Complainant

Respondent

Anonymised Parties

An Employee

A Supermarket

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00011360-001

16/05/2017

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

CA-00011360-002

16/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00011360-003

16/05/2017

The Complainant commenced work with the Respondent, an independent Supermarket, in September 1983. Having worked in a number of positions, most recently as Assistant Manager, the Complainant was promoted to a more senior managerial position in June 2016.

In early 2017, a number of issues arose between the Complainant and the Respondent. Correspondence ensued between the legal representatives of both parties and matters culminated on 26 April 2017, when the Complainant resigned from his employment.

Background:

Evidence submitted on behalf of the Complainant indicated that he was a long serving employee of the Respondent, having worked there for over 33 years. In June 2016, following the departure of a manager, the Complainant was promoted to the position of Store Manager. It was stated that in this position, the Complainant reported to the Chief Executive Officer (CEO) of the Respondent.

It was submitted on behalf of the Complainant that, throughout his tenure as Store Manager, the Complainant found the behaviour of the CEO very difficult. However, given that he was a long serving employee, he simply got on with his work, until 9 February 2017, when, it is contended, matters came to a head.

Evidence on behalf of the Complainant suggested that, on 9 February 2017, he was asked to attend at the office of the Respondent’s Proprietor/Sole Shareholder (PSS). The Complainant stated that when he arrived in the office both the PSS and the CEO were present. According to the Complainant, the PSS informed him that he (the Complainant) was "a disappointment". The Complainant stated that the PSS then went on to state that he had received phone calls about him and he didn't know how he "passed the day".

The Complainant stated that the CEO then indicated to him that while other employees were " shoving the boat out" he was not. It was further stated that the CEO informed him that the extra payment he had received for being a manager would have to be taken away from him. In evidence, the Complaint stated that he was shocked when he was dismissed from the office by way of a gesture of the hand from the PSS. It was contended on behalf of the Complainant that, following this meeting a concerted effort was made by both the CEO and the PSS to shut him out of the business.

In support of the above contention, it was submitted on behalf of the Complainant that:

a) he was excluded from the 50th anniversary celebrations of the opening of the supermarket. In this regard, it was contended that the Complainant was told to wait in the supermarket while more junior employees attended the celebrations.

b) he was consistently ignored in the shop and excluded from the Store of the Year Awards, for which the Respondent's store had reached the final six. It was stated on behalf of the Complainant that, while he felt this was a great achievement and was proud to be a part of making it happen, it became clear to him that his employer did not want him to be part of it.

In support of this contention, it was stated, on behalf of the Complainant, that the Respondent selected three other members of staff to attend a ceremony in Killarney. According to the Complainant, two of the staff, chosen to travel, approached him and expressed bewilderment that he was not attending the event.

c) his wages were unilaterally reduced.

It was submitted on behalf the Complainant that all of the foregoing had a hugely detrimental effect on his well-being. It was stated that the Complainant could longer function in his job and, as a result, broke down on 25 February 2017, when he advised his family of the situation. However, despite this it was submitted, on the Complainant's behalf, that he went to work on 25/26 February (being a Saturday and Sunday) while other members of staff were at the Store of the Year Awards in Killarney.

The Complainant stated that, on Monday, 27 February 2017, he attended his doctor who certified him sick with work-related stress arising solely for the treatment that he had received from the CEO and the PSS.

The Complainant submitted in evidence that when he received his payslip he realised that €100 had been deducted from his salary, while at the same time, he appeared to have received it 3% increase in salary, which was applicable to all staff. The Complainant contended that there was no consultation with him in relation to these changes to his salary.

It was submitted on behalf of the Complainant that, in an effort to try and address his overall situation, he engaged a solicitor, who corresponded, on his behalf, with the Respondent, by way of letter dated 30 March 2017, which was addressed to the PSS. According to evidence submitted on behalf of the Complainant, the said letter was returned unopened. However, a separate letter which was sent to the store elicited a response from the Respondent's solicitors on 18 April 2017. This letter indicated that the solicitors were taking instructions from the client.

Against the above background, the Complainant's individual complaints were set out as follows:

CA-00011360-001 – Organisation of Working Time Act, 1997 and CA-00011360-003 – Industrial Relations Act, 1997:

At the commencement of the hearing, the Complainant's legal representative stated that his complaints under the Organisation of Working Time Act and the Industrial Relations Act were not being pursued.

CA-00011360-002 – Unfair Dismissal Act, 1977:

According to the Complainant's evidence, a letter was received from the Respondent's solicitors, dated 20 April 2017. A further letter, dated 26 April 2017 issued from the Complainant's solicitors to the Respondent. This letter, which was opened as evidence at the Hearing, stated, inter alia, that:

-          the Complainant did not understand the Respondent’s reference to "ambient manager", as he had been appointed to the role of Store Manager, without any conditions attaching, as alleged by the Respondent.

-          the Complainant refuted in its entirety the Respondent's account of the meeting of 9 February 2017.

-          during the two-week period following the 9 February meeting, when the Complainant continued to work in his role as Store Manager, no follow-up discussions took place with regard to his role.

-          the Complainant wished to return to his position as Store Manager.

-          the Complainant denied and refuted the contention that he received a salary top up for trialling as Ambient Manager. On the contrary, the Complainant stated that he was offered an increase in salary to take on the position of Store Manager.

-          the Complainant's allegations of bullying and harassment were valid, as, despite his senior management role, he was excluded from the 50th Anniversary and Store of the Year celebrations.

Based on all of the above, the correspondence of 26 April 2017 concluded that the Complainant had no alternative but to treat himself as being unfairly constructively dismissed. On that basis, the Complainant requested his P45, which issued on 9 May 2017, showing the date of cessation of employment as 26 April 2017.

Background:

It was stated by the Respondent that the Complainant, a long-time Assistant Manager in the store, was offered the position of Ambient (Store) Manager, on a trial basis, in May 2016. It was stated that this involved the carrying out of additional duties, over and above the duties of an Assistant Manager. It was stated on behalf of the Respondent that, as Ambient Manager, the Complainant was in overall command of the Store, Staff, Ordering, Planning and Strategy. The Respondent stated that the Complainant was provided with an additional €100 per week in his role as Ambient Manager.

In this position, the Complainant reported to the Chief Executive Officer (CEO) as the Proprietor/Sole Shareholder (PSS) stepped back from day-to-day involvement in the store. It was stated on behalf of the Respondent, that the Complainant was supported in his new role and was given every assistance, including been sent on a training course.

According to the Respondent's evidence, the CEO kept the situation under review and, in October 2016, gave the Complainant a list of daily duties to be carried out, as she felt he was not carrying out the full extent of the additional duties required of his role. It was stated that part of the Complainant’s duties involved putting together a "100-day plan". It was further contended, by the Respondent, that the first 100-day plan for the Complainant's managerial period had been completed by another staff member. According to the Respondent's evidence, when the CEO requested the second 100-day plan, which was overdue in January 2017, it was discovered that the Complainant had requested another staff member to complete this plan as well.

It was stated in evidence, by the Respondent, that when there was no plan was forthcoming between 12 January and 9 February 2017, it was decided to call the Complainant to a meeting. The PSS accompanied the CEO at this meeting, which took place on 9 February 2017.

It was submitted on behalf of the Respondent that, at this meeting, the Complainant volunteered that he was unhappy in the Manager Job and that he did not realise how much additional work was involved in stepping up from his previous role as Assistant Manager. According to the Respondent's evidence, the CEO then pointed out to the Complainant that, as it had been agreed that the Ambient Manager's job was on a trial basis, there would be no difficulty if he wished to step back from that role and revert to his previous position of Assistant Manager. It was also contended that the Complainant stated that he found it very difficult to carry out the daily duties as per the list furnished to him by the CEO in October 2016.

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According to the Respondent's evidence, the PSS then informed the Complainant that, as he was not going to continue in the Manager role, he would lose the additional €100 per week he received for carrying out that role. It is submitted that the PSS then asked the Complainant if he would have any problem working under a new Manager and he replied that he would not. It was further submitted by the Respondent, that the Complainant stated that he would prefer to work as Assistant Manager in the off-licence section. However, the Respondent stated that it was not possible to comply with the Complainant’s requests in this regard, as there was already an Assistant Manager in charge of that area. It was further stated that it was suggested to the Complainant that he work in a different section with two named colleagues, one of was going on Maternity leave later in the year.

According to the Respondent's evidence, the meeting of 9 February 2017 ended at the Complainant's request and that, from then until 27 February 2017, he continued to work on his re-assigned duties. It was further contended, by the Respondent, that they received no complaint or grievance from the Complainant in relation to his return to Assistant Manager duties.

According to the Respondent's evidence, when they received correspondence from the Complainant's solicitors, they offered the full use of the company’s Grievance Procedure. However, it was stated that the Complainant refused to utilise the Grievance Procedures and instead choose to resign his position with the company.

It was further stated in evidence, on behalf of the Respondent, that they were not made aware of the bullying allegations being made by the Complainant until they received the correspondence from his solicitor. The Respondent stated that they were not given any opportunity to investigate these allegations.

Based on the above, the Respondent stated that the Complainant's complaint of constructive dismissal should be rejected.

The Complainant is claiming constructive dismissal as a result of the situation in his workplace becoming so intolerable that it left him with no option but to resign.

Constructive dismissal relates to a situation where an employee terminates their contract of employment, as was the situation in the case at hand.

Section 1 of the Unfair Dismissal of Act, 1977, defines such a dismissal as follows:

“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,”

Significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it must satisfy the dual tests of (1) Breach of Contract and (2) Reasonableness. The first test, that of breach of contract, requires that the contract of employment must have been breached to such a degree that the employee is left with no option but to resign. However, it is now also generally understood that an employee must act reasonably in terminating their employment and that resignation must not be the first option exercised by the employee. All other reasonable options including the grievance procedures must be explored.

The reasonableness test requires that the Complainant must satisfactorily demonstrate that the Respondent behaved or acted in a manner, which was so unreasonable as to make it impossible for them to continue in the employment and which fundamentally breached their trust and confidence in the bona fides of the other party. In so doing, the Complainant must also show that their own action/behaviour in resigning was reasonable in all the circumstances. This is regularly referred to as the mirror image concept.

Unlike a complaint of unfair dismissal, where the burden of proof rests with the employer to show that the dismissal was not unfair, in a constructive dismissal claim the burden of proof rests with the employee, who must prove that their decision to resign was both justified and reasonable. In effect, the employee must demonstrate that they have no option but to resign based on their employer’s conduct.

As already stated significant case law exists which underpins the above concepts. For example, with regard to the burden of proof, the Employment Appeals Tribunal (EAT) held, in UD 1146/2011, that “in such cases [constructive dismissal] a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

This was further confirmed in the case of Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84), where it is stated that: “the onus is on the claimant to prove his case” and that “the test for the claimant is whether it was reasonable for him to terminate his contract”.  

It is also well established that a Complainant is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal. This concept is clearly set out in Reid v Oracle EMEA Ltd [UD1350/2014], where the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

The behaviour of the employer in such scenarios is referred to by the EAT in Donnegan Vs County Limerick VEC [UD828/2011], where it is stated: “In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace” and also in McCormack v Dunnes Stores [UD 1421/2008], where it is stated: “The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

Against the background the above legal requirements and case law, I proceeded to consider the instant case and determine whether (a) the circumstances existed which might reasonably be regarded as justifying the Complainant's decision to resign, (b) the Respondent was afforded a reasonable opportunity to deal with the Complainant’s complaints and (c) the Complainant fully exhausted all available procedures and processes to deal with his complaints before resigning his position.

Having carefully considered the evidence adduced, it is clear that there is a conflict of evidence between the parties in relation to a number the elements at the core of the complaint. These include, inter alia, conflicting accounts of (a) the circumstances surrounding and the terms and conditions applying to the Complainant's appointment to a more senior managerial role in May 2016, including the notion of it being on a trial basis, (b) issues pertaining to the Complainant's performance in this new role, including the rationale of the issuing of a list of duties by the CEO in October 2016 and (c) what transpired at the meeting with the CEO and the PSS on 9 February 2017.

The Complainant's legal representative stated, at the Hearing, that, in the absence documentary evidence from the Respondent, which would corroborate their version of events, the evidence of the Complainant should be accepted. While I note the absence of what should be regarded as standard documentation pertaining to the Complainant’s appointment to the managerial role in May 2016, I am of the view that it would be unreasonable and unfair to discount the Respondent’s oral evidence while accepting that of the Complainant, which was also primarily oral in nature, in relation to the main aspects of the case which are in dispute.

Having carefully reviewed all the evidence adduced and, notwithstanding the conflicts in that evidence, as set out above, I am satisfied that, on the balance of probability, it is possible to establish certain basic facts associated with the Complainant's complaint.

Firstly, I am satisfied that, in May 2016, the Complainant, who up to that point held the position of Assistant Manager, was promoted to a more senior managerial role. I am further satisfied that as part of this arrangement the Complainant received a salary increase of €100 per week.

Secondly, the evidence presented by the Respondent suggests that, following the departure of the previous Store Manager, a restructure of the managerial positions took place within the store. It appears that the CEO assumed the role of Store Manager and that two new positions, that of Ambient Manager and Fresh Foods Manager, were created. From the evidence presented, I'm satisfied all parties accept that a Fresh Foods Manager was appointed in July 2016. The evidence further suggests that the Complainant and the Fresh Foods Manager both reported into the CEO.

Thirdly, it appears, on the evidence presented, that the Respondent had some concerns in relation to the Complainant's performance in his new role. This is particularly clear from the evidence presented around the issue of completion of the rolling “100-day Plans”. In addition, the calling of the meeting of 9 February 2017, which was also attended by the PSS, clearly demonstrates that management had concerns in relation to the Complainant’s performance in his new role.

Fourthly, notwithstanding the conflicting positions of the parties in relation to what transpired during the 9 February, it appears that the Respondent no longer considered the Complainant to be holding down the more senior managerial role. This view is supported by the fact that the €100 per week salary increase which was applied on his elevation to the role in May 2016 was removed following this meeting.

The evidence presented clearly suggests that, while there may be differing views as to what role he was operating in, the Complainant returned to work following the meeting of 9 February 2017 and continued to work up to 27 February 2017. From that date, the Complainant was on certified sick leave due to work-related stress. At this point, the Complainant engaged a solicitor to correspond with the Respondent on his behalf. A series of correspondence then issued between the Complainant's solicitor and the Respondent/their legal representatives. This correspondence concluded with a letter dear 26 April 2017 from the Complainant's solicitor to the Respondent's solicitors stating that the Complainant had no alternative but to treat himself as constructively dismissed.

In addition to the issue pertaining to the Complainant's role, the correspondence sent to the Respondent suggested that his decision to resign was influenced by: (a) the Respondent’s bullying and harassment behaviour towards him, (b) his exclusion from the 50th Anniversary celebrations and (c) his exclusion from the Store of the Year Awards ceremony. From a detailed review of the correspondence concerned and in the absence of any other supporting evidence, it appears that the Complainant’s complaint of bullying and harassment related to the issue of his role and his exclusion from the aforementioned celebrations/ceremony.

With regard to the latter point, the Respondent refuted of the Complainant's contention that he was excluded from these events. In support of this contention, the Respondent presented photographic evidence showing the Complainant in the company of several guests who attended the anniversary celebrations. Having carefully considered all of the evidence presented in support of the Complainant’s claim of exclusion, I am not convinced that exclusion of a deliberate or significant nature took place. In any event, I do not believe that these incidents provide a reasonable or credible basis on which to build a claim of constructive dismissal.

Having reached the conclusions as set out in the previous paragraph, I then considered the remaining issue, the Complainant's appointment to the more senior managerial role in May 2016 and his apparent reversion to his former role of Assistant Manager in February 2017.

It is clear from the conclusions/findings set out above, that the Complainant potentially had a grievance with his employer in relation to these events. In this regard, I note the contents of the Complainant's solicitor's correspondence of 30 March 2017 to the Respondent, which sets out the basis of the grievance as being issues in relation to the role, including the salary deduction and an allegation of bullying/harassment which appear to be based on the two identified allegations of exclusion. In this correspondence, the Complainant seeks six commitments from the Respondent as redress for his grievance.

The Respondent responded to the above correspondence by way of letter, dated 20 April 2017, from their legal representatives. In this correspondence, inter alia, the Respondent's position in relation to the Complainant's role is clearly set out and restoration of the withdrawn salary increase is confirmed for a period of three months, at the expiry of which the position would be reviewed with a view to making it commensurate with his role of Assistant Manager.

With regard to the allegations of bullying and harassment, the Respondent's position is clearly set out in that, while denying the claims made by the Complainant, they state they take such allegations extremely seriously and are willing to consider these in the context of the internal grievance procedures should the Respondent wish to utilise the procedure.

With regard to the Complainant's request to determine his own reporting relationship, the Respondent stated that it was not possible to agree with what he was seeking, in this regard. In a context where the designing of staff structures and reporting relationships is clearly the prerogative of the employer, I am satisfied that the Complainant’s demand in this regard, as set out in the letter of 30 March 2017, were unreasonable and impractical.

Consequently, I am satisfied that, based on the above, the Respondent’s response, as set out in the letter from their legal representatives, dated 20 April 2017, to the demands contained in the letter of 30 March 2017, from his solicitor, was reasonable and appropriate in the circumstances. I am further of the opinion that the position as set out in the concluding paragraphs of the letter are both reasonable and conciliatory in nature.

The Respondent specifically sets out that the Complainant is a valued member of staff and will be welcomed back to work as soon as he's certified fit to do so. It is also stated that, in the Respondent’s view, the threat of legal proceedings was both unnecessary and unwarranted.

In response to the Respondent's correspondence of 20 April 2017, a reply on behalf of the Complainant, contained in a letter from his solicitor dated 26 April 2017, merely refutes the Respondent's position and restates his own. Without presenting any additional information or evidence in support of his position or without availing of the invitation to submit a grievance, the Respondent advises that he has "no alternative but to treat himself as being fairly constructively dismissed".

Having carefully considered all of the evidence adduced, I find that the Complainant’s decision to terminate his employment at this juncture was unreasonable and not consistent with the onus placed on him to exhaust all internal processes before concluding that he has no option but to resign. In this regard, I am satisfied that, if the Complainant had engaged with the Respondent in a meaningful and constructive manner, the issues in relation to his role would have been, at minimum, clarified and, potentially, could have been resolved to the satisfaction of all parties concerned.

In addition, while I find that the Respondent’s handling of the situation in relation to the Complainant's elevation to the more senior management role lacked the necessary clarity and documentation which would have removed any possibility of confusion or misinterpretation, I cannot find that their behaviour in relation to the overall situation was unreasonable to the extent that it provided a basis for a justified claim of constructive dismissal. I am also of the view that, at the point in time the Complainant tendered his resignation, there was no discernible breach of contract, on the part of the Respondent, which would have supported a constructive dismissal complaint.

Consequently, taking all of the open consideration, I find the Complainant has failed to comply with the requirements to successfully make a complaint of constructive dismissal.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out my decision in relation to the Complainant’s complaints as follows:

CA-00011360-002 – Unfair Dismissal Act, 1977:

I find that the Complainant's complaint of constructive dismissal it is not well founded and it is, therefore, not upheld.

CA-00011360-001 – Organisation of Working Time Act, 1997 and CA-00011360-003 – Industrial Relations Act, 1997:

Both of these complaints were withdrawn at the Hearing. Consequently, no decision or recommendation issues.

Constructive Dismissal