Complainant

Respondent

Anonymised Parties

A Training Officer

An IT Services Company

Representatives

SIPTU

Ibec

Act

Complaint Reference No.

Date of Receipt

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

CA-00016999-001

24/01/2018

The Respondent operates an IT services company. The Complainant was employed by the Respondent as a Training Officer from 14 December, 2015 to 1 January, 2018 when his employment was terminated. The Complainant claims that he was constructively dismissed from his employment after he experienced a series of issues within his employment and his terms and conditions of employment. The Respondent denies that a dismissal occurred and contends that the Complainant resigned from his position of his own volition without invoking the internal procedures in relation to his grievances.

The Complainant has over 30 years’ experience in training and he interviewed and was successful for a permanent position as a Trainer with the Respondent. However, on the commencement of his employment in December, 2015, the Complainant was informed by HR that the company had only received funding in respect of a nine-month contract instead of a permanent position. Also, to the Complainant’s surprise another Trainer commenced employment the same day on a nine-month contract.

The Complainant submits that he had left a full-time position to take up employment with the Respondent, so he questioned the situation in relation to his contract with HR and was reassured about his position. The Complainant also requested that an agreed bonus of €2,000 be incorporated into his salary which was refused. However, the Respondent offered to pay half the bonus at the end June 2016 and the balance in September, 2016 which was accepted by the Complainant. The Complainant claims that the Respondent subsequently reneged on the payment of this bonus.

The Complainant contends that from the outset of his employment communication between management within the company was ineffective. By way of example, the Complainant submits that he missed the start date of his employment as a result of a close family bereavement but immediately informed the HR Department. However, HR failed to notify the Complainant’s Line Manager about this matter and he received a phone call on the morning of the funeral asking when he would be attending at work whereby he had to explain the situation again.

The Complainant submits that his performance reviews were very good in the initial stages of his employment. However, there was noticeable friction between the Training Manager and the HR Manager which had a negative impact on the Complainant as the Training Manger was under considerable stress.

The Complainant enquired about the promised bonus and permanency towards the end of June, 2016. The HR Department denied the existence of any agreement but offered to contact the Head of Operations in Ireland in relation to the matter. Later that month when the Complainant sought an update on the situation the HR Department stated that it was “too early” to decide about permanency. Towards the end of July, 2016, there was no update on these issues so the Complainant contacted the Training Manager, who in turn contacted the Head of Operations and a meeting was arranged for 5 August, 2016. At this meeting the Head of Operations immediately agreed to pay the bonus and to appoint the Complainant to a permanent position. The Head of Operations was of the understanding that this decision was made some time previously, yet it hadn’t been relayed to the Complainant.

The Complainant submits that the other Trainer who had commenced employment on the same day as he had walked off the job several times and subsequently left the company at the end of her nine-month contract. The Complainant’s Line Manager had also left the company as a direct employee and returned on a part-time sub-contract basis until February, 2017 but would no longer be the Complainant’s Manager. The Respondent’s Centre Head and another of the Trainers also left the company around that juncture. At that stage there was no Centre Head or Training Manager which again effected the Complainant’s role. A Manager based overseas was tasked with the acting role of Centre Head and Training Manager remotely. The Complainant proceeded with his day to day activities and self-managed and ran the training for clients.

The Complainant submits that he had trained hundreds of employees during his career as a Trainer and had never received any complaints in relation to his work. However, this changed in October, 2016 when a group of trainees commenced training with the company. Around this juncture, a new starter, Employee A, had failed training tests and had difficulty with the training process which resulted in him failing certain aspects of the assessment. Employee A subsequently made a complaint about the Complainant which he believes was in retaliation to the failure. The Complainant responded to the complaint and provided HR with a detailed account of the situation which he believed vindicated himself.

The Complainant was informed around that juncture that another employee, Employee B, had also made a complaint about him describing him as a dictator, being on a power trip and wanting the trainees to fail. The Complainant submits that these comments were very offensive and defamatory. Another employee, Employee C, also had an input into this second complaint, and signed the complaint. The Complainant requested the Respondent to conduct an investigation in relation to these complaints and for his right of reply, but this was refused with HR taking the position that this was “feedback” and not a formal complaint.

The Complainant contends that the “feedback” from these trainees were in fact complaints and that the Respondent was in breach of its internal procedures and should have conducted a thorough investigation under the company’s grievance procedures. The Complainant made considerable efforts to respond to these complaints and attempted tirelessly to resolve this issue and requested that it be dealt with on nine occasions. However, the situation remained unresolved and had serious consequences for the Complainant and was ultimately the catalyst for his resignation. The Complainant was absent from work due to work-related stress in November/December, 2016 and sought assistance from his Manager having informed her that he was very stressed by the situation which he found himself in.

The Complainant submits that subsequent to these complaints the PC at his workstation was vandalised with a deeply offensive and threatening slogan. The Complainant requested the HR Manager, Ms. A, to contact the Gardaí in relation to this matter, but the Respondent insisted that it was just a prank and that an internal investigation would be conducted. The Complainant submits that he viewed this incident as a threat to him and despite seeking assistance from the Respondent to try and resolve the matter the culprit was never found. The Complainant considers that as the complaints from the trainees had not been dealt with, it was though employees had lost all credibility in him, which he believes led to the incident of vandalism.

The Complainant contends that he was also overlooked for promotion when the Respondent was recruiting a new Training Manager. The Complainant had requested the Respondent to open this position internally. However, this request was not granted, and a new Training Manager position was advertised externally, and the position filled.

The Complainant advised the new Operations Manager at a meeting on 23 February, 2017 about the huge amount of stress and pressure he was feeling as a result of his treatment within the workplace and that he had prepared his resignation. The new Operations Manager informed the Complainant that he did not want him to resign so he decided to see if things would improve under his management. In addition, the Complainant had also informed the new Training Manager, Mr. B, about the issues that had occurred regarding the complaints from the trainees, however the matter remained unresolved. The Complainant also relayed to the new Training Manager the difficulty that he would have if Employee B required further training as the issues had remained unresolved and that he would not subject himself to further assassination on his character.

Shortly after this an accusation was made against the Complainant to the effect that he had been speaking about a colleague who had been dismissed. The Respondent’s Training Manager would not disclose who had made this complaint and when the Complainant sought clarification on the matter he was informed that it had been made by way of a protected disclosure. The Complainant submits that the Respondent had an obligation to treat this matter as a complaint and carry out a proper investigation where he would have had the right of reply and fair procedures. However, the Respondent failed to do so.

The Complainant submits that he was close to breaking point at this stage, he could not seem to rectify any situation he found himself in, he was disillusioned had initiated his resignation. The Complainant requested a reference from the Training Manager which was provided. The Training Manager suggested that the Complainant take some holidays and they would talk about the issues on his return.

The Complainant submits that a new training programme was being rolled out within the company in late 2017 and the group of employees that required training included Employee B. The Complainant again relayed his reluctance to train Employee B and sought clarification regarding the reasons why the Respondent had failed to investigate the complaints which had previously been made against him by the trainees. However, notwithstanding the Complainant’s position on this issue, the Training Manager insisted that he proceed with the training to Employee B. The Complainant submits that as a result of the stress, anxiety and lack of support, he felt the situation was hopeless and that he had further choice but to resign from his position. The Complainant informed the Respondent of his resignation by letter dated 13 November, 2017.

The Respondent’s Training Manager subsequently initiated a meeting with the Complainant following his resignation and they met on a number of occasions during the following two weeks to try and resolve the matter. The Complainant felt hopeful that the matter could be resolved and returned to work on 22 November, 2017. However, to the Complainant’s surprise when he returned to work he was subjected to an investigation to discuss an allegation of “insubordination” in relation to his refusal to train Employee B.

The investigation which was conducted by the Respondent’s Training Manager and HR Executive, Ms. C, was launched on 28 November, 2017 and concluded on 8 December, 2017 with the recommendation that the Complainant’s refusal to train Employee B amounted to insubordination and that the matter should be reviewed by a disciplinary panel. The Complainant submits that the investigation was a farce and was carried out in a manner which was totally flawed and in breach of natural justice and fair procedures. The Complainant claims that the whole situation, the torment, the hurt and the illness suffered left him with no option but to resign from his position. The Complainant informed the Respondent of his resignation by letter dated 18 December, 2017.

The Complainant submits that the Respondent breached the terms of his contract of employment in several instances and it was evident that the company was not willing to aid or assist him in any way to try and resolve the issues which arose in the workplace. The Complainant also contends that the Respondent behaved completely unreasonably and displayed total disregard for him and his wellbeing, integrity and good name. The Complainant submits that he was fully justified in resigning and that he was constructively dismissed from his employment.

The Complainant adduced comprehensive evidence at the oral hearing and extensive submissions were made both orally and in writing on his behalf in relation to his claim of constructive dismissal.

The Complainant relied upon the following decisions from the Employment Appeal Tribunal in support of his claim of constructive dismissal, namely: UD641/2000, UD210/2011 and Kane -v- Willstan Racing (Ireland) Limited UD1263/2008.

The Respondent operates an IT services company and the Complainant was employed as a Trainer in December, 2015. The Complainant was initially employed on a fixed term contract and was made permanent following the completion of his probationary period.

The Respondent submits that three trainees provided feedback to the HR Department in November, 2016 in relation to the manner in which the Complainant had conducted a training course in his role as Trainer. The Respondent informed the Complainant and his line manager about the feedback from the trainees but did not consider it necessary to investigate the matter any further as none of the trainees had made a formal complaint against the Complainant. However, the Complainant took the view that this feedback was untrue and defamatory, particularly the feedback from Employee B, and requested that an investigation should be initiated by the Respondent into the veracity of the comments made by the three trainees.

The Respondent’s HR Manager, Ms. A, informed the Complainant on a number of occasions that if he wished to pursue the matter further that he could do so by way of raising a grievance through the internal grievance procedures. However, the Complainant subsequently failed to invoke the internal grievance procedures in relation to this matter and no further action was taken by the Respondent.

The Respondent disputes the Complainant’s contention that the company failed to deal effectively with the incident relating to the vandalism of the PC at his workstation. The Respondent submits that the Complainant had requested that the matter be referred to the Gardaí but the HR Manager did not consider that it was appropriate to do so in the circumstances. The Respondent submits that this matter was taken seriously by the company and was investigated internally by the HR Manager in a comprehensive manner. However, notwithstanding the extensive efforts that were made as part of the investigation, it subsequently was not possible to identify the culprit.

The Respondent also disputes that the Complainant was overlooked for promotion when the position of Training Manager became vacant in January, 2017. The Respondent submits that the company does not have a policy of promoting staff internally to managerial positions and that it decided to recruit externally when there was a vacancy for the position of Training Manager.

The Respondent submits that the Complainant submitted a resignation letter on 13 November, 2017 after he had refused a request by the Training Manager, Mr. B, to carry out training for Employee B. Mr. B subsequently met with the Complainant on a number of occasions following his resignation to discuss the matter and to try and persuade him to return to work. However, Mr. A made it clear to the Complainant that the issue in relation to his refusal to train Employee B would have to be dealt with if he decided to return to work.

The Complainant decided to return to work and an investigation was conducted by Mr. A and a HR Executive, Ms. C, in relation to this issue. The Respondent submits that the Complainant was interviewed as part of the investigation and was adamant that he was justified in his refusal to train Employee B on the basis that the issues which had previously arisen in November, 2016 concerning the training of this employee remained unresolved and had not been dealt appropriately by the company at that juncture. When asked why he did not raise a grievance under the internal procedures in relation to this matter, the main reason given by the Complainant was that the first step in the procedure was an informal option and it was unclear to him how he should exercise this step and that there was nobody to help him to understand the informal process as his manager was not present and there was no Centre Head present at the material time the issue arose. The Complainant was also asked to explain the reason why he was not refusing to train Employee C, who had also provided feedback in November, 2016 which he considered to be defamatory and untrue. The Complainant’s explanation on this matter was that he felt Employee C had been coached into providing the negative feedback at that juncture.

The investigation panel concluded that the Complainant had refused to obey a reasonable request to train Employee B and that this amounted to insubordination. The Respondent submits that it was incomprehensible as to why the Complainant was willing to train one employee (Employee C) who provided alleged defamatory feedback with untruths which had not been investigated yet he was unwilling to train another (Employee C) based on the same criteria. The investigators deemed it necessary that the conclusions of the investigation be reviewed by a disciplinary panel. The investigators also recommended that any unresolved issues which had arisen from the feedback by Employee B in November, 2016 should be addressed to close off the whole issue and prevent such a scenario from arising again. It was also recommended that should the Complainant wish to take a grievance around any of the unresolved issues, the internal grievance procedures remained the avenue to do so. However, if the Complainant decided not to raise a grievance then the company would consider the matter closed and no further action would be taken.

The Complainant was provided with a copy of the investigation report on 6 December, 2017 and informed that the next stage of the process would take place in January, 2018 following the Christmas holidays. The Complainant submitted a letter to the Respondent dated 18 December, 2017 and indicated his intention to provide 30 days’ notice of his resignation from the company. The Complainant subsequently sent an e-mail to the Respondent on 1 January, 2018 to confirm that he was resigning his position with immediate effect and would not be continuing to work his notice period.

In summary, the Respondent disputes the Complainant’s claim of constructive dismissal and contends that he resigned from his employment of his own volition without invoking the internal grievance procedures in relation to any of the issues that gave rise to his resignation. The Respondent further contends that the Complainant was fully aware of the internal grievance procedures and had ample opportunity to seek recourse through these procedures in relation to any of the workplace issues which he claims resulted in his resignation.

The Respondent adduced evidence from the following witnesses at the oral hearing, namely: HR Manager, Ms. A, the Training Manager and Mr. B and HR Executive, Ms. C and extensive submissions were made on its behalf in response to the claim of constructive dismissal.

The Respondent relied upon the following decisions from the Employment Appeal Tribunal in support of its position, namely: An Employee -v- An Employer UD1421/2008 and Conway -v- Ulster Bank Limited UD474/181.

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating his employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

““dismissal”, in relation to an employee, means—

(b) 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.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp[1]. It comprises of two tests, referred to as the ‘contract’ and the “reasonableness” tests. It summarised the “contract test” as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The “reasonableness test” assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

In both types of situation, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment. In reaching my decision I have taken into account all of the evidence, both written and oral, submitted by the parties.

The Complainant is relying on both tests to ground his claim.

In relation to the “contract test” the Complainant has claimed that the Respondent breached a number of the essential terms of his contract of employment. The matters which the Complainant has relied upon in support of this contention include the claim that the Respondent reneged on an agreement in relation to the permanency of his employment and the payment of a bonus, the disregard shown by management for his health and well-being by failing to provide a safe place to work, the alleged inadequacy of the Respondent’s response to investigate and effectively deal with serious allegations and complaints made against him by a number of trainees and the alleged flawed disciplinary investigation into his refusal to train Employee B.

Having carefully considered the evidence adduced, I am not satisfied that the issues which arose between the parties in relation to the permanency of the Complainant’s contract or the payment of a bonus amounted to a fundamental breach of his contract of employment. Firstly, I note that the Respondent disputes that the Complainant was offered a permanent contract at the outset of his employment in December, 2015 and it contends that his position was made permanent in August, 2016 after he completed his probationary period. Furthermore, I am satisfied that any issues which the Complainant may have had in relation to the tenure of his employment including the payment of his bonus were resolved at that juncture and he did not seek to raise a formal grievance in relation to this matter either at the material time in question or subsequently prior to his resignation.

The Complainant has also relied upon the latter two issues mentioned above concerning the complaints by the trainees and the disciplinary investigation in support of his claim that it was reasonable for him to resign and I will deal with these points more comprehensively below.

In relation to the “reasonableness test” the Complainant contends that the Respondent acted in a totally unreasonable manner towards him in relation to the way that it dealt with a number of workplace issues that occurred during his period of employment. The key issue which ultimately proved to be the catalyst for his resignation related to the alleged inadequacy of the Respondent’s response to investigate and effectively deal with serious allegations and complaints made against him by a number of employees which he had trained in November, 2016. The Complainant claims that he made extensive efforts to have these complaints fully investigated but the Respondent failed to take appropriate action and the matter remained unresolved and disciplinary proceedings were subsequently invoked against him in December, 2017 after he refused to conduct further training for one of the employees who had originally made the complaint against him. The Complainant has also referred to a number of other matters including the vandalism of his PC and being overlooked for promotion to the position of Training Manager as further evidence of the inappropriate treatment to which he was subjected during his employment. The Complainant contends that he exhausted all avenues in attempting to resolve these issues and ultimately had no option but to resign.

The Respondent disputes the Complainant’s contention that his position was intolerable and contends that he acted totally unreasonably in resigning from his employment without first having initiated a grievance under the internal grievance procedures in relation to any of the issues that were causing him concern in relation to his employment. The Respondent contends that three employees provided feedback to its HR Department in relation to a training programme conducted by the Complainant. This feedback was brought to the Complainant’s attention by the HR Department, but it wasn’t necessary to carry out an investigation at the material time, or subsequently, as the employees did not wish to make a complaint and the issue did not result in any disciplinary action or performance related issues being initiated against him. The Respondent contends that the Complainant was advised on several occasions that he could raise a grievance in relation to this matter if he felt that it had not been dealt with appropriately, but he failed to do so. The Respondent contends that the Complainant subsequently refused a reasonable request from his manager to train Employee B which amounted to an act of insubordination and that it was decided following an investigation that the matter should proceed to a disciplinary hearing.

It is well established that in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of their employment other than to terminate his or her employment. 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 his or grievance with their employer.

The Labour Court has held in the case of Emmanuel Ranchin -v- Allianz Worldwide Care S.A.[2] that: ”In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal in the case of An Employee v An Employer[3] held that: “In advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. In effect the relevant section reverses the burden of proof for an employer set out in section 6(1) of the Act. 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.”

In considering this issue, I am satisfied that the Respondent had an established Grievance and Disciplinary Procedure in place which conforms to the general principles and procedures enunciated in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000[4]. Having regard to the evidence adduced, I find that this policy was brought to the Complainant’s attention during his period of employment and that he was fully aware of its existence.

In accordance with the established principles in constructive dismissal cases, I am satisfied that there was an obligation on the Complainant to invoke these internal procedures to try and resolve the workplace related grievances which arose during his employment before taking the step to resign from his employment. Based on the evidence adduced, I do not accept that the Complainant sought to invoke the internal grievance procedures in relation to these workplace related grievances which arose during his period of employment.  

It is also well established that there can be situations in which a failure to invoke the internal procedures in relation to a grievance will not be fatal in circumstances where it is established that an employee could not have faith in the employer’s ability to properly or effectively address his/her grievances (see Liz Allen -v- Independent Newspapers[5], Moy -v- Moog Ltd[6], and Monaghan -v- Sherry Bros[7] and New Era Packaging -v- A Worker[8]). However, in the instant case, I am not satisfied that there were factors present which might excuse the Complainant’s failure to invoke the internal grievance procedures before resigning. The Respondent had a grievance procedure in place and the Complainant was fully aware of its existence. I am satisfied that the Complainant was informed by the Respondent on several occasions that he could invoke a formal grievance in relation to the issues which were causing him concern in relation to his employment. However, the Complainant failed to do so and instead chose to resign from his employment.

Having regard to the two tests identified above, I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that he had no option but to resign his position or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract. In the circumstances, I find that the Complainant resigned from his employment of his own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that his complaint cannot succeed.

I find that the Complainant resigned from his employment of his own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that his complaint cannot succeed.

Unfair Dismissals Act 1977 – Section 1 - Constructive Dismissal – Disciplinary and Grievance Procedures – Gross Misconduct - Resignation – Complaint fails