Complainant

Respondent

Parties

Mairead  Fitzpatrick

Primark Ltd.

Representatives

  Self-represented

Michael McGrath IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00066436-001

02/10/2024

The complainant is alleging that she was constructively dismissed by the respondent. The complainant commenced employment with the respondent on the 2 January 2008. She was employed as a department manager in the respondent’s store. The complainant states that due to the actions of the employer she felt she had no option but to resign from her position and did so on 14 April 2024.  

The complainant states that on 10 November 2024 she contacted HR in confidence for guidance of how to handle a potential issue regarding the assistant manager. The complainant states that she did not want the manager to know as she knew it would make working in the shop very difficult going forward. The complainant states that she just needed advice on how to handle anything in the future. The complainant states that this confidential phone call was relayed back to the assistant manager who accused the complainant of bringing a grievance against her on the 12 December 2023. The complainant states that pursuant to the company handbook it states that where a person  needs to raise a concern confidentially, the company will make every effort to keep the identity of the staff member secret but this did not happen in the within matter.

The complainant states that on the 14 December 2023, a mediation between her and the Assistant manager ended in the complainant been told off with no solutions or resolution going forward. The complainant states that the Area Manager conducted the meeting. The complainant states that she was not asked if she wanted a representative. The complainant states that she was told off for being childish and to stop playing the victim. The complainant states that in that meeting, she was told off for running to HR about silly things and that it should be dealt with in store. The complainant states that at that juncture, there was no store manager. The complainant states that she tried to use the internal procedures that were available and to resolve the issues between her and assistant manager.

The complainant states that subsequently a situation from 29 January 2024 involving a customer complaint against a colleague was brought to her attention. The complainant states that she managed that situation to the best of her knowledge and training. The complainant states that a grievance was brought against her by the colleague Ms O involved in the customer complaint, but the customer complaint was never dealt with. The complainant states that she was handed a letter on the 14 March 2024 with no explanation of what it was. The complainant maintains that pursuant to the company handbook, the informal procedure was not considered and that the assistant manager should have considered alternative actions.

The complainant states that on 1 March 2024, the same day, her colleague Ms O had a grievance meeting; the complainant was told by the assistant manager there were management moves and that she would be moved down stairs so she would now be overseeing that colleague Ms O’s department. The complainant states that she was concerned that this would only make things worse. The complainant states that she was told by management to act professionally. The complainant states that she tried to make the assistant manager aware of the damage this could cause in an effort to minimise conflict and stress.

The complainant states that on 18 March 2024, she was asked to do an investigation meeting. She states that she engaged in the meeting. The complainant states that she expressed her concern regarding the conflict of personalities between herself and her colleague.   

The complainant states that on 19 March 2024, she went to her doctor, who certified her for a month’s sick leave on the basis of work related stress.  The complainant states that she never got a call or communication from the store manager until she contacted the store manager Mr K.  Mr K told her that they paused everything until she was back in work. The complainant states that she told him the reason she was out of work is because the outcome was taking a toll on her and there was nothing stopping the meetings going ahead with everyone else as her meeting was done. The complainant also told him that the timing of doing a management move and putting her over a colleague who just put in grievance against her was very questionable.

The complainant states that she asked numerous times for the reason of the grievance. The complainant states that the reasons changed over the course of emails, reasons are “the manner in which I dealt with a customer complaint”, “grievance against two managers” and “mistreated colleague”. The complainant states that on numerous times, the company left her in limbo and  she was required to email to ask for clarification on meetings, dates, and outcomes. The complainant states that she had to ask other members of management to ask the store manager to acknowledge her emails.

The complainant states that the grievance procedure was never followed, it was never discussed informally. There was no support or protection for her position in the store.  The complainant states it was the final straw and she decided to resign. The complainant states that to the best of her knowledge she exhausted the procedures available to her before taking steps to resign.

The complainant states that from the outcome of the investigation 11 July 2024, it was stated there was a breakdown in communication between two parties involved, a recommendation that mediation between parties would support better working relationships going forward. The complainant states that she appealed the decision. The complainant states that she was told by management that Ms O had a right to bring a formal grievance against her.

In conclusion, the complainant states that there was a customer complaint made to her and another manager on 29 January 2024. The complainant states that the customer complaint was never investigated, instead the complainant was accused of lying about a customer complaint. Again, this was not addressed by senior management. The complainant states that she was pushed to leave her position. She states that there was a lack of support. The complainant states that she tried to utilise the internal procedures by making the HR aware of situations in November but there was no  support forthcoming for her. The complainant states that there were many confidentiality breaches regarding information given to her about another manager complaint which was inappropriate.

The complainant states that she was subjected to a constructive dismissal by the respondent.

The respondent states that the complainant is alleging that she had to constructively dismiss herself due to the conduct of her employer. The respondent refutes this claim in its entirety. In particular, the respondent contends that the cessation of employment does not meet the burden of proof required to substantiate a claim for constructive dismissal. The respondent states that the complainant resigned of her own volition to take up another job, the day after she resigned. The complainant did not initiate or exhaust the internal grievance procedures in advance of resigning. The respondent contends that the complainant was the subject of a grievance which was raised by a colleague. It states that the complainant herself never raised a grievance in respect of any workplace issues in advance of resigning her employment.  The respondent asserts that additionally, the complainant declined to withdraw her resignation to allow the company to investigate any workplace issues she may have had before resigning. The complainant resigned her employment by e-mail on 3 April 2024, effective 14 April 2024. The respondent states that the complainant rejected the opportunity to withdraw her resignation prior to 14 April and the complainant commenced employment in an alternative role on 15 April 2024.

Background

The complainant commenced employment with the respondent on the 2 January 2008. She was employed as a department manager in the respondent’s store located in Wexford. The complainant resigned effectively from her position on the 14 April 2024.  The respondent states that initially, in November 2023 the complainant contacted the People & Culture Business Partner (P&C PB), Ms N to ask advice on her relationship with the newly appointed Assistant Manager in store. The complainant was presented with a range of approaches/options by Ms N for addressing the situation, including mediation as well as formal and informal procedures. Ms N advised the complainant to consider her options and decide what she wished to do, if anything. Ms N also suggested the complainant consider looking to sit down with her Assistant Manager to seek to address any issues she may have.

The complainant did not come back to Ms N on whether she intended to move forward with any of the suggested options. The complainant did not initiate a grievance in respect of the issue. Ms N did not inform the Assistant Manager that a grievance had been raised against her by the complainant. Ms N did advise that she had spoken to the complainant but did not divulge the content. At this time there was no permanent Store Manager in the store, as she had been promoted to another Store. The Area Manager, Mr C requested the interim Store Manager Mr L to meet with the Assistant Manager and both senior managers, (including the complainant) to discuss communications and ways of working. The Store Manager met with each of the managers separately and then suggested individual meetings with the new Assistant Manager. The complainant declined to meet the Assistant Manager.

As there were still communication issues and differing opinions regarding ways of working in the store, the Area Manager met with the Assistant Manager and the complainant in the store in December 2023. This was not a formal mediation meeting but an attempt to work out any issues and look to the future and build relationships. No formal or informal grievance had been raised against any person at this time.

On 8 February 2024, in an entirely separate issue, management received a grievance letter from another staff member, Ms O against the complainant and another manager, Ms W. The complaint concerned how the management had addressed a customer complaint. Ms O was unhappy with how the complainant dealt with the issue and the way it was brought to her attention. Again, the complainant herself at no stage has raised a grievance with the company in respect of any issue.

On 1 March 2024, the grievance hearing took place with Ms O. In Ms O’s grievance statement, it outlines that the complainant informed her that a customer had a lodged a complaint against her, stating “a customer has just complained about members of staff bitching about managers”. When Ms O questioned how the complainant knew this, the complainant responded, "Because she was the one that was described” and the customer had said “the older lady with dark hair”.

On 14 March 2024, an invite to a grievance hearing was sent to the complainant in order to enable a full investigation. The complainant was afforded the right for representation by a work colleague. Included was a copy of the organisation’s grievance procedure, a copy of minutes from Ms O’s meeting and a copy of the grievance raised by Ms O. On 18 March 2024, a grievance investigation meeting took place with the complainant.

On 3 April 2024, during the grievance process, the complainant sent an e-mail to Store Manager Mr K, resigning her employment effective 14 April 2024. On 4 April 2024, Mr Kirby replied to the complainant seeking to meet to understand her concerns. 

On 5 April 2024, the complainant responded to indicate that her decision was final, however she would still meet with Mr K before she finished up. On 12 April 2024, a virtual meeting was held with Mr K (Store Manager) and the complainant. At this point, the grievance investigation had not concluded and no outcome had been issued. In this meeting the complainant was asked what the reason was for her resigning her employment. The complainant raised multiple issues from ‘months back’ including interactions with her Assistant Manager. It was clear in the meeting that the complainant was also dissatisfied that she was the subject of a grievance which she felt was not merited. Upon being asked by Mr K it was also clear that she did not raise any of the previous issues she alluded to in a grievance to the company. In the same meeting Mr K asked if she wanted to ‘pause the resignation?’ However, the complainant wanted to proceed with her resignation as originally tendered.

On 26 April 2024, a letter was sent from Ms O to the respondent withdrawing her grievance. This was retracted mid-way through the investigation process. As the investigation had already commenced, it continued as per the organisation’s procedure in order for the person to whom the allegation was against, to get a conclusion to the process.  On 3 May 2024, a letter was sent by Mr K to the complainant responding to the issues raised at the meeting between Mr K and the complainant at their meeting on 12 April.

On 19 June 2024, the initial findings of the grievance raised by Ms O was issued to the complainant. Within the correspondence, it noted the different points that were mentioned in the witness investigations. The complainant was given the option to put forward more information to be considered within the investigation.

On 10 July 2024, the outcome of the grievance letter was issued to Ms O. On the same day, the outcome of the grievance against the complainant made by Ms O was issued to the complainant. Ms A found that she believed there was a breakdown of communication between parties involved and recommended mediation between the parties to support better working relationships going forward. Both parties were given the option to decide if they would like to proceed with the mediation, the respondent offered to facilitate this. The complainant was given the right to appeal against this decision within 7 days of the letter being received.

On 8 August 2024, despite no longer being employed in the company, the complainant appealed the grievance outcome. On 2 October 2024, the complainant sent her claim form to the WRC. On 5 October 2024, the appeal hearing took place with the complainant and respondent. Mr L listened to the points of appeal from the complainant and asked further questions to increase his knowledge and understanding of the issues. On 23 October 2024, the outcome of the appeal against the outcome of the grievance made by the complainant was issued with the conclusion of upholding the decision made by Ms A and notes that the complainant has exhausted the right to appeal internally.

Respondent’s Position

Section 1(b) of the Unfair Dismissals Acts, 1977 – 2015 (as amended) defines dismissal in relation to an employee as, inter alia: “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.”

The respondent states that in light of this definition, and established principles adopted by the Tribunal and the Courts, there exists a burden on the employee to demonstrate that: (a) the employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, (b) or the employer had acted so unreasonably as to make the continuation of the employment intolerable, (c) and it was reasonable for the employee to resign. It is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. It is the respondent’s position that none of the above criterion have been met.

Contractual test

The respondent submits that at all times it operated within the terms of the contract of employment between the parties. No contractual violation occurred. The respondent would draw on the explanation of the contractual test for constructive dismissal as set out in Conway v Ulster Bank, UD474/1981 to confirm this position, in that the respondent did not violate any term of the contract or organisation policies, express or otherwise. The respondent’s actions were in no manner “a repudiation of the contract of employment” and did not demonstrate “that the respondent no longer intended to be bound by the contract”. No change occurred in the contract to make it “so radically different from what was before”. 

The respondent states that it fulfilled its contractual obligations, implied and otherwise, at all times. In light of this, it is the respondent’s position that the termination of employment fails on a contractual test to be a constructive dismissal.

Reasonableness test

In respect to reasonableness, it is the respondent’s position that there exist two interwoven factors to be considered: (a) did the employer act unreasonably so as to render the relationship intolerable, and (b) did the employee act reasonably in resigning, particularly in respect of exercising and exhausting internal grievance procedures. This is in accordance with established approaches as expressed by the Tribunal, for example in McCormack v Dunnes Stores, UD 1421/2008, where the Tribunal stated: “The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

Reasonableness: the conduct of the employer

It is the respondent’s position that it acted reasonably and fairly at all times, in accordance with its policies, best practice, and appropriate conduct. The respondent was faced with a grievance raised by an employee which involved the complainant and another employee. The respondent was obliged to investigate the matter which it did in line with its policies. The complainant resigned to take up alternative employment before the grievance process was concluded or outcome issued. The complainant also resigned without initiating or exhausting the internal grievance process in respect of any of the issue which she claims lead to her resignation.

Reasonableness: Failing to exhaust internal procedures

The respondent submits that it has a comprehensive grievance procedure in place, through which all grievances re fully and fairly processed, in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000). The company recognise Mandate and have a comprehensive grievance procedure. The complainant did not initiate a grievance in respect of any issues which purportedly lead her to resign in advance of resigning her employment. Additionally, when asked in the Meeting on 12 April 2024, if she wished to pause her resignation to allow the company to assist her, she declined. She resigned her employment without allowing the company the opportunity to understand the issues, if any, which led her to leave the company.

It is the respondent’s position that in advance of the complainant furnishing her resignation, she should have fully utilised internal procedures to resolve any grievance, which she failed to do. The respondent maintains that the complainant acted in a hasty and unreasonable manner by resigning from her position before utilising and exhausting internal procedures. As such, the complainant did not act reasonably in resigning her employment as she had not previously “substantially utilised the grievance procedure to attempt to remedy her complaints” (Conway v Ulster Bank).

The obligation to exhaust internal grievance procedures extends even in situations whereby there exists a purported breach of contract. In Travers v MBNA Ireland Limited, UD720/2006 the complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. The complainant initiated the company’s internal grievance procedures but did not exhaust them and resigned without lodging a final appeal. The Tribunal found: “the complainant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the complainant’s case” and stated: “in constructive dismissal cases it is incumbent for a complainant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”. The Tribunal thus found in that case that the complainant was not constructively dismissed.

The respondent states that just as it is unacceptable in the case of a non-constructive dismissal for an employer to dismiss without recourse to fair and comprehensive procedures, so too is it insufficient for an employee to claim herself to have been constructively dismissed without utilising and exhausting grievance procedures. It is the respondent’s position that the complainant fails to establish the burden of proof that her actions were reasonable. As in Travers v MBNA, it is the respondent’s position that the complainant’s failure to utilise/exhaust internal grievance procedures before resigning from her position is detrimental to her claim.

The complainant failed to provide the respondent with an opportunity to fully respond to her concerns by failing to utilise any of the formal channels to seek to address any issues she may have had. By virtue of this, the complainant’s resignation does not fulfil the test of reasonableness and thus cannot be determined to be a constructive dismissal.

The respondent asserts that furthermore, the complainant’s last day of employment was 14 April 2024. The complainant immediately commenced employment in another role the next day, 15 April 2024. It is clear that the complainant resigned her employment as she had another role into which she could commence and not because she could no longer remain in her role due to the conduct of the employer. The complainant has previously spoken to People & Culture business Partner Ms N in early March 2024 about the possibility of taking a career break. Ms N outlined the policy to the complainant. The complainant advised she was looking to return to education with the possibility of being accepted into a Recruitment course and that she would only receive notice of being accepted 4 weeks in advance. The respondent states that the complainant was clearly seeking an opportunity to change employments and her resignation can in no way correlate to a situation of constructive dismissal.

The respondent states that the complainant’s actions were therefore not reasonable in resigning her employment such that no claim of constructive dismissal can be established.

In conclusion, it is the respondent’s position that it in no way repudiated the contract of employment but rather operated the employment relationship at all times within the parameters of that contractual relationship. Furthermore, it is the respondent’s position that its interactions with the complainant were at all times reasonable, and that, conversely, the complainant’s action in failing to utilise the internal grievance procedures before tendering her resignation amounted to unreasonableness on her part. In light of that, it is the respondent’s position that the complainant was not dismissed, constructively or otherwise, from her employment.

Constructive Dismissal is defined in the Unfair Dismissals 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 was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

There are two 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.  All other options including grievance procedures must be explored. 

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.  There is a reciprocal duty on an employee to demonstrate that they acted reasonably.  The reasonableness test can be relied upon either as an alternative or in combination with the contract test. 

In Berber v. Dunnes Stores [2009] 20 E.L.R. 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 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.”

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. 

In a constructive dismissal case, it is well established that it is incumbent upon an employee to utilise any available grievance process before resorting to a resignation, as set out in the seminal EAT case Conway v. Ulster Bank Ltd.  [UD474/1981]. In the case of Harkin v Guinness Storehouse Ltd D469/2015, the EAT determined that: “The Tribunal find that it was not reasonable for the claimant to terminate her contract of employment in circumstances where she failed to invoke any grievance in relation to her concerns and failed to appeal her 2014 review result. Furthermore, the Tribunal finds that the respondent acted reasonably in their dealings with the claimant and were fair and objective at all times. No evidence was adduced before the Tribunal which could lead the tribunal to conclude that the failure to invoke the grievance process was justified. The Tribunal also find that the claimant’s reaction to the two issues was disproportionate to the issues themselves.”

Based on the totality of the evidence adduced in the within matter and having carefully considered all of the written and oral submissions, I find the complainant has failed to discharge the burden of proof to support her claim that she was constructively dismissed. There is no evidence to suggest that the respondent no longer intended to be bound by any essential term of the contract of employment. I am satisfied that the complainant has failed to establish that she was constructively dismissed particularly when regard is had to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” pursuant to the Unfair Dismissals Act. 

I am satisfied that the complainant did not utilise any of the grievance procedures to seek to address any issues she may have had. Therefore, the complainant’s resignation does not fulfil the test of reasonableness and thereby cannot be determined to be a constructive dismissal.

I note that the complainant’s last day of employment with the respondent was 14 April 2024 and she immediately commenced employment in another role the next day, 15 April 2024.  I note that the complainant has previously spoken to People & Culture business Partner in early March 2024 about the possibility of taking a career break. I note that the complainant advised she was looking to return to education with the possibility of being accepted into a Recruitment course and that she would only receive notice of being accepted 4 weeks in advance.

Based on all of the foregoing, I find that the complainant’s resignation does not relate to any fundamental breach of contract on the part of the respondent. I find that there was a failure on behalf of the complainant to utilise the grievance procedure. In those circumstances , the complainant has failed to establish a case of constructive dismissal and accordingly her complaint fails.

I find that the complainant was not unfairly dismissed.

Constructive dismissal