ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004190

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 11/10/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Acts, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Attendance at Hearing:

Background:

The respondent employed the complainant as a Provincial Connections Manager from 5^th of January 2009 until 5^th of February 2016. He was paid €2516 gross per fortnight and worked 40 hours per week. The complaint under the Redundancy Payments Act, 1967 (CA00005820-002) was withdrawn at hearing. The parties made written and oral submission to the hearing.

Summary of the Complainant’s Submission and Presentation:

The complainant submits that he was constructively dismissed. His WRC complaint form states -

In particular he began to experience difficulties in the workplace in or around March 2014 relating to workload and lack of support from his manager. The complainant became fearful for his position as the respondent was considering a restructure. He sought reassurance from his manager and met with him formally. He asked that his concerns be noted. He became increasingly frustrated when his manager for the first time began to take control of his diary in September 2014 which led to double bookings and the erosion of his position. He discovered that he had not been paid increments for 2012, 2013 and 2014. The manager would have had to ignore HR notifications for this to happen. The matter was rectified when the complainant brought it to the attention of HR. The manager by email of the 27^th of April 2015 outlined the Action Plan for May which contained unmanageable workloads. As a result he raised a grievance on the same day with the manager but never received a response. Simultaneously he sent his sales report and highlighted his concerns in relation to lack of resource. He subsequently discovered that his report had been edited by the manager. He made a verbal grievance/complaint to HR in June. At this stage he had sought the assistance and advice of the respondent’s EAP in his attempts to deal with the matter. Meetings with his manager on the 1^st and 2^nd of July were not recorded at which the manager engaged in making changes and admitting that he had been advised by HR that he had been micro managing the complainant. He met HR again on the 10^th of July and advised that he was suffering from anxiety and sleepless nights. He outlined his feelings of isolation and lack of support to his manager on the 15^th inst. He informed HR on the 6^th of August that he wished to adopt the informal approach towards his grievance. He was advised by HR that he would personally have to inform his manager of his choice in the matter. He felt that the respondent was not taking his complaint seriously and therefore changed his mind with regard to the informal approach and subsequently informed HR of his change of heart and that he now wished to proceed down the formal route on the same day. He called the senior manager HD later on and arranged to meet him on the 11^th inst. to discuss his concerns. He outlined the specifics of his complaint at that meeting and noted the connection between his deteriorating health and his treatment at work. It was 20 days later when the respondent referred him for medical assessment for the first time. Furthermore no minute or formal note was taken of the meeting. He met the HD again on the 21^st inst. and was informed that there was no case to answer in relation to the grievance. It was accepted that the manager complained of – “had used questionable management methodologies” but that there was no victimisation. It was also accepted that one of the KPI’s was unachievable. He was told that he was underperforming and that was why he was being micro-managed and that he should accept his part in all of this. He refused to agree and pointed out that the respondent was seeing only one side of the problem. On request he was informed that there was no formal record of his having underperformed. He was offered mediation with the offending manager which he refused on the basis that the relationship had irretrievable broken down. The HD offered to outline the new structure which he intended to propose to management to see where the complainant might be accommodated by way of change in reporting line. He sought details of previous reviews from HR thereafter which were provided. He pointed out several discrepancies as a result. He also requested minutes of his meetings with the HD but none were forthcoming. On the 27^th of August he received an email from the HD stating that the process to date was informal but that based on his refusal to mediate it would have to be moved to the formal stage for resolution. He undertook to refer the matter to HR for formal processing and suggested that there was still some merit in exploring options albeit limited to the structure of the commercial team. He was requested to attend for medical assessment on the 31^st of August. He was invited to a further meeting with the HD on the 3^rd of September at which he was offered the role of manager of the Department of Education Portfolio. He pointed out that this was effectively a demotion. He was given until the following Monday to signal his interest or otherwise. He requested further information on the 7^th of September. He received an email with the proposal in writing on the following day stating that the same was contingent on receipt of the approval of the senior management board to be expected within a fortnight. There was no further contact until the 15^th of October during which time he was not invited to meetings to which he would normally have been invited and was not in a position to comment to subordinates in relation to the content of these meetings. He felt totally marginalised. He contacted the head of HR (HHR) on the 14^th inst. and emailed him on the following day noting that the respondent had deviated from the process and informing him of the fact that he was being increasingly marginalised. The response essentially outlined that it was the informal process which had been invoked and asked him to confirm that he wished to proceed with the formal process in the event that he wished to do so and enclosed a copy of the bullying policy and procedure. He became aware of the new commercial organisational chart which was dated 31^st of August 2015 and it confirmed his suspicions that he was being side-lined. His peers had been promoted but he had been demoted. The fact that same had occurred during the grievance process added to his stress. He was on sick leave for work related stress in the period 19^th of October to 16^th of November 2015. On his return to work he contacted HR and advised that he had not accepted the reduced role. On the 30^th inst. he emailed HR and HD in response to the job specification which had been provided and he pointed out that this was not the specification which he had accepted and that the role on offer amounted to a significant diminution of his role. He contacted another member of HR on the same day to inform that he wished to avail of the offer of mediation and a meeting was arranged for the 3^rd of December to discuss that matter. The HD contacted him by email later in the day to arrange a meeting with his new proposed line manager (former peer). It was clear that the respondent now intended to move to the new structure where he would be required to report to his former peer and accept the demotion. He wrote to the HD and HR on the following day reminding them that he had not accepted the proposed role and that he had sought further clarifications. He received a call from the HD that evening and was ordered to attend at the Cork office on the following day where it was intended to finalise the whole matter and agree his KPI’s with his new manager. In essence the HD said “you get yourself to Cork tomorrow morning and we will resolve this. You will not leave Cork until you have your KPI’s agreed with your new manager”. When he requested the agenda in writing he was told that it would not be provided and instructed that he should desist from emailing the world in connection with these matters.                   He informed the respondent on the following day that he could not attend the meeting arranged for the 3^rd inst. as he was on certified sick leave until the 14^th inst. He received a letter on the 11^th inst. requesting that he attend for a medical assessment on the same day at 10am. The letter inviting him to the next assessment was returned to the post office and he missed that appointment. He was subsequently invited to an assessment on the 8^th of January 2016 and as he received the letter in time he did attend. He received a letter from the respondent on the 7^th inst. informing him that a mediator had been appointed. The medical report issued on the 13^th inst. to the effect that the complainant was not fit to engage directly with the respondent and that he was suffering from on-going active stress. A further medical assessment was arranged for the 19^th of February 2016. In the interim the complainant had concluded that the respondent had ignored its own internal grievance procedure and that it had failed to engage with him resulting in the fact that his health was deteriorating. His resignation was tendered through his solicitor with effect from the 5^th of February 2016. A subsequent letter and reminder was sent to the respondent advising that had not paid his 2015 bonus and certain other payments outstanding. The respondent in reply of the 15^th of April stated that he was not entitled to payment of his bonus as he had resigned his position and that all other outstanding payments had been made. It is clear that the respondent failed to institute its own procedure in response to the complainant’s formal grievance of the 6^th of August 2015 and he was therefore denied his right to a hearing in accordance with the terms of his contract and his rights in natural justice. Additionally the complainant was unilaterally demoted from his position as Provincial Connections Manager despite his diligent and loyal service over five years of unblemished service. It is clear that the respondent did everything in its power to force him to leave. The contractual breaches include the failure of the respondent to protect the complainant from bullying and harassment and unsafe work practices. The respondent’s behaviour was so unreasonable as to fundamentally breach the duty of trust and fidelity implied in the contract between the parties.

Summary of the Respondent’s Submission and Presentation:

The respondent submits that the complainant resigned from his employment. It received a call from him in June 2015 concerning his line manager and his performance management form. During the course of the conversation with the HR manager he alleged that the line manager was attempting to micro-manage him. He was given an explanation as to how the performance management process worked and he appeared to be satisfied with the response he received from HR. he contacted HR again on the 10th of July 2015 and advised that he continued to experience difficulties with his manager and that he was suffering negative effects as a result. The HR manager outlined the options available to him in detail. She advised that the quickest and preferred route was the informal one. For his part the complainant undertook to consider the matter and revert on his return from annual leave having given the matter his consideration. He did revert on the 6th of August and initially decided that he would like to take the informal approach. The HR manager contacted the Head of Department (HD) and he indicated that he would be happy to assist the parties to informally resolve the matter. The HR manager was asked to contact the complainant later in the day to advise him to contact the HD to progress the matter further. She received an email later that morning in which the complainant advised that he had changed his mind and that he would now wish to invoke the formal procedure to resolve the “repeated incidents of bullying behaviour.” She called the complainant and apprised him of her discussion with the HD. He was satisfied with this initiative indicating that he would would wanted nothing other than the matter would be resolved. He then stated that he would contact the HD to get the ball rolling. The HD met with the complainant on the 11th inst. as a result of which the HD suggested that the matter should be mediated between the parties and suggested that medical advice be sought as it related to the complainant’s perception that a link existed between his health issues and the complaints made. He sought copies of past performance reviews from HR on the 25^th inst. and this was followed up in an email of the 28^th inst. which provided further clarifications. He was referred to the respondent’s doctor on the 31^st inst. The doctor’s report advised that the complainant was fit to remain in work, noted that the work related issues had been adverted to and that they were being appropriately managed. It reminded the complainant that the support of the Employee Assistance Programme was available to him. A second appointment was made for the 30^th of October as the complainant had submitted a sick cert citing work related stress. In the course of the conversation he had with the respondent’s HR concerning the appointment he was informed that he should expect a letter outlining details of a new position and reporting line previously discussed with the HD. He queried as to when this was agreed and he was advised that it had been approved by the OD steering committee after some delay which the HD had previously discussed with him. He subsequently attended the medical appointment and was declared fit to return to work in 2/3 weeks at which point he would have attended a few EAP sessions and followed up with his GP. He returned to work on the 16^th of November 2015 and engaged in a number of exchanges with the respondent in relation to the new role on the basis that it was not the role he accepted. On the 30^th inst. he requested that the mediation process be started in an attempt to resolve matters with his manager but was not in a position to attend the session arranged for the 3^rd of December as he was on certified sick leave until the 14^th of December. A further medical assessment was arranged for the 11^th of December but he failed to attend. He remained on sick leave and failed to attend a second medical assessment arranged for the 22^nd of December. He attended for assessment on the 8^th of January 2016. The respondent wrote to him on the 25^th of January noting that the medical report advised that he would be unfit for a period of 4-6 weeks and that it had arranged for a follow up appointment on the 19^th of February 2016. The respondent had written to the complainant on the 18^th of December 2015 informing him that an external mediator had been appointed to conduct the mediation and that it was envisaged that the process would begin early in the new-year. The letter was sent by registered post and returned. A second letter in the same terms was issued on the 7^th of January 2016. Solicitors for the complainant wrote to the respondent on the 5^th of February 2016 enclosing a letter of resignation on medical advice and noting that his internal grievance was not properly processed and that in any event his position had been made redundant. Furthermore they wrote again on the 22^nd of March alleging that the complainant had not been paid his entitlement to his bonus payment for 2015. The contractual provision in relation to the payment of annual bonus is that the recipient must be in the employment on the date of payment which was the 16^th of March 2016 and the complainant had resigned on the 5^th of February 2016.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

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.

00005820-001:s. 1. - [(1)] (c) (b) of the Actprovides -that dismissal, in relation to an employee, means - The termination by the employee of his/her 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

It is clear that on the 6^th of August 2015 the complainant went along with the informal initiative despite having retracted his original consent. He acquiesced in the initiative undertaken by the HD from early August 2015, which was on-going at the date of his resignation. He requested that the mediation process be initiated at the end of November 2015 reiterating his acceptance of the informal process. He can’t then rely on an email of the 6^th of August 2015 to advance the proposition that he had invoked the formal process and by implication didn’t accept the informal process. The complainant did note his reservations in relation to the proposed new role at the end of November and stated that he had not agreed to it. Essentially there was no further initiatives taken after the 2^nd of December 2015 other than that the external mediator was appointed and the complainant was requested to attend for further medical assessment in early January 2016. It is significant that the ensuing report proffers the opinion that the complainant is not in a position to engage directly with the respondent at that time and suggests a further period of sick leave and counselling over a 4-6 week time frame prior to further assessment. The complainant resigned his position during this period and it is clear that the resignation in the circumstances described denied the respondent the opportunity to fully deal with the stated grievance of bullying and harassment by his manager.            It is of note that the complainant had not raised a grievance in respect of the redeployment throughout. He had expressed his reservations and the fact that he had not agreed to the same. In those circumstances that aspect of his submission can’t be taken into account in this case.                  

In constructive dismissal the claimant must satisfactorily demonstrate that the respondent behaved or acted in a manner, which was so unreasonable as to make it impossible for him/her to continue in employment and which fundamentally breached his/her trust and confidence in its bona fides. In so doing the claimant must also show that his/her action/behaviour in resigning his/her position was reasonable in all the circumstances (mirror image concept).                                                                      

The claimant has not succeeded in doing so in the instant case and therefore I find that the complaint is not well founded.

00005820-003: I am satisfied that it is a condition of the scheme that the recipient of the bonus award must be in employment at the date of payment and therefore I find that the complaint is not well founded.

Dated:   26^th July 2017