Complainant

Respondent

Anonymised Parties

Branch Manager

Car Parts Dealer

Representatives

  Self

Mason Hayes & Curran

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-00027035-001

13/03/2019

The Complainant was employed by the Respondent from November 2014 until 31^st January 2019 when he resigned his position.
He submitted his complaint to the WRC on 13^th March 2019 claiming that he had to leave his job due to the conduct of his employer. He is seeking compensation.

The Complainant submits as follows:

The Complainant claims that he had to leave his job as branch manager of the Respondent due to being treated badly to a level where he felt he was being forced to leave.

He submits that he was paid €30,000 salary with a €5,000 bonus paid between 80-110% and overtime for working Saturdays. The Complainant’s wages for 2018 was just over €39,000 and he also had full time use of a company van.
The Complainant submits that he had taken a new job on a flat rate salary of €28,000, had lost the benefit of a company van and had had to purchase a car for full time use. This decision was not taken lightly as the Complainant has just got a mortgage and purchased his first home, and he is expecting his first child in September.

The Complainant submits that since the first quarter of 2018 he had many discussions with his area manager AM that he was under severe pressure in work due to being understaffed and having to do unpaid overtime to make up for the lack of staff in the depot. On nearly a weekly occasion he would stay back 2-4hours beyond his finishing time of 6pm to book in stock or to put stock away or to generally tidy the depot. He would happily do this for the first while as he took great pride in his depot but the workload often became too much.
Towards the end of the summer the Complainant had told AM that he would leave the company if things didn't change and that he needed more staff if the depot was to run successfully and hit its targets which were increased on a monthly basis. He claims that he had made it clear that he loved his job and always did but the workload was becoming so much that nobody could take the pressure. AM was due to meet with one of the company’s head bosses to discuss the problems and he said he would inform him of the Complainant’s problems and try to get a solution and get more staff. When AM returned from the meeting the following day he said that the boss had told him that they were overstaffed and would not be getting any more staff. The Complainant argues that what was needed in the depot was a third member of staff for dealing with customers and answering the phones. Unlike all the bigger depots, the Complainant claims, he was the only one of the managers who had to stay at the counter full time and was still expected to get all of his managerial duties completed.

The Complainant claims that since his departure AM has made his sister in law JK the depot manager and she has no dealings with the front of house or customers and they have gotten a third staff member for the counter.

The Complainant submits that he did not record dates or times of the many times he was spoken to badly by AM as he did not feel that he would need to go to the extent of contacting the WRC for help until he felt AM decided that he did not want the Complainant to work for the company anymore.

The Complainant submits that on 3^rd November 2018 his partner contacted AM to ask about booking holidays for the Complainant from the 17^th to the 21^st December 2018 to take him on a surprise holiday for his 30^th birthday.  AM replied and said “When are you looking at and I will see what I can do”. On 21^st November 2018 the Complainant’s partner sent another text to AM to confirm the dates for holidays.  AM did not reply to her.

On 21^st November 2018 at 6pm AM asked the Complainant to the office to organise holidays for all shop staff for the remainder of the year. The Complainant argues that AM told him to take off Christmas and use four days of his holidays. The Complainant claims that he asked, unknowing of his partners plans to also take the 17^th to the 21^st December 2018 off to have a long break over Christmas as he still had 12 days holidays remaining to which AM replied no. AM suggested that the Complainant takes off the first week of December the Complainant then asked could he take off the 14^th and 17^th December 2018 to make a long weekend of his birthday and AM agreed to that. AM then texted the Complainant’s partner to say that “…unfortunately it was not possible to book holidays for [the Complainant] without him knowing. [the Complainant] has holidays booked for December but not for these dates.”

The Complainant submits that on 22^nd November 2018 he requested holidays on the online portal for the 17^th to the 21^st of December 2018 and added the note "flights and hotels booked cannot cancel". The holidays were approved by AM at 9:10am on the same day with no notes added to the approval email.

On 23^rd of November 2018 AM told another branch manager, BM that the Complainant had ruined his Christmas holidays and that his partner had no right to request holidays for him as she was not his wife.

The Complainant submits that at the beginning of December 2018 AM emailed him to ask for the overtime for the month of December. The Complainant replied to him with the list of Saturdays that everyone had done and that he had done 18.5 hours overtime of the month. When he received his overtime pay in December he was paid €140 gross, the equivalent to €7.57 an hour when his standard hourly rate was €14.36.

On Thursday the 13^th December 2018, AM called the Complainant into the office to discuss his attitude with him since the incident with his partner trying to book holidays. AM asked the Complainant what his problem was and said that he had no idea why the Complainant was acting the way he was. The Complainant responded that what he did was extremely unfair and unnecessary and that after our 4 and a half years working together the Complainant would have considered them to have some level of friendship. The Complainant claims that AM responded quite aggressively that he approved the Complainant’s holidays and that his partner had no right to try and request holidays for the Complainant in the first place. AM told the Complainant that he needed to have a long think over his time off about whether he still wanted to be the manager or not as he did not think the Complainant was capable anymore because customers were complaining about his attitude. The Complainant says that he told AM that he wanted to be the manager and wanted to manage the shop but he could not do the role to the level that the company wanted if he was expected to run a busy counter and phone line all day.

On Thursday the 24^th January 2019 the Complainant was offered a new job and was told he could start on the 25^th February. He accepted this role as he felt with how he was being treated there was no future for him any more in the Respondent’s company.
On the same day the Complainant asked AM what were they going to do for cover for the counter from the 4^th to the 7^th February 2019. The Complainant claims that he was told that he would have to train one of the drivers to work the counter. The Complainant claims that this was an impossible task as none of the drivers had car part knowledge and in such a short period of training they would be a hindrance rather than help. When the Complainant told AM this AM replied that he would just have to make it work. The Complainant claims that he told AM that he would have to work 8am to 6pm by himself and would not have time to take a break and AM again said the Complainant would just have to make it work.

On Friday 25^th January 2019 the Complainant emailed his two weeks’ notice to AM and told him that his last working day would be the 8^th February 2019. The Complainant says that he needed to work these two weeks to earn more money as he had just taken out his mortgage and did not want to be out of work struggling. The Complainant submits that from that day up until he felt he had to walk out (31^st January 2019) he had told all the staff members in his depot that if there was anything they felt they would not be able to manage after he had left to bring it to him and he would assist them. He told them that he had not spent the last four and half years of his life building the business to what it was for it to crumble after he had left and still wanted it to succeed regardless of how he had been treated.

On Wednesday 30^th January 2019 at approx. 4:30pm JK asked the Complainant if he was aware of damage to the rear bumper of one of the Respondent’s vans, which had previously driven by an ex-employee JR. The van had been at another depot for the previous 3 months. The Complainant told JK that he couldn’t possibly know what happened to a van that wasn’t his depot for the previous three months. On the same day at 5:38pm the Complainant texted JR to ask did he remember what happened to the bumper on the van. JR confirmed that he was in and that the car that rear ended him tore a hole in his bumper.

On Thursday 31^st January 2019 at approx. 8:30am the Complainant told JK that the damage to the van was caused while JR had been working for the company. She replied that she didn't think so as the damage was on the van before she started working for the company in September 2017. AM when hearing the conversation asked what it was about and JK said to him "[the Complainant was just saying that the damage on the van was caused by [JR]". To which AM replied "[the Complainant], was that not caused by you with the sump nut." To which the Complainant replied no as he had never drove that van as it was always driven by JR. The van in which AM was referring to was a different one. He was told by AM on numerous occasions that all damage caused to company vehicles owned or hired by the Respondent were subject to a €300 fee. The Complainant was told that any van that wasn’t repaired to a as new standard would have to then be repaired again and it would fall back on the Complainant if it was not done correctly. Since September of 2017 numerous vans had been damaged and not repaired or paid for by any staff member.

On Thursday 31^st January at approx. 8:45am AM asked the Complainant what the situation with a pallet of stock was. The order had been booked in by error by JK the previous week. The Complainant printed the order off the computer and handed it to AM and told him if he contacted the named office that they would be able to inform him what happened to the stock. AM told the Complainant that he contacted them and they told him that the Complainant did it. The Complainant claims that for AM to contact them and ask them what happened he would have needed the order number which he did not have. At this point the Complainant says he knew that AM was lying to him so he would fix a problem and take the blame for someone else's mistake. The Complainant claims that he was extremely efficient on the computer system to know that it couldn’t have possibly been done by him, the only possibility was that someone had purposefully done it on his computer. It was at this point that the Complainant knew that the following few days that he had left to work of his notice period were going to be made very difficult for him and he took the decision to leave there and then at 8:55am on Thursday the 31^st January 2019.

The Complainant submits that he was due payment of €458.33 for his bonus, €300 for overtime and €173.08 for holidays for the month of January 2019. Since he had been paid for the full month of January €2500 and he left at 9:00am on the 31^st January 2019 he had expected to be deducted the days rate minus his hours work but when he received his payslip he had been deducted €807.69. The Complainant contacted AM to ask him why he had been deducted so much and he said he didn't know, maybe it was because the Complainant didn't work his notice period. The Complainant emailed payroll department to ask them why he had been deducted such a large amount and they replied with a quote from AM: "Processed as a Leaver By: [AM] Additional Details: [the Complainant] gave two weeks notice but did not serve this. he is to be deducted for 7 days notice and there is also a deduction for damage to a van. please see AM before any payments are made to this former employee"

Compensation

The Complainant is seeking €28,627 compensation for loss of earnings over the next two years. €11,945.81 per year for difference in wages.
€1,560 per year for loss of use of a company van which breaks down to €30 in fuel and general maintenance costs per week. Total €3,120.
€807.69 for loss of earnings having to leave before finishing his notice period due to stress. 
€807.69 for wrongful deduction in wages.

The Complainant submits that he had 3 job offers since leaving his role with the Respondent and starting in his new role, none of which came close to his earnings with the Respondent. He argues that finding a job in the motor factor or parts trade which is where his skills lie at €35,000 per year plus overtime pay is not a role that anyone is struggling to fill as it is simply not a role which is available at this time.

The Complainant presented a detailed reply to the Respondent’s written submission.
In respect of the matter of grievance procedure, the Complainant claims that he could not approach any higher member of staff about AM due to being afraid of losing his job or being pressured into leaving.
The Complainant disputes the dates on which his conversation with AM took place in respect of annual leave. The Complainant also argues that at the time of his annual leave application he was not aware of AM’s holidays. He was not asked to reschedule his holidays when he applied, they were approved with no explanation as to why they were refused the day before. Moreover, as the Complainant’s partner had contacted AM on the 3^rd of November 2018, 6 weeks’ notice had been given for his holiday request. He had not made firm holiday plans knowingly, if AM had explained to his partner that the days were unavailable this would have not been the case.

The Complainant claims that on 13^th December 2018 and several times before AM had told him he wasn’t sure if making the Complainant a manager was the correct choice to make and told him that he did not think the Complainant was capable. 

Previously AM had mentioned that customers had complained about the Complainant but the Complainant had never received any formal warnings nor had any formal meetings about these complaints.

In cross-examination the Complainant confirmed that he has always had a good relationship with AM until the annual leave issue. He confirmed that AM approved a pay increase for him when he was approached by another company and wanted to leave.

The Complainant confirmed that he was offered another job in 2018 but turned it down because “money wasn’t enough” and he “was happy”. At the time he told AM about the offer. The same position was offered to him in January 2019 and he accepted it. It was put to the Complainant that he applied for a mortgage and was required to have 12 months service with an employer and that was the only reason he declined the job in 2018 but accepted it in 2019. The Complainant agreed that he told AM previously that “you are lucky I’m not leaving. The only reason is I don’t have keys to the house yet”. The Complainant agreed that the new job is a “dream job” but pays less.

When it was put to him that he sought new employment and attended interviews the Complainant said that he was not actively seeking employment but had previously have some interviews “for experience” and he did not see any harm in that. He said that while working for the Respondent he did not have any interviews but was offered jobs. The Complainant was asked then if the reason he left was because he was approached by another employer to which he answered “yes”.

The Complainant conceded that the main issue that made him leave the Respondent was the disagreement surrounding his partner’s request for holidays. He agreed that she had the holidays booked without approval from the Respondent. When it was put to him that it was unreasonable, the Complainant said that he had no response to that.

In regard to the overtime matter, the Complainant stated that he was not aware of any policy in relation to pre-approval of overtime. However, he confirmed that he could not approve his own overtime.

He confirmed that a number of his friends were employed by the Respondent on his recommendation and that he trained three drivers in “counter work”.
The Complainant denied that his relationship with JK was not good.

The Complainant confirmed that the matter of money owed to him was resolved prior to the hearing.

The Respondent submits as follows:

The Complainant commenced working with the Company A on 3^rd November 2014. In April 2017, the Respondent took over the business of the Company A and the Complainant’s employment transferred to the Respondent. 

The Complainant’s role was initially as a sales representative. He was promoted to the role of Branch Manager in December 2016. 

The Complainant continued to work with the business until his employment ended by reason of resignation on 31^st January 2019.
The Complainant alleges he was constructively dismissed. The Respondent refutes this claim in its entirety. 

The Complainant’s employment contract at clause 15 explicitly set out the existence and importance of the employer’s grievance procedure. It provides:

“15. Grievance and Disciplinary Procedure

Grievance Procedure

The Grievance Procedure allows staff to formally raise any concerns they may have regarding treatment at work.

If you have any grievance which you consider to be genuine in respect of any aspect of your employment, you have a right to a hearing by your immediate superior or other management as circumstances warrant. If you are unhappy with the outcome of the hearing you may appeal to a director. You may be accompanied by a fellow employee or appropriate representative. In the event of the matter not being resolved internally the matter shall be referred through normal industrial relations procedures.

You are required to familiarise yourself with the Grievance Procedure, details of which are fully explained within the Staff Handbook.

If you have a particular issue that is not resolved to your satisfaction by your direct line manager or wish to raise a specific problem with senior management, please contact [HR person] direct in writing.”

After the Respondent took over the business, the Respondent communicated its handbook to all employees which includes the Respondent’s grievance procedure. This handbook was also available to employees at the branch and on the intranet. The grievance procedure sets out in detail the procedure to make a complaint including the formal and informal procedure.

The Respondent submits that the Complainant acknowledged receipt of the Respondent’s staff handbook, which included a copy of the grievance procedure. (A copy of the acknowledgment was exhibited at the hearing).

The Respondent also has an Anti-Harassment and Bullying Policy which is available to employees at the branch and on the intranet. Copies of the Anti-Harassment and Bullying Policy and grievance procedure were also available to employees in hard copy.  

The Respondent submits that in October 2018, the Complainant spoke to AM, the area manager, requesting holidays over the Christmas period. AM agreed the Complainant could take the Christmas break off.  The Complainant then sought from 17^th December to 21^st December off inclusive. This request was refused in circumstances where AM was himself, scheduled to be on leave that week and at least one of the Complainant or AM needed to be in the branch at any given time. 

In or around 3^rd November 2018 the Complainant’s partner contacted AM in relation to the Complainant taking a surprise holiday in December. The Complainant’s partner was seeking the Complainant’s be granted a week’s holidays in and around 14^th December 2018 without the Complainant’s knowledge. These dates again coincided with AM’s scheduled week off and AM did not confirm any grant to the Complainant’s partner.

Later that month, the Complainant wanted to discuss Christmas holiday arrangements and rosters with AM. The Complainant repeated his request for the week beginning 17^th December 2018 off but it was confirmed again that this was not possible. Following these discussions, AM and the Complainant determined the holidays and roster for all staff in the branch over the Christmas period. AM then contracted the Complainant’s partner to inform her it was not possible to grant the week she had requested.

The following day, the Complainant, despite agreeing alternative dates with AM, declared to AM that his holidays were already booked for the period 17^th to 21^st December. The Complainant then requested the week beginning 17^th December 2018 off on the internal holiday management system including the note “flights and hotel booked cannot cancel”. AM, despite confirming to the Complainant as early as October that those dates were not available as he was away, granted the holidays for 17^th to 21^st December 2018 and cancelled his own holiday plans for that week instead. 

The Respondent has a clear policy in place for requesting holidays. Despite the Complainant failing to adhere to the policy for requesting holidays, the Complainant was granted the holiday at the expense of AM cancelling his own plans. 

In or around 13^th December 2018, the Complainant and AM discussed the Complainant’s attitude towards AM. AM did not state he had any concerns about the Complainant’s capability and any such claims by the Complainant are denied. AM had received a number of reports from customers and colleagues over the Complainant’s negative attitude towards his work. AM raised concerns in relation to the Complainant’s attitude towards him and his work only.

In or around Thursday 24^th January 2019, the Complainant accepted a role with another employer. The following day the Complainant gave notice of his resignation together with confirmation that he would work out his contractual 2 week notice period.  

On 31^st January 2019, AM asked the Complainant what was being done with a delivery of stock from the previous week which had not been dealt with ahead of another delivery later that day. AM also asked the Complainant to instruct the staff in the branch to revert to use an electronic system for checking-in stock rather than a manual system. The Complainant, at this point, declared he was going home and walked out of the premises. The Complainant did not return to the premises and failed to work the balance of his notice period.  

THE LAW 

Constructive dismissal is defined in Section 2 of the Unfair Dismissals Act as:

“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”.

It is submitted that this provision requires an objective assessment of the reasonableness of the behaviour of the employer and the response of the employee to the behaviour complained of. Support for such an objective approach is to be found in the judgment of the Supreme Court in Berber v Dunnes Stores [2009] IESC 10.

The Respondent cites also Western Excavating (ECC) Ltd v Sharp [1978] 2 WLR 344.

The Respondent argues that the onus of proof in this case rests with the Complainant. It is necessary for him to demonstrate that his employer, the Respondent, behaved in a fashion which was objectively so unreasonable that the Complainant could not reasonably be expected to tolerate the conduct complained of any longer.

In addition, the Respondent argues that it is well established that it is incumbent upon an employee to utilise any available grievance process to a conclusion before resorting to resignation. Authority for this proposition is to be found in Conway v Ulster Bank UD [1981] 474. This principle has recently been affirmed by the determination of the Labour Court in Caci Non-Life Limited v Daniela Paone.

This is a case that concerns allegations of ill treatment by the Respondent.

In that regards the Respondent cited Conway v Ulster Bank, Harold v St Michael’s House UD 1123/2004.

The Respondent submits that the Complainant in this case has failed to raise any grievance despite such an avenue being readily available to him to address any issues.

It is submitted that the Complainant resigned prematurely. The Complainant simply failed, refused and/or neglected to raise a grievance and deal with any issues he had prior to his resignation. The Respondent at all times acted with due care in promoting a cooperative working environment. 

It is submitted that the alleged actions of the Respondent were in no way unreasonable that the Complainant had no option but to resign. It is the Respondent’s submission that it was the Complainant who acted wholly unreasonably in the circumstances. It is also the case that the Complainant resigned in order to take up another role. 

Without prejudice to the foregoing, any Complainant in an unfair dismissal case has a duty to seek work and mitigate his alleged loss. The Complainant had sourced alternative work prior to giving notice to terminate his employment. The Complainant’s current role pays him less than what he earned when working with the Respondent. The Respondent is unaware of any attempts made by the Complainant to seek any alternative work in order to mitigate this loss. This is at a time where Ireland is considered to be at full employment and employers are struggling to fill roles. The Respondent respectfully submits that it is entirely unreasonable for the Complainant to seek to have the Respondent compensate the Complainant in the circumstances for any loss for past or future loss of earnings. 

The Complainant’s claim for a wrongful deduction in wages does not form part of the Complainant’s potential redress under a complaint for constructive dismissal.

Notwithstanding this, an administrative error in the processing of the Complainant’s last payslip was uncovered by the Respondent and this issue has been addressed. 

CONCLUSION 

It is submitted that the constructive dismissal claim advanced by the Complainant is misconceived having regard to his entirely premature resignation. Further it is submitted that the reasons for the Complainant’s resignation are not objectively reasonable and do not relate to any fundamental breach of contract on the part of the Respondent. Furthermore, it is noteworthy the Complainant chose not to engage in any way with the internal grievance procedure before escalating the matter to the WRC.

Strictly without prejudice to the foregoing, the Complainant currently earns gross pay of €2,333.33 per month and was in receipt of gross pay of €39,945 in 2018 whilst in the employment of the Respondent. This amounts to average gross pay of €3,328 per month approx. In the circumstances, any financial loss claimed by the Complainant is limited to a gross figure of €995 approx. per month or €11,940 gross in a year.

The Complainant’s claim is disputed in its entirety.

The Complainant is not entitled to the relief claimed or to any relief.

Evidence of the Area Manager, AM

AM stated that he had a good business relationship with the Complainant but noted that he was his boss and business disagreements could have happened.

AM stated that in the past the Complainant was offered another job and the Respondent made a counter-offer but it was clear the Complainant was looking to get out. The offer was a “dream job” but the Complainant couldn’t leave because of his mortgage. AM noted that he had helped the Complainant in that regard e.g. recommended solicitor, re-arranged his pay to increase his basic salary. He confirmed that the Complainant told him that he is “damn lucky that I didn’t get the keys or I’ll be gone”.

AM said that the previous year the Complainant worked over Christmas period, so when the Complainant said that this year he was taking Christmas time off AM thought it was fair enough. AM stated that in October 2018 the Complainant asked for annual leave before Christmas and this request was refused. The Complainant then asked again and again, the request was refused on each occasion. AM agreed that he got a text from the Complainant’s partner in or around 2^nd November 2018. On 21^st November 2018 he met with the Complainant to agree annual leave for all staff. It was agreed that the Complainant would take 14^th and 17^th December to have a long weekend for his birthday. The Complainant then applied for different leave via the internal system and AM had to cancel his own leave as a result.

In respect of the overtime, AM stated that the policy is clear that he has to approve same.

In relation the matter of cover in January 2019, AM said that they have succession policy in place and drivers are often trained. AM said that he told the Complainant that they will get through it and AM ended up working at the counter.

AM said that on 24^th January 2019 the Complainant emailed him his notice. AM said that he was away and rang the Complainant asking “what’s the story”. The Complainant told him, that he could not say much as the person he was replacing in the new job had not left yet.

AM confirmed that after the annual leave incident he asked the Complainant about his attitude. The Complainant replied that he thought they were friends and “you did this to me”. AM said that, in essence, they discussed three options. Firstly, as the Complainant was talking for a while at this stage that he wanted to leave, AM asked him to let him know if that was the case. He also told the Complainant that if he did not want to be a manager anymore to let him know. Lastly, if the Complainant wanted to stay and be the manager, he needed to change his attitude. AM said that the Complainant spoke loudly and directly to customers that “he doesn’t give a s..t” and he wants to leave.

In respect of the final day, 31^st January 2019, AM said that he did ask about the stock and the answer he was getting was “I don’t know”. He did speak to the Complainant about the manual system as it was agreed previously that it would not be used. When the Complainant walked away he called him twice and the Complainant did not stop. AM noted that he had the impression that the Complainant was trying to get other staff to leave with him.

Evidence of Branch Manager, BM

BM said that he got the job with the Respondent on the Complainant’s recommendation.

He said that at some stage at an event out in September/ October 2018 the Complainant told him that he is making notes on AM to build an unfair dismissal case.
BM said that he wasn’t surprised when the Complainant left, as he was talking about it a lot. BM alleged that the Complainant had told him that he was only waiting “to get the keys” and he did leave shortly after he did.
BM also said that the Complainant was talking ill to all about JK.

Evidence of HR Business Partner, SK

SK stated that he has never met the Complainant before. He noted that had the Complainant raised his grievance it would have been dealt with by the Respondent’s HR Business Partner. They are independent HR professionals.

The Complainant claims that he resigned from his position due to the conduct of the Respondent. The Respondent rejects the claim.

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(1)(b) of the Act which defines “dismissal”, in relation to an employee,—

“(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.”

In order to rely upon the provisions of Section 1(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 31^st January 2019.

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 relation to considering whether the conduct of the employer was in breach of the contract of employment, the judgment in Berber v Dunnes Stores Limited [2009] IESC 10 is the authority. The Supreme Court held that the test for whether the conduct had breached the implied term of mutual trust and confidence in a contract of employment is an objective one. Finnegan J. held:

“1. The test is objective.
2. The test requires that the conduct of both employer and employee be considered.
3. The conduct of the parties as a whole and the accumulative effect must be looked at.”

The Labour Court in the case of Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, endorsed the legal test in respect of constructive dismissal as set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests.
The ‘contract test’ is set out 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 cited above, “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 to determine if it is such that the employee cannot be expected to put up with it.”

It is well established that in advancing a claim for constructive dismissal an employee is required to show that he/she had no option in the circumstances of his/her employment other than to terminate his/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 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.
In accordance with the established principles in constructive dismissal cases, there was an obligation on the Complainant to invoke all internal procedures before taking the step to resign from his employment. Based on the evidence adduced, I find that the Complainant did not seek to fully exhaust or indeed invoke the internal grievance procedures in relation to his workplace related grievances and decided to terminate his employment.

It is 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 [2002] 13 ELR 84, Moy -v- Moog Ltd [2002] 13 ELR 261, and Monaghan -v- Sherry Bros [2003] 14 ELR 293and New Era Packaging -v- A Worker [2001] ELR 122). 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.

In the circumstances, I find that the Complainant has not established that the conduct of the Respondent was so unreasonable or was such that he had no option but to resign his position or that it was such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of the contract. 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.  Accordingly, I find that the Complainant was not constructively dismissed from his employment.

I find that the Complainant was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that the complaint is not well-founded.

Constructive dismissal- not well founded- internal procedures not exhausted