ADJ-00000221

ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00000221

Parties:

Complaint:

Dates of Adjudication Hearing: 15th January 2016 and 26th January 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 16^th October 2015, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Act. The complaint was scheduled for adjudication on the 15^th January 2016 and a second date of hearing was held on the 26^th January 2017.

The complainant attended the hearing on the 15^th January 2016 and advanced his claim of constructive dismissal. The Assistant Store Manager also gave evidence for the respondent. The complainant did not attend the second day on the 26^th January 2017. I verified that the complainant was on notice of the second day of hearing and having been satisfied of this, I proceeded with the second day of hearing in his absence. As the complainant had advanced the claim of constructive dismissal on the first day, it was necessary to hear from the respondent witnesses and there was no basis for concluding that the case should fail for want of prosecution. The Regional Manager, the HR Business Partner, the Store Manager and the Employee Relations Specialist gave evidence on the second day.

In accordance with section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, 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.

Background:

The complainant commenced working for the respondent on the 24^th November 2005 and he resigned from his employment on the 12^th September 2015. His monthly gross pay was €1,770. He claims constructive dismissal and the respondent denies the claim.

Summary of Complainant’s Case:

The complainant worked for the respondent for a period of 10 years and resigned on the 12^th September 2015. He outlines that he had no choice but to resign because of work-related stress. He had been expected to work overtime without receiving the lieu time owed or being able to avail of the lieu time. He had also been expected to change shifts or to stay back on regular occasions. The complainant also raises the manner in which the respondent addressed his sales figures, saying that this had been done in an unfair and stressful way.

At the outset of the hearing, the complainant referred to sound recordings he wished to play. They were of his one-to-one conversations with the Assistant Store Manager. The complainant said he would submit the recordings in advance of the second day of hearing.

The complainant referred to the incident of the 21^st February 2014 when he received an abusive and threatening call from a named manager of the respondent. The complainant had to close a named store for less than five minutes. The store manager had gone to the bank and the store could not remain open with only one member of staff. The complainant said that there had been a series of robberies. The senior manager challenged the decision to close the store, stating that he had heard it had been closed for 15 or 20 minutes. The senior manager raised his voiced and repeated the questions. The complainant said he then emailed a complaint about the nature of this senior manager’s interaction with him.

The complainant outlined that on the 1^st May 2014, he had been summonsed to a meeting regarding his performance and attendance. He objected to the venue of the meeting as it was held in the public bar of an adjoining hotel. He commented that this store had been a quiet store and that lots of staff were late in arriving to work. There had been no lone worker policy to explain what a staff member should do when alone. The complainant said that following the meeting, he was to receive a first written warning, but never received the warning. He said that sales improved in the months of May and June 2014.

In respect of the incident of the 2^nd February 2015, the complainant said that a named respondent manager, a Loss Prevention Officer, called to the store. This manager had raised the issue of a banking slip, but it was the branch manager who dealt with banking. The manager came right up to the complainant and asked very loudly “what are you up to?” and “where is my €700?” He was very angry. This happened on the shopfloor and a customer present in the shop asked the complainant whether he was okay and said that this behaviour was nothing short of bullying. The manager then left the shop. The complainant raised this incident with the respondent and it acknowledged that it should not have happened on the shopfloor.

The complainant said that on the 24^th March 2015, he returned from a period of sick leave and met with two senior managers regarding his return. They met in a busy coffee shop close to where the complainant worked and lived. One manager insisted on asking medical questions regarding the complainant’s health and this was not professional. He had asked what medication the complainant was on. The complainant had provided medical certificates regarding his health.

In respect of a named colleague, the complainant said that his relationship with this colleague had broken down. This colleague had become difficult to deal with and had made an allegation of bullying against the complainant. The complainant was suspended from work on pay and later returned to work on the 20^th April 2015, moving store. He continued to work in the store until the end of his employment on the 12^th September 2015.

The complainant outlined that he settled well into the new store. He worked with a larger and more established team. There was more money in the area and the store began to hit its targets, while his previous store was in decline. He reached his targets in relation to fixed line sales and received great feedback. The respondent would randomly survey customers to rate the sales performance of staff. It was always expected that the complainant would stay behind 20, 30 or 40 minutes to clean the store after closing. He had no problem in staying on but it was an issue that he was constantly working late. There was no overtime remuneration. The complainant outlined that he had a 40 hour contract, while newer staff had flexi-time contracts providing for 8 to 40 hours a week. Clocking in and clocking out was done via a biometric system. Managers were allowed take lieu time, while he could not. He would have to change shift at short notice, with far less than the 24 hours’ notice he was due. The complainant outlined that his position in the store worsened and the store had a toxic environment. He sought a transfer by email on the 8^th September 2015, but never received a reply from the respondent.

Addressing the environment in the store, the complainant commented that staff had a Whatsapp group where there were constant, late night messages. This was not part of his role. The complainant said that he was also not happy with the Store Manager’s micromanagement, where any shortfall in performance was challenged, even when the store was quiet. He was unhappy that the Assistant Store Manager had compared him to the performance of certain part-time workers. The complainant said that he had been very stressed as a result of the meeting with the Assistant Store Manager of the 28^th August 2015. He met with the Assistant Store Manager again on the 1^st September 2015 and this was to clear the air. The complainant asked if he could attend an open day of an educational facility, which was to take place on a Saturday. It was stressful at work as they were short-staffed. The week of the 1^st September 2015 was quiet, so the complainant struggled to meet targets. He described the Assistant Store Manager as badgering him regarding contract sales. The complainant had applied for a particular period of annual leave and assured him that he would get this leave. He had been sick for the week prior to this period of annual leave and his request was later turned down. The complainant suggested a named colleague who was based in another store to cover this period. The Assistant Store Manager said this colleague was not acceptable, even though he had previously provided cover in the store. The Assistant Store Manager asked the complainant to find a more appropriate replacement and when this was not possible, the complainant was not able to avail of the annual leave.

On Saturday, 5^th September 2015, the complainant had wished to leave early. He had to stay on to cover a sickness absence and it had been a busy afternoon. He subsequently wanted time off on the following Saturday, 12^th September and this was agreed to by the Assistant Store Manager. When it came to the 12^th September, the Assistant Store Manager did not let the complainant leave and said that the complainant would get the time off when the Assistant Store Manager saw fit. The Assistant Store Manager then raised his voice and they discussed the issue of lieu time. He then took a phone call and it was at this point that the complainant decided he had reached his final straw. He had been kicked for doing a good turn and was being harassed. He left the store at 1pm. He left a named HR manager a detailed voicemail and also sent a text message. On the 8^th September, he had sent an email regarding his situation via his internal email address. On the 14^th September, he attended a doctor and was signed off on sick leave. He said that his complaints had fallen on deaf ears. While the respondent does not pay sick leave, he was later paid for this sick leave. The complainant decided that he could not go back to work. He said that as the respondent refused to take action and to address his grievances, he had no other choice but to resign. He stopped being paid at the end of November 2015, but he was also due a bonus. The complainant outlined that he had since been certified fit to work from the 4^th January 2016. He was penalised for standing his ground. He was not sent lieu sheets by the respondent. He sent further emails regarding his grievances to named managers of the respondent.

In cross-examination, the complainant identified four managers about whom he had made complaints and named the manager about whom he had alleged physical intimidation. He said that a named colleague had been moved to a different store and given a warning after having made unfounded allegations against him. He had been harassed about his level of sales and micromanaged, in particular by the Assistant Store Manager. He had to stay behind every day. He said that a data breach had occurred when correspondence had been sent to a different address to the one he used with the respondent as his home address. This showed that people had unauthorised access to his personal information. The complainant said he raised dignity at work because of the impossible tasks expected of him, especially imposed by the Assistant Store Manager. The complainant did not accept that the shift changes were done with his consent, and that he had no option but to agree to the change. He also strongly objected on a couple of occasions. The complainant acknowledged that he had been late to work on occasion, but said that he stayed back a lot more and if he was late it was due to an unforeseen circumstance. He said that it had not been reasonable for the respondent to issue a first written warning on the basis of four lates. It was put to the complainant that these lates had been in the months of May to July 2015 and that he had already reached the late trigger for disciplinary action; the complainant replied that he had been late because of public transport and this only warranted informal action. In respect of the annual leave, it was put to the complainant that a colleague had already asked for leave in this period; the complainant replied that he had been screwed out of the holidays. He did not accept that the named colleague was not a suitable cover for the complainant’s absence and the respondent had to explain why the cover was not acceptable. It was put to the complainant that the evidence will show that the environment in the store was not toxic; the complainant replied that everyone had submitted a transfer request. The contents of the grievance outcome of the 13^th May 2015 were put to the complainant; he replied that he was unhappy because he never received an apology regarding the senior manager’s behaviour and there had been no cash loss. He had also wanted this senior manager disciplined. In respect of the questions from another senior manager regarding his health, the complainant did not accept that they were to see if any form of accommodation was needed and that the questions were irrelevant and intrusive. It was put to the complainant that he had not lodged an appeal; he replied that he did not trust the company to refer an appeal and that such an appeal would be stressful. He had also been unhappy with how the respondent had dealt with the difficult relationship with a colleague and his subsequent transfer. The contents of an October 2015 grievance offer was put to the complainant; he replied that he had no confidence in pursuing this grievance as serious matters had been glossed over.

Summary of Respondent’s Case:

The respondent denies the claim of constructive dismissal and submits that the complainant had not acted reasonably in going through with his resignation. At the outset of the hearing, the respondent objected to the complainant submitting sound recordings of a one-to-one meeting with the Assistant Store Manager.

The Assistant Store Manager gave evidence. He had been Assistant Store Manager in the store the complainant joined in April 2015. This was the first time he had worked with the complainant and he had since left the employment of the respondent. It was in the nature of the manager’s role to look closely at sales and KPI’s. There were occasions that staff were given less than 24 hours of notice of a change in shift and this could occur to carry out store changeovers. They took place at the end of each month and had to be completed overnight. It required staff staying on to complete the process. It was common in retail for staff to stay on beyond 6pm and lieu time was generally not taken. In respect of annual leave, this was granted on a first come, first served basis and requests were submitted by email. In respect of the colleague suggested by the complainant to come in as cover, this colleague was not a senior staff member. He was on a flexi-contract and also on a performance improvement plan. He could not have been left run the store. Addressing the environment in the store, the Assistant Store Manager acknowledged that retail was stressful and the targets were demanding. While five staff had left the store, they left to pursue better opportunities. The respondent had treated the complainant leniently and better than others. He said that on the 28^th August 2015, the complainant had been 40 minutes late arriving to work and it was that evening that he received a message from the complainant to say he had resigned. He was happy to allow staff to leave early when the store was not busy and referred to his messages of the 1^st September 2015. He had a good relationship with the complainant. Addressing the events of the 5^th September 2015, the store had been busy and a colleague had called in sick. The complainant kindly agreed to stay late and the Assistant Store Manager denied giving the complainant a specific commitment about being able to take leave early at a later date. In respect of the 12^th September 2015, the complainant had asked at about 10am or 11am to leave early, but he declined this as the store could get busy in the afternoon. The complainant again asked to leave and they sat down in the back office of address this. While it had been a busy week, the complainant had not sold many new contracts. He had sold 15 and a named colleague, 14; the complainant had only sold one. In the discussion, the complainant said that this was the final straw and he was quitting. He repeated this to the named colleague. This was why the Assistant Store Manager later texted the complainant about getting a formal resignation in writing, in order for him to contact HR. In respect of the meeting of the 1^st September 2015, the Assistant Store Manager said that this was to get the complainant back to work and to address his issues. When he agreed to return to work, the Assistant Store Manager emailed HR of this.

At the outset of the second day of hearing, the respondent submitted that on the last occasion the complainant had confirmed the date of dismissal as the 12^th September 2015. It had requested from the complainant evidence of mitigation, but no such documentation had been forthcoming. It noted that the sound recordings the complainant had sought to rely on had not been submitted to the Workplace Relations Commission since the last hearing date.

The Regional Manager gave evidence. At the time of these events, he had changed role from an Area Manager dealing with five shops to a Regional Manager looking after 20 premises. He later became a branch manager of a flagship store. In respect of the events of the 21^st February 2014, he received a phone call from a colleague who was visiting the shopping centre in which the respondent shop was located. The colleague said that he was standing outside the shop and it was closed. It had been closed for ten minutes. This was lunch time on a busy Friday. The Regional Manager said that he asked himself whether the shop had been open at all that day. He saw from the rosters that there should have been two people on duty, including the complainant. He rang the branch and spoke with the complainant. They discussed why the shop was closed and how long it had been closed for. The complainant said that it had been closed for five minutes, but the Regional Manager referred to the colleague saying that it had been closed for at least ten minutes. The complainant raised his voice and referred to having to take in a delivery and the manager having to go to the bank. The Regional Manager said that he had a right to ask and that it was not normal to close to take in a delivery. He accepted that the complainant had provided an explanation for the shop’s closure and had not raised this issue again. He said that the complainant had not liked him questioning him, but that he had no reason to question the explanation provided by the complainant. The Regional Manager referred to the respondent’s Lone Worker Policy and that this shop was located within a shopping centre that had security.

In respect of the meeting of the 1^st May 2014, the Regional Manager outlined that an employee could hit a trigger point if they were late for work on numerous occasions in a 12-week period. In this case, the complainant had been late on five occasions at the end of March and beginning of April 2014. At this time, the complainant had also been put on a performance improvement plan. Having consulted with HR, the Regional Manager decided to invoke the disciplinary policy. On the 1^st May 2014, he met with the complainant in a hotel, who was accompanied by a colleague. The complainant had not questioned the venue of the meeting. The Regional Manager said that a first written warning was being given to the complainant, a sanction he did not appeal. He said that the lates were basis enough for the disciplinary sanction, but he also took account of the underperformance. It had been the complainant who had raised the phone call of the 21^st February 2014 during this meeting and the Regional Manager had not sought to raise it.

In respect of the 24^th March 2015, the Regional Manager said that he was no longer acting in that capacity, but was asked to facilitate return to work/suspension meetings involving the complainant. The complainant had been out on sick leave and was returning to work. A colleague had made complaints of harassment against the complainant and this was to be investigated on his return. The complainant made counter-allegations against this colleague. The complainant was to be placed on suspension, with pay, pending the investigation. At the meeting of the 24^th March 2015, the Regional Manager said that he picked a quiet spot in a local coffee shop. The complainant raised a series of grievances, but the Regional Manager explained that his role was to facilitate the meeting and not to consider other issues. They could be raised later. While the complainant later challenged the location of the meeting, it was the complainant who had sought to discuss these personal issues. The Regional Manager went through the respondent’s return to work after the period of sick leave of the 25^th February to the 23^rd March 2015. He did not wish to pry and noted the responses of the complainant, including his refusal to give certain information. The complainant signed the form. The meeting then addressed the investigation, during which the complainant was to be suspended. The Regional Manager had supported the complainant over the years, for example in raising his profile in the organisation so that he could develop his career. This included a 90 minute one-to-one in May 2014 and the complainant participating in a progression day organised by the Regional Manager for one staff member from each of his 20 stores.

The HR Business Partner gave evidence. She said that she was tasked with investigating an allegation of harassment made by a colleague against the complainant. She also investigated the counter-allegation made by the complainant. Both staff members had worked together in the same store and had a deteriorating relationship. Her investigation concluded that both parties should go forward to the disciplinary process. This was carried out by a named Regional Manager, who concluded that the complainant and the colleague should be issued with final written warnings. Both were transferred to different shops.

The Store Manager gave evidence. He had worked for the respondent for four years when the complainant was transferred to the store in April 2015. This was his fifth successful store to manage. At this time, he had needed a full-time staff member. He was aware that the complainant had received a final written warning and he had worked with colleagues on final written warnings and had been able to help develop and progress their careers. He saw that the complainant had potential. As with other staff members, the Store Manager sat down with the complainant to discuss metrics and behaviour. He also put together a training plan to help progress the complainant from consultant level. He described the complainant as being extremely engaged and that he said that he had heard of the Store Manager’s reputation of giving people a fair shake. The Store Manager said that a staff member needed to own a role before they were able to progress to more senior roles.

The Store Manager overlooked the complainant’s first late arrival to work but in May 2015, there had been further lates. The complainant had not followed process by phoning to say that he would be late. The subsequent lates were documented by the Store Manager. He also raised the manner in which the complainant had completed the store changeover at the start of July 2015. He had left the store without this being completed, leaving it for a colleague to finish. This meant that the store was not ready when it re-opened the following day, so that customers who saw new offers online would not see information on the offers on visiting the store. He decided to address this informally, but said that it could have been dealt with as a disciplinary issue. On the 4^th July 2015, the Store Manager placed the complainant on a performance improvement plan as he was not meeting targets in relation to the sale of insurance with phones. He set sales targets for the complainant. Hitting targets was important for a staff member to progress. In this case, the complainant hit the targets in the first two weeks of the plan so it ended. There were further lates in July 2015 and the Store Manager decided to address this informally on the 25^th July 2015. He could have invoked the disciplinary policy, but did not do so because the complainant was then on a final written warning. He said that he did not want to prevent the complainant from having the opportunity to advance.

The Store Manager outlined that the complainant’s performance could be very good and he contributed to the store meeting targets. There were times when things affected the complainant and they would have to sit down to realign his goals. He met with every colleague on a monthly basis and also set weekly targets. He sought to make the workplace fun and interactive, asking colleagues to choose their own nickname and to give details of an achievement in the last week. He conducted “stop, start and continue” meetings with all staff to ensure that he and the staff member progressed. He had a positive relationship with the complainant, who had massive potential. He said that the Whatsapp group was voluntary and used to encourage engagement. Staff members could mute or not participate in the group. He also used the group to inform staff of their rosters eight weeks in advance or issued weekly reminders. Replying to the evidence of the complainant regarding the timing of messages, the Store Manager said that there was no expectation that staff members would respond to messages after hours and it was the complainant who often sent late messages.

In respect of the annual leave, the Store Manager said that he applied for annual leave for a whole year at the start of the year. Annual leave was approved on a first come, first served basis. On the 10^th March 2015, he had sought and was approved annual leave for the 28^th September to the 14^th October 2015. On the 1^st September 2015, the complainant requested annual leave for the period of the 28^th September to the 10^th October 2015. The Store Manager said that it was not possible to have two full-time members off at the same time and sought to find cover for the complainant. He could not do so and the cover suggested by the complainant was not suitable. This person needed less stressful roles, so it would not be possible to move him to the store.

In respect of the 28^th August 2015, the Store Manager said that he was on annual leave when the Assistant Store Manager phoned to say that the complainant had sent a message to say he was leaving. He later learnt that the message had been sent in frustration and that the complainant had returned to work on the 1^st September 2015. In respect of the 12^th September 2015, the Store Manager said that he was still on annual leave and received a phone call from the Assistant Store Manager. He was informed that the Assistant Store Manager had sought to raise performance issues regarding sales and targets and the complainant had become argumentative. They had moved their discussion to the back office, from which the complainant left, saying “I am done with this place”. The Assistant Store Manager informed him of his efforts to phone and text the complainant. The Store Manager followed up with HR as he was unsure what to do. He was not clear whether the complainant was now absent from work or had he resigned. He wanted to know whether he should phone the complainant. He wrote to the complainant on the 15^th September 2015 to say that he had not been in work since the 12^th September 2015 and his ongoing absence. The complainant was kept on pay roll as he had not used the word “resign”.

The Store Manager did not accept that there had been a toxic environment in the store. There had been good relations amongst staff, who were able to advance before, during and after the complainant’s time in the store. He could not understand how the complainant could say he had been harassed by management and no issue had been raised during their one-to-one meetings. The Store Manager did not accept that the complainant was unable to take lieu time and it was practice that staff would let lieu time build up to cover a whole day’s leave. In relation to shift changes, the Store Manager said that staff would be requested to cover shifts, for example when a colleague called in sick. In respect of transfer, the Store Manager did not accept that staff in his store had all sought transfers. Those who left did so to do other things or to progress in the respondent store network, for example to larger, higher profile stores, including a named store not far from this store.

The Employee Relations Specialist gave evidence. She dealt with grievance and disciplinary issues as well as staff who were on long term sick leave. She was new to the organisation. On the 12^th September 2015, she received a call to say that the complainant had walked out of work. It was not clear whether he had resigned and she considered that the complainant could have acted in haste. She advised that the respondent treat this as an unauthorised absence and the letter of the 15^th September 2015 was sent to the complainant. There followed an email exchange between her and the complainant where the complainant undertook to submit sick certificates. She also reminded the complainant of the need to engage with the respondent. A certificate was submitted on the 1^st October 2015 and the complainant was restored to payroll. A further letter of the 9^th October 2015 was sent to the complainant as he had not engaged with the respondent. The complainant replied on the 14^th October 2015 with a detailed list of grievances. She replied on the 16^th October 2015 and outlined that she could refer the grievances to investigation and would need the complainant to be deemed by occupational health as fit to pursue the grievance. She said that there were new Regional Managers, who were available to investigate the grievances and would have no prior knowledge of these events. The complainant indicated on the 27^th October 2015 that he was pursuing the matter via the Workplace Relations Commission. The complainant submitted additional medical certificates on the 28^th October and the 10^th December 2015. He remained on payroll until the 31^st December 2015 and had exhausted his entitlement to sick pay by mid-November. She wrote to the complainant to get clarification as to his status as an employee. The ER Specialist said that there were reasonable options open to the complainant to pursue grievances.

In closing comments, the respondent said that in a claim of constructive dismissal, the burden was on the employee to show that they had been constructively dismissed. It referred to the Employment Appeals Tribunal decision in An Employee v An Employer (UD 1421/2008), the Labour Court decision in Mr O v An Employer (no. 2) [2005] 16 E.L.R. 132 and the WRC Adjudication decision in ADJ 684. The respondent denied that, in this case, any conduct by the respondent could amount to repudiation of contract or to make it reasonable for the complainant to consider himself to have been dismissed. This was not a case in which it was unreasonable for the complainant to pursue a grievance. The ER Specialist was new to the business and there were new Regional Managers available to hear a grievance. This was a case in which it was appropriate to assess the conduct of the employee and to assess whether the complainant had acted reasonably. It submitted that the complainant had acted unreasonably in not further availing of the grievance procedure. Relying on Mr O v An Employer (no. 2), the respondent said that it had paused on receiving the complainant’s resignation and gave him the opportunity to withdraw. The complainant was also kept on payroll until the end of December 2015.

Findings and Conclusions:

The complainant worked for the respondent for a period of ten years. He worked as a sales assistant of a mobile phone retailer. He says that he had no choice to resign because of the way he was treated at the hands of the respondent. He made allegations against members of the respondent management, most of whom attended the two days of hearing to give their reply. The most serious incident was that of the 2^nd February 2015, where the complainant was publicly and unfairly rebuked by the respondent Loss Prevention Officer. This was subject to a grievance and according to the respondent’s letter of the 13^th May 2015, this was addressed internally. The respondent also addressed other grievances raised by the complainant. The respondent witnesses, in particular the Store Manager, provided a detailed account of how they sought to address certain performance issues with the complainant, for example late arrivals to work. They gave evidence of providing the complainant with options once he had walked out of the store on the 12^th September 2015. He was paid for a later period of sick leave and remained on the respondent pay roll for the remainder of 2015.

This is a claim of unfair dismissal where the complainant asserts that he had no option but to tender his resignation. Constructive dismissal is defined in section 1b) of the Unfair Dismissals Act as “dismissal, in relation to an employee means… (b) 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.”

The classic formulation of the legal test in respect of constructive dismissal was provided by the UK Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27. This laid out two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ in the following terms: “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.”

In respect of breach of contract, the Supreme Court in Berber v Dunnes Stores [2009] 20 E.L.R. 61, held that the test for whether conduct had breached the implied term of mutual trust and confidence in every contract of employment was an objective one. Finnegan J. held:

“1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

4. 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.”

As opened by the respondent, in respect of the reasonableness test, the Labour Court in Mr O v An Employer (no. 2) [2005] 16 E.L.R. 132:“The court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address what ever grievance they may have. However there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal.”

Applying the legal test to the facts of this case, the claim of unfair dismissal is not well-founded and does not succeed. The complainant raised a series of grievances regarding his treatment at the hands of the respondent. They were dealt with by the respondent, if not to the complainant’s satisfaction. While the complainant had started well in the busy store following his transfer in April 2015, issues arose relating to performance as well as to his time and attendance. The complainant walked out of the store on the 12^th September 2015. Appropriately, in particular in the case of such a longstanding employee, the respondent sought to address the issues raised by the complainant and corresponded with him by email. He was retained on payroll and submitted sick certificates to the respondent. It gave time for the complainant to reconsider his position. Looking at the facts together, it cannot be said that the complainant had no choice but to proceed with his resignation, or that the respondent had repudiated his contract of employment. There were options open to the complainant to address his outstanding grievances on his return to work from sick leave. For these reasons, the claim of unfair dismissal does not succeed.

Decision:

Section 8(1B) of the Unfair Dismissals Act, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal.

CA-00000274-001

For the reasons outlined above, I determine that the complaint of unfair dismissal does not succeed and is deemed not well-founded.

Dated:   26^th July 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Unfair Dismissals Act

Constructive dismissal

Mr O v An Employer (no. 2) [2005] 16 E.L.R. 132