Complainant

Respondent

Anonymised Parties

A Buyer/Storeman

A Farm Business

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-00016646-001

05/01/2018

This complaint centres on a claim for Constructive Dismissal which is disputed by the Respondent. The period encompassed by the employment is 37.5 years. The Complainant has not worked since his termination of employment on 4 October 2017. The Complainant was legally represented by his Solicitors and the Respondent was represented by the Managing Director. Both parties submitted written documents in support of their respective positions.

The Complainant submitted that his preferred remedy, if successful in his case stood at re-instatement/compensation.

The Complainants Solicitor gave an outline to the facts of the case. His client claimed that he had been constructively dismissed on 4 October 2017. The circumstances of the dismissal followed an unscheduled meeting on October 4, 2017 where the Complainant was undermined and left with no alternative outside an involuntary termination of employment. The Complainant accepted a severance payment of €12,500 and sought the administration of his departure recorded as a redundancy and he was disappointed when the paper work that followed was short on reflecting this agreement. He had not recorded his signature to any agreement.

The Complainant submitted that he had worked for 37 years in the Family Business, first in the city before he returned to the country town for 18 years prior to his repeated alignment to the City business in February 2016. The last move being on an involuntary basis but was in response to the halving of business during the recession. He received a payment of €516.64 in respect of a 39-hour week. He did not have a written contract of employment.

The Complainant stated that he served as a compliant employee and managed stock well at the business. He had reservations on the open store policy on offer to customers as he had grave concerns of necessity for a consistency in honesty on the part of all participants for it to succeed. Reconciling stock was always a problem amongst the varied workforce.

The Business had transferred in management from Father to son and the complainant was apprehensive that he was to face difficulties in the new management structure.

He recalled 4 October 2017, when Mr A, (Managing Director) approached him at his desk and demanded a meeting with him. The Complainant feared that everyone knew that he was in trouble. He listened while he was confronted with issues concerning his time keeping, personal phone, receipts, restocking and clerical errors. He recalled being in a daze while he was hugely insulted by Mr A, who told him that he was no longer “any good”.

The Complainant submitted that he was puzzled as his sales and customer feedback were without blemish. He was blamed for problems in the country town shop also and he was puzzled by this given the extended period since he worked there. He asked Mr A “If I were to return to work, will I be responsible?” and was informed that “Yes, you will “and a verbal warning followed. The Complainant was taken aback as he had no previous warnings and was had no knowledge of a grievance procedure. His time sheets were validated by his Line Manager and no issues had been raised. He had returned from a 6-week absence post-surgery and had no idea that he was the subject of unease within the company. He was aware that stock losses were not just his responsibility alone.

The meeting lasted 20 minutes.

During cross examination, the Complainant confirmed that the business in the country store was very quiet at 20 people a day with a staff of 3 prior to his return to Cork. He confirmed that he used the Desk phone. He also confirmed that he was not provided with a grievance procedure during his employment. He stated that he was not given an opportunity to remedy the issues raised during the meeting and it was “fait accompli”. He was unable to recall whether he had been first to say “I will do better “The Complainant disputed that he was demoralised at work and countered that he got on well with his colleagues. He reaffirmed that he believed that he had been issued with a written warning during the meeting.

The Complainant that he was very hurt by the treatment he received from the Respondent and he wanted the hearing to know that on reflection, he had panicked about accepting a severance payment and regretted this. He gave evidence of loss and details on an Educational Course being pursued.

In a written disposition, the complainant recounted his uneasy relationship with the Respondent and contrasted his experiences of both Father and Son as company directors. He also pointed to an undue laxness in relation to the administration of parts for sale and the “open policy” for which he believed he could not stand over or take responsibility for universal shortcomings. He believed that he performed to a very high level and the company had benefitted from his additional qualification in purchasing.

He submitted that the threat of curtailment to working on the counter left him no choice only to leave. He stated “ If I were to return to work I would be destroyed even further “He referred to an earlier disagreement with his Line Manager , Mr B where he had been informed of stock losses in both stores attributed to him .He disputed that he phoned the communication of his acceptance of the severance and instead confirmed that he had a face to face engagement on the topic of the severance agreement .The Complainant was aggrieved at the alteration of the wording of severance agreement and believed this militated against his re-employment in an area in which he had excelled.

Witness 1, Mr C, Truck Driver

Mr C was a former employee who had worked as Truck Driver in Cork and the country town shop He was aware of the Open Policy. A Mechanic was permitted to take which ever piece of equipment he wanted. He had raised the issue of stock missing with Mr A during 2015.

During cross examination, he confirmed that the records on equipment in the country town were ok and were overseen by an Administrator. He recalled Mr A visiting and being in “the best of form” He formed the view that he didn’t like the complainant.

Witness 2, Mr D, Former Mechanic

Mr D had worked for 8 years with the Respondent across both sites. He was aware of the policy relating to parts stored in the workshop, where the person who wanted the part was supposed to await the Storeman to validate the transaction.

During cross examination, Mr D confirmed that the country town shop was not subject to loss.

The Complainants Representative concluded that the Complainant was deeply affected by the circumstances which resulted in his involuntary dismissal on 4 October 2017. He had disputed the Respondents recollection of the conversations which occurred on that day and asked that his recollection of events be preferred .He was steadfast in his believe that he had wrongly been held responsible for stock losses , yet the Respondent practiced a relatively casual approach to that stock The Respondent had let him down in not issuing an agreed letter of severance and he had experienced grave difficulty in seeking to restore balance to his life and had been compelled to return to education in a bid to relaunch his career at 57 years of age .

The Respondent ran a family business across two sites. The managing Director outlined that the Complainant had worked as a Store person across these sites since 1980.

He recounted that an October 2017 stock take had demonstrated that 25 out of 80 pieces of equipment were unaccounted for. The Complainant was responsible for this division of the business and the respondent was troubled by invoices raised to the sales.

During his morning walkaround on October 4, he asked the complainant to come across to his office. He denied that this was a confrontational approach. He showed the complainant the invoices and was met with silence. Some disagreement followed as the complainant did not appear to have an explanation for the stock losses

The Respondent submitted that he went on to discuss discrepancies at the country town store also and told the complainant that it was obvious to everyone that his heart was not in the job. He went on to say that if the complainant was unable to perform the basic function of recording stock, he would be curtailed to counter service.

The Complainant then requested that if the company could make him a severance offer he would “go without a fuss” The Respondent submitted that he was reluctant to engage in a discussion on redundancy given the breadth of service accrued by the complainant. He made an initial offer of €10,000 which was rejected then revised and rested at €12,500. The Complainant asked for time to consider the offer and approximately 1.5 hours later, the complainant confirmed his acceptance of the financial offer and sought a reference and confirmation of redundancy.

The Cheque for €12,500 was presented to the complainant at 4 pm on that day and the complainant wasn’t seen on the premises after that. The Complainant followed up on his requested documentation and the Respondent issued a reference dated 20 October. He also issued a “to whom it concerns “note on the same date which stated:

“Arising from an internal review a termination was agreed with the Complainant “

The Respondent disputed the Complainants remedy of re-instatement sought as they had recruited someone else to the role.

Witness, Mr E, Line Manager

Mr E was the store manager in a set of shops which were highly regarded. the Respondent had alluded to a certain sensitivity surrounding his presence at the hearing given his proximate residency to the complainant. He submitted prepared questions to ask in advance of the August resumed hearing and these were shared with the complainant’s representative also.

1. Did the Complainant bring his concerns over access to stock to Mr Ds attention? Mr E answered, “not officially” It did arise in normal conversation on less than 10 occasions.

2.Mr E confirmed that the complainant was not remonstrated by him and it was in fact another store person who raised the issue. He did not remember shrugging.

3.There were no other large stock losses amongst the remaining staff.

4 Mr D confirmed that there was no set procedure to change/ reconcile stock

5 In response to the complaints evidence that he had called his line manager before leaving, he countered that he had contacted the complainant from his personal phone. He formed the view that he was happy with his decision made on the day. He was aware that he had some issues with the job.

6 In asking for a testament on Mr as management style, Mr E denied seeing any aggression. He had not picked up on a smear campaign led by Mr against the complainant. He went on to confirm that he signed the time sheets and noted that the complainant had a tendency for late arrival and early finish and had a sense of exclusion when he asked if he could participate in certain tasks. Mr E had noted that lads from the workshop should have sought out the complainant but were disinclined to do so. Mr E had no issue with the complainant but the complainant was troubled by issues at work.

During cross examination, Mr E stressed that management of the workshop parts was one of personal responsibility. He confirmed that he expected people to come to him as line Manager when they wished to raise an issue. He wasn’t aware that the grievance procedure had been used but recalled that it had been put in place post the Redundancies in 2012.

The Respondent closed by reaffirming that stock losses were not universally attributed to other staff. There was no cover up in terms of Invoices raised to different departments. The Complainant had not raised his concerns on stock with his line.

The Respondent state that he never sought to create a climate for a Constructive Dismissal. The Company had a low turnover and did not intimidate staff. He confirmed that he had a limited but professional relationship with the complainant and he had not raised his concerns with him either. The Complainant was a member of a Trade Union at the time of his departure.

He argued that the respondent had not dismissed the complainant who had instigated the conversation on wanting to leave. He had sought a redundancy previously when leaving the country town shop. He reflected that the Cork store was more isolated.

The Respondent re-affirmed the irregularities in stock take by Oct 42018. he had not initiated the formal Disciplinary procedure.

The Respondent though the complainant was happy to avail of the ex-gratia settlement agreed on October 4. While the Respondent took the complainants agreement at face value, if that wasn’t the case, he would have slowed things down.

I have taken some time to reflect on the circumstances of this case. I have considered both the oral evidence and written submissions advanced by both parties. I must decide on whether the complainant was justified in his decision to resign his position on October 4, 2017 and whether he was faced with intolerable and unreasonable behaviour from his Employer to warrant this action?

The Complainant had not been provided with a contract of employment. I noted that the Respondent referred to him as a stores person while the Complainant expressed his view that he had diversified to the combined role of Storeman/Buyer through extra study. It is regrettable and perhaps illuminating that the core role was not committed to a mutually agreed document for the benefit of both parties.

I have sought to address my examination of the facts of the case through both the Contract Test and the Reasonableness test as permitted to me in the Legislation as a decision maker. During the recess in the hearings, the Respondent requested that Mr E give his evidence alone. I refused this request reliant on WRC procedures, where witnesses are permitted to present evidence and be open to cross examination. This was accepted by the Respondent and Mr E presented in that vein.

I am very aware that the Complainant was not represented by his Trade Union during the events of October 4 or afterwards. While this was a point laboured by the Respondent, I found it unusual that the Complainant was visibly silent on it. I will return to this later.

It isn’t usual for employment relationships to end by way of severance agreements. Companies and people change all the time and a severance agreement is a mutual record of an agreement of goodbye.

As the decision maker in the case, I must be satisfied that this severance agreement did not preclude an action for Constructive Dismissal later. I am satisfied that the Agreement entered into by the parties on October 4 was a very loose agreement and not one underpinned by “informed consent “.

In Hurley V Royal Yacht Club [1997] ELR 225, Buckley J. in the Circuit Court, held that a complainant was entitled to be advised of his entitlements under employment protection legislation in the realm of a severance agreement. In this case, the complainant served as his own representative in instigating discussions and reaching an agreement on severance. He took 1.5 hours to consider the final offer and while there was conflict on the medium of agreement reached i.e. phone or in person, he accepted the cheque and concluded his employment relationship. He may have been better advised to have operated through a representative to scale the complexities of an exit plan. I am satisfied that I hold the jurisdiction to decide this case as the severance agreement was unsigned and not underpinned by external advice.

In cases of alleged constructive dismissal, the complainant carries the burden of proof of involuntary termination of employment. Constructive Dismissal is defined in Section 1 of the 1977 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.

The Complainant has given virtually his whole working life to the Respondent business. 37.5 years is a virtual eternity. I found that the Complainant was very proud of his work based achievements and the positive impact of his contribution on the business. It was very clear that he felt a strong affinity to the earlier management structure prior to the business being passed to the current owner.

The Complainant submitted that he was left with no option outside resignation on October 4 ,2017. He felt so diminished by what he described as a relentless criticism of his work performance by the Respondent. He felt further harmed by his understanding that he was being threatened by an instant role reduction which removed his opportunity to “be himself “at work. He had no wish to be confined to counter duties and to forfeit his expanded duties.

I requested sight of the Company Grievance and Disciplinary procedures, a copy of which I received prior to the resumed hearing date. Given the conflict in evidence in relation to this document, I took some time to review this document. I was very disappointed at the composition of the document which read as a hybrid policy of grievance and disciplinary procedures. It was undated, unsigned and not visibly linked to a larger body of work such as a staff handbook. While I accept that the document existed during events leading to October 4, 2017 I cannot find that it was a veritable Grievance procedure in which any member of staff had received orientation or training in its operation. This is a major omission in such a long standing and established employer and one that needs urgent and immediate attention at the workplace.

This led me to consider whether the alleged abusive or unreasonable treatment by the Respondent breached the obligation of mutual respect? I took some time to consider the evidence of both parties on this key issue. I had some regard for the written submissions but there is no substitute for oral evidence and the powerful engine of cross examination.

I found that both parties were very hurt and bruised by their recollection of the meeting of Oct 4, 2017. I cannot accept that the Complainant was completely in the dark that he was to meet with Mr A to discuss stock as Mr B had flagged this to him in advance. Of course, it would have been best practice to time table this meeting rather than conclude a morning walk about with it, however, I must conclude that the invitation to meet was not disrespectful and it was open to the complainant to request some detail and purpose of the meeting beforehand and if necessary a deferral. He did not do this.

In Higgins V Donnelly Mirrors ltd UD 104/1979, The EAT reflected on a conflict regarding the nature of meetings which preceded a claim for Constructive Dismissal, in resolving the conflict in favour of the Respondent, the EAT found that the complainant “was unduly sensitive and over-reacted “.

In the instant case, I noted that the complainant’s primary reaction on being invited to a meeting was one of shame and embarrassment rather than preparation for what lay ahead. I have found that this did not put him in an advantageous position when it came to address the content of the meeting.

I accept that the Respondent was plain in his communication on the perceived performance deficits. I accept that as an Employer, he had a right and arguably an obligation to address these matters. I was troubled by the lack of a management footprint on the complainant’s performance prior to October 4 ,2017. The first exhibition of management should have been initiated by the line Manager and not the Managing Director.

However, I also accept that the complainant had never found himself in such a challenging situation in his 37.5-year career. He had the option in the face of such a challenge to “fight or flight” It seems, at least on the evidence before me that he chose the “flight option”.

I could not establish that the Respondent behaved in an intolerable or unreasonable manner towards the complainant on October 4 to warrant an immediate termination of employment by the complainant. Neither could not establish that a pattern of events had been negatively directed at the complainant by the Respondent. I noted that the complainant was on long term sick leave during the summer months and I could not decipher a level of fear in his account of his working life prior October 4. I accept that a frank conversation ensued which caused the complainant to “freeze”. However, what followed next needs further commentary.

It is an undisputed fact of the case that the complainant instigated the conversation on scoping out an exit plan during a 20-minute meeting on October 4, 2017. I accept that he feared the consequences of this meeting and rapidly weighed up his options. He decided to explore an assisted departure. From his evidence and that of Mr A and Mr E, I concluded that the decision was what he wanted on the day. It is of note that a period of over 2 weeks passed before the next action in the case, that of a reminder for paper work. I found it unusual that such a long-standing employment relationship ended in a “blink of an eye”. I probed the parties on whether either had reconsidered following a cooling off period? Neither had reconsidered. I could not establish that the Complainant had raised his issues of concern through any formal structure. I accept that he had issues at work but the Law in this case requires him to address these concerns in a meaningful way. I appreciate that the complainant was hampered by a less than optimal grievance procedure, but his 37.5 years of service entitled him to an employer’s ear with a representative, if needed.

I found the complainants attitude to the shortcomings in the one-line letter on termination issued by the Respondent to be somewhat illogical. He had received what I would consider a glowing reference and he was disappointed with the circumstances of the final wording in a supplementary letter. This should have prompted him or his representative to re-engage with the respondent on this point. It did not. I gave some thought to the complainant not feeling confident to search for new work. I found that the reference issued in his name should have greatly enabled that feat.

I have considered the facts of the case on the Reasonableness Test. I found that the complainant was dazzled by an anticipatory rear-guard action against him based on the company perception that his interest was waning in the job and mistakes had been detected. However, he had not entered any process in which he might have been heard properly in defending his good name. Crucially I have found that the complainant was not faced with a “Resign or be dismissed “scenario but rather that he resigned hastily and sometime later regretted it reliant on the variation in the agreed clause of the supplementary letter issued on October 20.

I have found the circumstances of this case to be very sad and an unfortunate end to an excellent career. As stated, I found both parties were visibly bruised by their respective experiences.

However, I cannot accept that this was a constructive dismissal. I have taken the time to review an analogous case in Connolly V St James hospital [2007]5JIEC1501, where the EAT considered a set of facts which culminated in a Union Official seeking leave of resignation for the complainant prior to a threatened dismissal. The EAT found that a Constructive Dismissal had followed a “relentless pursuit “of the Complainant through a myriad of procedures. I found that this case was distinguished from the instant case but had overtures in that the complainant sought his termination of employment. The EAT required a very high burden of proof that the Complainant was faced with an intolerable and unreasonable work experience. I found that the complainant was highly regarded at his workplace and was not identified as a potential leaver or as an object of “being managed out “

I accept that the Employer was procedurally deficient on contract, on job title, on performance appraisal and provision of a robust grievance procedure. However, I cannot, however, accept that the complainant was driven from his workplace in the manner he presented. He instigated his decision to leave, implemented it and later regretted it. I was not at all happy with the administrative looseness of the Exit and This caused to be to look very carefully at the events cited around the dismissal.

I have concluded that the complainant’s decision to resign was overly hasty and devoid of a prior meaningful engagement aimed at resolution of his issues. He has not satisfied the test provided for in Section 1 of the Act.

I have found the claim for Constructive Dismissal cannot succeed.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the claim for Constructive Dismissal has not succeeded.