Complainant

Respondent

Parties

Accounts Manager

Food Services

Representatives

John Black Black & Co Solicitors

Karl Elliott IBEC

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-00008890-001

21/12/2016

The Complainant was employed as a Regional Manager on 5^th May 2008 and promoted to National Accounts Manager in March 2014. The Complainant terminated her employment with the Respondent on 16^th September 2016. The Complainant was paid €51,000 per annum plus a Bonus of €1000.00. The Complainant was provided with a written statement of her Terms and Conditions of Employment including the Grievance and Disciplinary Procedures of the Company. The Complainant referred a complaint to the Workplace Relations Commission on 21^st December 2016 alleging she had been unfairly dismissed by reason of constructive dismissal.

The Complainant was employed by the Respondent from May 2008 in various roles. Following her application and interview for a position in 2014 she was appointed as National Account Manager with responsibility for some 11 client sites plus another 5 client sites in leister and 9 client sites in Northern Ireland. In 2016 the Respondent requested the Complainant to take on a new role which involved direct operational management for 20 client sites in the east, west and south of the country. The Complainant considered this as a fundamental change to her Contract of Employment and she did not agree to the proposed change.

The Complainant was employed as Regional Support Manager from May 2008 and she was promoted to National Account Manager in March 2014 with responsibility for two named clients of the Company. 2014 – 2016 was a time of ongoing change in the Company and the Complainant with all employees was involved in discussions relating to these changes. Discussions began around April 2015 between the Complainant and her named Line Manager concerning the reallocation of a named Client sites, No unilateral changes were made. During discussions it was proposed that the Complainant would take on responsibility for all 20 sites of one named Client but she would no longer have responsibility for sites of another named client. The Line Manager understood there was agreement between the Parties in relation to this proposed reallocation of work to be undertaken by the Complainant on a trial basis and he mistakenly issued an email dated 17^th November 2015 informing the relevant people of her agreement.

The Complainant started asking for written details of her new role. However she was informed that she was not being assigned to a new role and that no such new job description existed. All that was being discussed was a change to the duties assigned to the Complainant under the scope of her current role as account manager. Rather it was the allocation of which sites would be directly or indirectly managed by her via Local Regional Managers. On 21^st November 2015 the Complainant emailed a Named Manager setting out her concerns regarding the proposed changes and raising other issues – her relationship with a named Manger – the Complainant’s opinion of this Managers suitability for his role – the possibility of redeployment within her particular area or to another division within the Group. The Complainant’s Solicitor delivered a letter dated 3^rd December 2015 outlining serious allegations which were unsubstantiated but asserted as fact with a threat of seeking recourse to the High Court if the Respondent did not admit to an asserted bullying complaint. The Respondent replied that the Complainant would be informed of the internal grievance procedures but noting the issues. The HR Manager wrote to the Complainant on 16^th December 2015 providing the Complainant with the Company designated independent contact person who had been assigned to the complaint. Reference was also made to the informal discussions with the Complainant concerning the possibility of mediation to discuss issues concerning her and her Line Manager. The HR Manager stated that if she wished to pursue this option it could be arranged.

Mediation did take place with a named mediator and a one to one meeting did take place in January 2016 but these are totally confidential to the Parties. The Complainant’s Solicitor again wrote to the Respondent on 15^th January 2016 stating the Company had not responded to the issues raised while then acknowledging that the Complainant was engaging in the internal process and mediation and confirming that the Complainant had a meeting with the Mediator. The Respondent replied on 27^th January 2016. There was no change to the Complainant’s allocation of clients and sites at any time during this time. There was a mediation process which did not result in an agreement between the parties. By email dated 14^th April 2016 the Complainant was informed of her option of a formal investigation and also that an external independent from a named Company would be assigned if this was her choice. The Complainant did not avail of this offer of an independent investigation of her complaint. The Complainant was on sick leave from 3^rd February 2016 to 6^th March 2016.

On her return to work she sent an email on 9^th March 2016 concerning her expenses. HR wrote to the Complainant on 15^th March 2016 advising her that she had recourse to the grievance procedure if she wished and the Company outlined the Company expenses policy and the Revenue Guidelines and also taking into account an overpayment of wages paid to her which would be deducted from her expenses due. In June 2016 the Complainant raised a formal grievance in relation to her expenses. The outcome was to pay the Complainant her claimed expenses in full. The Complainant did not raise any other formal grievance complaint.

On 25^th July 2016 the Complainant handed her resignation letter to HR. She gave 4 weeks’ notice. She was immediately requested to reconsider her decision but stated she had no choice as mediation had failed. She was invited to attend a meeting with the MD of another Company in the Group and she did attend this meeting on 9^th August 2016 where she indicated she did not wish to engage in independent third party investigation. She was afforded an opportunity to transfer to another Company within the Group and it was agreed she would send her CV to a named Manager so as to identify potential roles and agree an alternative role. However the Complainant did not engage with the Respondent further nor did she send her CV as discussed and the Respondent accepted her resignation.

The Complainant’s Solicitor wrote to the Respondent on 31^st March 2017 requesting among other issues that the Respondent accept liability and agree to compensate the Complainant within 14 days.

The Respondent argued that the Complainant had not met the criteria as set out at Section 1 of the Act in relation to the Contractual Test and the Reasonableness Test and they referenced case law in support of their arguments.    

On the basis of the evidence and extensive written submissions from both Parties I find as follows:

Section 1(1) of the Act defines what is commonly described as “constructive dismissal” as follows (b) the termination by the employee of his contract O of employment with the 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 prior notice of the termination to the employer”

There are essentially two tests that an employee can argue in a complaint of constructive dismissal –

Contractual Test

There must be a significant breach of the contract of employment by the employer, which shows that the employer no longer intends to abide by one or more elements of the contract of employment and that in such circumstances the employee was justified in tendering her resignation. Both Parties confirmed at the Hearing that there was no change proposed to the Complainant’s  Contract of Employment. I have reviewed the Contract of Employment including the Position Profile in relation to her position as National Accounts Manager. The evidence was that the Complainant had responsibility for the specified sites of two clients and also for Northern Ireland. It was proposed that the Complainant would take responsibility for all the sites of one client in the south/east and west of the country while relinquishing responsibility for the second client. There was no change proposed to her Terms and Conditions of Employment. I note that in her Contract of Employment dated 19^th June 2012 which at “Place of Work” provides as follows – “You may be required, from time to time, as per Company requirements, to work at locations where the Company carries out their business………You will be required to be flexible in this position and must be prepared to undertake such work as may be assigned to you by the Company from time to time”.

The Complainant has not established there was any breach of contract of employment by the employer.

Reasonableness Test

The Complainant must have acted reasonable in tendering her resignation.

The Complainant raised a formal grievance in June 2016 in relation to the payment of travel expenses due to her. A Grievance meeting was held on 8^th July 2016 under Stage 2 of the Company Grievance Procedures. The issues involved compliance with Company Procedures and Policy and also compliance with the Revenue Commissioners Guidelines. The outcome was to recommend the Complainant was paid her expenses in full.

The Complainant’s Solicitor had in a letter dated 3^rd December to the Respondent in relation to an allegation of Bullying against a named Manager. The outcome was that a mediation process was agreed but the outcome was not satisfactory to the Complainant. The Complainant was invited to lodge a formal grievance in relation to the issue and to have this investigated by an independent third party. The Complainant declined this offer.

I find that the Complainant has not established that she acted in a reasonable manner in tendering her resignation in circumstances where she was also invited to submit her CV for the purpose of identifying suitable roles for her in other Group Companies. She did not do so.

Constructive Dismissal