ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002308

Complaint for Resolution:

Date of Adjudication Hearing: 08/02/2017

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing:

Complainant’s Submission and Presentation:

The complainant was originally employed in October 2007 in the role of Business Development Manager, and, she stresses, not as a Sales Representative as there were other members of staff in these roles. As part only of her role she undertook a geographical area for sales purposes.

She oversaw training of junior sales staff, including territory management and product training.

Following a major downturn during the recession, all of the roles in the company changed. She was happy to follow an “all hands on deck” approach aimed at getting the company through adverse trading circumstances and remaining in business during this difficult period.

In 2014 efforts were focussed on achieving nationwide coverage though social media and eventually through a website which became her responsibility. In early 2015 it was decided to recruit an intern to assist with the building of the website and to free her of that role so that she could re-focus on sales. She received no additional remuneration for extra work done nor did she request it.

Despite difficulties with her company car no action was taken to replace it and following a headlights failure on January 6th 2015 as she drove home she emailed a manager to inform him that she would not be driving the car again. She was given the company van.

Following the appointment in December 2015 of a new Sales Director there were changes to her role. She no longer had any involvement with the website or the intern or no input to any of the social media accounts. She had been aware that the new appointment would result in significant changes but these were excessive.

Her new role was to be a sales representative covering solely two Dublin city centre postal districts with an emphasis on cold calling to potentially new customers on a full time basis.

She was required to complete sales call sheets, rather than monitoring them, and accounting for day to day sales calls.

On Thursday January 28th she raised her concerns with the owner but was referred to the new Sales Director. She spoke to him and following this she concluded that here was to be no flexibility or change in her proposed role. She accepted that he tried to dissuade her when she handed in the letter of resignation. She submitted at the hearing that she had been advised that she had a good case for constructive dismissal, were she to resign.

For these reasons, and the fact that her role in the company changed so significantly to what she sees as a junior role which she described as a step too far she resigned.

Respondent’s Submission and Presentation:

The respondent submitted that the company was experiencing very serious financial and trading difficulties and had made losses each year back to 2008. The business required a personal loan from the Owner in 2011 to remain viable.

In December 2015 he brought in a new Sales Director who had previously worked with the company. Initially the reaction of the complainant was very positive.

The view was that if the company did not generate new business it would not survive and therefore the emphasis was to concentrate all its resources on doing so.

This is why the complainant was asked to get directly involved in a ‘field’ role.

There was no change in her job title or salary which remained the same and she was not being asked to undertake a lesser role. The requirement to fill out sales calls sheets was a necessary tool to provide oversight with the progress of the sales effort. The essential difference in her role was that in addition to dealing with large customers or groups of customers she was being asked to undertake the cold calling sales role as well.

In relation to the non-replacement of her car it was stated that the company simply did not have the resources to replace the vehicle at the time.

The company held the complainant in very high regard and did try to dissuade her from leaving. There has never been any criticism of her work or performance.

However she had been adamant that she would not undertake a sales role ‘on the road’. The respondent said it would be happy to have her back as an employee (an offer she declined).

Findings and Conclusions

Constructive dismissal takes place when an employer’s behaviour is such that an employee may be justified in taking the somewhat drastic step of breaching the contract of employment (admittedly it is equally drastic when breached by the employer; this being in the nature of a contract.)

In such cases therefore a critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally this is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

The generally accepted statement of the law is to be found in the following Supreme Court decision where it said that;

‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In addition to the ‘contract test’ above this also encapsulates the ‘reasonableness’ test which allows for an assessment of the employer’s behaviour by reference to whether it has been so unreasonable so as to justify the employee resigning her position.

What is presented in this case is a company facing a very difficult trading environment asking the complainant to undertake additional duties in order to generate business.

There was to be no reduction in her salary, or change in title. It was not diminished in any way except to the extent that she had to go out to generate new business ‘door to door’.

Her submission that this placed her ‘at the bottom of the ladder’ was not really borne out even by her own evidence. She laid emphasis on the termination of her role in the website and social media, and with the intern as factors in the alleged diminution of her role.

None of this goes anywhere close to meeting the legal test outlined above. The conduct of the employer was neither ‘unreasonable’ nor did it lack ‘proper cause’ in the business circumstances it found itself as referred to above by Finnegan J.

The complainant clearly did not like the idea of having to return to a role which was perhaps somewhat below her skill set but was not, in all the circumstances unreasonable. She had a discussion about it with her manager and was asked to re-consider but decided to resign.

However, I find insufficient justification to ground a case of constructive dismissal and I do not uphold the complaint.

Decision:

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the reasons set out above I do not uphold CA-00003105-001 and it is dismissed

Dated:  27^th April 2017