Complainant

Respondent

Anonymised Parties

An Administrative Assistant

A Retail Chain

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00018448-001

11/04/2018

The case concerns a claim for Constructive Dismissal by an Administrative Assistant against a Retail Chain.

The Complainant commenced employment in April 2008. All went well until 2016. The Complainant was off work from 18th August to the 12th January 2017 due to a Stress related illness. This was brought about primarily by the actions of her Manger/Supervisor Ms. XA who subjected the Complainant to a constant barrage of Criticism and Complaint.   The Complainant resumed work in January 2017 on the understanding that the relationship with Ms. XA would change for the better – they had attended a Counselling programme during the Complainant’s sick absence. However, this was not the case and the criticism continued unabated.

The Complainant alleged that there was no effort made by the Respondent to offer her any assistance or efforts to improve any alleged shortcomings in her work.

The Complainant was invited to attend a meeting on the 14th of February 2018 with Ms. XA and Mr XB, the Regional HR and Admin Executive. At the conclusion of this meeting the Complainant as advised that she could take a few paid days off work to decide it she wished to accept what was in effect a termination payment. She was advised that on her return to work she would be the subject of a formal Disciplinary/Investigation procedure. There was no reasonable doubt in the mind of the Complainant that this process would result in her dismissal without any monies being paid.

The Complainant submitted her resignation on the 23 March 2018 felling that she had been left with no options and was in effect constructively dismissed.

The Complainant commenced employment in April 2008 as a Desk Clerk in the Warehouse. She was promoted to Regional Administration Assistant in August 2013. The Respondent has very comprehensive Employment policies set out in a detailed Handbook which includes, Dignity at Work, Grievance and a Disciplinary Policies. The Complainant received and signed for all of these in November 2011.

It was accepted that the Complainant had alleged performance issues in early 2016 and was absent on grounds of work related stress from the 18th June 2016 to 12th January 2017. A Mediation process between herself and her immediate Superior, Ms. XA had taken place in late in 2016. In January 2017 she had returned to work and an extensive training and support programme had been put in place to support her return. Unfortunately, while initially things had worked well by late 2017 issues of concern regarding her work performance were again beginning to cause concern. A number of specific issues were highlighted by the Respondent. Meetings with Ms. XA took place beginning in August and continuing in September and November 2017. A particularly serious administrative issue regarding Inventory records arose in late January 2018 which was a cause of considerable business difficulty to the Respondent. These issues were of considerable disappointment to Ms. XA in view of the extensive coaching and training she had given to the Complainant during 2017. It was decided to call the Complainant to a meeting with the Regional Manager, Mr. XB and Ms XA on the 14thh February 2018. At this meeting the Complainant was informed that the Respondent now felt that they had to open a formal Investigation Process as set out in the Handbook regarding the Complainant’s performance issues. An initial meeting was to take place with Mr. XB the following week -the 20th February. On that date the Complainant met with Mr. XB at a Hotel off site. The Complainant indicated that she would like to leave the Company and inquired as to what monies were on offer. Mr. XB advised her that she would be due her notice pay and outstanding Holidays only - approximately €10,000. As the Complainant became quite upset during this meeting Mr XA suggested that she take a few days off to compose herself and consider her options.

In a follow up E mail of the 21st February the Complainant indicated that she felt that she had not been fairly treated in view of her length of service and that a figure of €60,000 in a tax efficient manner would be more appropriate.

The Respondent resolutely denies that any suggestion of a “severance” package was ever discussed at either February meetings (14TH & 20th). Storm Emma then intervened (Mr. XB was heavily involved in physical premises damage issues during this time) and it was not until the 6th March 2018 that a comprehensive letter was issued by the Respondent setting out matters in detail. In this letter Mr XB made it clear that the Complainant could immediately come back to work with the only issue being that an investigation would be initiated, on her return, into her “alleged under performance of duties”. The fact that her employment remained open to her was again emphasised in the concluding paragraph of the letter. The Complainant remained off work during this period.

The Complainant’s solicitors then opened correspondence (22nd March 2018) with the Respondent. The first letter made a number of serious allegations regarding the Complainant’s treatment (harassment and unfair & unwarranted scrutiny of her work) during 2017. The offer to take a few days off to compose herself was construed as an “effective employer instruction not to return to work.”.

Ms. XA wrote to the Complainant on the 26th March inquiring as to her medical status and continuing absence. This crossed with a letter from the Complainant’s Solicitors dated the 6th April in which she gave notice of her resignation. The Respondent replied and advised the Complainant of the Respondents’ internal Procedures and asked her to reconsider her resignation. The Complainant replied (11th April 2018) confirming her resignation.

In summing up their case the Respondent pointed to the Company Handbook and the Disciplinary Procedures therein.

The Respondent had only proposed an Investigation and it was an open question prior to the Investigation if it would have had any Disciplinary follow through.

Even allowing for a Disciplinary follow through the suggested penalties in the Handbook for the allegations regarding the Complainant’s alleged work performance shortcomings did not reference any possibility of a Dismissal. Unsatisfactory Performance was identified as a possible Misconduct which does not carry a Dismissal penalty. The Respondent quoted the relevant sections of the Handbook.

As regards the alleged conversations regarding a “Severance Package” at the meetings of the 14th and 20th February these were robustly denied by Manager XB. The Complainant has asked what were her figures should she choose to leave and he had given her a ball park figure of notice Pay and Outstanding Holidays. There was no suggestion that the compliant was being pressurised to leave and this had been confirmed in all subsequent E mails and written letters. Her job remained open for her at all times.

The Complainant had taken a very premature step in claiming Constructive Dismissal before any internal procedures or processes had even begun at the most preliminary level.

The legal precedents regarding the obligation on an employee to utilise the Internal Procedures before making a Constructive Dismissal claim were quoted. The case of Karolina Jabczuga v Ryanair [UD 66/2013] was referred to and extensively quoted from as an Authority on this point.

3:1       The Law.

The question of Constructive Dismissal is considered extensively in the standard Employment Law in Ireland reference works. I refer to Meenan Employment Law – 2014 Edition /Round Hall where the learned Author states that while the term “constructive” dismissal is not specifically mentioned in the 1977 Act it is a term commonly understood to refer to that part of the definition in s.1 of the 1977 Act which states 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, or …

In strict legal terms, the concept of “constructive dismissal” is difficult. However, the tests applied to “constructive dismissal” may be summarised as the contract test and the reasonableness test.

An employee must act reasonably in terminating his or her contract of employment, resignation must not be the first option taken by an employee and all other reasonable options including the grievance procedure must be explored.

The contract test was summarised by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp: [1978] I.C.R. 121.

“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 further performance.”

Alternatively, the reasonableness test asks whether the employer

“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”.

The “reasonableness” was further considered by the Employment Appeals Tribunal where it stated:

“… [the tribunal] must be satisfied that the employee is either entitled or is acting reasonably in terminating the contract. In order for an employee to meet either of these criteria the conduct referred to in the act cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee. Consequently, the Tribunal must look at the conduct of the employer and the reasonableness of the recognition by the employee” Joyce v Brothers of Charity Services [2009] E.L.R. 328

Meenan, quoted above, continues that the EAT has determined that an employee is entitled to terminate the contract of employment only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.

In Harrold v St Michael’s House, [2008] E.L.R. 1the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

This concept of the “Mirror Image” as set out by Mary Redmond is crucial to this case and it had to be reflected on in a consideration of the Evidence.

3:2     Consideration of the Evidence presented.

In the evidence there was no issue raised as the existence of the Respondent Handbook and Procedures. These were extensively quoted in the Respondent correspondence as was the point that what was being proposed was an Investigation on a matter of potentially only Misconduct which did not carry a Dismissal Penalty. The Complainant quite clearly failed to either understand or utilise these Procedures.

I noted that she was legally advised form an early point -her resignation coming by way of a letter from her Solicitors dated the 22nd March 2018 and confirmed again on the 11th April 2018.

In extensive Oral evidence the disputed meetings of the 14th and the 20th February were examined in detail. It probably was not a good idea that the meeting of the 20th February had been a one to one. I had to make a judgement of the credibility of the Regional Manger Mr XB regarding this meeting. I found him to be a credible witness.

In any event he clearly stated the position in the letter of the 6th March -well prior to the Resignation. The Complainant’s job “remained open with immediate effect”.

Much was made by the Complainant and her legal advisors of the offer made by the Management of a few days off (the remainder of the week) to consider her options following the 14th February meeting with a follow up meeting of the 20th -the following Tuesday. The explanation given by the Respondents was that the Complainant had become quite emotional at the meeting of the 14th and time off to allow her to compose herself and consider options (she had raised the issue of her leaving) was a reasonable offer. It was felt that an immediate return to work in the same office as Ms XA and her other colleagues would have been a major emotional difficulty for the Complainant. It did not constitute as maintained by the Complainant “an exclusion from her employment without sufficient reason”.

In her first e-mail of the 21st February the Complainant acknowledges that the figure of €10,000 was mentioned as a rough figure of her Notice pay and outstanding Holidays. She indicated that she would not accept this figure and in her second email of the 21st she mentions a figure of €60,000 as more appropriate -in effect a Severance Payment.

That these meetings had amounted to a “severance negotiation” was resolutely denied by Manger XB. The question of Money was first raised by the Complainant. He maintained that if he had intended to engage in a Severance Negotiation he would have probably followed up with the Complainant in a further “Figures” meeting -instead he wrote a comprehensive denial of her interpretation of the meetings in his letter of the 6th March which also informed the Complainant that her job was “still open”.

3:3       Summary Conclusions

Having hear all the oral evidence from the Parties (Ms. XA and Mr. XB for the Respondent and the Complainant herself) I came to the view that there was a high degree of concern in January 2018 about the Complainant’s alleged performance shortcomings particularly in view of the considerable efforts to assist the Complainant during 2017.   This situation had led to the decision to have a Formal Investigation. This was obviously a stressful prospect for the Complainant.

However, and crucially I did not see any obvious Respondent agenda to dismiss the Complainant - an employee of some 10 years standing. The Respondent had invested considerable time and resources into training and coaching the Complainant during 2017 and the decision for a formal investigation I felt reflected their frustration with the Complainant rather than any more sinister agenda.

I noted the Respondent’s Handbook and Procedures regarding Underperformance as a Misconduct and not meriting dismissal especially when it is a first offence.

Accordingly, I could not see how the Complainant put the negative interpretation on events that required her to take the drastic step of a Constructive Resignation.

Taken with her failure to allow the normal Employment Procedures take their course I had to find that the claim for a Constructive Dismissal was not well founded. The claim is dismissed.

Act

Complaint/Dispute Reference No.

Summary Decision /Please refer to Section 3 above for detailed reasoning.

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

CA-00018448-001

Claim is dismissed as not well founded.