Complainant

Respondent

Anonymised Parties

Sales Team Leader

Hardware Retailer

Representatives

Arthur Cox Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00006865-001

07/09/2016

The complainant was employed as a Team Leader in a branch of the respondent company which operates a hardware / DIY business nationwide. The complainant commenced employment with the respondent in August 1997 and worked on a full-time basis. She was paid €2,232.42 gross per month. The employment ended by way of resignation on 22 August 2016.

In October 2015 the complainant was promoted to the position of Team Leader. Shortly afterwards a new Store Manager was appointed and the complainant was assigned to Departments beyond her Job Specification.

The complainant attempted to present her issues to the Manager but he would not discuss them.

During an event in the store on 9 March 2016, in response to a query from an Area Manager, the complainant expressed her concerns about her role. Shortly afterwards the complainant was called to the office where she was berated by the Manager for her attitude and accused of causing bad feeling in the store.

The complainant met again with the Manager that afternoon to clarify matters but the Manager was angry and after a short time the meeting terminated and the complainant left the store.

The complainant then contacted a HR Manager in Head Office to communicate her grievance. Because of her stress the complainant went to her doctor who certified her as being ill.

There was no response from the HR Dept. until six weeks later when the complainant was requested to attend an appointment with a company doctor. The complainant met with the doctor who certified her as unfit for work.

The complainant met with the HR Manager in early June 2016 and discussed options for her return to work.   These options were relocation to another store, stepping down to her former position or mediation.

The complainant was unhappy with these options and instructed her solicitors to request a review of the alternatives. There followed further exchanges of letters between the respective solicitors but because of both the stress arising from these matters and the resultant effect on her health the complainant decided to resign with effect from 22 August 2016.

The complainant was provided with training for new duties which were part of the role of Team Leader.

The complainant had expressed unhappiness about being moved to a new department and did not show enthusiasm for the new role.

On 9 March 2016 the Manager spoke with the complainant about her performance and improvements in her role. The complainant requested a further meeting that afternoon and at that meeting in response to a query the manager confirmed his wish for the complainant to continue in her role. The complainant stated that she was stressed and unwell and left the building.

The complainant went on sick leave and in early May attended an Occupational Health Assessment when she was deemed unfit to return to work at that time.

The complainant attended a meeting in early June at which the options available to her were discussed.   These included mediation to resolve the complaint, the complainant taking on a less pressurised role or a move to another store. The complainant was also told about the company’s Employee Assistance Programme.

A letter from the complainant’s solicitor was then received seeking further options. The respondents solicitors replied which confirmed the options and noted that the complainant could lodge a formal complaint in relation to her allegations.

Further correspondence ensued and on 22 August 2016 the complainant’s solicitors confirmed her decision to resign.

The complainant was not constructively dismissed. The respondent did not act unreasonably towards the complainant.

The complainant failed to raise a formal grievance or complaint prior to resigning her employment.

The complainant has failed to prove that she had no option but to resign.

The complainant had been employed by the respondent since 1997 and in October 2015 she was promoted to the position of Team Leader. This was a new expanded role from that of supervisor which the complainant had held and which was now abolished. This process of change coincided with the appointment of a new Store Manager. Training was provided for this new position.

At the start of 2016 there were discussions between the complainant and the Manager regarding her duties. The complainant for her part had issues regarding what she felt was a lack of structure to her role. In March the Manager decided to transfer the complainant to the Building Department.   The complainant was unhappy with the move but transferred as requested.

An important store event for staff took place on 9 March 2016 which involved the store being visited by senior managers. One of these managers asked the complainant how she was getting on in her new role and she responded by complaining about not knowing what she was doing from day to day. After the visit was over the Manager summoned the complainant to the office.   The content and character of that meeting are contested by the parties with the complainant stating that the Manager shouted at her, complained about her performance and accused her of causing a bad atmosphere in the store. The Manager for his part said that he discussed her performance and what he required from her as a Team Leader. Following this meeting the Manager brought the complainant and another Team Leader on a walk around the Building Department to show her what he expected from her. The complainant then went home for lunch.

Upon her return to the store the complainant sought a meeting with the Manager to clarify issues.   Again there are different versions of this meeting. The complainant stated that the Manager again got angry while the Manager stated that he was pointing out the matters that needed to be addressed. What is clear, however, is that the complainant became stressed and felt unwell. She left the store and went home. The complainant tried to contact the HR Advisor for the store but that person was unavailable. The complainant then was certified by her doctor as unfit for work. The following day the complainant spoke to the HR Advisor about the incident and the attitude of the Store Manager. The complainant said that her understanding was that the HR Advisor would get back to her in this regard. In the meantime the Store Manager had advised the HR Dept. of his account of the incident. Not having heard from HR, the complainant sent an email on 20 March 2016 advising that her absence was linked to the meeting with the Store Manager at which she said that she was verbally abused and intimidated. She went on to state that the Manager had singled her out to the point of bullying. The complainant requested to know if the company were taking this incident seriously.

The HR Advisor in evidence said that she did not respond to that email but dealt with the matter at that time as an absence issue. On 28 April 2016 therefore she wrote to the complainant asking her to attend the company doctor for an Occupational Health (OH) assessment.   This appointment took place on 5 May 2016 and the HR Advisor arranged to meet with the complainant to discuss the OH report on 7 June 2016. At this meeting the incident with the Manager was discussed. The HR Advisor put forward three options to resolve the complaint. These were mediation with the Manager with HR support, stepping down to a lower position which would be less pressurised or transferring to another store.  A letter followed confirming these options.  

The complainant was unhappy with these options. The nearest stores were about 50 kms. distance from where she lived. The complainant did not see why she should take a demotion nor was she ready for mediation as she still was absent due to stress. The complainant spoke to the HR Advisor in this regard and then consulted with her solicitor who wrote to the company on her behalf rejecting the options and requesting the company to review and amend them. The respondent passed this correspondence to their solicitors who responded stating that there were no further options available and advising that if the complainant had a formal complaint about the Store Manager she should pursue that complaint through the company’s Dignity at Work Policy.   Further correspondence between the legal representatives followed and on 22 August 2016 the complainant’s solicitor sent a letter rejecting the company’s position and concluding:

“Accordingly our client cannot reconsider the company’s request to engage in further internal procedures. Having worked for many years in (the company) our client….does not take this decision lightly but nonetheless feel she has no option but to resign.”

The company accepted the resignation.

The complaint before me therefore is one of constructive dismissal. The Unfair Dismissal Act 1977 defines this dismissal thus:

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

This in effect means that the actions of the employer are so unreasonable as to give the employee no option but to resign. In determining if the actions of the employer are unreasonable it must be decided whether there has been a significant breach of the employment contract going to the root of the contract or, if not, whether the conduct of the employer was unreasonable to the extent that the employee had to resign.   In all these cases the burden of proof, which lies with the complainant, is a very high one.

As part of a reorganisation plan in 2015 the respondent did away with a level of management termed supervisors. It introduced instead a position entitled Team Leader. This was an enhanced role from the previous one and as one of the few supervisors left after the reorganisation the complainant was offered and accepted the new position. A transition process known as “mapping” then took place during which the complainant was trained and also completed the paperwork attached to same. A comprehensive, written Competence Profile for the position was drawn up which emphasised the staff leadership qualities expected of Team Leaders. As part of her submission the complainant stated that she was being assigned to departments that were beyond the remit of her job specification. Whilst she may not have liked the appointment to the Building Department the issue of transferability within a retail store, especially for a member of management, was a matter for the Store Manager. I cannot therefore accept that there was any breach of the employment contract in this regard.

I must therefore look at the conduct of the employer. It is obvious that the catalyst for these issues was the events of 9 March 2015.   There does not appear to have been any major conflict between the complainant and the Store Manager prior to that date. There were two meetings, one initiated by the Manager and the second by the complainant. The Manager, who had joined the company the previous year, was obviously unhappy when a senior Area Manager spoke to him about one of his Team Leaders complaining that they were unsure of their role. There are differing accounts from the parties as to the conduct of the meeting that ensued. I accept that the Manager may well have been angry at that meeting. It may not have been wise to have immediately called that meeting so soon after the conversation with the Area Manager but to allow a period of reflection before speaking with the complainant. It is, however, significant that the Manager and the complainant then did a walk around her department in the company of another Team Leader to identify the areas that the Manager felt needed addressing. It was after the lunch break, during which the complainant went home, that the second meeting took place at the request of the complainant. Again the accounts differ but it is clear that the complainant felt that the Manager did not want her as a Team Leader. She got very stressed and then left the store.  

What followed was the complainant’s interaction with the HR Advisor.   The complainant states that she was left without a response for weeks and that this added to her stress. The Advisor said that the complainant was being treated as someone on sick leave and was managed accordingly. It should, however, have been clear from telephone conversations and, in particular, from the email of 20 March 2016 that this was more than just a routine illness. There should have been a response to that email from the company. After the medical appointment there was a response to the situation but this was in June, three months after the issue arose.  

When the legal representatives got involved the respondent’s side advised that the complaint be put formally through the Dignity at Work Policy. In her letter of 8 June 2016, however, the HR Advisor wrote about resolving the work place complaint and put forward the options in that regard. I can therefore understand the complainant’s frustration about re-engaging in this process.

The question arises as to whether the actions of the respondent were so unreasonable as to leave the complainant no option but to resign. The background is that the complainant had been adjudged unfit for work by the OH Doctor for a further 2 – 3 months but medically fit to participate in a procedure to address her concerns. The respondent had put forward three options and had also advised the complainant about the Employee Assistance Programme.   The complainant rejected these options. When there were objections to the Area Manager nominated to deal with a formal complaint the respondent indicated that they would nominate an alternative manager. This was rejected in the letter from the complainant’s solicitor of 22 August 2016 as follows:

“Were our client in a more robust state of health we have no doubt that she would engage further as per Dignity at Work Policy. However her view is that this has been ongoing for a period of over 5 months and she can do no more.”

This letter contained her resignation. It should be noted, however, that in a letter of 15 August her solicitor had already stated that the complainant was resigning and that in response to that letter the respondent’s representatives had requested that she reconsider that decision.

In all these circumstances I do not believe that the actions of the respondent were so unreasonable as to leave the complainant with no other option but to resign.

Having carefully considered all evidence and submissions before me and for the reasons outlined above I cannot find that the complainant’s decision to terminate her employment was justified and the complaint therefore fails.