28 Oct Constructive Dismissal
In ADJ 00034467, the Adjudication Officer determined that the Complainant had failed to exhaust the internal grievance procedures available to them to try and resolve matters and their claim failed.
The Complainant had been employed as a Digital Marketing Manager from January 2019 – July 2021, when he resigned due to his belief that his reputation has been irrevocably damaged, as a result of the Company’s mismanagement of an incident that occurred.
The Complainant had an argument with a colleague about a project not being delivered on time, which resulted in his colleague accusing him of being a bully, during an exit interview held a few weeks later, when he was leaving the Company. The Complainant said insufficient detail was taken of this every serious allegation at the time it was reported, and that his Manager and some of his colleagues then became distant, with his Manager clearly siding with the person who had made the complaint.
The Complainant said he was greatly stressed and aggrieved and had lost the trust and confidence of his Manager, and therefore had no option but to resign and protect his health and reputation, with a mediation option offered not suitable due to the proposed Mediator not being impartial, as they were a good friend of his Manager.
The Respondent outlined that the Complainant had confirmed he had lost his temper with his colleague, and on receipt of the feedback at the exit interview, their intention had never been to progress anything formally, but said that they merely intended to provide confidential feedback about the Complainant’s behaviour.
The Respondent then provided an option to the Complainant to have the matter dealt with by HR, and the Complainant raised a ticket with Employee Relations, who offered both mediation and the option to have matters reviewed more formally through their grievance procedure.
The Respondent outlined that the Complainant however went ahead and resigned, but it was still their intention to provide a solution that would enable him to return to work, as he had detailed his complaint at the time of resignation, but he was unwilling to engage in a formal process.
The Adjudicator agreed that it was the Complainant’s unwillingness to go through the formal process that ended his employment his claim must fail, stating:
There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster Bank Ltd (UD 474 /1981) In Conway, the EAT considered that the claimant did not act reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints”. Where there are no formal procedures, advice should be taken as to the most appropriate way of presenting a complaint within the employment. At the very least an employee should communicate his or her grievance before resigning.
Similarly, in ADJ 00031455, the Complainant was unsuccessful in his claim for constructive dismissal for not exhausting the internal grievance procedure.
The Complainant had been employed as a Bar Manager in a Wetherspoons Pub in Cork since 2018, with previous service with the Company since 2012, before he resigned his position on 25th November 2020, two days after being invited to a disciplinary meeting.
The Complainant had raised concerns in 2019 about the level of security on the Premises, and after a particularly unpleasant incident in March 2020 when a staff member was attacked with broken glass, he requested a transfer to another location, as he did not feel safe. The premises then closed shortly after this due to Covid 19.
The Complainant had a panic attack and was on sick leave for two weeks before he returned to work in September 2020.
A grievance was then raised in September 2020 against the Complainant by a staff member in respect of alleged racial discrimination, when the staff member was not promoted. The subsequent investigation of the grievance unearthed a number of other issues with the Complainant’s management style and treatment of staff.
The Complainant was invited to a disciplinary meeting on 23rd November 2020 and was informed that dismissal due to gross misconduct could occur.
The Complainant resigned on 25th November 2020 through a letter from his Solicitor, which claimed that the Company had an abject disregard for his safety and welfare in the workplace, and he had no choice but to resign.
At the hearing, the Complainant also asserted that his request for a transfer in March 2020 had been an initiation of the grievance procedure.
The Respondent gave evidence that they had implemented a number of additional safety measures in 2019 such as extra CCTV, personal alarms for staff and a direct alarm to the Guards. The Respondent outlined that safety review was on ongoing matter and that they had understood that the Complainant was happy with the measures they put in place, following the incident with the broken glass.
The Respondent said they could not ignore the allegations regarding potential breaches of equality law and their own Diversity & Inclusion Policy, and that it was necessary to invite the Complainant to a disciplinary hearing.
The Adjudicator in her decision disagreed with the Complainant and said he had not discharged the burden of proof required, that he had no option but to resign, and there was no evidence that the Respondent had not taken his safety concerns seriously.
The Adjudicator also disagreed that the Complainant had invoked the grievance procedure back in March 2020 and whilst accepting that he had genuine safety concerns following the glass incident, this was merely a request to transfer work location.
The Adjudicator further stated that to her mind, it appeared that the Complainant had resigned when faced with the considerable litany of staff complaints against him, and he clearly had not exhausted the internal grievance procedures as required to successfully claim constructive dismissal, again citing Conway v Ulster Bank:
In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. I would therefore have regard for the seminal Employment Appeals Tribunal case of UD 474/1981 Margot Conway -v- Ulster Bank Limited wherein the Tribunal stated:
“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”