Anne O'Connell Solicitors | View firm profile
In the recent decision of the Workplace Relations Commission (“WRC”) of Jennifer Healy v De Paul, ADJ00026357 the WRC found in favour of the Complainant’s constructive unfair dismissal complaint, despite the Complainant’s failure to exhaust all internal procedures available to her.
Facts: The Complainant was employed by the Respondent as a Relief Worker on a case-by-case basis from December 2013, until she left her employment on 30th June 2019. The Complainant lodged an unfair dismissal claim in December 2019 asserting that she had to leave her job due to the conduct of her employer and others at work.
The Complainant contended that she had been bullied by a male member of staff for a period of six months. She approached the line managers at different times, with no results. At this point, she made a formal complaint in line with the Respondent’s Grievance Procedure, which stated that grievances would be dealt with within 5 days.
The complaint was acknowledged three weeks later by the line manager. Some weeks after this, the Complainant was approached by the line manager, who handed her back her written complaint and stated that “we will have a cup of tea and a chat about things”. She was also informed that the complaint had not been forwarded to HR. The Complainant subsequently moved to a different work location.
A second manager then approached the Complainant and informed her that if she returned to her original work location, the alleged perpetrator would be spoken to. However, on her first shift back the Complainant discovered that the perpetrator was scheduled to work with her. An investigation was eventually commenced in which the Complainant and perpetrator were interviewed on 27th June and 29th June respectively, however, none of the five potential witnesses that the Complainant had put forward were interviewed. At this point, the Complainant, having suffered panic attacks during this period left her employment three days later.
Decision of the WRC:. The Adjudication Officer (“AO”) concluded that the Respondent’s actions in respect of the Complainant’s grievance “from start to finish were flawed”. Initially nothing was done in relation to the complaint submitted. When the matter was formally submitted as a grievance and an investigation was commenced, it too was flawed. The AO further noted that no terms of reference had been drawn up for the investigation and it appeared that the investigator did not know what she was investigating. He pointed out that despite a Grievance Outcome letter being issued on the 9th August, a letter was sent to one of the potential witnesses on the 14th August inviting them to be interviewed in relation to the grievance investigation.
The AO had no regard to the Respondent’s argument that the grievances were minor and not of a sufficient serious nature to justify her constructive dismissal.
The AO found that the complaint of unfair dismissal was well founded and ordered the Respondent to pay compensation totalling €8,036.20, which included the difference is her salary for a year.
Takeaway for the Employers: It is well stated established that a Complainant must meet a high bar in demonstrating that their employer was in breach of contract and/or acted in a fundamentally unreasonable manner towards an employee to justify their resignation. It is also well established that an employee must be shown to have exhausted all internal procedures in an effort to give the employer an opportunity to address any reasonable concerns of an employee before resigning. This decision highlights that, despite the high bar to be met by an employee in such cases, there is an equally high bar on an employer to conduct a proper and fair investigation and to follow its own procedures in so doing.
Authors – Ethna Dillon and Anne O’Connell