EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD35/2013
CLAIM OF:
Peadar Duane
against
Masonry Fixing Services Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Hayes B.L.
Members: Mr J. Goulding
Ms. E. Brezina
heard this claim at Dublin on 8th June 2016 and 25th October 2016
Representation:
_______________
Claimant: Mr Michael Corcoran, 3 Kilmore Close, Coolock, Dublin 5
Respondent: Vivienne Matthews O'Neill, Barrister At Law, DAS Group, Europa House, Harcourt Street Dublin 2
Background:
The claimant commenced employment with the respondent in or about March 1991 as a sales representative. He resigned his employment on 3rd August 2012 by way of a letter in circumstances that he claims amount to a constructive dismissal.
Claimant’s case:
The claimant PD began working with the respondent in 1999 as a sales representative. He told the Tribunal that he had built up a significant customer base but with a downturn in the economy it had declined significantly from 2009. A new manager was brought in and he stated that the respondent set unrealistic targets, required him to clock in and out and while he was on sick leave asked that he return his van and phone within 24 hours of receiving his sick certificate. His sick leave was due to stress and began in February 2012 immediately following a disciplinary meeting with regard to his poor performance.
PD said he was sent to see a doctor almost on a weekly basis and it ruined his life and that of his family. He was informed in on 29th March that his sick leave entitlement (for which he was paid) had run out and that he was no longer entitled to be paid by the respondent for any further sick leave. PD contended that his hand-book stated 114 days, it did not specify if it was for one year or for the life time of his employment and he considered it to be for a year. He wrote to the employer asking for an explanation of their sick leave policy and formally advising them that he was making a complaint of bullying and harassment. They replied on 2nd May looking for him to outline the grounds for the complaint.
Correspondence continued during May and June when he was advised that MP would carry out an investigation into his complaint. He refused because he felt MP was too close to the operations, told the employer he was referring the matter to the Labour Court and sent a letter of resignation on 3rd August 2012. He said he was “at the end of his tether” by then and things had to stop for his health. He gave evidence of loss.
Respondent’s case:
KJ told the Tribunal that he joined the respondent company in August 2007 as regional sales manager and left in October 2012. He said he was brought in to try and put some structure to the sales force as there was not much by way of targets, reporting or sales management. Staff decreased from 70 down to the mid 20’s by September 2010.
KJ put a sales training programme in place in 2010 with a performance improvement plan and revised targets. He called the claimant to a disciplinary hearing in September 2010 and said that the claimant made it clear that he didn’t want to be managed and wouldn’t be. The meeting was adjourned with a request for a resit at 5pm, PD didn’t show up so it was postponed until the following Monday morning but he had then went out on sick leave (due to anxiety). He returned to work on a phased basis in December 2010.
The poor performance continued to be an issue and a disciplinary meeting was called for 3rd February 2012. There was almost a total lack of engagement from PD and he answered most questions with “Uh hum”. A formal verbal warning was issued and the claimant went on sick leave again.
SC from HR and Training gave evidence to the Tribunal saying that PD was very difficult to manage and somebody who would not engage with procedures. He did not appeal the warning he received and when he wrote saying that he was being bullied and harassed by the company she continued to seek clarification needing accurate details but the claimant provided information on issues like unachievable targets and his sick leave entitlements. Offers of going to the LRC were offered on three occasions but the claimant chose to resign.
Determination:
It is clear that the claimant was aggrieved about what he felt was his ill-treatment at the hands of his employer. That he was a longstanding and senior employee exacerbated his grievance. He had previously been on stress-related sick leave in 2010 and was assisted in his return to work by the respondent. After further difficulties arose in early 2012 he again took a period of sick leave. He was regularly reviewed by the company doctor during this time. During the course of this period of sick leave he was informed that he had used up his entitlement of sick leave. He had a different understanding of his sick leave entitlement and this caused further stress and was a further source of grievance. He sought to query the respondent’s interpretation of his sick leave entitlement in the course of which letter he told the managing director that he considered that his treatment constituted bullying and harassment. In reply SC asked him to detail the grounds of his bullying complaint so that a complete investigation could be undertaken. The claimant replied and listed five instances of what he felt to be bullying. These were:
A requirement to clock-in and –out which was, he said, an attempt to intimidate him and undermine his senior position;
The setting of unreal and unachievable targets during a record downturn in construction activity;
The bringing of unfair disciplinary proceedings;
The repossession of his company car and phone during his absence due to illness;
What he saw as the deliberate misinterpretation of the company sick pay scheme.
These, if substantiated, are significant grievances to have in relation to one’s employment
In reply, SC sought further details of the bullying complaint including who it was alleged was bullying the claimant. The claimant replied and said that KJ was the subject of his first and second complaints; KJ and SC were the subjects of the his third complaint; and “the company” was the subject of his fourth and fifth complaints. He requested that an independent third party be put in place to investigate his complaint. The respondent proposed having the financial director, MP, investigate the complaints. The claimant objected to her nomination as she was “too close to the decision and policy making of the company which brought about the incidence of bullying in the first place”. He said that he was going to refer his bullying complaint to the Labour Court. There was no reply and on 3rd August 2012, the claimant wrote a letter of resignation. SC explained the non-reply by telling the Tribunal that each time she wrote to the claimant, the claimant did not reply to her but directly to the managing director. The managing director had been on leave for the four weeks during which there had been no reply and the letter had sat on his desk. The Tribunal accepts this explanation. As soon as SC received his letter she arranged for mediation through the auspices of the Labour Relations Commission. She asked the claimant to reconsider his resignation and to engage in mediation. The claimant refused.
Whatever the merits of the claimant’s grievances, and the Tribunal does not have to investigate their merit, he had raised a grievance. The respondent sought more detail and proposed that a senior member of management with no prior involvement with the claimant would investigate his complaints. This was unacceptable to the claimant and he resigned. On his resignation he was asked to reconsider and partake in independent mediation. The respondent had been reluctant to engage in a third party process because of the expense but was now prepared to do so. The claimant refused. The Tribunal is satisfied that the respondent was attempting to resolve the claimant’s issues but that the claimant did not cooperate with them and did not allow sufficient time.
It is incumbent on an employee in a constructive dismissal scenario to act fairly towards his employer, just as he is entitled to expect to be treated fairly by his employer. Part of this is that he will sufficiently notify his employer of any grievance and allow the employer a reasonable opportunity to resolve it. The claimant did not do so. He resigned before allowing the claimant a reasonable opportunity to resolve his grievances. For that reason this claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)