UD976/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                   CASE NO.

Seamus Murphy                                                                                              UD976/2014

against

CLI Insurance Services Limited

t/a Cunningham Lindsey Ireland

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. K.T O'Mahony B.L.

Members:     Mr D. Hegarty

                    Mr J. Flavin

heard this claim at Cork on 2 July, 6 and 7 October 2015

Representation:

Claimant : Mr Richard Liston B.L. instructed by Harrison O'Dwyer, Solicitors,

                     Unit 1 Millbrook, Iveragh Road, Killorglin, Co. Kerry

Respondent : Mr. Damien Cahill, IBEC, Knockrea House, Douglas Road, Cork

The determination of the Tribunal was as follows:

This is a claim of constructive dismissal and the onus of proof is on the claimant.

Summary of Evidence    

The respondent provides insurance services. The claimant is a chartered quantity surveyor and a qualified public loss assessor/adjuster. He commenced employment with the respondent in May 2011 in the role of trainee loss adjuster in its Cork office and later became a mobile loss adjuster covering the Cork and Kerry region. His duties involved physically inspecting sites where the damage was under €15,000.00 and transmitting the information back to a loss adjuster in head office for settlement. At first the claimant had used a pen and paper to gather the details of the damage and on his return home or to the office he would log the information into the system. Around mid to late 2012 he was allocated a tablet which he used at the point of inspection to input the data into the system. Having the tablet also meant that the mobile loss adjusters could receive their instructions electronically. Claims were allocated as they came in by a claims allocator (CA), of which there were three. Under the terms of the service level agreement (SLA) for mobile field adjusters the first contact with the insured must be made within 24 hours and an inspection done within two to four days, depending on the nature of the damage.

When the claimant commenced employment with the respondent there were seven employees in the Cork office: four loss adjusters and three support staff. In 2013 when the respondent centralised shared services to a centre of excellence in Galway the staff in the Cork office was reduced to three: a loss adjuster, a mobile loss adjuster (the claimant) and one support staff. In addition the claimant had to cover inspections in other areas including Limerick, and Tipperary, which increased his time travelling and added to his workload causing him further stress. The claimant’s evidence was that by late August/September 2013 only he and one support staff remained in the Cork office. The respondent’s position was that there was a significant decrease in the number of claims between 2011 and 2013.

The tablet frequently malfunctioned and the claimant had to revert to the original method of manually recording details on site and logging the information onto the IT system or sending it via e-mail on his return to the office or home at night. Further, the use of the tablet required internet access in an area which was not always available.

From early August 2013 up to early January2014 the claimant regularly sent e-mails to the respondent about his malfunctioning tablet or the number of claims he had to inspect. In his email dated 7 August 2013 the claimant informed Directors P & B that he was inundated with claims and reminded them that in recent months he has also been dealing with claims in Limerick and Tipperary. In his e-mail dated 14 August he indicated to the directors that the volume of work being assigned to him “crazy” and he could not keep up with it. While Director P, to whom the e-mails had been addressed, understood the claimant’s position but told the claimant that he could not overrule the instruction of the Claims Links Manager (CLM) to do a Limerick call. In early September the claimant had the flu but the work continued to come in and was backing up; he was missing meals and having little sleep. The level of his workload was such that on 8 September 2013, he asked the Operations Manager (OM) to remove him from training so he could carry out his inspections. He was facilitated on this occasion.  

On 13 September his tablet would not sync and he had to revert to the old method. This was communicated to the IT manager. Other mobile loss adjusters were also having problems with their tablets at this time.

Frequently, when visiting a distant location an insured would not be available to facilitate an inspection or another claim from the area might come in on his return to Cork and he would ask to have these claims reallocated. Because of the distance from the office and the extensive area he was covering he could not inspect the claim until the following week, which would be a breach of the SLA. He made such a request on 19 September on his return from Kerry.

E-mails between management on 7 October demonstrate the respondent was considering whether to reallocate some of the claimant’s claims when he received 12 claims on that particular day but a decision was made see if the number of claims would even out over the week. In his e-mail of 8 October the claimant explained to AC that he already had 30 claims on his tablet and did not have the capacity to deal with claims being allocated. On 14 October his tablet was down and he asked AC to hold off on calls if she could; he was hoping she would reallocate the Kerry calls that had had come in. Work comes in on the tablet and when it was down he was notified about claims on the hard drive and by e-mails.

In mid-October the claimant asked to be removed from an urgent Kerry claim but two days later it was still in his name and had not been inspected. Around this time he received a replacement tablet. He informed AC that he was at full capacity and had claims to inspect in west Cork. There was no response to his request for its reallocation. He was concerned about the SLA.  

On 23 October the tablet would not sync and claims were backing up. On 24 October he asked AC to reallocate a Kerry claim to which he could not gain access as he could not get back to Kerry the following day but he was told there was no one else to cover the inspection. On 25 October he wanted to offload his Kerry claims for the following week and work nearer home as their second baby was due but his request fell on deaf ears. He explained his reluctance to travel to Head of ClaimsLink (HC) but was told that they could not get anyone else to cover and suggested that he could do the work on Saturday or the bank holiday. On 30 October the claimant crashed his car into a pillar leaving an inspection, damaging a letter box and causing extensive damage to his car. He maintained the accident resulted from the pressure and stress he was experiencing at the time.

On 1, 4, 13 & 14 November the tablet was freezing or not syncing or he had no connectivity in some areas and he was going into claims without information and returning to the office in the evenings to e-mail the reports to head office. In an e-mail dated 15 November the claimant sought information about the ten inspections he had to carry out. The mobile loss adjuster is required to tell the property owners if they are under insured.

On Monday, 18 November he asked CA to reallocate an urgent claim she had sent him as it was the eight claim he had received that day and he had the Kerry run on Tuesday and appointments on the Wednesday. That evening the claimant reported to IT, copying the e-mail to AC and CLM, that his tablet was frozen, half the claim forms were missing and that he needed a day in the office to scan his reports to Dublin. Half an hour later the decision was taken to give him a day at his desk that week. An adjuster was also being sent on a run to Cork to take the pressure off and OM asked CA if volumes were low in the south east to send an adjuster on a run to Cork. (There was no evidence as to whether the latter occurred.)

Around this time the claimant had an issue that the company’s paternity leave policy is three days’ unpaid leave. He was informed that, if he wished, he could take his four remaining days of annual leave. On 18 November he relayed his disappointment to Director P, pointing out that he had saved the respondent around €15,000 on quantity survey work and that he was accommodating a policy holder by doing an inspection the following Saturday.

On 20 November the claimant asked AC to reallocate an urgent inspection that needed to be inspected the following day but her position was that she could not send another MFA to Kerry for just one call. The claimant was feeling very stressed at this stage.

In early December the claimant was at full capacity and further claims were being sent to him. On 2 December he asked AC to ease off sending claims or to reallocate them due to his existing workload, already having 24 claims on his tablet. On 3 December he told AC he could not inspect an urgent claim as he was at full capacity and asked her to reallocate some of his claims. On 4 December the claimant informed CLM that he had received 13 new claims the previous day and already had 20 more on his tablet, one being a five-hour round trip. When CLM questioned how he had 20 claims on his tablet, the claimant advised him that he could only do 4/5 claims a day because of the extensive area he was covering. CLM also informed him in his e-mail that allocation had told him that he was only getting the usual number of claims and that the respondent had interviewed a candidate who lives in Tralee for the role of mobile field adjuster. The claimant felt that the respondent was ignoring the long distances he had to travel in the course of his work. The claimant informed CLM that he had a major backlog. On 16 December and again on 18 December, the day before he was due to go on holidays, his tablet malfunctioned again. On 19 December CLM sought help for him and while OM could send help she felt this should not be necessary as he was nine claims short of target that week.

The claimant eventually received a new tablet device on 6 January 2014 having been informed that he would receive it on the 3 January. The new device was also malfunctioning and failing to sync data and the claimant was away behind on claims. On 9 January MOD enquired whether three particular claims that seemed to have gone several days without an inspection but one had been inspected and the claimant had not received the other two.

In a phone call from HC and the ClaimsLink Operations Manager on 15 January 2014 the claimant was informed that his performance was disappointing and he was asked about the number of claims he was inspecting. The ClaimsLink Operations Manager was aggressive and asked him what time he got out of bed in the mornings and what time he got home in the evenings. He was asked to phone the ClaimsLink Operations Manager every day to confirm he had done five claims. The claimant was very upset by the call. Later that evening the claimant told HC in an e-mail that he felt ambushed and disturbed by the phone call and would be reviewing his position over the next few weeks. The following morning HC phoned and asked him not to come to hasty decision. HC had heard the comments of the ClaimsLink Operations Manager and conceded that the claimant could justifiably conclude that her input amounted to harassment. Her approach was inappropriate and misjudged and the desired objective of the phone call had not been achieved. HC phoned the claimant the following day to check on his welfare.

The claimant felt unwell. His doctor advised him that could suffer a heart attack or mental break down if he did not leave work immediately and put him off work for six weeks from 17 January 2014 to 28 February 2014. However, the doctor’s letter furnished to the company at this time stated that the claimant “is unfit for work from Jan 17^th to Feb 28^th inclusive due to medical illness”.

At the respondent’s initiative the claimant was assessed by an occupational health consultant (OHC) on the 13 February and found to be fit for work. The claimant was very critical of OHC’s assessment, which the claimant described as cursory and lasting about five minutes and only involved being weighed, having his pulse taken and being asked, some general questions.

The HR Specialist (HRS) invited the claimant to a meeting in Dublin on 25 February and enclosed OHC’s report with the letter of invitation. The report found the claimant fit for work and although he was complaining of stress related symptoms OHC could find no evidence that he was suffering from any medical illness and noted that he had not been receiving any medical intervention, other than being put off work. The claimant was disgusted with OHC’s assessment report.

Although on sick leave the claimant attended the meeting in Dublin with HC and HRG. On his way to Dublin he knew that he would not return to work; he “had been screaming for help” and it was coming too late. Notwithstanding this decision the claimant outlined his grievances at the meeting. These included inter alia the paternity leave issue, his low salary, his car crash, holiday leave and payment for his quantity surveying work. HC expressed concern that the claimant had taken holidays in July 2013 without approval, leaving between 20-32 clients without inspections. The claimant’s position was that he had put in for his holidays two months in advance and assumed that they were approved. HC was hoping to encourage the claimant back to work but the claimant “dropped a bombshell” when he intimated that he was 90% sure he would not return. He told them OHC was “full of bull”. A large part of the discussion centred on payment for the quantity surveying work which the claimant had done for the company. A certain figure was suggested and the claimant intimated that he was prepared to take the matter further. HC suggested that the claimant take some time to make his decision. HRG felt that the quantity surveying work was the big issue for the claimant

On 3 March the claimant sent an e-mail to HRG advising: (i) he would settle for €20,000 for the quantity surveying work “which would include all grievances as discussed” and the figure was non-negotiable, and (ii) he was not returning to work, which was not an easy decision and wanted to thank HC for sharing his knowledge and experience with him over the years.  

By letter of 6 March, the respondent wrote to the claimant enclosing the company’s grievance procedure, asked him to reconsider his decision, invited him to engage in the grievance process to resolve the issues and gave him until 14 March 2014, or longer if necessary, to revert to the respondent. The claimant did not revert and by letter of 20 March the respondent extended its invitation by a further week and intimated that if he did not revert by close of business on 27 March the respondent would regrettably accept his resignation. The claimant did not respond because he had had enough by that time.

The claimant had done the quantity surveying work for the respondent in Mayo, Sligo and Waterford as well as in his own area. This work was done at weekends or late nights. He only did five such jobs and they were all done outside his normal working hours. The claimant initiated Circuit Court proceedings for outstanding monies in relation to this work. The claimant denied that he had applied for work in early January 2014. A friend invited him to become a director of his company (GSM Consulting Ltd) and he did. He is a shareholder in the company but had no director’s duties at the time of the events herein.

HC was disappointed that the claimant resigned. He had regular contact with the claimant throughout his employment with the respondent and had been his mentor in an unstructured way. He felt they had a good working relationship. The purpose behind the meeting with the claimant on 25 February 2014 was to get the claimant back working as a loss adjustor. Losing an employee with his expertise, knowledge and qualifications had implications for the company and it would cost €50,000 to replace him. He was surprised by the grievances aired by the claimant. It was his view that the disablement of the tablet while inconvenient was not an obstacle to conducting the work of a mobile loss adjustor. In common with other loss adjustors the claimant worked under a certain amount of pressure and stress which was normal for that role. The claimant had never complained about stress, long hours, backlogs or any other issues to him. HRG and OM confirmed that they had not been aware that the claimant had problems. The claimant had not used the respondent’s grievance procedure.

It was company policy to allocate 25 claims per week to its mobile loss adjustors but the claimant was regularly given less than that number. Once claims are received, it is up to adjustors to determine how and when to attend to those weekly claims. At no time did the claimant state to this witness that he was getting too many claims.

The claimant’s position was that he had been under enormous stress for eighteen months. The respondent had been promising him relief staff for months but he had not received it. The claimant could not remember receiving the IT Support Instructions on steps to follow when having trouble with his tablet. However, he had included these in his booklet produced to the Tribunal.

While OM had referred to a “survival plan” the respondent’s maintained that no such plan existed but that the reference related to the July and August period when some staff would be on holiday

A witness who had been responsible for the rollout of the tablet told the Tribunal that in 2013 about three or four adjusters, including the claimant, were having problems syncing. They were sent a replacement device but after a while problems emerged again. In November and December 2013 there was a problem with the Vodafone mast and some tablets were freezing. The claimant was one of a few who had problems with the new tablet. It was possible that it was faulty. In January 2014 the respondent updated the tablet and the app. In January 2014 an upgraded tablet and app were disturbed to the relevant staff including the claimant. While the claimant had a problem importing data and syncing data on 8 & 9 January respectively the technical problems eased and faded away.

Determination

In a constructive dismissal case the employee must show that because of the employer’s conduct he was entailed to resign from his employment or it was reasonable for him to do so.

The claimant’s case was that he had an excessive workload, the tablet assigned to him for use in the course of his work frequently failed to function properly or at all, the respondent ignored his complaints about these which affected his health and caused him to leave the employment.

The frequency with which the tablet malfunctioned would have been frustrating for most if not all employees. Other employees’ tablets also malfunctioned. The respondent did not ignore these problems. It replaced the claimant’s tablet and eventually in early January 2014 provided new updated tablets and an updated app to the mobile loss adjusters. The malfunctioning tablet did not prevent the claimant from completing his work although transmitting information back to head office by the original method was somewhat more inconvenient and time consuming.

The majority of the claimant’s e-mails to the respondent, about the number of claims he was being allocated or about his backlog of claims, were sent to the administrative staff and not to management. On 18 November when he outlined his problems to management and requested a desk day there was a prompt and positive response from the respondent. The Tribunal is not satisfied that the e-email of 18 November constituted the initiation of the grievance procedure. The respondent’s position was that the claimant was not reaching the required level of claims per week. The claimant’s position was that the respondent was failing to take account of the extensive area he had to cover and the distances he had to drive. There is no doubt but that these were issues that needed to be discussed between the parties. The respondent’s intention to discuss the claimant’s performance with him on 15 January 2014 was frustrated by the inappropriate attitude of the ClaimsLink Operations Manager. The claimant did not raise a grievance about his work conditions with the respondent. The Tribunal notes, on the other hand, that he notified, with some alacrity, his displeasure about the respondent’s paternity leave policy, to one of the company directors.      

The claimant had never complained to management about stress, long hours, backlogs or any other issues. The letter from the claimant’s doctor on 17 January 2014 putting him on six weeks’ leave on grounds of medical illness did not and could not alert the respondent to his claim that his work conditions were affecting his health. The doctor’s advice of 17 January 2014, that he could suffer a heart attack or mental breakdown if he did not leave work immediately, was first brought to the respondent’s attention on the first day of this hearing in July 2015.

It was at the meeting of 25 February 2014 that the claimant first raised grievances. These focused in the main on other issues and in particular on the respondent’s non-payment for his quality surveying work. This meeting had been called by the respondent in an attempt to get the claimant back to work and the respondent was shocked when he “dropped the bombshell” that he was 90% sure he would not be coming back to work. The claimant had decided not to return to work on his way to that meeting. The respondent’s efforts to get him to reconsider his resignation failed.

In light of the above findings the Tribunal cannot find that the respondent’s conduct was unreasonable or that the claimant’s action in resigning was reasonable. Accordingly, the claim under the Unfair Dismissals Acts 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)