UDD1750

The Complainant’s case is that her resignation of her employment with the Respondent with effect from 3 December 2015 is a constructive dismissal within the meaning of the Act. She is seeking compensation for loss of earnings resulting from her constructive dismissal. The Adjudication Officer found that her claim was not well-founded.

The Parties are atidemin relation to the key events that preceded the Complainant’s decision to resign her employment. However, the Complainant is of the view that those key events (described below) culminated in her demotion and humiliation before her colleagues.

The Complainant was employed by the Respondent from 24 May 2010 until 3 December 2015 in its Dublin office. Her job title as of the date of her resignation was ‘Subscriptions, Complaints and Regulatory Executive’. She worked as a member of the Respondent’s Italian team. In 2015, the Respondent experienced significant growth in the volume of its business conducted from its Dublin office. Its Claims and Customer Contact Centre was relocated from Milan to Dublin in March of that year. In October 2015, the Respondent announced to staff that a number of teams would be restructured – including the Complainant’s – in order to better equip the company to deal with the increased volume of business.

A number of new positions were advertised internally as part of the restructuring programme. It is common case that the Complainant had a discussion with the then Operations Manager about her potential suitability for a number of the proposed new roles. Ultimately, however, the Complainant applied for only one position, that of Team Leader. She was unsuccessful in her application. The interviews and assessments for the position took place in November 2015. The Complainant attended a feedback session on 23 November 2015 at which the Deputy General Manager and the incoming Operations Manager discussed the outcome of the interview process with her. It is common case that the Complainant did not raise the concerns that are the subject of the within proceedings at this feedback meeting.

The Complainant was absent on certified sick leave from 25 November 2015 until 1 December 2015. On 26 November, the Deputy General Manager – Ms Ryan - sent an email to staff advising them of the revised team structure that was to be put in place in the office. An Organisation Chart was attached to the email. Ms Ryan’s email to staff contains the following statement: “Should you have any questions or wish to discuss directly with me, I remain as always available to have a chat with you.” It appears that a colleague in the office forwarded a copy of this email and attachment to the Complainant’s personal email address. She was, therefore, aware of the new team structure prior to her return to work on 1 December 2015 and of Ms Ryan’s general invitation to all staff who may have had questions about the new organisation structure to come and discuss those with her. It is common case that the Complainant did not avail herself of the opportunity to speak with the Deputy General Manager about her concerns arising from the reorganisation.

On the very day that the Complainant returned from sick leave she submitted a letter of resignation to the HR department and requested that the company waive her contractual notice requirement of three months. The Complainant’s letter of resignation identifies the reason for her resignation as being family-related and the difficulty of manging both business and family commitments. While she does make some reference to the reorganisation of the business, the Court does not accept that the paragraph in which that reference is made could be construed on an objective reading as putting the Respondent on notice that the Complainant perceived that the reorganisation of the office had resulted in her demotion.

Ms Ryan responded to the Complainant by letter dated 3 December 2015 in which she noted with regret the Complainant’s decision to resign and confirmed that the resignation would take effect from close of business that day. Ms Ryan also stated the following in her letter: “… the contribution of everyone is totally necessary in the new reorganisation of the business and as you will be leaving the company we will need to recruit a new resource to compensate (sic) your role which links into the workload of the team.” It appears that Ms Ryan was thereby reacting to to the following statement in the Complainant’s resignation letter: “In light of the new reorganization of the business, I truly believe that my contribution is totally unnecessary while the Companies have plenty of resources, knowledge and ability in respect of the volume and tasks to be performed, so my absence will not create any problem to the day to day activities and to the business in general.”

Submissions

The Complainant’s case, stated succinctly, is that - had she remained in employment once the reorganisation of the teams had been implemented - she would have been performing basic claims handling work which is of a lower level than the regulatory work that she was performing up to the date of her resignation. Furthermore, she took the view that the positioning of her role on the Organisational Chart attached to Ms Ryan’s email of 25 November 2015 was a clear indication that that role had been demoted as a consequence of the reorganisation. Finally, in the new arrangement she would have been required to move desk in the office and would be been seated adjacent to operational level staff. As a consequence of all of the foregoing, the Complainant told the Court that she felt humiliated in front of her colleagues and that management did not value the hard work and commitment she had displayed over the course of five years’ service to the company. The Complainant accepts that she didn’t take any of the opportunities presented to her to raise her issues with management. She stated that she was aware of the grievance procedure (which at stage 3 provides for referral to a Rights Commissioner (now Adjudication Officer) and the Labour Court) but deliberately decided not to avail herself of it because she had lost all trust and confidence in management.

The Respondent’s position is that the reorganisation did not entail any material change to the Complainant’s substantive role, job title, salary or terms and conditions of employment. Furthermore, the Respondent could not be expected to deal with an employee’s issues in circumstances where the employee has failed to notify it of those issues through the grievance procedure or otherwise. The Complainant in this case could have raised her concerns at the feedback meeting on 23 November 2015, by taking up Ms Ryan’s invitation in her email of 25 November 2015, through the grievance procedure and/or in her letter of resignation. However, she failed to avail herself of any opportunity to put the Respondent on notice of the negative impact she perceived the reorganisation had on her role in the company. The Respondent, on that basis, submits that the within claim of constructive dismissal failsad limine.

Discussion and Decision

It is well-settled law that a complainant who is advancing a claim of constructive unfair dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective. Furthermore, it is incumbent on an employee to avail himself/herself of the employer’s grievance procedure before resigning so as to put the employer on notice of the employee’s issues and to permit the employer an opportunity to address them. (See for example the determination of the Employment Appeals Tribunal inConway v Ulster Bank LimitedUD474/1981).

Having carefully considered the case put forward by the Complainant, the Court takes the view that she has not satisfied either element of the test outlined in the preceding paragraph. Accordingly, the Court determines that the Complainant was not constructively dismissed from her employment. The decision of the Adjudication Officer is upheld and the appeal fails.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
9th November 2017______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.