ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001070

Complaint for Resolution:  

Date of Adjudication Hearing: 3 May 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 15 December 2015, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Act in relation to the end of his employment with the respondent. The complainant was a counter manager and the respondent is a large supermarket retailer.

The complaint was scheduled for adjudication on 3 May 2016. The complainant attended in person. The respondent was represented by Katie Doyle, IBEC and six witnesses attended for the respondent.

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 the Hearing: 

Complainant’s Submission and Presentation:

The complaint relates to a claim of constructive dismissal following the ending on 31 July 2015 of the complainant’s employment with the respondent. As this is a case of constructive dismissal, the complainant was first to advance his case first at the adjudication.

The complainant commenced employment with the respondent on 4 December 1991 and outlined that in that time he built up a good reputation across the respondent, a large supermarket retailer. He said that his resignation was brought about because of the unsatisfactory way the respondent dealt with five allegations made against him. The respondent had failed to adequately investigate the allegations, for example to gather witness statements or to look at CCTV footage. The respondent did also not take account of mitigating factors, for example that they concerned a minor matter of €8 and did not take account of his exhaustion, having been made drive long hours every day.

The complainant outlined that on the 6 May 2015, the respondent informed him by email that he would have to leave the role if he did not do the long hours. He said that he was expected to attend three Dublin stores and one Munster store. He was rostered to work from 7am to 5pm. The role involved working on a named fresh food initiative and bringing food counters in larger stores up to the highest standard. The Commercial Manager had an expectation that the complainant and his colleagues would be at stores at their opening time.  He attended these stores between September 2014 and March 2015. The complainant said that in March 2015, he was assigned to stores in the west but for the two years prior to that he had worked in stores on the east coast. The project was being rolled out to stores across the country.

The complainant outlined that the respondent had initiated an unfair disciplinary process beginning in March 2015 and that it had been so flawed from the outset that it caused him stress. The complainant provided a detailed account of the events later subject of the disciplinary investigation and also provided documentation and emails related to the process.

In relation to the incident in the midwest store, the complainant said that on the 2 March 2015 he had used a privilege card to avail of a staff discount when buying produce as part of his role. He had to use a personal credit card to buy the produce in order to stock a counter, but availed of the staff discount to reduce the impact on his finances. He said that he could spend amounts of €700 on stocking counters. The complainant said that it was the respondent policy that a manager could refuse a staff member’s use of a discount card. In the midwest store, the managers were aware that the complainant had used the discount card to buy goods for the counter. The goods were needed for a high-profile presentation and he brought in the card as the transaction could not be uploaded automatically. He was not sure when he had asked for a refund and said that the system refunds at the full price, instead of taking account of the 10% discount. The complainant said he transported the produce to the launch in the Munster store. The produce was kept in a chilled container in his private vehicle.

During the disciplinary process, the issue of the high profile Dublin launch was addressed. The complainant said that he had had to buy cheese from another store to bring to stock the counter in the new store. He used the discount card at the point of purchase and was later refunded. The cheese had only arrived one hour before the scheduled time of the launch. He had left the card and receipt in the new store for three days after the launch to be refunded. The complainant said that he had used his own credit card four or five times in the last year of his employment, but not before. There had been five high profile events within the year, including two stores in the south of the country and the new Dublin store. He had bought stock on these occasions, including one occasion when he gave the receipt to the Commercial Manager, who had not raised any issue or concern. He said that he had received no training on the use of the privilege card since he had been provided with it 12 years before. In respect of the expenses policy, he said that pay outs were common and that it had been stressful to respond to the disciplinary charges.

The complainant said that the respondent should have given him the name of the HR manager and consulted with him first. He had been harshly treated by the respondent in the disciplinary process for carrying out its instructions and had to work with the same management afterwards. The complainant outlined that in May 2015, he had asked the Commercial Manager and Line Manager if he could change roles, but this had not been acceded to. The revised role that had been given to him meant working with the same people in the same fresh food project. The complainant attended a disciplinary meeting on the 7 May 2015 and was issued with the outcome of the hearing on the 8 May 2015. The respondent determined that the breaches of the disciplinary policy were well founded and issued the sanction of a Final Written Warning. The complainant appealed the outcome and sanction.

The complainant outlined that on the 7 July 2015, the Appeal Manager presented his findings of the appeal hearing, in particular that the complainant would receive the sanction of a First Written Warning. This was to stay on his file for six months. The complainant did not accept the basis of the sanction and that he had no one to consult with about performing his role. This was when he was offered the new role and also the first time this new role was mentioned to him. He was to be based in the same office but spent a great deal of time visiting stores. The new role covered the west of Ireland, from Letterkenny to Limerick, but he had to work the same long hours and to work with the same people.

The complainant said that on the 7 July 2015, he took a few minutes after the meeting to consider his position and decided to announce his resignation. He had considered his options prior to the meeting. While driving had always been part of his role, he had previously had the option of rotating drives and delaying his arrival on long drives. The new role offered was a subset on the same project and on the same counter has he had worked.

In closing comments, the complainant said that he had been required to buy stock in advance of named launches, including an occasion when a liquidator had been appointed to an important supplier. In respect of the project launches, he had been asked to buy goods to present as samples. The complainant said that no issue had been raised regarding his claims for expenses and that he had been praised for taking the initiative. It was submitted that the disciplinary check list was not optional and that the process was flawed because written statements had not been gathered. Store managers had approved the complainant’s actions. There was also no evidence of the €8 refund given to the complainant. He was also required to work at short notice.

In respect of his next role, the complainant said that he signed the contract for the new role on the day after his resignation. In addressing losses, the complainant outlined that he had commenced employment with another employer on 4 August 2015 and that he had incurred the following losses on leaving the respondent: fewer days of annual leave (20 instead of 25), loss of access to the annual bonus scheme and his remuneration was reduced to €65,000, although this was subsequently increased when his new employer was bought over.

Respondent’s Submission and Presentation:

The respondent denies the claim of constructive dismissal. It disputed the salary amounts quoted by the complainant, stated that his remuneration was €62,400 per annum. No company bonus had been paid in 2015. It stated that the complainant had not raised a grievance and the complaint made in November 2014 had been informal.

The Disciplinary Manager said that she was Head of Technical and had been assigned to be the disciplinary officer in this case. She referred to the letter of the 6 May 2015 inviting the complainant to a disciplinary meeting.  The letter refers to findings made in the investigation that four breaches of policy had occurred. There were breaches of the chill chain, where an item could not be more than 20 minutes outside a chilled container and the respondent could not validate the complainant’s process. In the incident involving the south midlands store, there had been three pieces of meat. Chilled products had to be moved in chilled vans. The complainant had admitted these breaches. She outlined that a staff privilege card was only for personal use and that in one instance, in a south midlands store, a full refund was made to the complainant. The matter relating to expenses were a training issue. The Disciplinary Manager said that it was decided to issue the complainant a Final Written Warning based on the breaches arising from the chill chain. She said that stage 4 of the disciplinary process had been invoked because of the seriousness of the issue. She said that the email relating to suspension had been sent in error. While the complainant had mentioned exhaustion, he should have raised this with his line manager. She said that she had spoken with the Line Manager about this but had not consulted the complainant’s file.

In cross-examination, the Disciplinary Manager acknowledged that she probably had discussed the Dublin launch with the complainant. She said that there had been no follow-up regarding the expenses and that she telephoned the complainant the following day. She stated that the complainant’s admissions related to the chill process and the use of the privilege card. The facts of the discount and the accrued points had both been raised. She said that the purchase of goods required the store manager’s consent. She believed that the complainant was aware of the buying process and had not checked the inter-transfer process.

The Commercial Manager said that she had conducted the investigation process regarding the complainant. She had been emailed by the team manager on the 4 March 2015 regarding the incident in the south midlands town involving three joints of ham. She acknowledged that the complainant had raised other incidents regarding the purchase of stock and said that there had been no business critical need in the complainant’s case. In respect of the earlier incidents, she could not recall whether he had received a full refund. She said that the complainant had not understood the expenses policy. The transfer of stock had taken place at cost, but the discounted rate charged. In respect of the launches, it was open for staff to charge for this expense against the cost centre, so there was no need for personal outlay. She stated that prior to March 2015, she had informed staff not to buy goods. She had visited a particular Dublin store to check up on the allegation of the 16 March 2015. She stated that the check list in the disciplinary process was not mandatory.

In respect of exhaustion, the Commercial Manager said the December meeting had been informal. The new roles were to cover Dublin stores and new projects. There was the offer of overnight accommodation and the contracted start times had not changed. The complainant had been moved to stores closer to his home from February 2015. He had to visit one Dublin store once a week but this was later reassigned to a colleague. He was then assigned the stores in the west. She had told the complainant that he could not work through lunch, but never said that he had to do the role or leave. She said that the offer made to the complainant was a side-stream of the project and there was a different report. It was on the retail side and the complainant would have kept his benefits.

In cross-examination, the Commercial Manager acknowledged that she had managed the complainant from February 2015 until the end of the complainant’s employment. She said that she had spoken with the complainant’s previous line manager and that he had a great track record. In respect of the disciplinary procedure, the check list was a guide. She was not aware that the complainant had used his credit card and the privilege card in respect of the high profile launches. She had not looked at the receipts submitted and that she had not been informed of the launch in the south midlands store. She said that she was sure that she had contacted everyone about the transfer of chilled goods. She said that she had investigated the complainant’s claims regarding the Dublin and south midlands stores and concluded that he was never required to buy stock. No-one else had done the same. She acknowledged that she was aware of the overnights taken by the complainant.

The Appeal Manager confirmed that he had only looked at the two breaches identified in the findings of the disciplinary letter. He had considered the evidence regarding the storage of chilled goods in cars. He had also looked at the complainant’s personnel file and his account. The complainant was deemed to be a safe hands manager, i.e. an acting store manager. He took account of the fact that the complainant had two cards, the privilege card and the credit card. He acknowledged that the complainant had raised the issue of his car’s cooling system. The First Written Warning had been issued for a period of six months. He acknowledged that the complainant had been trying to do the right thing and had acquired certain habits. He said that the complainant had announced he would resign during the meeting of the 7 July 2015 and had mentioned his new job. He had wished the complainant all the best.

The HR Partner said that, as the HR business partner for retail, it was her role to advise the respondent regarding process. The complainant had raised his lack of support and she was asked to provide support. She had met with the complainant and discussed his wish to move to a new team. They discussed a role where he would look after counters under a different team structure. She said that she had pointed to a fresh role in retail in the west of Ireland. It involved seeking to achieve a particular standard and the role was part of an area team. She had received the email from the complainant on the 24 June and acknowledged that she was aware of the exhaustion issue.

The Line Manager said that he managed seven coaches and would send a weekly draft timetable to all. He had had conversations with the complainant and provided him with guidance that travelling time of anything more than one hour was working time. He acknowledged that the complainant had raised his exhaustion in November/December 2014 but said that fatigue was only again raised in the investigation. He stated that he gave good support to the complainant. He said that he was aware that coaches would transfer consumables in their vehicles. He said that he started in the role in November 2014 and that while he knew of the complainant, he had not worked with him before.  

In cross-examination, the Line Manager said that he was not aware whether disciplinary action had been threatened against other coaches. It was put to him that the appeal process had been reasonable, but the sanction was not. The complainant said that he had accepted the gain of €8 but challenged any finding regarding the chill chain. The complainant had been put through a long disciplinary and appeal process. He had not agreed to the sanction following the appeal process. The Line Manager said it was common for people to step down from roles. The complainant said that the only option put to him was the quality role and he was not told who he would be working with. The complainant said that he would have taken a role in a different area or in a store. The Line Manager said that there was an arrangement that anything over one hour of driving counted as working time, meaning that an employee was not expected at the store’s opening time if the commute was long. The complainant put it to the Line Manager that the grievance procedure was not explained to him. Closer stores were only made available to the complainant on the 18 May 2015. The complainant said that the chill chain was sometimes broken at the request of stores. He stated that the incident involved more than one box and the complainant was expected to convey too much material. This had been accepted by the store manager. The Line Manager said that the disciplinary policy was a last resort and accepted that the complainant had not re-offended between March and July 2015. This had been his first offence.

In closing comments, the respondent said that the complainant had admitted the breaches and the respondent had established that they had occurred. The exhaustion issues were only raised informally and the respondent had attempted to transfer the complainant to a different role. It was part of the role of a coach that they had to travel. The complainant had 20 years’ experience with the respondent and would have been aware of the grievance procedure. The complainant’s resignation had been motivated by his new job and there had been a fair appeal process. Referring to the case law opened, it was submitted that the complainant had not acted reasonably in not submitting a grievance and that he had incurred no financial loss.

Findings and reasoning:

The complainant was a longstanding employee of the respondent, having commenced his employment in 1991. According to the performance reviews submitted by the complainant, he received very positive appraisals of his various posts, which included operational roles in opening new stores and reducing the respondent’s waste output. On the 22April 2013, the complainant was seconded to the ‘Counters and Bakery Specialist’ role and this was extended by the respondent in May 2013 and again on the 28 February 2014. The parties outlined that the nature of the role involved the spearheading of a fresh food counter initiative across the respondent’s network of stores. This initiative commenced in high-profile stores of the respondent, for example in large Dublin and Cork stores as well as in some large towns. As the initiative was rolled out to more stores, the complainant was assigned in 2015 to stores in the west of Ireland. The complainant lives in the west of Ireland, so during the early roll-out of the initiative, he had to drive across the country to attend stores. He raises the issue of his exhaustion, for example as recorded in the email thread of the 6 May 2015. He refers to this issue in the minute of his exit interview.

On the 7July 2015, the Appeal Manager upheld findings that the complainant had breached two company policies, i.e. the privilege card policy and the food handling and hygiene policy. The Appeal Manager, however, reduced the sanction from a Final Written Warning to a First Written Warning. The complainant announced his resignation and left the respondent’s employment on the 31 July 2015. The complainant challenges the fairness and thoroughness of the disciplinary process. He states in the minute of the exit interview that the disciplinary process triggered his resignation. In his complaint for adjudication, he concludes that he had no option but to resign because of the unfair conduct of the respondent.

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.”

Addressing the contract test for constructive dismissal, the EAT in Conway v Ulster Bank (UD 474/1981) (as opened by the respondent) held as follows: “We do not hold the view that the transfer of the appellant [employee] was, of itself, a repudiation of the contract of employment and that the resignation was merely an acknowledgement of an acceptance of this. The transfer may have been misused in this case but its use did not demonstrate that the respondent no longer intended to be bound by the contract of employment, nor did the fact of transfer so alter the employment as to make it a thing radically different from what it was before the transfer. Transferability was part of the contract and could properly and fairly be used to the same effect in different circumstances. The termination of the employment would, we feel, fail on a contractual test to be a constructive dismissal.”

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.”

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.”

The respondent asserts that the complainant is not entitled to rely on the ‘contract’ test of constructive dismissal, i.e. it cannot be said that the employer repudiated the contract of employment as it acted within the contract. It further asserts that it was not reasonable for the complainant to resign, given the support available from the HR Business Partner, the availability of hotel overnights and his annual leave. It states that the role required flexibility in terms of travelling. The respondent asserts that the complainant was under an obligation to exhaust its internal grievance procedure prior to resigning, relying on Conway v Ulster Bank (where the employee refused to transfer branch) and McCormack v Dunnes Stores (UD 1421/2008) which related to the employee’s working times and conditions. The respondent referred to Fitzsimons v Mount Carmel Hospital (UD 855/2007), where the employee’s claim was partially successful (on the basis of delay), but the Tribunal remarked that the employee should have availed of an offer of a return to work. In none of these cases was the employee subject to a disciplinary process that they sought to challenge.

The respondent submits a copy of its disciplinary policy. This provides that the disciplinary process should be undertaken in line with the staff handbook and with check lists as well as other documents. It provides for five categories of sanction, including the First and Final Written Warnings. It provides for an appeal of a disciplinary finding and refers to the individual’s right to pursue their case through a third party process. No reference is made to such a right in the appeal letter of the 2 July 2015 and it is not clear whether this refers to a claim pursuant to the Industrial Relations Acts or some other independent process. The complainant is recorded as referring to such third party claims in the minutes of the appeal hearing. The respondent submits a grievance procedure that provides for four stages through which a grievance can be escalated if it remains unresolved.

The following sets of issues arise in this claim. The first set of issues relate to the travelling associated with the complainant’s role in 2014 and 2015. Do the onerous travelling times associated with the role represent a breach of contract? Should the complainant have lodged a formal grievance regarding his exhaustion prior to his resignation? What is the impact of the delay on the complainant’s part in resigning, given that his complaints of exhaustion were made in late 2014? A second set of issues relate to the disciplinary process. Is it the case that the complainant should have lodged a grievance regarding the outcome of the disciplinary process? Is the grievance procedure even an appropriate way of challenging the outcome of a disciplinary process? Was the disciplinary process so unfair as to represent oppressive conduct on the part of the employer, in particular where the sanction on appeal was a First Written Warning? What is the impact of the availability of a third party process to challenge the outcome of the disciplinary appeal?

There was a conflict in evidence between the parties over whether long driving times would be included in working time. The complainant said that he was expected to be at his first store at opening time. The Line Manager said that allowance for travelling time of over one hour would be factored into when a coach would be expected to arrive at a store. I assess the evidence of the Line Manager on this point to be imprecise and not reflected in the documentation presented by the parties. There is no document of the respondent that makes this concession to the complainant and his colleagues. I have regard to the complainant’s precise evidence and I also have regard to the business mileage claim forms that highlight the onerous travelling times performed by the complainant. For example, in a period of eight days in November 2014, he is recorded as travelling 3,229 kilometres (this excludes travel from his home to the starting point used to measure his business miles. It also excludes the time he worked in the stores, attending to counters). For these reasons, I resolve this conflict in favour of the complainant. I find that the respondent did not make allowance for such long travelling times in working time. The complainant referred to family commitments requiring his attendance at home as much as possible and I do not accept the respondent’s contention that he could have availed of overnight accommodation more frequently, in particular where it appears that the respondent assigned one of its stores as the complainant’s ordinary place of business (the starting point for the calculation of business miles). If his ordinary place of business was a store close to his residence, it follows that he can expect to be home after finishing work.

In assessing whether the travelling asked of the complainant represents a breach of his contract of employment, I note that the 9 November 2009 contract (supplied by the respondent) provides that the complainant is “required to visit, and work at, various other locations so that [he] can properly fulfil [his] duties.” The three letters of secondment of the 22 April 2013, 9 May 2013 and the 28 February 2014 make reference to the ‘Need Car Allowance’ but nothing else is specified as to where the fresh food role would require the complainant to visit. The email of the 6 May 2015 records that the complainant had raised this issue informally and he met with the respondent about this on the 5 December 2014. In this email the complainant is criticised for ‘not offering solutions’ yet it is hard to see what solutions he could have put forward, given the demands of the respondent for the fresh food role, i.e. that he attend his first store at the opening time of the store, that he spend ‘quality time’ on counters, that he visit multiple stores each day and that each day was spent on the road. I recognise that the complainant was had family commitments to return to. The complainant supplies a number of mileage claim forms from his old role in 2012 and from after the 28 July 2014, but none for the intervening period. I accept, however, his evidence that the amount of driving expected of him was a great deal more than he anticipated or signaled in the role. There was no allowance for working from home or for shorter commutes; each day required attendance at stores a considerable distance from the complainant’s home.

Delay, of itself, does not prevent an employee from relying on a breach of their contract of employment to ground a claim of constructive dismissal. In WE Cox Toner (International) Ltd v Crook 1981 IRLR 443, the Employment Appeal Tribunal held “Mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation… Affirmation of contract can be implied… if the innocent party further performs the contract to a limited extent but that the same time makes it clear that he is reserving his right to accept the repudiation… such further performance does not prejudice his rights subsequently to accept the repudiation.” Looking at the note prepared by the Line Manager reproduced in the email of the 6 May 2015, it is obvious that the complainant did not affirm any change to his contract of employment. He is noted as having raised his exhaustion and his previous operational role. This is consistent with his comments in the exit interview. This is especially striking as the complainant was experienced at performing well in mobile roles, where he had always travelled great distances.

There is much to criticise regarding the driving requirements imposed on the complainant. This is not a matter of mutual trust and confidence, so the test handed down in Berber does not apply (in particular where the conduct of the employee falls short of affirmation). The complainant was required to drive for long hours and also do substantial work on his arrival at each store. He was required to do this every working day, with no alternative available, for example working in stores closer to his home or to work at his ‘ordinary place of work’. According to the respondent’s mileage claim forms, the complainant’s ‘ordinary place of work’ was a store on the western seaboard. This was not one of the stores in the fresh food initiative (at that time) and the complainant was expected to attend various stores with the offer of hotel accommodation, very much akin to a worker with no fixed place of work. It was not only that the complainant was assigned stores across a wide geographical range, but also that he was continually on the road, with no alternatives available. He could not count travelling time as working time and could not work from home.

Despite these criticisms, I cannot find that they amount to grounds for the complainant to consider his contract of employment repudiated or that he had no choice but to resign. I reach this conclusion with reluctance. It was never in doubt that this role involved visiting stores over a wide geographical area; what differed was the relentless nature of the long commutes where the complainant had to travel great distances every day. He was paid mileage according to his claims. Given that travelling to places of work was an integral part of the role, I cannot conclude that the amount of travelling time can constitute a repudiation of contract. In relation to the reasonableness test, I acknowledge that the complainant was a longstanding and successful employee of the respondent. I attribute this as the reason the complainant did not formally raise a grievance regarding his onerous driving schedule. The respondent met with him to explore this issue in early December 2014. Given this interaction occurred, I cannot find that the complainant was constructively dismissed on the reasonableness test in relation to the driving demands of the respondent.

In respect of the second set of issues, I note that the grievance procedure makes no reference to it overturning a sanction imposed via the disciplinary procedure. It would be very unusual for a grievance procedure to contain such a possible outcome. On first principles, it is difficult to see how a grievance procedure could be appropriately used to challenge the outcome of a completed disciplinary procedure. While I acknowledge that it does occur (see BBC v Beckett [1983] IRLR 43), this involves the person hearing a grievance to overturn the completed disciplinary process, which presumably has gone through an appeal. Where the employee says that a disciplinary process was so unfair as to amount to a constructive dismissal, I do not agree with the respondent that such an employee must avail of a grievance procedure before advancing a claim of constructive dismissal. Where an employee says the disciplinary process was so oppressive as to amount to constructive dismissal, the onus is on the employee to show oppressiveness and the disciplinary process is assessed accordingly. This is the approach adopted by the Employments Appeals Tribunal in McKenna v Pizza Express Restaurants Ltd [2008] 19 E.L.R. 234 where it assessed whether or not the respondent’s disciplinary process had been proportionate.

I make the following findings in relation to the disciplinary process. My impression from the evidence is that the complainant and his colleagues were left to their own devices. They were in charge of fresh food counters in stores across the country, which they had to ensure were adequately stocked. This was especially the case for a number of high profile launches. The complainant described difficulties in obtaining stock and that he had to buy stock from one store to bring to the store hosting the launch. He paid for this with his own credit card, sometimes spending hundreds of euro, but used a privilege card to obtain a discount and also acquired loyalty points. He accepts that he wrongly obtained a refund on the full value of some of these transactions. While the respondent states this personal outlay was unnecessary, it does not deny the purpose of the transaction, i.e. to stock its counters. There is no suggestion that this was a deliberate attempt to make financial gain. The amount of money involved is very small. From my standpoint, I would assess this breach as a technical breach.

The complainant transported goods in a chilled unit in his vehicle. He states that this unit continues to refrigerate, even when the vehicle’s engine was off. He denies any breach of the chill chain policy and refers to colleagues also conveying goods in their vehicles. The respondent denied that other colleagues carried out the same practice, but did not investigate this as part of the investigation or disciplinary process in this case. The respondent also relies on the fact that the complainant could not prove continuity in the chill process. Again, the respondent’s attitude is po-faced. It requires flexibility and delivery of results on the part of the complainant and his fresh food colleagues. They drove onerous schedules and there were high expectations of the quality of the fresh food counters. It, however, holds the complainant strictly to policy without giving him the tools to meet the flexibility required of the role, e.g. a customised company vehicle. If it had not been for the complainant’s initiative, I am satisfied that the counters would not have been adequately stocked in time for the launches in question.

The complainant is further correct that the disciplinary check list was not complied with in its entirety, in particular with regard to the gathering of evidence. If this were a complaint made pursuant to the Industrial Relations Acts, I would not hesitate in recommending that the disciplinary finding and sanction be set aside. My role, however, is to assess whether the complainant has met the tests for constructive dismissal. I do not agree with the respondent submission that the complainant ought to have lodged a grievance against the finding of his disciplinary appeal; this is beyond the scope of the respondent grievance procedure. I find, however, that the conduct of the disciplinary process, while unsatisfactory, was not so disproportionate as to render the complainant entitled to consider himself dismissed. It does not meet either the contract or reasonableness tests outlined above. The result of the disciplinary appeal was the issue of First Written Warning to last for six months. While this sanction may not be palatable for such a longstanding and senior employee as the complainant, this falls short of constructive dismissal in the sense of repudiation of contract or employer conduct that the employee could not be expected to put up with any longer. I have regard to the stage 2 level of sanction as well as the availability to the complainant of a further challenge to the disciplinary finding, via a third party.

In this report, I have sought to weigh up the detailed written and oral evidence of the parties in order to assess whether the legal tests of constructive dismissal have been met. This was required in order to fully consider all aspects of the case, in particular against the substantial case law. For the reasons outlined above, I conclude that the claim does not succeed.

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.

CA-00001494-001

For the reasons outlined above, I determine that the complaint of unfair dismissal does not succeed.

Dated:   17^th January 2017