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-00012693-001

21/07/2017

In summary, the Complainant made the following points

Despite being hired to a Senior Sales position there was considerable confusion and lack of clarity on the Respondent’s part as to the exact parameters and territorial boundaries of his role.

A formal grievance made in October 2015 was never properly investigated and no formal response was ever received by him.

His ability to properly influence his own earnings was constantly frustrated.

The treatment of an Accounting Overhang, termed a Backlog Adjustment, from 2012, long before his employment commenced was not handled in any proper fashion and was evidence of the complete Corporate confusion he faced. The Backlog Adjustment effectively made it almost impossible for the Complainant to make Commission or Bonus from his sales targets.

The Accounting systems/sales tracking record keeping by the Respondent were completely confused and often yielded contradictory results. It was an almost impossible environment in which to achieve any results or receive due recognition for achievements.

The offering of a Special Retention Bonus as an alternative was, while well intentioned, misconceived as an alternative to the normal Bonus arrangements. The negative fallout, regarding the claimed demands by the Respondent for Repayment of elements of the Retention Bonus following the resignation, highlight this point.

The Complainant felt by the end of March 2017 that all reasonable efforts to communicate with the Respondent and resolve his grievance had been exhausted. He had simply lost faith in the Respondents efforts to deal fairly with him. His resignation was an inevitable result.

A considerable volume of documentation and copy e mails was adduced to support the claim.

It was accepted by the Complainant that the efforts of the Respondent to recover payments under the Retention Bonus scheme while a major source of his grievances was always subsidiary to his main claim of Constructive Dismissal.

The Respondent maintained that the resignation of the Complainant had nothing to do with any alleged deficiencies in his treatment by the Employer.

It was accepted that the Backlog Adjustments, over which the Complainant had no possible inputs, had complicated the whole sales & commission structures. The offering of the Retention Bonus Scheme and the re allocation of Revenue from other areas to the Complainant’s account had been reasonable and well-intentioned efforts to address any possible shortfalls in the Complainants income.

The Grievance lodged by the Complainant had been in October 2015. It was accepted that the issuing of a formal reply had got lost in the “ether”. The Manager responsible was no longer with the Respondent and it was not possible to adequately explain why no response had ever issued.

The Complainant was a very experienced Senior Sales Executive and the initial start-up issues over territories and initial role definitions should have been easily overcome by him. Issues with Sales Tracking and contradictory results were likewise issues, a Manager at his level, was well capable of explaining and ratifying.

His performance during 2016 was exemplary, he achieved a substantial bonus and was being considered for advancement within the Organisation. There was absolutely nothing to lead his Superior (who gave oral evidence) to believe that there was anything amiss of such a nature as to even suggest a Resignation. The Resignation in April 2017 was clearly to follow an enhanced career opportunity in another Firm and could in no way be linked to any actions of the Respondent.

The Respondent pointed to the two standard Constructive dismissal legal tests and clearly maintained that the Complainant had failed to satisfy the Burden of Proof required to sustain a Constructive Dismissal case. Extensive legal precedents were cited.

3:1     The Law and   Constructive Dismissal

It is well established Law that in a case of Constructive Dismissal two tests must apply to substantiate a claim. These are

(a)    Fundamental Breach of Contract to such a serious degree as to leave an employee with effectively no choice but to resign from the employment.

(b)   Unreasonable Behaviour by the Employer to such an egregious degree that a reasonable employee would be left with no choice but to resign.

I will consider these in sequence.

3:2     First test: Fundamental   Breach of Employment Contract.

Having heard the evidence and reviewed the Contract of Employment I could see no grounds for a Fundamental   Breach. The Complainant received his Salary as agreed. It was clear that the Contract allowed for variations in Nonstandard earning such as Bonus/Commissions etc.

The Terms of the Retention Bonus scheme were clear and if in dispute as to their implementation there was nothing that could be called a Fundamental Breach of Contract. However, it was worth noting that the rationale for introducing the Scheme to the Complainant clearly appeared to be different from the purpose that was originally intended by the original authors of the scheme.

The differences over Sales Territories and Job Role confusions were not such as to amount to a fundamental Breach of Employment Contract.

The Complainant was a very experienced Senior Sales Executive going into a new “Mission” in a major Multinational Software Digital Company. He was not going in as an office junior and flexibility and ambiguity as to how his new row would develop were part and parcel of a positon at this level.

It was accepted by all sides that that the issue of the “Backlog Adjustment” was a major, almost tectonic, level incident over which the Complainant had no control. However, there was no legal basis I could seethat the Backlog Adjustment could form a basis for a breach of employment contract claim.

Having considered all the evidence both oral and written I did not find the grounds there to support a Claim of Constructive Dismissal on this first “Fundamental breach of Contract” base.

As a test to support a Constructive Dismissal case I did not   find that the Complainant satisfied the required standard.

3:3    Second Test “Unreasonable” Behaviour by the Parties -principally the Employer /Respondent.

Having reviewed all the evidence and hear the oral presentations I came to the following conclusions regarding the Unreasonable Behaviour test.

The context had to be considered. The Respondent is a very major international Organisation with extensive rules and procedures. The Complainant is a very experienced Sales Executive and was in my view well suited and adapted to operating in this environment.

The Role ambiguities that afflicted the Complainant following his appointment to a new “Sales Mission” were not to be unexpected. International Sales Executives of the calibre of the Complainant can often expect to be frustrated as they effectively define the Job Role on the Organisation. From all the extensive e mail traffic exhibited he treated his queries and organisational complaints professionally and made no secret of his frustrations. There was extensive communication, meetings and e mails on these topics.

However, nothing in the communications and correspondence indicated an employee driven to the brink of a resignation.

The handling or more correctly the non-handling of the October 2015 Grievance by the Respondent left a lot to be desired. The Complainant was entitled to be aggrieved over the non-issuing of a final result, irrespective of the outcome.

The effective imposition of the “Backlog Adjustment” not once but twice (2012 and 2016) would have tested the mettle of a lesser Executive. The Complainant was rightly annoyed on its impact on his potential earnings but it was a matter completely preceding his appointment. The arrangement by his Superior of the Retention Bonus Scheme payments was in my view a well-meaning but effectively a palliative approach to his earnings issues post the Backlog Adjustments.

None the less despite these legitimate frustrations the Complainant worked most satisfactorily during 2016 and was rewarded with a substantial bonus. There was no evidence of anything amiss in his working relationship during 2016 and until his Resignation in April 2017.

The Oral Evidence given by his immediate Superior (Ms. X) at the time of his Resignation I found persuasive. The Superior clear knew the Complainant well, she had hired him in 2014 and they had a good professional relationship. She became his Superior again in mid-2016. It was clear to me that if there had been anything seriously amiss in the Employment Relationship with the Respondent, Ms.X. would immediately have become aware of it. In her evidence, it was clear that she felt the Complainant was working very well in 2016 and the organisation had high hopes for his future development as part of their Team. She had made this clear to him on several occasions.

The Resignation of the 7th April 2017 had come as a complete surprise to her and the reasons given by the Complainant were to her straight forward. He had received a better offer elsewhere at a higher salary and he was leaving to accept this.

The Complainant is his oral evidence made the argument that he had “Softened the blow” in his resignation letter and the follow up meeting out of regard for his colleague Ms.X.   As a Sales Manager, he had no desire to leave the Organisation on a less that pleasant basis by raking over old grievances. At this stage, he was firmly of the view that the Organisation was incapable, either through culpability of more likely of bureaucratic inertia of dealing with his grievances and he felt he had no option but to resign. However, I found this argument a bit hard to accept as he had worked exceptionally well during 2016 and early 2107 - not the actions of a disgruntled employee on the brink of resignation.

Regarding the use of the Internal Grievance Procedures I had to conclude that the Respondent handing /non-handling of the October 2015 situation was fairly wide of the highest professional standards. Nonetheless the Complainant did acknowledge in oral evidence that there were other avenues via the HR Procedures that he could have activated to keep his grievance alive and effectively highlight to Senior Management his most unusual station of not getting an answer in late 2015.

Effectively it appeared to me that the issue had been largely and possibly pragmatically let drop by the Complainant. The actions of the Respondent regarding the grievance of 2015, while undoubtedly not exemplary, were not of the nature of “egregious unreasonableness” as to warrant a case of Constructive Dismissal.

As regards the Respondent, the Retention Bonus Scheme payments were being used, for genuine reasons, as a palliative measure even if this was not what they were originally intended to be. This was not Unreasonable Behaviour by an employer anxious to end an employment relationship.

All things considered and returning again to the professional employment relationship with his Superior, MS.X, in late 2016 and early 2017 I could see no ground for an Unreasonable Employer Behaviour claim.

The evidence pointed to a good offer from an alternative employer being made and accepted.

I could not see that alleged Unreasonable Behaviours by the Employer had led to a Constructive Dismissal.

On Ground, no 2 Unreasonable Behaviours - of a Constructive Dismissal claim the evidence does not support the claim.

Act

Complaint/Dispute Reference No.

Summary Decision /Refer to Section 3 above for detailed Reasoning.

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

CA-00012693-001

Claim for Constructive Dismissal not conceded. Claim is Dismissed.