ADJ-00003343

ADJUDICATION OFFICER DECISION 

Adjudication Decision Reference: ADJ-00003343

Parties: 

Complaint for Resolution:

Date of Adjudication Hearing: 09/12/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts 1977-2015, following referral to me by the Director General, I inquired into the aforesaid complaint of constructive dismissal received by the Workplace Relations Commission (hereinafter ‘WRC’) on 24^th May 2016 and gave the Parties an opportunity to be heard and to present any relevant evidence at a hearing on 9^th December 2016. Both Parties were legally represented, the Complainant by Gerard Lambe, Solicitor, and the Respondent by a Partner from Eugene F. Collins Solicitors. The Complainant and a Deputy General Manager on behalf of the Respondent both gave evidence. As per the agreed format at the outset of the hearing, both Parties went through their respective submissions and evidence was taken in relation to any facts in issue. The documentation referred to herein was furnished by the Parties at the hearing. All oral evidence, written submissions, supporting documentation and case law presented by both Parties have been taken into consideration when coming to this decision.

Background:

This is a claim for constructive dismissal brought under Section 8 of the Unfair Dismissals Acts 1977-2015, in circumstances where the Complainant resigned from her position as an Administrative Executive with the Respondent, an Insurance Company, on 1^st December 2015. The Complainant had been employed by the Respondent since 24^th May 2010 under a permanent contract of employment and therefore meets the relevant 12 months’ service required to bring this claim. She earned €27,000 per annum and seeks compensation as a remedy. She has since left the jurisdiction and apart from a one month period on Illness Benefit, has been unemployed since her resignation.

Summary of the Complainant’s Case:

In June 2015, the Respondent issued a ‘mobility charter’ which was addressed to all staff in its employment with “at least 2 years’ length of service in their position”. This clearly expressed the intention to promote and offer mobility opportunities within the Company/Group and equal treatment of all applications was guaranteed. The Respondent subsequently created the new role of ‘Team Leader’ for her team and the Complainant who was more than adequately qualified having performed many of its functions for a considerable period, applied internally for this position. She attended two interviews and sat a test for the position, which appeared somewhat strange to her given that in many respects she was being interviewed for a job that she was already doing. As there was one other candidate for the position whom it was contended did not have the requisite two years’ service, in reality she was the only candidate who met the criteria for the position in question.

When the Complainant was verbally informed that she had been unsuccessful in getting this role on 23^rd November 2015, she said that everyone in the office was aware of how upset she felt. She was deeply disappointed that her career had evidently been damaged and effectively rendered her five years’ service meaningless. She also felt embarrassed and publicly humiliated in her workplace. Consequently her position with the Respondent had become untenable. As a result, she became very stressed and went on sick leave from 25^th November 2015 requiring medical intervention.

Without any discussion with the Complainant, an email dated 26^th November 2015 was circulated within her Department from management updating staff and announcing the new appointments. The alternative candidate who had in effect been appointed and placed in situ in advance of the announcement was duly appointed to the position in question. A chart was also produced by management and circulated. This demonstrated in graphic terms that every other colleague who had applied for a position had been successful and were appointed, with the only ‘casualty’ being the Complainant who had been bypassed by an ineligible candidate. The chart also demonstrated in graphic terms her obvious demotion by placing her at the bottom of her team. Whilst her job description remained, she was in fact subordinate to the new Team Leader under the reorganisation.

On 1^st December 2015, the Complainant tendered her resignation in writing to the Respondent and whilst under the pretext of family issues, she pointed out that in light of the Company reorganisation, she believed that her contribution “is totally unnecessary”. To her great surprise, no member of management ever sought to discuss the matter with her, which of itself would be out of line with usual policy. Instead, the Respondent accepted her resignation by letter of 3^rd December 2015. It is the Complainant’s contention that the process, undertaken for whatever reason, was at worst contrived and at best, inequitably conducted and executed in such an insensitive manner that remaining in her demoted role deprived her of any dignity and/or respect, and effectively forced her immediate resignation giving rise to this complaint. She seeks monetary compensation and in this respect, provided a list of sixteen jobs which she had unsuccessfully applied for in the meantime.

Summary of the Respondent’s Case:

The Respondent wholly refutes the Complainant’s claim of constructive dismissal. It is not disputed that throughout her employment the Complainant exhibited a high level of flexibility. However the Company had grown substantially during her tenure, and in her own Department the headcount had increased from 4 to 16 staff, reflecting the growing needs of the business. Staff who joined at a time when the Company was smaller had more broadly scoped flexible roles, but with growing business requirements roles needed to become more defined and specialised in order to appropriately meet internal and external client demands. This in turn drove the need for an additional layer of management / supervisory oversight which was implemented across all areas in 2015.

In October 2015, the Respondent announced that a number of teams were being restructured including the Complainant’s team. The Complainant was fully appraised in relation to the new roles which were advertised internally and all team members were afforded the opportunity to apply and to speak to the newly appointed Manager to find out more about the roles and what skill sets / competencies were required. As part of the revised structure a new position of ‘Team Leader’ was created and all team members were invited to apply for this position. The Complainant and another candidate applied and following a recruitment process comprising of two interviews and a written test, the Complainant was unfortunately unsuccessful. It is contended that the process was fair and impartial and she was provided with a feedback session with management on 23^rd November 2015. She did not raise any issues including those raised within this complaint and did not ask any questions of her Managers even when asked if she had any questions before leaving the session.

During the period 25^th-30^th November 2015 inclusive, the Complainant was absent from work on sick leave and submitted a medical certificate stating that this was ‘due to stress’. This was the first time that she had ever informed the Respondent that she was suffering from stress and given that she had personal difficulties, there was no reason for it to believe that it was caused by its actions.

Subsequently, an email dated 26^th November 2015 formally announcing the new appointments was circulated within the Irish office along with an invite to celebrate the new appointments on 30^th November 2015. Upon returning from sick leave on 1^st December 2015, the Complainant handed in a resignation letter and requested that she be released with immediate effect for personal reasons. At this point, the Respondent had every indication to believe that she was resigning for personal reasons and had no suspicion that it was related to any work-related issues. In her letter of resignation, the Complainant stated that her resignation was owing to family commitments, whilst also believing that her contribution to the Company “is totally unnecessary” in light of the reorganisation. The Respondent accepted her resignation with immediate effect by way of letter dated 3^rd December 2015, which also assured her that every employee’s contribution to the Company is necessary and a replacement would have to be recruited to replace her on the team.

It was some five months after the Complainant’s resignation before the Respondent received correspondence from her Solicitor dated 5^th May 2016, calling upon the Respondent to furnish an admission of liability for constructively and unfairly dismissing the Complainant. The Respondent’s Solicitors replied affirming their understanding that the Complainant had resigned due to family related reasons as referred to in her resignation letter, and therefore would not be accepting any liability or a purported constructive dismissal. In a subsequent letter to the Respondent, the Complainant’s Solicitor asserted that the reorganisation undertaken by the Respondent had rendered her role untenable. It further alleged that the Complainant was absent from work due to stress requiring medical intervention following the Company’s celebrations of the new restructure, that no discussion took place between management and the Complainant in relation to this sick leave, and that reservations she had raised regarding the reorganisation were ignored.

The Respondent had been aware that the Complainant had some personal issues and had made every effort to try to facilitate her, granting part-time hours at her request over several periods from 2012 onwards, and had been understanding even when she could not meet these reduced hours. In her resignation letter, the Complainant had also strongly expressed her wish be released with immediate effect to take care of her son notwithstanding a three-month contractual notice period. The Respondent had agreed to this in the firm belief that she needed to care for her son full-time.

The Respondent refutes the Complainant’s contention that the new Team Leader took over many of the tasks that would previously have been part of her role. Whilst she had never operated as Team Leader, it is acknowledged that all team members had fluid roles under the old structure. However, she resigned before the new organisation became operational and had she continued in employment, her role would have become more focused as was the case for all the other roles.

The Respondent takes issue with the Complainant’s claims that due to her perceived demotion, she felt publicly humiliated and asserts that no meaningful communications regarding organisational structural changes took place with her, when she did not make anyone aware that she felt this way. The Respondent denies that the she raised any such reservations in relation to the restructuring and any queries which she raised were fully responded to as evidenced in email correspondence. She had also been advised to apply for another new role of ‘Complaints Analyst’ which was similar to her existing role and would take over the complaints aspect but she had declined to do so. Meaningful communication took place with the entire team who were in the same position as the Complainant including via a breakfast meeting. The Respondent further takes issue with the Complainant’s contention in her complaint form that in her view the above factors rendered her position ‘untenable’. The Complainant did not communicate this to anyone at the feedback meeting, at the time she resigned, or following her resignation. Nor did she avail of the internal grievance procedures to raise a grievance before handing in her resignation. It was not in issue that she had been provided with a copy of the grievance policy within the Employee Handbook and was familiar with the process having previously partaken in the process in an unrelated matter. Conversely, she continued email contact with HR pressurising the Respondent to allow her to leave immediately and subsequently requesting copies of her performance reviews by email following her departure. Notwithstanding that the Complainant had a contractual notice period of three months, as a gesture of goodwill, the Respondent had agreed to her request for immediate termination.

It is further contended that the mobility charter referred to by the Complainant has been taken out of context in relation to her belief that it referred to this internal recruitment process. It is clear from a reading of the mobility charter in question that it does not apply in the context of a reorganisation within a team or department and the term ‘mobility’ refers to a change of position from one service to another or from one department to another. Additionally, the charter is not intended to prevent a person with less than two years’ service from ever being considered for a role. In any event, this issue was never raised by the Complainant despite having the opportunity to do so before leaving. Likewise, the Respondent takes issue with the Complainant’s contention that the chart circulated showing the reorganisation of roles within the team clearly showed her as being demoted to the bottom. The Deputy General Manager confirmed that this was a flow and not a hierarchal format. Finally, and given how employable the Complainant is, it was contended that it was incredible that she had not secured any employment at any level since her resignation. Nothing further arose from the Solicitor for the Complainant’s questioning of the Respondent’s evidence.

Various legal submissions were made on behalf of the Respondent. In particular, it was submitted that it was reasonable for the Respondent to reorganise its business structure to meet the growing demands of its clients and to create new roles to accommodate those requirements. The creation of the new position of Team Leader did not make the Complainant’s role redundant or untenable as evidenced by the fact that it had to recruit externally to replace her. Reference was made to the definition of constructive dismissal as contained in Section 1(b) of the Unfair Dismissals Acts 1977-2015 to contend that it was not reasonable for the Complainant to have terminated her contract of employment in the circumstances. In particular, she had not referred to any breach of contract on the part of the Respondent and in this respect, reliance was placed on the test set out in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. In Daniel O’ Gorman -v- Glen Tyre Company Ltd UD2314/2010, the Employment Appeals Tribunal held that it was crucial that an employee fully informs the employer of the complaints being made and gives the employer the opportunity to respond in order to succeed in a claim of constructive dismissal. Further reliance was placed upon a recent decision of the WRC in An Employee -v- An Employer ADJ-00001657, confirming the high onus/burden of proof which rests on employees in constructive dismissal claims. It was reiterated that in the instant case, at no stage had the Complainant made her dissatisfaction with the reorganisation known or availed of the grievance procedures to afford the Respondent an opportunity to address same (which might have included reviewing her role), before resigning.

Findings and Conclusions:

For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides: “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,…” As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.” According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: “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.” Unlike the position in claims of unfair dismissal, the definition firmly places the onus/burden of proof on the employee to show that the resignation was justified. As highlighted by the Respondent, the case law including that relied upon above overwhelmingly confirms that an employee must have firstly exhausted all alternative avenues before repudiating his/her contract of employment. However, I am cognisant that there are situations where employees have been found to be justified in resigning with immediate effect e.g. where there has been a fundamental breach of contract, alternative avenues are not available to the employee and/or grievances raised are unaddressed.

Whilst many of the facts are not in issue, the Parties clearly have diametrically opposing views as to whether the Complainant’s immediate resignation was justified in the circumstances. I must consider the factual matrix presented in light of the aforesaid law to objectively determine whether the Respondent behaved in such a way that amounts to a repudiation of the employment contract, such that the Complainant was entitled to resign with immediate effect. In this respect and based upon the evidence proffered, I make the following findings on the balance of probabilities:

(1) Firstly, and particularly where the Complainant did not remain in her employment to see how her team restructuring panned out, I am satisfied that there was no evidence of a breach of contract. A reasonable basis has been proffered for the necessity of the Company restructuring in question which went unchallenged. Although it may have resulted in the Complainant’s role becoming more focused, it was not disputed that her job title and terms and conditions remained the same. There was no evidence that her position had become redundant particularly as the Respondent’s evidence that she had to be replaced was not put in issue. I am also satisfied that she was fully consulted in relation to the impact of the restructuring on her current role as evidenced by the email correspondence provided, unlike the position in other cases relating to a unilateral change in role or job description which have succeeded. Naturally, she was disappointed that she was unsuccessful in obtaining the Team Leader role, being the only position for which she had applied. However, having examined the mobility charter referred to, I am satisfied that it was not intended to apply to internal recruitment competitions and/or impose a two-year service requirement, and there is no evidence to suggest that the process was anything other than fair. I have also examined the organisational chart referred to and find that it cannot reasonably be construed as being hierarchal and confirming the Complainant’s demotion, particularly as the chart is set out in flow format and retains her title.

(2) Secondly, I cannot objectively construe the Respondent’s conduct towards the Complainant as being so unreasonable that she could not fairly be expected to put up with it any longer in circumstances where: (i) it was not in dispute that the Respondent had continuously facilitated her family difficulties and this was also the main reason cited for her resignation, (ii) it had acceded to her request to be released with immediate effect notwithstanding a contractual three month notice requirement, (iii) even if the matters complained of gave rise to a valid grievance, there is no evidence that she brought them to management’s attention at the feedback meeting or at any stage thereafter, including availing of the grievance procedures which she was familiar with before resigning, and (iv) even accepting that she may not have had the benefit of legal advice before tendering her resignation, the manner in which she resigned was wholly inconsistent with the latter claim for constructive dismissal which was first raised by her Solicitor some five months later.

Overall, it appears to me that there was a reasonable prospect that the Complainant’s disquiet with her role following the restructuring could have been resolved had she given the Respondent an opportunity to do so. Therefore and in all the circumstances, I am not satisfied that this is a situation meriting immediate resignation without affording the Respondent the opportunity to address same.

Decision:

Section 8(1B) of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this claim of constructive dismissal in accordance with that Section. Based upon the reasoning as set out aforesaid, I find this complaint to be unfounded and accordingly, dismiss same.

Dated:   21 April 2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Constructive Dismissal - Contract and Reasonableness Tests - Grievance Procedures