ADJ-00015114

Complainant

Respondent

Anonymised Parties

A Technical Sales Manager

A Timber Construction Company

Representatives

SIPTU

Arthur Cox

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-00019634-001

07/06/2018

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

CA-00019723-001

12/06/2018

The Complainant said he made a formal complaint to the Respondent in relation to bullying and harassment under the Dignity and Respect at Work Policy. He said he was not happy with the manner in which the Respondent dealt with his grievance. He said he went out on sick leave with anxiety due to work related stress. He said the Respondent sent him to the company doctor who gave him three options, namely, continue on sick leave which would not provide a solution; meet with HR and discuss the situation he was having at work, or resign his position with the Respondent. He said having considered all the options he resigned and claims constructive dismissal.

The Respondent claims that there was no dismissal, constructive or otherwise and the Complainant resigned of his own volition for his own reasons, while it was conducting a grievance procedure of his complaint.

The Complainant was employed by the Respondent for over 22 years as a Technical Sales Manager. He was part of the sales team that covered Ireland and was managed from the UK. In 2016 a new sales team manager, Mr. A, was appointed. The Complainant said that Mr. A was very aggressive in his attitude towards the sale team and always wanted more from them. This attitude led to the Complainant lodging a complaint against Mr. A regarding bullying and harassment.

The Complainant said he contacted the HR Manager, Mr. B, in relation to his concerns. They met on 7 February 2018 where Mr. B said there were two ways to proceed, either informally or formally. The Complainant said that he chose the formal route to progress his complaint and on 8 February 2018 he received a copy of the Respondent’s policies on Dignity at work and Occupational Stress. He said he presented his complaint to Mr. B in writing on 13 February 2018.

The Complainant said that in essence the complaint relates to the following matters;

26 September 2016 – Mr. A at a meeting became very aggressive about his responsibilities and said 'you are paid enough to take extra workload regardless of whether it was your job in the past. You will do as I say now'.

13 October 2016 - Mr. A at a lunch time meeting apologised for his behaviour at the previous meeting and made an analogy of the past conversation being like a sticking plaster- “pull it off quickly and get the pain over with”.

13 October 2017 – the Complainant had a teleconference with Mr. A while out on sick leave in relation to a customer seeking extra support from the company. Mr. A gave higher support than what was usual, which undermined the Complainant’s position to clients. The Complainant also said that he was not supposed to be working and not answering work phone calls or emails until he was certified to return to work.

14 November 2017- when discussing how a colleague’s departure from the company would be managed and the coverage of his work going forward, Mr. A stated that “it will remain the same, and that a [senior figure]” has made the decision.

29 November 2017- Mr. A was very hostile while driving from Cork Airport to a meeting with a customer- he raised his voice on more than one occasion to oppose information being discussed around customer behaviours.

19 January 2018 - Mr. A wanted to conduct the Complainant’s yearly performance. The Complainant requested that it be rescheduled, Mr. A wanted to do it over the phone while the Complainant wanted it face to face. Mr. A later made a negative comment about having to meet, to conduct the yearly performance meeting.

1 February 2018 – during a telephone conversation on the workings of a scheme Mr. A in an aggressive voice said to the Complainant “if you want to go and work for another business you should just go and work for another business somewhere else" He felt Mr. A wanted him gone from his team.

The Complainant met with Mr. A on 6 February for a review of performance meeting and said that Mr. A used bullying and threating behaviour and language such as “if you want to go and work for another business you should just go and work for another business somewhere else, it is not the army, you can go anytime you wish” and "I hold very bad grudges so best not to cross me".

Mr. B contacted the Complainant on 14 February regarding his complaint against Mr. A and issued his findings on 7 March 2018, which stated from his understanding the key elements of his grievance were,

i) At various times as documented in your statement, you claimed that the behaviour and language used by Mr. A were of a bullying and threaten nature towards you.

ii) That these actions taken by Mr. A are designed to manage you out of the business, specifically out the sale team.

iii) That this situation is known within the company.

The Complainant said that the Respondent’s findings were summarised as follows; that the allegations of bullying is treated as very serious and one that the company takes very seriously. Given the serious nature of this allegation and in order for his complaint to be upheld it is necessary for him to substantiate the allegation with specific factual based evidence. Mr. B felt that other than broad allegations, as outlined above, there were no witnesses or supporting documentation to collaborate the allegations. Mr. B said that Mr. A denies that he is a bully. Mr. B said he was unable to uphold the allegations that Mr. A is a bully. Also, there is no evidence to indicate that staff turnover in the sales department has escalated since Mr. A joined the company. Mr. B stated that the reason why an employee might opt to resign from their employment is diverse, personal and confidential. There were no witness statements presented to support this claim.

A right of appeal was granted, and the Complainant appealed the decision.

In the appeal letter to the Respondent the Complainant said he had three written statements from sales men who left the Respondent due to Mr. A’s behaviour. He said that he was approached by a senior figure in the Respondent who said that he “should think hard about the end-game here and what you want from it …”

The Complainant was called to a meeting on 4 April 2018 in relation to an audio recording of the conversation the Complainant had with Mr. A on 6 February 2018. However, the meeting broke down due to the presence of the Complainant’s Trade Union who sought the right of represent him.

On 11 April 2018 a memo was issued stating that Mr. A had elected to leave the Respondent’s business.

In relation to the appeal process a meeting was scheduled to take place on 10 April and Mr. C chaired the meeting. At the meeting the Complainant’s Trade Union representative stated that the process was flawed. He said that in the spirit of natural justice the Complainant should have received a copy of the statement issued by Mr. A in order to challenge it if necessary. That Mr. B did not take into consideration three witness statements/documents complied post-hearing, supporting the Complainant’s claim of Mr. A’s past behaviour.

The Complainant’s Trade Union representative said they will not continue in a flawed process, and that the Respondent was circling the wagons to protect senior management. The Complainant’s Trade Union representative said the Complainant would prefer to exit the company with a financial package as he had no longer any faith in the grievance process and in particularly the HR Department. The meeting was adjourned by Mr. C to allow him to reflect on what was presented. A meeting was called on 20 April 2018 where Mr. C having examined the process said he believed that the process was not flawed and would continue with the appeal hearing. At this stage the Complainant’s Trade Union representative sought an adjournment in order to check with its legal department on whether such a process should continue or be referred on to the next level.

On 23 April the Complainant attended a doctor’s appointment, who certified him unfit for work from anxiety due to work related stress for two weeks. On 30 April he got correspondence from the Respondent requesting that he attend the company doctor, who he said concurred that he was suffering from anxiety due to work related stress.

He said that he received a letter from the Respondent on 11 May 2018 inviting him to a meeting, where he replied back that he could not attend as he was on sick leave. A further letter was received for him to attend an appointment with the company doctor. However, in the meantime he contacted the Respondent to say that his own doctor had certified him unfit to work for a further two weeks. He said that he got copies of the Respondent’s Occupational Stress and Sick Pay Scheme sent to him and another appointment was set for 6 June with the company doctor. He said that the company policy states that “where an employee is absent due to illness, in excess of four weeks, then the HR Generalist ... will organize for the employee to see the company appointed doctor or Employment Health Advisor"

He said that the Respondent contacting him prior to the scheduled timing in their own procedures, that once again the Respondent are in breach of the company’s own procedures and that “bullying and harassment is the norm”. He said that he received two reports from the company doctor and while the first report is similar to that of the Complainant’s own doctor, the second report is very different and shows that the Respondent was “putting pressure on the company doctor to force the Complainant to attend a meeting with the HR Department”, which again shows that “bullying and harassment is the norm”. He said that at the meeting with the company doctor on 28 May 2018, three options were outlined to him by the company doctor, either, continue on sick leave which will not help to provide a solution; meet with HR to discuss issues/problems, or resign his position in the Respondent.

The Complainant said that after careful consideration, he wrote to the Respondent on 5 June 2018 and resigned with immediate effect, to which the Respondent wrote back and informed him that his notice period was eight weeks and his date of termination would be 30 July 2018, which the Complainant claims demonstrates again more bullying and harassment. He said he was contacted by Mr. C at that time seeking to meet regarding his appeal of the decision of Mr. B in relation to his bullying complaint.

Legal argument

The Complainant said that the Health and Welfare at Work Act 2005, General Duties of Employers Section 8, covers the obligation of employers particularly at subsections (2)(b), (2)(d) and (2)(h).

He said that bullying can manifest into illness and can be considered personal injury, bullying leads to anxiety and management have an obligation to deal with bullying. Walker v Northumberland County Council ([1995] I All ER737

The Health and Safety Authority have defined work place stress as contributing to the following: increased heart disease increased digestive problems, skin problems, anxiety, depression, irritability and fatigue. All these symptoms appear on the medical cert received from the Complainant’s Doctor.

The distinction between physical and psychiatric injury is no longer either medically or legally defensible. Section 2 of the 2005 Act defines personal injury as including: any injury, disease, disability, occupational illness, or any impairment, or physical or mental condition, or any death.

Sarhan Media Ireland v A Worker [1999] ELR 41 - The Labour Court acknowledged work related stress as a health and safety issue, employers have an obligation to deal with occurrences which may be brought to their attention. Employers must act in a proper manner in investigating the matter. Procedures are not there for corporate dressing.

Schedule 3 of 2005 Act, emphasises that the duty is not merely confined to formulating health and safety procedures but also extends to the implementation of such procedures and these procedures must be adequate and fair. Any breach of such procedures enables the employee to claim constructive dismissal.

He said that the Respondent broke all their procedures in dealing with him, they deliberately stated that there was no evidence is what he was stating, yet they had the evidence in their possession. The Respondent denied him the protection that he was entitled to as an employee so as to protect a manager.

In relation to loss of earning the Complainant stated that his loss suffered including future loss was calculated to approximately €1.24 million.

The Respondent is a manufacturer of timber construction products. It claims that the Complainant commenced employment with it on 3 January 1996 and he was promoted to the role of Technical Sales Manager until he resigned in June 2018.

The Respondent claims that on 1 February 2018 the Complainant emailed the HR Director, Mr. B., and expressed concern in relation to the management style of the Sales Manager, Mr. A, to whom he reported directly. The Complainant said that Mr. A had told him to “go and work for another business” and that he felt bullied and harassed by him. The HR Director advised him that he could make a formal or informal complaint as per the Respondent’s Dignity and Respects at Work Policy, where the Complainant requested that the issue be addressed and resolved informally.

Mr. B met with the Complainant on 7 February 2018 to discuss his grievance and mentioned that Mr. A was too direct and “military style”. Mr. B met with Mr. A where he said that he did make the “go and work for another business” comment but it was in context to the Complainant’s reluctance to meet certain business objectives. Mr. B met with the Complainant on 13 February 2018 and outlined this to which the Complainant said he was not happy with the informal process and wished to raise a formal complaint via the formal process. They met again on 23 February 2018 to discuss the parameters of the formal process.

Mr. B investigated the complaint, meeting both parties and gave a copy of his decision setting out his findings. The Respondent said that Mr. B found against the Complainant. Mr. B outlined the Complainant’s right to appeal the findings, which the Complainant chose to exercise. The Respondent claims that the Complainant challenged Mr. B’s findings, saying that there was a lack of evidence and supporting documentation to support his claim and in turn submitted witness statements that he claimed corroborated his version of events.

An appeal meeting was scheduled for 10 April 2018, and was to be heard by Mr. C, Operations Manager. The Respondent said that the Complainant attended with his Trade Union representative, who opened the meeting by saying that the Respondent’s process was flawed and requested an exit package in full and final settlement. It claims that the Trade Union representatives said that the Complainant would take a constructive dismissal case if the exit package was not forthcoming. The appeal meeting was adjourned, and a further appeal meeting was scheduled for 20 April 2018 but was adjourned again on the Complainant’s Trade Union representative request. The Respondent said that in the meantime on 11 April 2018, the Complainant was informed that Mr. A had left his position and employment with the company.

The Respondent said that the Complainant went on sick leave on 23 April 2018 and submitted a medical certificate that cited “anxiety due to work related stress”. The Complainant was asked to attend an occupational health assessment on 4 May 2018, where he was deemed fit to engage with it to discuss his complaint and agree an action plan to resolve all matters and assist him return to work. A meeting was arranged for 17 May 2018, but the Complainant failed to attend. A further occupational health assessment was arranged for 28 May 2018, again the Complainant was deemed fit to engage with the Respondent. Following this, another meeting was arranged with the Complainant on 6 June 2018, however the Complainant resigned from his employment by letter of 5 June 2018. The Respondent said that it acknowledged his letter and told him that his notice period would expire on 30 July 2018 and that would be date of employment termination.

Legal submission

The Respondent said that there are two tests contained in the definition for dismissal. The first is the contract test which entails entitlement to terminate the contract and the second test is the reasonable test which entails that it is reasonable for the employee to resign because of the conduct of the employer. It said that neither test is satisfied here. The Respondent engaged with the Complainant and his grievance and followed the appropriate process in investigating same. It said that his role remained open to him at all times. It offered him an opportunity to appeal the outcome of the investigation. It said that the Complainant’s issues were with Mr. A who had resigned on 11 April 2018. Accordingly, the alleged bully had left the Respondent and was no longer employed there for two months before the Complainant issued his letter of resignation. It refers to an EAT decision of An Employee v An Employer (UD 1421/2008) where it was found that an employee must show that he had no option in the circumstances other than terminate his employment and having exhausted all internal procedures formal or otherwise in an attempt to resolve his grievance with his employer. It said the Complainant did not do so in this case.

The Respondent claims that the resignation letter said that he was resigning “following the process” surrounding the investigation of his formal complaint and lack of faith and trust in the process investigating his complaint. It said the whole crux of his complaint was a grievance he had with Mr. A, who had left employment with the Respondent and he did not consider looking at the alternatives other than resigning, preferably with an exit package.

The Respondent points to where the Complainant by his own admission explicitly states in his submission that “he would prefer to exit the company with a package as he had no longer any faith in the process”. The Respondent stated that this demonstrates that his desire was to resign rather than having no option but to resign. It said that the Complainant cannot simply opt to resign with a package due to his dissatisfaction with the investigation of a complaint. The Respondent said that it has not been established that it had acted so unreasonably that the Complainant could put up with the its conduct any longer.

The Respondent said that the Complainant terminated his own employment while on sick leave and could have remained on such leave until the outcome of the appeal was delivered. The Respondent said that the Complainant was in full receipt of his sick pay during this time and has suffered no loss.

The Relevant Law

Section 1 of the Unfair dismissal act defines “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 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:

In order to rely upon the provisions of Section 1(b) the Complainant must establish, in the first instance, that there was a termination of his contract of employment. It was not in dispute that the Complainant resigned from his position by letter.

The Complainant is claiming that he was constructively dismissed on in June 2018 from his position as technical sales manager with the Respondent.

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 appropriate 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[1978] 1 All E.R. 713. It comprises of two tests, often referred to as the ‘contract test’ and the ‘reasonableness test’. 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.”

According to the Supreme Court in Berber -v- Dunnes Stores[2009] E.L.R. 61], it said that “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

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.

The Complainant claims that he had lost trust in the process for investigation of his grievance. The Complainant claims that the Respondent failed to take appropriate action. The Complainant claims that his position ultimately became untenable and he was left with no alternative but to resign from his employment.

The Respondent disputes the claim of constructive dismissal. It said that it was dealing with the Complainant’s grievance and allowed for much flexibility in its process as necessary to consider all aspects that were raised. The Respondent contends that the Complainant resigned of his own volition after failing to fully exhaust the internal grievance procedures as it was still ongoing when he chose to terminate his employment.

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 his employment other than to terminate his or her employment. The notion places a very 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 grievance with his employers.

The Labour Court has held in the case of Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] 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 held in the case of Travers v MBNA Ireland Ltd [UD720/2006] that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In considering this issue, I am satisfied that the Respondent had an established Grievance Procedure in place and the parties were working their way through that process. 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 before taking the step to resign from his employment. However, based on the evidence adduced, I do not accept that the Complainant sought to fully exhaust the internal grievance procedures in relation to his workplace related grievances nor has he demonstrated that appeal process was unfair.

There is a plethora of evidence that the Complainant’s preferred choice, and indeed that of his representatives, was to strike a deal on an exit package. That, coupled with the fact that the alleged aggressor Mr. A had left the Respondent’s employment, and they were only part way through the grievance procedure, does not support the proposition that the Complainant was invested in getting a resolution that could possibly return him to work. It is clear that the Complainant felt aggrieved and did not like the decision Mr. B had arrived at and delivered, but the process was far from complete and a different decision maker was ready to hear the appeal. The Complainant chose to terminate his employment while it was still ongoing, and I find that detrimental to his case in the circumstance.

I note the evidence from the company doctor, who attended the hearing and gave his evidence, particularly I know where he said that it was not his role to tell the Complainant of his only options as was suggested by the Complainant. He also fully disputes the Complainant’s suggestion that the Respondent was putting pressure on him to suggest things to the Complainant on its behalf. I fully accept his evidence.

In the circumstances, I find that the Complainant has not established that the conduct of the Respondent was such that he had no option but to resign his position. I find that the Complainant did not give the Respondent an opportunity to address his concerns before taking the decision to resign from his employment.

I find that the Complainant has not established a case that he had no option but to resign his position. Accordingly, I find that the Complainant was not constructively dismissed from his employment.  

I find that the Complainant resigned from his position 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 - constructively dismissed – not well founded.