EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD382/2014
CLAIM OF:
Ken McCormack – claimant
against
Ireland Roc Limited – respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey BL
Members: Mr M. Carr
Mr A. Butler
heard this claim at Dublin on 15th April 2015, 22nd June 2015 & 11th September 2015
Representation:
Claimant:
Ms. Mary Duffy-King, Siptu, Misc Unit, Liberty Hall, Dublin 1
Respondent:
Arthur Cox, Solicitors, Earlsfort Centre, Earlsfort Terrace, Dublin 2
The determination of the Tribunal is as follows:
Background:
Both representatives made oral opening submissions to the Tribunal.
The respondent operates about 13 petrol stations and forecourt shops in Dublin and surrounding areas and employs about 390-400 people. The claimant was employed as a Manager in one of the respondent’s stations in Mullingar. The organisation is divided into 3 separate territories and each with its own Territory Manager.
The claimant complained of being bullied by his Territory Manager but the respondent found this to be unfounded. The relationship between the claimant and the Territory Manager had broken down and mediation ensued. However the claimant sought a transfer and went out on sick leave.
The respondent had no alternative manager positions available and offered the claimant an assistant manager post instead, which would have been on a reduced rate of pay. The claimant refused this offer and remained absent on sick leave. The respondent then proceeded to dismiss the claimant.
Summary of Respondent’s Case
The Employee Relations Adviser (CE) for the respondent outlined to the Tribunal the management structure and details of transfer policy and procedure within the respondent. She also outlined the claimant’s work history and details of his sick absence and grievance together with details of his transfer application and offer of transfer.
CE met the claimant for a capability meeting on 26 August 2013. On 27 February 2013 the claimant had attended a mediation meeting with his territory manager and a plan was put in place. The claimant went on sick leave shortly after the plan was devised and requested a transfer. He was later certified fit to return to work on condition that he did not work with the territory manager. The claimant’s complaint of bullying against the territory manager was investigated by the respondent and determined to be unfounded.
In April 2013 the respondent reviewed all the alternative positions that could be offered to the claimant. No store manager position was vacant so he was offered demotion to an assistant store manager position. He declined this position.
At the capability meeting CE found the claimant unwilling to take part in further mediation with the territory manager JC and also unwilling to accept any assistant manager position. He refused to negotiate.
CE made the decision to dismiss the claimant. There was no alternative position available as a store manager. The claimant would not work with the territory manager JC and neither would he accept an assistant manager position in a different territory.
The claimant’s former territory manager gave evidence. The claimant was a store manager in his territory for almost two years. He had no issues with him. The claimant requested a transfer to the other territory to be closer to home.
The performance support manager gave evidence. He had investigated the claimant’s complaint of bullying. The territory manager JC was a driven territory manager and he has a particular style of management. He did not uphold the complaint of bullying because after speaking to other store managers he could find no concrete proof of bullying. He acted impartially and followed the respondent’s procedures in carrying out his investigation. He recommended mediation to deal with the issues between the claimant and his territory manager.
Summary of Claimant’s Case
A counsellor and psychotherapist gave evidence to the Tribunal. The claimant had attended five sessions with him between February and May 2013 for treatment of anxiety from work related issues. The treatment was funded through the company’s health insurance. Further sessions were recommended but did not occur. The claimant complained of inappropriate behaviour from his manager. A request for a transfer seemed to have been rejected. The claimant was adamant to return to work but only under a different manager. He agreed that the claimant would have been fit to return under a different manager and would have benefitted from further counselling after his return.
Under cross-examination the witness confirmed that he did not have a medical background and could not certify patients. He believed that transferring the claimant was the only option available to resolve the situation.
An ex-employee of the company gave evidence. He worked for the company from 2005-2011 and reported to the claimant from 2005-2010. He progressed from sales assistant to store manager. He had a good relationship with the claimant. After his promotion to store manager he underwent training in the UK after which he was sent to a different store which he was to manage. He had understood that he would be returning to the claimant’s store for further training but this did not occur. In his experience managers were transferred without agreement. As store manager he found working under JC very stressful however he did not make a complaint as he was scared to do that.
During cross-examination he agreed that the move to a different store was due to promotion but he stated that he had no choice and he did not feel ready. He was dismissed from his employment in 2011 due to misconduct and brought a complaint of unfair dismissal to the Tribunal which was upheld. He agreed that he had never made a complaint about JC.
The claimant gave evidence. He was hired as a Store Manager Grade 1 in September 2004 and was temporarily assigned to a store while a second store in Crumlin was being upgraded which he was to manage once opened. However the day it opened he was informed that he was being moved to a store in Glasnevin. His manager said the company needed a strong manager in the Glasnevin store as there were difficulties there. The claimant was then living in Summerhill, Co Meath. Two years later he discussed with his manager the distance he had to drive to work and asked if he could move to a particular store nearer his home. His manager said it was too small a store for the claimant to manage but agreed to pay him an allowance for his toll fee. The manager put the claimant’s name forward for a Citywest store which was due to come up but the upgrade to this store did not happen. In 2010/2011 he was offered to manage the store at N4 West Mullingar. It was a slightly longer commute but it was a great opportunity as it was a larger store. He raised the distance issue but did not refuse the opportunity. When he moved there his Territory Manager was JC. He had worked several different territory managers over the years but JC was the most difficult relationship he experienced. JC phoned him daily to berate him about problems. The calls could last 30 minutes. The claimant found that whatever he did was not good enough for JC. JC constantly referenced past issues. The relationship deteriorated to the point that the claimant suffering from stress and he made a formal complaint about his territory manager. He made this complaint while on sick leave for a finger injury sustained at work.
Following mediation guidelines were agreed which defined how communications would be conducted. JC was not to contact the claimant by phone and only use the internal mail system. JC briefed the assistant manager who passed the information to the claimant. A HR administrator phoned the claimant weekly to monitor the guidelines. JC followed the guidelines but the claimant felt that he was not making an effort to move on. He wanted a meeting of minds. The claimant never made a negative report to the HR administrator.
The day after the claimant arrived back to work after sick leave an auditor arrived to do an annual audit earlier than expected. He explained that he had just arrived back from sick leave but he did not feel it would make a difference. The store was marked down for a repeat mistake from the previous year. The claimant felt aggrieved by this as JC had told him to continue this practice. The store passed the inspection but it was the lowest score the claimant had received. The claimant felt he was not being supported by JC. He went on sick leave three weeks after returning to work.
He attended counselling sessions but did not feel supported by the company. He sought a store transfer but was only offered vacancies at lower levels which he refused. One of these was as assistant manager to a store manager he had trained. This would also represent a €15 drop in salary. Later he was offered a sales assistant role and a supervisor role. He turned these down.
He confirmed to the Tribunal that he was not fit to return to work at that time.
The claimant was cross-examined. He agreed that moving to the N4 site represented a good opportunity. It was a quieter site with less theft. However while the site ran smoothly there was a deterioration of his relationship between him and the team and assistant manager because of his relationship with JC. An employee made a derogatory comment about the claimant on Facebook. The claimant instructed his solicitor to seek to have it removed. The comment was removed and an apology offered. The claimant contacted HR as he wished to confirm that should he accept the apology it would not prevent disciplinary proceedings being taken against the employee. He was assured it would not. However, no disciplinary action was taken and the claimant viewed this as a lack of support by JC as he had expressed his support but then withdrew it. He felt that the staff did not respect his role. He appealed the lack of disciplinary action taken against the employee. He did not wish to see the employee dismissed but did want him disciplined.
In paragraph nine of the claimant’s complaint he was unhappy that JC had advised him of not following procedure by not filing an incident report. The claimant had reported it as a near miss which is not reported to Health and Safety. However, this incident led to a finger injury for the claimant which kept him out of work for two weeks while waiting on an x-ray and he subsequently brought a personal injuries claim for. It seemed a minor incident at the time. He spoke to the safety captain who logged it.
The store was awarded €1500 worth of vouchers at Christmas for performing well. It was up to the claimant how to distribute them. He denied suggesting to the assistant manager that they divide them between them. He decided who had upsold more. He told the assistant manager that he would give some to her and have a party for the staff. He also intended giving some to a supervisor. She said that some staff were complaining, though these were the ones not upselling. The claimant had discussed with JC how to distribute the vouchers and then he stepped back.
The claimant lodged a complaint while awaiting his x-ray. BP looked at his complaint and went through the points with the claimant. BP suggested mediation and put the claimant on gardening leave. The claimant was unhappy as the day before mediation he was informed that his grievance was unfounded. He had been led to believe that the investigation would continue if the mediation was unsuccessful. Statements provided to him purporting to be from other store managers were unsigned and undated. He named four managers not on the list and was later told they were asked.
He was upset that when he commenced work in the N4 store JC met him with the assistant manager present. He felt the assistant manager should not have been at a meeting where JC was correcting him.
He agreed that he did not flag with the company that he was unhappy while following the mediation guidelines. He went on sick leave in March 2013 with a chest infection and later tinnitus. He later assigned these to stress. He did not return to work. He continued to be unfit for work. He wished to be re-instated so that he could recommence counselling with a view to returning to work. He was not in counselling due to financial reasons.
Determination
The Tribunal carefully considered the evidence adduced and the documents submitted in this case. The claimant had a fraught relationship with his territory manager. He attempted to resolve the issue using the respondent’s written procedures but ultimately he felt that his efforts proved fruitless and he could no longer work with his territory manager. The respondent did not provide him with an alternative position that he found acceptable.
Notwithstanding the shortcomings in the manner in which the respondent dealt with the claimant’s difficulties, for example, the failure to provide signed and dated witness statements to him prior to the grievance meeting and the seeming tacit acceptance of JC’s management style despite the complaint made by the claimant the Tribunal finds the dismissal was not unfair. In his direct evidence the claimant indicated that he was not available for work currently and during the relevant period in his employment. Consequently his dismissal due to unavailability for work was reasonable in these circumstances.
The claim under the Unfair Dismissals Acts 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)