acknowledged that this was in her grievance document.

The complainant stated that the very question of asking her if she wished to work on a Tuesday was designed to ensure that she would not work and get payment for public holidays which fell on Mondays.

Telephoning the complainant on the day of her mother’s death.

The complainant confirmed that her password for the banking app had been changed and that the director did not have the required password to ensure that staff salaries were paid.

The complainant stated that the text on 20/1/23 was unnecessary as the payroll could have been done on 24/1/23. She confirmed that she was not scheduled to return to work until the Thursday, 26.1.23 but that the contact could have been made on Tuesday, 25 /1/23. The complainant stated that if when the Director telephoned her on Friday she did not know that her mother had died, she knew that her mother’s death was imminent.

Force Majeure Leave

Concerning the respondent’s efforts to secure the complainant’s salary for the period immediately preceding and proceeding her mothers’ death, the complainant objected to the Director setting out the difference between Force Majeure leave and compassionate leave and her statement that she had to get things right.

Director’s request to her on 30 March to prioritise payments to creditors within 15 days

The complainant accepts that the Director’s request to her on 30 March to prioritise payments to creditors within 15 days was reasonable but the manner in which h it was done upset her very much.

She does not change her mind of her term of power harassment by the respondent when she was 30 minutes late on date

Delay in progressing her complaint.

The complainant confirmed that the respondent engaged a third external company to investigate her grievance.

The complainant accepts that the respondent paid Company C, the final company, so she accepts that all companies sourced by the respondent would be paid by the respondent.

She confirmed that she expanded upon her grievance and submitted it to the Chairperson on 3/5/23 and on 28/5/23.Concerning the statement of the Chairperson to engage a third company, the witness confirmed that the Chairperson said he would engage somebody who was not involved with the grievance. She presumed that the Chairperson had advised the Board of her concerns and was going for someone other than Company B. She confirmed that she did accept Company B on 23/6– under duress. She believes that the respondent had no intention of getting someone other than Company B.

Concerning Company B’s proposed meeting of 6/7/23, she postponed it to allow for an amended term of reference. She sent the amended terms on 10/7/23, and they were accepted on 11/7/23. A meeting was scheduled for 13/7/23 and she confirmed that she declined to attend this meeting as she was engaging with a solicitor who intended to contact the respondent.

The witness confirmed that she requested the Chairperson to not contact her from 10/5- until after the 31/5/23.

Payment for public holidays.

Notwithstanding that these payments were to her benefit the complainant responded that the Director’s emails confirming payment for public holidays was undermining of her expertise. She stated that her conscience dictated that she should inform the director. She was unaware that her employer could give her benefits above the statutory minimum,

When asked to point to aggressive emails, the complainant stated that on the surface they were not aggressive, but the Director was out to get her.

Overall, she felt very frustrated at the delay in hearing her grievance.

At the point of resignation, the relationship with the respondent had broken down and it was hostile environment in which she could not stay.

The respondent’s letter requesting her to withdraw her resignation only came after notification to the respondent of a referral to the WRC.

Mitigation.

The complainant secured full time employment on 26/6/24 at a rate of €54 ,000 for a 37 hour week.

She did not apply for alternative employment during the period October 2023 to May 24, deciding, instead, to concentrate on her studies.

Conclusion.

Authorities.

Ms Duffy referred to the UK Court of Appeal decision in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. This requires a complainant seeking to have their complaint of constructive dismissal upheld to demonstrate that the employer has committed a fundamental breach of  the contract of employment and/or has engaged in conduct so unreasonable as to leave the employee with no other choice but resignation.

There are two strands to the complainant’s complaint.

The first was the treatment of the complainant over a period of 22 months, which in itself was a reasonable ground to tender her resignation. This constituted a breach of her employment rights for which she sought a resolution.

The second limb was that despite the fact that she had sought a resolution, six months elapsed before a process commenced. It was a delayed and flawed process. The complainant was led to believe a that a third entity would be engaged to investigate her grievance. The investigation commenced in June without terms of reference being finalised. Thereafter, the complainant had to wait a further 3 months before an alternative company commenced engagement with her. The process did not comply with fair procedures. The investigation of the complainant’s grievance commenced with a n interview with the subject of her complaint.

 Ms Duffy also emphasises that the complainant has substantially engaged with the grievance procedure.

 This entire set of facts elaborated upon by the complainant represents a fundamental breach of the complainant’s contract of employment.

She returned in September 2023 from a period of sick leave to an uncomfortable, hostile environment.

The complainant has met the two tests set out in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713.

The adjudicator should rule in her favour.

 The respondent disputes that the complainant was constructively dismissed. The complainant voluntarily resigned her employment while an investigation into her grievance was in being.

Evidence of Director given under affirmation.

She has been employed as a director since 2018.

She sat on the interview committee which selected the complainant for the job of Accounts Administrator. The witness states that she cannot understand why the complainant would say that she sneered at her at interview. This is not true. The stammer was not evident at interview; the complainant was very fluent. There were 3 candidates in contention and the complainant was her first choice.

For the first 6 months her performance was excellent, she made all the required improvements in accounts. Her probationary review occurred after the first six months and no issues arose for either party.

The state of the accounts and implications for complainant’s workload.

The Departmental appointed auditors had made a recommendation for further adjustments and recommended a more skilled employee for the role of Accounts Administrator. The complainant was therefore recruited at grade 5, her predecessor had been employed as a grade 4 executive. Her predecessor left to take up a job in the HSE.

Failure to provide the complainant with a proper handover.

The witness arranged for it. The witness offered to retain the payroll company in order to lessen the workload for the complainant, but the complainant stated that she would assume that function and would advise her if she needed further support.

Delay in payment of salary increases in February 2022.

 Staff salaries are aligned with the Education and Training Board salary scales and the respondent was waiting to see what the sectoral bargaining process would deliver so they held off on the pay increase.

The witness had no authority to approve pay increases; that is the function of the Management Committee. She had told staff numerous times of the reasons for the delay. The complainant was aware of the reasons. The expenditure of monies is under the supervision of the Comptroller and Auditor General.

The complainant’s letter to the Department of Education concerning salary was very undermining of her role and should have been sent to her in the first instance. The witness stated that she is unable to see how the delay in payment is disrespectful to staff.

Alleged attempt to reduce annual leave entitlement.

Contrary to what the complainant asserts, the witness was not trying to take 2 days’ leave from staff. In asking the complainant to agree to an updated contract offering 22 days as opposed to the 20 days in her contract, she was merely aligning the contracts with the practice.

Facial Recognition technology.

This was staff wide arrangement and not peculiar to the complainant.

Notifying the complainant of the availability of the EAP facility.

Concerning the complainant’s objection to herEmail on October 2022 notifying the complainant of the EAP facility, it’s the witness’s responsibility to check in with their staff concerning their well-being. She regularly offers the facility to other staff.

She is also entitled to inform staff of the protocols for notifying the respondent if out sick.

Timing of the Christmas party.

She did not consult staff. The needs of the Centre determined the date. She wanted to select a date on which there would be no bookings for staff.

Efforts to deprive the complainant of public holiday benefits.

Contrary to what is asserted, asking the complainant what days she intend to work the following summer had nothing to do with trying to do her out of public holidays or benefits, but rather was about forward planning. Term time was coming to an end.

Alleged sneering at the complainant.

This is denied. The witness paused and allowed her to continue.

 Remote Working

The complainant asked the witness would the respondent be updating their policy on home working. The witness advised the enactment of the expected legislation would determine any amendment. She heard nothing further from the complainant on this matter.

Texting the complainant on the day of her mother’s death.

The code for getting on to the banking app had changed. She had to ensure staff salaries were paid. It was most unfortunate, but she had to make the call. There was no best time to make this call as had she waited until the following Tuesday, the complainant’s mother’s funeral might have been in progress.

Request to fill out force majeure form.

This was in respect to the days prior to the complainant’s mother’s death. She wanted to ensure that she was paid salary. She explained this to the complainant.

Request to prioritise payments to creditors on 31/3/2023.

In asking the complainant to prioritise payments to creditors on 31/3/2023, she was trying to ensure that the payments would be made within 15 days as per the respondent’s practice. The complainant became agitated at this request and stated she could not be responsible for late delivery of documents to her. The witness told her not to worry.

It is the witness’s responsibility to ensure that the accounts are done. She was entitled to give instruction. The complainant reports to the witness.

Complainant’s grievance.

She received this on 31/3/23. The complainant asked her not to contact her until after her return on 20/4/23. She spoke to the Chairperson about the grievance and sought advice from a HR company. The respondent’s grievance policy requires that a response should issue to the complainant within 5 days of receipt of the grievance. This she did to merely advise that an external HR company would be engaged to investigate the complaints. That ended her involvement in the grievance process.

The witness had no contact with Company B but has used Company A on occasions for HR advice and input.

The complainant was not in work in July or August. She returned on 7/9/23.

The complainant’s email of 29/9/2023 was her last interaction with the complainant.

Cross examination of witness.

The witness confirmed that the accounts and risk sub committees report to the Management Committee on a monthly basis.

She confirmed that she acts as secretary to the Management Committee and does not enjoy voting rights. She confirmed that the respondent engages Company A and has a contract with them.

The witness cannot recall the date on which she explained the delay in salary payments to the complainant.

To the question as to whether it was an omission on the respondent’s part to fail to tell the complainant about the true state of the accounts, the witness described the alleged awfulness of the accounts as an exaggeration. She accepted that the complainant made significant improvements though the complainant could have worked the accounts in the state given to her on her appointment.

To the question as to whether it was common practice to offer psychological services to an employee suffering from a chest infection, the witness stated that it does not imply psychological deficiencies. It is a form of support. She has offered it to other employees.

To the question as to whether the call on 20 January 2023 was antagonistic, the witness denied it saying it had to be done by Tuesday which could have been the day of the funeral. So, any of days between the 20 and 24 January posed the same problem.

Concerning the complainant’s unease about the description of the type of leave available to her in the days preceding and proceeding her mother’s death, the witness stated that there was no issue, she was merely providing her with information.

The request to ensure payment to creditors was not a new instruction, was not demeaning, it was a recommendation.

Concerning the length of time – 5 months -which it took to deal with her grievance, the witness’s view was that this was largely attributable to the complainant’s unavailability. The complainant who requested not to be contacted on other that her 2 working days. Company A intended to engage an external professional, competent investigator. The witness does not know the connection between Company A and Company B. The witness stated that she was not in charge of the investigation process and cannot comment on the fact that Company B interviewed the witness before the complainant who did not know that the investigation had commenced until 23/6/2023.

Evidence of Chairperson of Management Committee given under affirmation.

The witness explained that the role of Chairperson is voluntary in nature. He was employed as a second level teacher in a local school.

The Director notified him of the submission to her of the complainant’s grievance. He asked the Director to contact the HR company to obtain advice. As the complainant had objected to Company A, they advised the respondent to engage Company B. Costs for same had to be and were approved by the Management Committee. The Director had no involvement in this decision.

Regarding the complainant’s understanding that the respondent was going to engage an independent investigator, or third company, the witness meant an investigator nominated by Company B who had had no previous connection with the complainant’s grievance.

He was clear in informing her that in order to engage a third, different company it would have to be agreed by the Management Committee. He was uncertain as to whether it would be an entirely different company or a separate person within Company B.

Contrary to what is alleged, he gave no assurance to the complainant about a third company.

Ultimately the complainant agreed to engage with Company B in June.

On 5/9/23 the Management Committee agreed to engage a different company. He wrote to the complainant on 14/9/23 to advise her of this and that terms of reference would issue shortly. They issued to her on 29 September.

Payment of Legal costs.

 Contrary to what the complainant alleges, he made no commitment about legal costs incurred by her. Any reference to loss meant loss of salary due to absences which exceed entitlements. At this stage the Grievance Procedure had not concluded.

He did not want her to resign. She was doing a very good job.

However, her behaviour showed that she did not wish to engage with the investigative process.

The witness confirmed that the Management committee did not agree to the complainant’s request for mediation, made on 25/23 and followed, instead, the recommendations of the HR company.

On 14/9/23 the respondent tasked Company C to with the conduct of an investigation into the complainant’s grievance. Draft terms of reference issued to the complainant on 29 /9/23. She replied to state that she would be on leave from 4 -13 October and would review the terms upon return on 18 /10 /23. She resigned on the 10 October.

 Given that she would only permit contact on her 2 working days, the amount of time between engagement of Company C and resignation was negligible.

Cross examination of Witness.

The witness stated that Company B had told them that the investigation would transparent and fair.  In relation to the question concerning the complainant’s understanding that a third HR company would be employed, the Management Committee accepted Company B’s assurances. He is not sure if the terms of reference were finalised at that stage.

Concerning the respondent’s decision to move on to Company C, the witness was anxious to get movement on the process and to make doubly sure that there were no flaws in the process- albeit unlikely- by the mere engagement of Company B.

The witness advised that he did not tell staff that employees are entitled to make a complaint in circumstances where the complainant had told him of a hostile atmosphere towards her on her return from sick leave in September 2023.

He did not tell the complainant that the respondent would cover “other costs”. The witness states that it is her impression of a conversation. He accepts that he did not correct the complainant’s letter of 15/ 9/23, alluding to an undertaking given by him to the complainant on 7/9/23 to do his best to pay costs. The witness stated that the respondent committed to consider full salary payment if there was a shortfall in her sick leave entitlements or disability benefit. And that is what he meant by costs.

 Concerning her request to work from home, the complainant was told that the facility allowing staff to work from home only exists when bad weather arises. The witness stated that she made no application.

The witness confirmed that the proposal for mediation was considered by the Management Committee but that they decided to stick with the recommendations of the HR company to use the Grievance Procedure.

Conclusion.

Mr O’Mahony submits that the evidence of the complainant was inconsistent and was marked by a refusal to withdraw misstatements.

Contrary to what the complainant alleges, it was her communications to the Director which were aggressive and inappropriate. The complainant was unable to provide any examples of bad behaviour on the Director’s part.

There is no merit in the complaints levelled against the respondent. The Director is entitled to instruct and guide employees. The Director engaged in no unreasonable behaviour.

Grievance Procedure.

The Director communicated with the complainant within 5 days of receipt of grievance in compliance with the procedure even though this was outside the complainant’s working hours. The complainant was unavailable throughout April to engage with the procedure.

On 3/5 /23 the complainant enlarged the grievance to 28 pages. The 2-month delay is down to the complainant.

The claim of impartiality against Company A and B is a mere bald assertion

Terms of reference were provided to the complainant on 11/7/23/. The complainant agreed to engage with Company B and then disengaged from the process.

The complainant’s request for a third investigator unconnected to the two previous companies was accepted by the respondent. Terms of reference were given to the complainant at the end of September.

Concerning her complaint that she was refused home working, the complainant never made such a request.

The complainant did not exhaust internal procedures prior to resigning on 11/10/23 and by that stage her demand for a third investigator and the supply of terms of reference had been met.

The complainant has failed to demonstrate any unreasonable behaviour on the part of the respondent.

The respondent refers back to the two-tier test which an employee must meet in a complaint of constructive dismissal. Concerning the contract test, the complainant has failed to demonstrate any breach of contract and furthermore failed to permit a proper investigation of her complaints by resigning.

Concerning the reasonableness test, the respondent relies on Ruffley V Board of Management of St Anne’s School (2017) IESC where Charlton J stated

“An employer is entitled to expect ordinary robustness from its employees…..Correction and instruction are necessary in the functioning of any workplace, and these are required to avoid accidents and to ensure that productive work is engaged in…………Appropriate interventions may not always be pleasant and must simply be taken in the right spirit.”

 The above matches to the circumstances of the instant complaint.

The respondent relies on Berber v Dunnes Stores 2009 E.LR. where the Supreme Court ruled that

 “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”.

The complainant has failed to meet either of the two tests and her complaint cannot be upheld.

 I am obliged to establish if section 1 (b) of the Act of 1977 operates to validate this complaint of constructive dismissal.

The dismissal is in dispute and the onus rests with the complainant to prove that she had no choice other than to terminate her employment.

Relevant Law.

Constructive dismissal is defined in s 1. of the Act, as

“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 is or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract without giving prior notice of the termination to the employer”

In the instant complaint the complaint contends that the circumstances obtaining in October 2023 were such that she had no option but to resign

The Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, in interpreting the meaning of section 1 of the Act, followed the classic formulation of the legal test in respect of constructive dismissal as set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. That test is comprised of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. Denning, MR, summarised the ‘contract test’ as follows:

“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.”

and the reasonable test which was expressed as

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

According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

“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.”

 Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Whilst many of the facts are not at  issue, the parties place a different construction on the elements of the complainant’s grievance and experience at the hand of the respondent which the complainant states warranted her resignation.

Contact outside of working hours

There were 3 such instances.

An email on the 28 /10/22 while she was on sick leave and enquiring as to the complainant’s health and wishing her a nice bank holiday weekend.

Text message to the complainant on 20/1/2023, the date of her mother’s death. I accept the intrusive, unwelcome nature of a work-related call on the day of one’s mother’s death, but when the call was made, the respondent was unaware that the complainant’s mother had died. I accept that the respondent was in a dilemma about contacting the complainant on 20/1/2023 for the details necessary to enable staff salaries to be paid, but it was a dilemma extending from the 20 – 24 May 2023. I accept that there was no good day between the 20- 24 January.

The email of the 5/4/23, notifying the complainant of the respondent’s intention to engage a HR company to address her grievance was necessary for compliance with the Grievance Procedure

 Given the totality of the circumstances, I do not find these contacts to be unreasonable behaviour of an order that would contribute to her belief that she should resign.

The Accounts Administrator role and the state of the accounts.

The complainant’s concerns about the workload appear justified, historically. Her own evidence is that she had ‘broken the back’ of the workload almost 21 months prior to her resignation and had done the necessary tidying up on the accounts.

She declined the respondent’s offer to offload the payroll onto another company. She declined offers of assistance.

I do not accept that the nature of the handover, which occurred in 2021 was designed to deceive her. It may have been inadequate; facts may have been omitted but that is a different matter to intentional deception. I do not find that this was conduct of an order which could be added to the other instances of alleged unreasonable conduct to justify her resignation particularly as it was historical.

Delay in paymentof salary increases from February to June2022.

A complain of constructive dismissal concerns the impact of the respondent’s behaviour on the complainant. The complaint’s evidence was largely around the inconvenience and the respondent’s alleged indifference towards the staff’s legitimate concerns for a pay rise.

The complainant in evidence disclosed an unawareness about the ratification process for pay rises. The Director is not authorised to implement pay rises. The respondent was waiting to see what the sectoral bargaining would deliver for employees aligned with ETB salaries.

Once authorisation was provided, the salary increases were paid in June 2022.

I do not find this to be unreasonable behaviour.

Facial Recognition technology.

This was a staff wide arrangement. The fact that the complainant did not believe it to be merited is a long way from it amounting to unreasonable behaviour, peculiar to her. The complainant has tied its costs to an impediment in paying creditors. This is not her responsibility. The auditors had examined the possible deployment of restricted funds for cash flow purposes. The Department clarified that the designated funds could only be used for the purposes for which the funds had been sought. There was no suggestion of misappropriation. The complainant connected this with what seems to be a baseless allegation of misappropriation of funds designed not to prove that the respondent behaved unreasonably towards her but rather to show the respondent Director in a poor light.

I do not consider the behaviour of the respondent to be unreasonable.

Advising the complainant of the need to apply for force majeure leave.

While it might seem a bit crass to request the completion of a form in the immediate aftermath of the complainant’s mother’s death, there was nothing about this request that was personal to the complainant or excessive. There is nothing amiss in the respondent advising the complainant of what is required to secure her salary. These are the arrangements that apply to all staff and across the public service.

Request to prioritise payments to creditors on 31/3/2023.

On 31/3/23 the Director told the complainant that creditors had not been paid within 15 days of submission of their invoices- date of stamping the invoices.  The complainant presented no evidence as to how this could have been delivered in an offensive manner.

I do not find this to be demeaning or unreasonable behaviour.

Remote Working

The uncontested evidence was that the complainant enquired about the updating of the policy as it applied to all staff, was advised that this would occur in the context of upcoming legislation. The complainant made no formal application to change the policy which only provided for remote working in adverse weather conditions.

I find that this does not amount to unreasonable behaviour.

Paying the complainant public holiday pay in excess of her statutory entitlements.

This is an extraordinary element to include in a complaint of constructive dismissal. To say that the failure of the Director to agree with her less generous interpretation of entitlements to public holiday pay is very undermining of the complainant’s expertise is consistent with her imperious manner towards the Director.

I do not find this to be anything other than reasonable behaviour

Amendment to holiday entitlement.

Much of the evidence submitted concerned other employees and is irrelevant to the complainant’s complaint. The respondent in asking her to sign an amended contract was putting in place the contractual entitlement to 22 days as her contract had provided for only 20 days.

There was nothing unreasonable; it was copper fastening her entitlement to 22 days.

The Grievance Procedure

What was it about the respondent’s handling of it that made her resign?

The complainant contends that it was the absence of impartiality and the delay.

The delay.

The complainant submitted her grievance on 31/3/23 with a request not to contact her until her return on 20/4/23.  She updated her grievance on the 3 and 2/5/23.

The Director whose actions prompted the submission of the grievance removed herself from the process about the 5th of April. The Director acknowledged the complainant’s grievance within the 5 days required by the grievance procedure.

On 13/4/23 the complainant notified the respondent that she did not wish her details to be passed to Company B, the company nominated by the respondent to investigate her complaint as she deemed them to lack impartiality, being connected, as they were, to Company A who had previously provided HR services to the respondent. This resulted in a delay.

From 31/3/23 to 23/6/23, a period of almost 8 weeks, there were ongoing contacts between the complainant and the respondent about an appropriate investigator. On 10/5/23 the Management Committee advised that they intended to appoint an external investigator not previously involved in the process. They committed to revert as soon as reasonably possible bearing in mind the length of the complaint and the time required to appoint a third party.

During the 8 weeks running from 31/3-23/6/23, the complainant requested that the respondent desist from contacting her for 4 of those 8 weeks due to annual leave, sick leave or study leave. During these 4 weeks when she was not absent on leave, she did not permit contact from the respondent on other than her 2 working days per week (8 days over 4 weeks)). Her limited availability coupled with the dispute about an appropriate investigator led to this delay during this particular period.

The complainant’s acceptance of Company B to conduct the investigation lasted from 23 June – 13 July 2023. During these 3 weeks there was ‘back and forth’ about terms of reference.  Also, the investigator offered to meet the complainant on 6 and 13 July, but the complainant declined these offers.  Ultimately on the 13/7/23, the complainant decided to engage a solicitor to contact the respondent about engaging a third company. The complaint was on sick leave from 13/7- 13/8/23.

Between the 13/8- 14/9/23, a period during which the complainant permitted contact only on her 2 working days, the respondent acceded to the complainant’s request on 6/9 for a third HR Company to conduct the investigation. On 14 /9/23 the respondent tasked Company C with the conduct of an investigation into the complainant’s grievance.  Draft terms of reference issued to the complainant on the 29 /9/ 23. The complainant went on sick leave on 29/9/2023.  The complainant replied to Company C to state that she would be on leave from 4 -13 October and would review the terms upon return but by that time she had resigned.

Given that the complainant would only permit contact on her 2 working days, the amount of time between acceding to her request for a third investigator engagement and resignation was negligible.

I do not accept that the delay in progressing the investigation of her grievance was the exclusive responsibility of the respondent.

 I accept that the complainant could claim to have been confused about what exactly lay in store for her regarding her request for a third HR company to investigate her grievance. The Chairperson stated in an email of 2/6/23, that he would do his best to engage an investigator unconnected to Company B. But it was the Management Committee, the authorised decision-maker, who decided on 13/6/23 to go with the company B’s assurances that they would assign an investigator with no previous connection with the respondent.

Did a Breach of contract occur?

The very fact that the respondent had previously engaged a HR company does not mean that its sister company is incapable of conducting an independent impartial investigation.

The provision of an external investigator, not provided for in the respondent’s grievance procedure, could have offered a further degree of separation from the respondent’s board, the subject of some mistrust on the part of the complainant.

I find that the delay in having the grievance heard was largely attributable to the unavailability of the complainant.

In all of the circumstances, I do not find that the time involved in getting the complaint off the ground and the mistrust of an investigator amounts to a fundamental breach of the complainant’s contract.

The complainant resigned while still in the midst of a grievance procedure process.

Was the respondent’s conduct so intolerable as to leave her with no option other than resignation.?

The exact matters which impelled the complainant to resign amounted to disagreements between her views and those of the Director, her belief that her views should prevail, her according of an elevated premium to autonomy over collegiality, and a resistance to direction. She failed to present evidence of aggressive behaviour on the part of the Director.

The more significant factor which led her to submit her resignation was her entire absence of trust in the bone fides of the respondent’s interest in examining and resolving her complaints. The complainant failed to present sufficient evidence to prove that this mistrust was merited.

The final factor which she states led to her resignation was the hostile environment. It was insufficient to report this to the Chairperson. She failed to lodge a complaint about the actions of any individuals.

Failure to complete the internal investigation of her grievance.

In McCormack v Dunnes Stores, UD1421/2008, the EAT stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she had acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his/her grievance with his/her employer”

The requirement to use the agreed procedures prior to resignation in cases of constructive dismissal is set out in in In McCormack v Dunnes Stores, UD1421/2008, where the EAT stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she had acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his/her grievance with his/her employer”

This was followed in Terminal Four Solutions v Rahman, UD 898/2011 and in many other decisions.

Applying the tenets of Western Excavating (ECC) v Sharp (1978) ICR 221 to the instant case, the complainant’s case rests on her characterisation of the respondent’s conduct as conduct so unreasonable “that the employee cannot fairly be expected to put up with it any longer.

Based on the evidence and authorities cited, I find that the complainant has failed to meet the tests set out in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332.

I do not find this complaint to be well founded.

I decide that this complaint is not well founded.

Failure to complete internal investigation process.