ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00006875

Parties:

Complaints:

Dates of Adjudication Hearing:  9^th February 2018 & 5^th March 2018

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

The Complainant referred the aforesaid complaints to the Workplace Relations Commission (hereinafter WRC) on 26^th January 2017.  In accordance with Section 8 of the Unfair Dismissals Acts 1977-2015 and Section 41 of the Workplace Relations Act 2015, following referral to me by the Director General, I inquired into these complaints and gave the Parties an opportunity to be heard by me and to present any relevant evidence.  The Complainant was represented by Mr Rory Kennedy BL instructed by John O'Leary & Co Solicitors.  The Respondent was represented by Paul Twomey BL instructed by Kate McMahon & Associates and a number of witnesses attended on its behalf. 

These complaints were initially dealt with on a case management basis on 24^th November 2017 and documentation and written submissions were exchanged before evidence and submissions were heard on 9^th February 2018 and 5^th March 2018.  A further period of time was allowed to facilitate a resolution of this case.  The complaint of unfair dismissal was pursued as a constructive dismissal under the Unfair Dismissals Act 1977, along with an ancillary complaint that the Complainant had never received an updated contract and/or written terms of his employment since the Respondent had taken over the Company, contrary to the Terms of Employment (Information) Act 1994.  As the onus/burden of proof rested with the Complainant in respect of both complaints, his evidence was adduced first.  The Parties’ respective positions are summarised hereunder followed by my findings & conclusions and decision.  Given the nature of the unfair dismissal complaint, it has been necessary to set out the factual background in some detail.  All evidence, written submissions, supporting documentation and law presented by both Parties have been taken into consideration.

Background:

The Complainant brought a complaint of constructive dismissal against the Respondent in circumstances where he contended that he had been left with no option but to leave his managerial position from 27^th August 2016 owing to the conduct of his fellow-employees.  In particular, he contended that he had been ‘micro-managed’ under a ‘Poor Performance Management Procedure’ instead of being afforded support when he had indicated that he was suffering from work-related stress.  He also contended that the Respondent had never provided him with an updated contract since taking over the Company in 2010.  He sought compensation in respect of both complaints. 

CA-00009316-001 – Constructive Dismissal under the Unfair Dismissal Acts

Summary of Complainant’s Case:

The Complainant gave direct evidence supplementing written submissions and the Respondent’s minutes of numerous meetings where the accuracy of same was not in dispute.  He confirmed that he had been employed in the same Vehicle Service Company since 16^th August 1999, initially as a Local Manager before being promoted to a Regional Manager from 1^st January 2000.  The staff under his management had grown to 150 during his employment.  He had retained this role when the Company was taken over by the Respondent in 2010 and had also assumed the role of Health & Safety Officer/Manager for the entire Company as well as operating a side-project for the Respondent.  He worked at middle managerial level reporting to Mr B who in turn reported to the Company’s CEO.  During his last full year of employment, he earned total gross wages of €92,697.

The Complainant confirmed that prior to the Respondent taking over Company, Human Resources (HR) had managed disciplinary matters, but under its management Regional Managers were expected to handle this area.  Apart from a talk in 2016, he had not been given any training on HR issues such as workplace investigations and disciplinary proceedings.  He had not been subject to any complaints about his performance until December 2013, when a staff member on long-term sickness had made a complaint about him which turned out to be unfounded.  He said that at the time he had felt extremely stressed and unsupported by his Manager, Mr B, and as if the Respondent was trying to find fault with him.  In March 2014, he received his appraisal and full bonus for 2013.  In April 2014, his father passed away after an illness.  Following a complaint that he had been slow in performing a workplace investigation resulting in a staff member’s Union threatening legal action, he was informed by the HR Manager, Ms A, that this was his fault and he was to be investigated.  This was confirmed by the CEO and he received a letter from Mr B calling him to a meeting on 24^th September 2014 to afford him the opportunity to respond and explain his reason/s for failing to manage and take responsibility in dealing with this grievance.  Following that meeting, by letter dated 7^th October 2014, the Complainant was summonsed to a further investigation meeting on 15^th October 2014 as the Respondent was not happy with his explanation of the timeline for the investigation.  The Respondent’s minutes of that meeting noted Mr B’s concerns around the fact that a complaint giving rise to the investigation had arisen in late October 2013 and was not completed until June 2014.  He contended that the investigation should have been dealt with in a more timely and professional manner and the delay had left the Respondent exposed to legal action.  He outlined what action should have properly been taken and the timeline for same.  In response, the Complainant had sought to explain his handling of the matter and had submitted that there were other factors in play giving rise to the delay which should also be considered including: (1) the fact that his time had been taken up implementing a new annualised leave system in early 2014; (2) the investigation had been complicated by the fact that other issues had arisen in relation to the staff member subject to the complaint and the staff member who had made the complaint had taken a period of sick-leave; (3) he had tried to deal with the matter informally; (4) he was distracted with his father’s illness and passing in April 2014; (5) his stress levels and workload were very high in the last year and were not much better in the current year and (6) he had not received any training on how to conduct investigatory meetings or support from HR and required help and training in this area.  He also added that he was not complaining and understood Mr B’s position and that the work had to be done.  When asked when would the matter be resolved, Mr B said that he had to discuss it with the CEO and hoped to finalise the matter as soon as possible. 

Ms A’s minutes of a subsequent informal discussion with the Complainant on 3^rd November 2014 noted that he had reported to her by telephone that he was “stressed-out” with the investigation and that his workload was excessive due to the demands of his Health and Safety role.  Ms A advised him to “…admit if he had ‘messed up’ in terms of the grievance as anyone can make a mistake and in terms of his work load that he needs to keep a log of the time spent on H&S and also to put an action plan in place.”  Ms A noted that he had thanked her, agreed to this advice and confirmed that he had “f**ked up”.  She also noted that in Mr B’s absence she felt it necessary to give him a “level of comfort” stating: “In my professional opinion the issue in hand did not require disciplinary action however support and guidance on a long term basis to be managed through the poor performance procedure.”  She further noted telling the Complainant that a number of the management team had also informed her that he had reported being “stressed-out” and “can’t sleep” as a result of the investigation and “…that it is perfectly acceptable if he wishes to confide in one work colleague however it’s not something that should be used to paint an unpleasant picture of the company.”  In this respect, she noted that the Complainant had never pursued support and counselling from the Respondent and when asked if he needed to attend a company doctor at this stage, he confirmed: “…that he was doing ok now, he was in his own words “nearly there”.  It was not only work that had him stressed out at times, it was a combination of his personal life and the loss of his father also.”  Ms A finally noted: “I recommended that if at any stage he felt the need, he must come to me straight away and I will organise this for him.” and she had also encouraged him to come and talk to her or Mr B at any time as “…we we’re here to help him” and “I explained that he should never allow himself to feel stressed out as we are all working together and are here for one another.” 

In a letter dated 10^th November 2014 to the Complainant, Mr B confirmed that the investigation had concluded and owing to his poor management of the investigation due to time management issues, this was to be addressed by way of the Respondent’s Poor Performance Management Procedure (hereinafter PPMP) which was furnished with the letter.  In particular, he stated: “This poor performance I believe was as a direct result of your inability to manage your time effectively and therefore I feel that this time management issue should be addressed by way of the poor performance management procedure in an effort to afford you support and advice on a continuous basis in the long term.  A clear plan of what needs to be done and a time line of when it will be done by will form part of the poor performance management process.”  It further confirmed that an initial meeting with him would be scheduled in due course.  The Complainant’s only prior experience of the PPMP was when it was used with ordinary members of staff.  The PPMP stated that it could be invoked against a member of staff based upon one or more of four criteria being: “(i) performance is consistently poor or below an acceptable standard over a period of time; (ii) a pattern of poor performance emerges e.g. consistent errors, low output, erratic performance; (iii) poor performance is serious or becomes more frequent; and (iv) despite informal discussions and support there is still evidence of poor performance.  The list is not exhaustive.”  Paragraph 2.1.3. further provided: “If, in the past, the standard of work has been satisfactory, it may be that a fall in standards is due to a specific, short-term problem.  The Manager will need to explore whether there has been any personal issues or other circumstances that have resulted in a reduction in work performance.  If this is the case, appropriate advice/support will be offered, targets set for improvement and a date set to review the situation within a reasonable timescale.”  The Complainant had contended throughout that the use of the PPMP was wholly inappropriate as his performance did not meet that criteria.

Following the Stage 1 - initial meeting between Mr B and the Complainant on 21^st November 2014, Mr B emailed an attendance note to Ms A stating that the meeting was not a disciplinary or investigative meeting but a poor performance meeting arising from his time management issues.  He noted the Complainant’s response that “…he felt that he had too many tasks to perform and there was a lot more demand on his time and in particular carrying out disciplinary/grievance type investigations.” and “…as Regional Managers they had not received any training in the conduct of these types of investigations/meetings.”  Also, he needed assistance with the side-project.  He further noted that after much more discussion, the output was that the Complainant was to identify his various tasks of a repetitive nature that could be reassigned to a suitable person.  His performance was to be measured by reference to his tasks and roles across various departments in terms of completeness and timeliness.  The Complainant said that at that meeting, he had handed a list to Mr B showing his additional / administrative tasks in comparison to other Regional Managers, but he had not been interested.  Mr B also wrote to the Complainant by letter dated 28^th November 2014 confirming the outcome of the meeting and fixed the next meeting for 21^st January 2015.  Regarding the absence of training, Mr B stated: “It has been confirmed that whilst no formal group training session has been given in terms of investigations you have received one to one coaching & guidance from the HR Department in relation to same and in fact this process is still in place.”  In this respect, the Complainant contended that in the absence of any formal training, the HR support was insufficient as Regional Managers were repeatedly being sent to re-interview people to collect more information and it would have been much easier if such training had been provided from the outset.  However, no suggestions as to how to improve the way in which they handled workplace investigations were forthcoming and save for the talk in 2016, no further training was provided.

The Stage 2 - first review meeting was rescheduled twice before it proceeded on 11^th February 2015.  As recorded in the minutes, Mr B stated: “…this meeting was more subjective as opposed to objective driven…”when dealing with staff.  Mr B had asked the Complainant for his action plan identifying the repetitive tasks for possible reassignment and a progress report since the initial meeting noting that these were not furnished.  The Complainant believed that this was self-explanatory and expressed his disquiet at being subject to the PPMP, contending that he did not fall within the requisite criteria.  He also reiterated the difficulties he was still experiencing including the absence of any formal training or structure on how to approach his work along with work overload.  It was further noted that Ms A who was also present reassured the Complainant that the PPMP was “…merely to support and guide him and this was more to prevent issues in the future.” and “…an opportunity to support & guide him along with communication between himself and Mr B.” and he had accepted this.  Mr B questioned his communication regarding a ‘fumes’ issue’ otherwise his work was deemed to be satisfactory.  Mr B also suggested that aspects of his Regional Manager’s work could be re-allocated and the Complainant responded that the real issue was his Health & Safety workload.  He was to consider Mr B’s proposals and identify administrative tasks for re-assignment.  Follow-up letters outlined the options discussed which he said did not assist with reducing his workload or address the Health & Safety role and his suggestions for reducing his workload were also rejected.  He also received a letter dated 16^th March 2015 confirming a deduction in his annual bonus for 2014 and stating: “As discussed this non achievement of full target bonus is in light of the fact that you are currently being managed by way of the poor performance management programme.”  However, he received a further letter dated 13^th April 2015 confirming a 2% salary increase stating: “This increase reflects your contribution to the business during the past twelve months and is effective from the 01^st April 2015 and will be reflected in the April payroll.”

At the next Stage 3 - second review meeting on 15^th April 2015, the Complainant declined Mr B’s suggestions for reducing his workload as they were not the ‘troubled’ areas in issue and would have done little to free up his time.  He agreed to provide a more defined list of repetitive administrative tasks.  No issues were taken with his performance and as mirrored in the minutes, a follow-up letter of 20^th April 2015 confirmed the output and stated: “As confirmed with you at this meeting your performance appears to be acceptable at this stage with no issues raised by your internal/external customers.  I wish to confirm that in line with the poor performance management procedure we will discontinue the process of review meetings with you however in accordance with 2.3.3. of the procedure we will continue to monitor the situation.  Your performance will be monitored over a period of 12 months and should it transpire that your performance is not acceptable the Company will revert to Stage 3 of the process and re-engage the procedure.  During this 12 month period should you require any assistance from the Company please do not hesitate in discussing it with me.”  It requested him to sign the bottom of the letter confirming his agreement to the above.  Notwithstanding same, Ms A included the following note at the bottom of the minutes: “For the record:(The Complainant) did not dispute the observation made in relation to (a Local Centre) and the fumes episode.  No documentation was received from (the Complainant) to refute my observation.  (details in minutes of the 11^th February and reference to same by way of letter of the 18^th February 2015).”  In a subsequent conversation, the Complainant indicated to Mr B that he was not prepared to sign the letter as noted in a letter from Mr B of 29^th June 2015 stating: “I have asked you to formally respond to my letter and to outline your position one way or the other.  To date I have not received any correspondence from you.  For your information it is at the discretion of the Company to decide whether it is necessary to evoke this procedure in an effort to support and encourage an employee where there may be an issue in relation to the individual’s performance and not for the employee to decide whether they agree to it.  I would like to take this opportunity to confirm with you that your approach to the Company and the efforts being made to support & encourage you in your role as Regional Manager is disappointing however despite your unwillingness to sign the letter of the 20^th April 2015 to confirm that you are in agreement with the Company decision regarding the poor performance procedure the Company position remains as outlined.  Please find enclosed a further copy of the said letter for your ease of reference.”  The Complainant said that having tried to meet all of Mr B’s requirements regarding his performance, he had felt very relieved that the process was at an end.  He responded to Mr B in writing confirming that whilst he agreed with the discontinuation of the PPMP meetings, he is entitled to dispute his view of the manner in which he handled the investigation/grievance giving rise to the use of the PPMP and the necessity for same.  In a responding letter of 7^th August 2015, Mr B expressed surprise at his position given that “…even on a most cursory look it can be clearly seen that this case was not managed properly and was not concluded in a timely manner.” requiring Ms A’s and another Manager’s intervention to prevent the matter going further.  It further noted that he had not availed of any of the options offered to assist him and confirmed that the Company’s position remained unchanged. 

By letter dated 29^th September 2015, Mr B summonsed the Complainant to a further meeting on 8^th October 2015, the purpose being “…to review and give you feedback of your performance to date and you will also be given an opportunity to outline any areas that you feel you require assistance from the Company.”  Mr B opened the meeting by confirming that it was a six month review and “The normal processes had been suspended as there are no measurable items on a monthly basis.”  He reiterated that the Complainant had not taken him up on the offers of supports, and if he needed administrative support he could have got a named employee to do admin “donkey work” for him as another colleague had done.  Mr B then proceeded to raise two new issues with his work, comprising of his management of the handover to another Regional Manager when going on annual leave where there was a day’s overlap and the manner in which he had handled an internal appeal.  When asked if there were any other issues, the Complainant replied: “The last time when it finished up it was a weight of my shoulders.  When I receive these letters, it affects me, I can’t eat, sleep, it can be very stressful.”  When he sought to explain the manner in which he had handled the appeal, Mr B stated: “I am not in a position to discuss it at the moment.”  Both Parties reiterated their respective positions, with Mr B stating that the Complainant was subject to a review process and the Complainant refuting the necessity for same.  A follow-up letter from Mr B outlined the two new issues of concern and fixed a further review meeting for 6^th April 2016.  In or around December 2015, he received an appraisal and congratulations on achieving his bonus which he subsequently received.  However, in early 2016, two more complaints were made against the Complainant.  The first one was resolved and he was subject to disciplinary action in relation to the second one which he felt was unfair and had also resulted in a recommendation that he be subject to a PPMP.  He contended that the PPMP was being inappropriately used to manoeuvre employees out of the Company.  At this stage he was still finding it difficult to cope with his workload, no proper supports had been put in place and his stress and anxiety had increased to an extremely serious level.

On 14^th March 2016, the Complainant went on certified sick leave and an attendance note taken by Ms A on 29^th March 2016 indicated that he was certified sick for a further two weeks as he still was not great despite being given tablets by his doctor.  He was referred for an assessment with the Respondent’s Doctor on 11^th April 2016 as outlined in a Report furnished to HR.  It noted that the Complainant had reported: “…experiencing increasing symptoms consistent with a significant stress reaction over the last 12 months or so.  His symptoms became sufficient for his GP to sign him out of work for a period of time…  By his own account he feels the primary problem is workload which he attributes to a combination of his roles as Regional Manager and Health & Safety Manager.  He tells me that it is the volume of work rather than the complexity of work that is a problem.  He is taking work home at night and coming in on the weekends to complete tasks.  Of note, toward the very end of the consultation he disclosed that he has been placed in a Performance Improvement Plan in the couple of weeks prior to his exit from work.  He gave me his account of the issues which led to that decision by the company.  He is very unhappy in this regard and feels that he has been unfairly treated.  However, he does not identify this issue as the primary stressor which I find somewhat puzzling.”  The Doctor recommended a meeting with HR “…for an open and frank discussion regarding his perspective of his workload demands…” and sought feedback from Ms A following the meeting and would consider liaison with the Complainant’s GP.  The Complainant attended a return to work meeting on 14^th April 2016 with Ms A and Mr B “...to discuss his return to work & agree an action plan going forward to facilitate him with his work load.” but without any reference to the Report.  Mr B suggested a structured format to assist with his daily operations and required him to submit a weekly planner.  He also informed him that the next “poor performance meeting” had been rescheduled given his absence.  It was noted that he was “…happy to work and get back, happy to be back and thanks very much.”  On reflection, he felt that the meeting was more about what the Respondent wanted him to do rather than what he could do.  Instead of being of assistance, the time taken to log his daily activities took several hours a week thus adding to his workload. 

During the next PPMP review meeting held on 5^th May 2016, Mr B raised two further issues with the Complainant’s performance comprising of a clocking in/out issue (where he had not checked whether an employee had been working before adjusting his clock at his request) and the time taken to handle an employee grievance given to him a week previously.  The minutes note that the Complainant had asked for a break as he had pains in his chest.  This was followed with further discussion including selection of a staff member to take over some of his administrative tasks before Mr B fixed a further meeting.  A follow-up letter dated 11^th May 2016 from Mr B headed “Re: Stage 3 - Extended Second Review Meeting” outlined the two new issues and stated: “In light of the two new issues raised with you, the Company confirmed that the review period on stage 3 of the poor performance procedure is extended.  This decision is in line with the poor performance procedure 2.3 Stage 3, point 2.3.4.”  It also confirmed the date for the next review meeting as 7^th September 2016. 

The Complainant was reviewed by the Respondent’s Doctor on 16^th May 2016 and reported a more positive situation including receipt of administrative support.  The Doctor certified him fit to continue working whilst noting: “I remain concerned that there is an underlying health condition which is impacting on his ability to carry out his duties at work.”  He was to be reviewed in three weeks’ time if not substantially better otherwise in two months’ time.  On 20^th June 2016, the Complainant asked to speak to Ms A about his ongoing work situation.  Ms A’s recorded minutes confirmed that he enquired as to how long the PPMP process would go on for as he was told initially that it would be for a number of weeks or months.  In response, Ms A explained that it will go on for as long as he needs the support.  He also stated that he felt bullied by Mr B and that he feels that the weekly planner is not assisting him.  By way of example he said that despite his weekly contracted hours from 9am until 5pm, Mr B had questioned why he had not taken a call on a Sunday and also the amount of time it took him to use a software system.  He said he felt that the process was causing him stress and anxiety, in response to which Ms A said that she would let Mr B know how he was feeling and arrange to meet.  He also told her that things were getting on top of him before his holidays, he was still attending counselling and feeling “not too bad”.  Ms A noted that he approached her again and said that he forgot to mention earlier that he “…feels (Mr B) wants to get rid of him, and he is happy to do another job if the Company think it’s the best thing.”  Ms A further noted that she confirmed with him “…that this was not the case, he knows the Company as well as I do and if they wanted to get rid of him, they would not be putting all this time and effort into supporting him.”  In a follow-up meeting with the Complainant on 22^nd June 2016 and again in Mr B’s absence, Ms A said she had given some consideration to the points he had raised and that she was a little concerned about his suggestion that Mr B was bullying him and causing him stress and anxiety as she knew he was not intent on bullying him.  She also confirmed that the PPMP process “… will take as long as necessary.”  Regarding his contracted hours and reference to taking calls on his time off, she confirmed that whilst he is not expected to work seven days a week, as a Regional Manager he is expected to be flexible which would include taking a call on his rest day if required.  After some further suggestions as to how he could improve his performance, Ms A noted that she had explained to him that “…the Company are satisfied that we can demonstrate that we are doing everything to help him.”  With reference to his comment about another job, she suggested that he might consider returning to his former role in the Company as Local Manager which would carry with it a lower grade and pay.  In response he said that this suggestion had been “flippant”, he would not be interested, he enjoys the role of Regional Manager and does not want to leave.  He then confirmed that he had taken calls whilst on holidays and takes calls at weekends all the time and Ms A confirmed that he should not have to take calls on holidays.  Ms A further noted: “I explained to (the Complainant) that I wanted to be open with him and as HR Manager I can (see) this process going down the disciplinary route if he continues to have issues…  I reminded him that he is still on poor performance management and the next meeting is in September but already there is an issue with his performance.  I explained that I would not like to see him going through this as to be fair he has been working with the company for 17 years but unfortunately that is my opinion.”  When he asked again how long the process would take, she explained “…it will continue as long as it takes however there will be a time when the Company will intervene and say no more in terms of the process particularly in circumstances where there is no improvement.  I explained to the Complainant that he must be almost eight weeks into the process and he is still clearly not 100% with his work, he is complaining of feel(ing) stress and anxiety and clearly (Mr B) is not happy either.  There is only so much the Company can do.”  Ms A went on to explain that “…he needs to put his head down and do his job.  (The Complainant) said he does not want to be dismissed and he worries about that and I confirmed I worry about it too as I can see him going down the slippery road which is very difficult to turn around.  I asked (the Complainant) what more can we do, he asked for another job and I have explored (his former) role to which he declined, he is complaining about stress & anxiety however the Company are supporting him with his weekly planner, funding counselling sessions but he is still not happy.  I told (the Complainant) that he is not offering any sort of solution and then asked him has he thought of a compromise agreement i.e. a sum of money and walk away from this as sometimes as people get older they don’t want to continue doing the same thing.”  He had said that he was “open to money, it depends on the amount” before stating that he loves his job, the people and his region and does not want to leave.  The conversation ended with Ms A asking the Complainant “…to think about all that I had said to him as I was trying to make him aware of what I could see unfolding.”  

On 23^rd June 2016, the CEO asked to have a word with the Complainant regarding his current work situation and warned that he would be disciplined if he did not get his house in order.  Following Mr B’s return, Ms A arranged a meeting with him on 30^th June 2016.  Ms A and Mr B came armed with notes and revisited the various performance issues.  Ms A opened the meeting stating that it was to discuss the Complainant’s concerns that Mr B was bullying him and given that both Parties were clearly unhappy, asked how they felt.  Mr B outlined his disquiet at the Complainant’s ongoing performance issues.  He then referred to the offer of his previous role of Local Manager as being less stressful and the Complainant confirmed that this was not an option for him.  There was also some discussion as to what was required in the weekly planner and the meeting ended with the Complainant confirming an improved working situation, that he liked the job and people he worked with and “If I am doing it wrong, let me know at the time.”  He also confirmed that he was happy to work with Mr B and asked him to keep the door open and Mr B replied that it has never been closed. 

However, the Complainant felt that his complaint of bullying against Mr B had been inappropriately handled, he was still working 50 hours a week to try and keep up with his workload including evenings and weekends, he still had no supports and whatever he did to improve it was not good enough.  He was not eating or sleeping and mentally felt worse than ever.  He went on sick-leave again and underwent a further assessment with the Respondent’s Doctor on 18^th July 2016.  She noted that after returning to work following the last assessment, he had to take certified sick leave owing to his “perceived ongoing difficulties” and he “…seems somewhat unclear what his status is on the performance management process.  He tells me he feels he is being “micro managed” at work and finds this very difficult.  He does not seem to know whether he is meeting his targets.  He tells me he was recently offered a “demotion” which he refused, but seems unclear as to why this was suggested to him.  He tells me he simply wants to continue to do his own job.”  She found that his stress related symptoms had increased significantly on his return to work reaching a point where he could no longer attend and that “Work seems to be the only source of stress he identifies.”  She stated that: “It is unclear to me why (the Complainant) seems not to know what his performance issues are and where he is on the performance management process.  This is causing him to feel stressed and anxious.  However, there is no evidence of a clinically definable illness at this stage.  I would advise that the organisation engages with him next week to ensure there is complete clarity on his performance issues and what the status of his PIP is at present.”  She further advised that the he bring along a friend or colleague acceptable to the Respondent and certified him unfit for work.

On 28^th July 2016, the Complainant attended a pre-arranged meeting with Mr B and Ms A but Mr B was not present as Ms A contended that the Complainant had not confirmed his attendance although he said he had left voicemails.  However, she noted in her minutes that she took the opportunity to engage with him and ask how he was keeping, in response to which he said “Ok, just ok”, he was not sleeping great, he was stressed and anxious, his heart was racing even when speaking to her and he had to stop on the way there to have a drink of coke to relax him.  When she asked what was causing this “…as the Company were working very closely with him to support and assist him in reaching the required performance”, he explained that he felt that he was being micro managed by Ms A, Mr B and the business.  She further noted: “He asked was there a definitive date of closure for the poor performance procedure.  I explained to (the Complainant) that at this point in time there was no definitive date of closure as this process will continue until such time that his work is at a satisfactory level.  (The Complainant) stated that it was affecting his personal life.”  The Complainant also referred to the status of the matter where he had been subject to disciplinary action.  He again asked Ms A when would Mr B discontinue the process and she noted her reply as: “The process would not be discontinued until he reached a satisfactory level in his role.”  There was further discussion about the PPMP which they both agreed was instigated following the initial issue with his handling of the workplace investigation.  Ms A also explained that Mr B “…was putting a lot of time and effort into him currently to bring him up to speed”.  Ms A noted that the Complainant then proceeded to hand her an envelope containing a resignation letter dated 27^th July 2016.  She also noted her surprise at his decision “…however he explained that it was the best thing for him as I had answered his question regarding the Poor Performance procedure.  (The Complainant) stated that he feels the Company are trying to get rid of him to which I was quite shocked and asked (the Complainant) in return did he think we would invest in him like this if we were trying to get rid of him and he confirmed: “yes, I know the way it works, the Company are just ticking the box.”  He confirmed that he did not require any further counselling services.  He also asked for the meeting not to be recorded but these minutes were produced nonetheless.  The Complainant’s resignation letter stated: “I have to move on because of personal reasons.  I would also like to take this opportunity to say that making this decision has been extremely difficult.  I would also like to place on record my appreciation to all my colleagues here.  I would like to thank the company for providing me with opportunities in the 17 years I have been part of the organisation.”  He said the reference to ‘personal reasons’ arose from work-related counselling he had been attending, he was a private person and did not want to be explicit and he had tried to frame the letter in a fair manner.  He also saw little point in making a grievance to the CEO, being the only person left to whom he could complain under the grievance procedures as he was unlikely to be very sympathetic given their last interaction.  He had not considered negotiating an exit agreement as his “head had been all over the place” and he gone on a month’s garden leave.  On 2^ndAugust 2016, he received a registered letter acknowledging his resignation and asking why he had not made an appointment with the CEO for an exit interview.  In a further registered letter dated 13^th September 2016, Ms A referred to a conversation they had had on 29^th August 2016 when he was returning Company property and invited him to submit a written proposal to provide future services as an independent Health and Safety Consultant.  When he did not respond, Ms A followed up with a registered letter dated 10^th October 2016 asking him to confirm whether he was interested in this opportunity by 17^th October 2016.  The Complainant explained that he could not face returning to a place which had caused him so much stress and anxiety and had written back confirming: “…unfortunately at this time I am not in a position to submit such a proposal on personal grounds, however in the future I hope I may well be able to do so.”  On 19^th October 2016, the Complainant received a letter from Ms A seeking his approval to provide his file to his Solicitors which he furnished.  By further registered letter dated 26^th October 2016, Ms A stated: “…in the event in the future you find you are in a position to offer your services, please do not hesitate in contacting the Company.”  Thereafter the Complainant sought legal advice and referred these complaints to the WRC on 26^th January 2017.

Counsel for the Respondent put its position to the Complainant and questioned him at length to the effect that it had acted reasonably at all times and had done all that was possible to support and assist him with his workload.  The numerous offers of support and assistance which he had declined were put to him and he repeated his position as set out above that they were of no effective assistance.  He agreed that he had availed of the Company’s counselling service.  When Ms A had asked if he needed to see a company doctor on 3^rd November 2014, he agreed that he had declined same.  He said that at the time he thought she was trying to help him but looking back he doubts her intentions.  It was put to him that the level of his workload was not as severe as contended and/or by comparison with other Regional Managers who also had to give progress reports but he maintained his position.  Apart from the talk in 2016, he refuted the contention that he had received one-to-one HR training.  Additionally, he had received administrative support at a late stage.  It was also put to him that the use of the PPMP had been appropriate, its steps had been properly followed including the ongoing review process after the discontinuation and it had been put in place to support and guide him.  The various poor performance issues raised by Mr B throughout the PPMP process were also put to the Complainant.  He agreed that his performance fell short in some instances towards the latter end of his employment as his mental state deteriorated and the PPMP became somewhat of a self-fulfilling prophecy.  He refuted the suggestion that factors other than work-related stress caused his illness with reference to the Medical Reports outlined above and said that it was a combination of everything.  It was also put to him that if Mr B had wanted to get rid of him, he would not have put so much time into the process.  The Complainant refuted this contending that Mr B was the “bullying face of the Company” but he did not know who specifically wanted to get rid of him.  He denied giving the Respondent mixed messages about staying on in another role and/or acting as a Health and Safety Consultant which was said to have been offered to him with the best of intentions.  He pointed out that as his position had not been replaced the Respondent was saving money.  It was also put to him that he had clearly prepared his resignation letter before the last meeting and had not given the Respondent an adequate chance to respond.  He said that arising from his counselling he needed a definitive time-line regarding the PPMP and had pre-prepared the letter for use depending on how the meeting went, tendering it when no timeline or certainty could be given.  Regarding his reference to resigning for “personal reasons” and his expression of appreciation for colleagues, he said he was not one to wash his dirty linen in public. 

The Complainant gave detailed evidence of his mitigation of losses and efforts to find alternative employment and submitted vouching documentation.  He was certified as fit to return to work from 2^nd August 2016.  He set up his own Health & Safety Consultancy Company in early 2017, netting a profit of €13,000 for the first year.  He had also attended for two job interviews in early 2017 but had not been successful.  He had continued to search for suitable employment alongside running his business, primarily by way of phone enquiries with agencies.  Counsel for the Respondent questioned him regarding documentation confirming that he had made alternative work enquiries whilst still in the Respondent’s employment.  It was put to him that this was inconsistent with his evidence that he decided to resign in July 2016.  The Complainant accepted that he had been looking at the market to see what opportunities were available at times where the pressure of his ongoing workplace situation had got too much and he was on stress-related sick-leave.  It was also put to him that the absence of any documentary evidence supporting job applications from early 2017 onwards, made it more probable that he had stopped applying when he set up his business. 

In written and oral submissions, Counsel for the Complainant set out the relevant statutory provisions under the Unfair Dismissals Acts and caselaw in relation to constructive dismissal as set out in more detail hereunder.  He submitted that whilst the Respondent may have acted within the terms of his contract, its conduct was so unreasonable such that the Complainant was entitled to treat his contract as being at an end and was therefore constructively dismissed as per the dicta in various Labour Court decisions.  With specific reference to the facts in the instant case, in An Employer -v- A Worker (2005) UD 940/88, the Labour Court upheld a complaint of constructive dismissal and found that the employer had failed to do all that was reasonable to accommodate the worker’s needs by providing him with special treatment or facilities so as to enable him to return to work on a phased basis following his absence based on disability.  In applying the reasonableness test, the Labour Court held: “Whilst the conduct of the respondent may not, itself, have amounted to a repudiatory breach of the employment contract, the Court is satisfied that, having regard to the Claimant’s undoubted emotional and psychological vulnerability at the material time, the conduct of the respondent was so unreasonable as to justify the Claimant in resigning there and then.”  In the instant case, it was submitted that the Complainant had at all times acted reasonably and had attended all scheduled medical appointments and meetings and had not acted either too hastily nor too slowly in tendering his resignation.  Conversely and notwithstanding 17 years of managerial service, the Respondent had subjected him to 18 months of excessive scrutiny of his work through the inappropriate use of a PPMP with no end in sight and where the goal posts kept changing. 

Despite informing the Complainant that the PPMP was officially completed with a satisfactory performance on 20^th April 2015, the Respondent had extended the PPMP for over a year thereafter without any indication of completion.  It had been clear that other underlying factors such as the recent death of his father and excessive workload had been affecting his performance and there had been no exploration of this as required by Paragraph 2.1.3.  Further, the Respondent had failed to follow its own PPMP process and procedures properly.  In particular, there was no provision for the review process to continue and/or Stage 3 to be extended in the manner adopted.  It was further submitted that the Respondent had made unreasonable demands of the Complainant’s time as outlined.  Despite being on notice of his stress and anxiety owing to his workload and being subject to the PPMP, there was a complete lack of support and training by the Respondent throughout.  When he had brought these issues along with alleged bullying behaviour by Mr B to Ms A’s attention again during their meeting on 22^nd June 2016, instead of supporting him, Ms A implied that disciplinary action was likely to commence and his job was in jeopardy.  She had tried to get him to leave his job and also encouraged him to take a demotion to his former role or “…a sum of money and walk away from this as sometimes as people get older they don’t want to continue doing the same thing.”  It was further submitted that the Respondent had created a paperwork trail to imply that it had acted reasonably but in fact the Complainant had been ‘micro-managed’ out of his job without recourse.  Additionally, the Respondent’s offer of consultancy work after his resignation was inconsistent with its position that he was under-performing.  By way of remedy, the Complainant sought up to two years compensation for loss of earnings including future losses and notice period.

Summary of Respondent’s Case:

In addition to detailed written submissions, the Complainant’s Manager, Mr B gave evidence outlining the Respondent’s position in relation to the circumstances giving rise to this complaint.  He said that he had worked with the Complainant for a number of years before formally becoming his Manager in 2010.  Whilst issues would have arisen between them over the years, he characterised their relationship as being good both professionally and socially before the decision to place him on the PPMP in November 2014.  He confirmed that he had made this decision jointly with Ms A, the HR Manager.  Whilst he contended that the Complainant had not done things properly or completely in the past, he considered that his handling of the workplace investigation in question had been a serious issue as the delay had been “indefensible” and had exposed the Respondent to potential litigation.  He said that as the Respondent had been losing workplace related claims, it had needed to become more professional and procedures were put in place requiring Regional Managers to handle HR issues.  He did not accept the Complainant’s contention that PPMP’s had been used to “push people to the door” and was unaware of anyone else leaving as a consequence of a PPMP.  Its purpose was to enable employees every opportunity to improve their performance.  He had expected that its use would highlight issues and the Complainant would identify his road blocks. 

With reference to the minutes of the various PPMP related meetings, he refuted the Complainant’s position that he had been overworked, stating that his tasks were broadly similar to other Regional Managers.  He outlined the issues raised by the Complainant with his workload and his efforts to address them.  He said that the Complainant had not availed of any of the solutions he had been offered including off-loading certain areas of his work.  He had also been prepared to offer him administrative support but the Complainant had not provided a list of the tasks for reassignment as requested.  He contended that had no other issues arisen with the Complainant’s performance, he would have been happy to put the PPMP into abeyance as per his letter of 20^th April 2015 and it would not have gone on for so long.  However, and as outlined in their exchange of correspondence set out above, the Complainant had refused to sign the letter agreeing to cease the PPMP with a 12 month review period.  Mr B said he had been surprised at this impasse as he had thought all was well and could not understand why the Complainant had disengaged at this stage.  Mr B said he had continued with the PPMP as he needed to be sure of his performance going into the future.  However, by the review meeting of 8^th October 2015, he was aware of new issues with the Complainant’s performance and further issues arose in early 2016 as outlined above.  Mr B also went into some detail as to why he was justified in considering these to be serious issues.  He pointed out that arising from one of the issues raised, the person investigating the matter had also recommended that he be subject to a PPMP.  Whilst he was aware of the contents of the Respondent’s Doctor’s Reports referring to the Complainant’s work-related stress and an undiagnosed health condition, he felt that removal of the PPMP would have removed his supports.  He noted that the Complainant was happy with the situation as of his return to work meeting on 14^th April 2016.  He said that in circumstances where his performance was still not satisfactory as at the review meeting of 4^th May 2016, Stage 3 of the PPMP had to be extended to September 2016.  He would have preferred not to have had to use the PPMP.  He also referred to the minutes of the various meetings between the Complainant and Ms A noting that he had been given the option of his former role but had not accepted it.  He did not regard Ms A’s minutes as being inappropriate.  He referred to his meeting of 30^th June 2016 with the Complainant as a “a frank discussion” about the manner in which he had handled the various workplace issues and it had ended with the Complainant confirming that he was happy to work with him and he had replied: “My door is always and has always been open.”  Overall, he contended that the Respondent had acted reasonably towards the Complainant at all times and he could not consider himself constructively dismissed.

Under questioning from Counsel for the Complainant, Mr B accepted that no other managers had been subject to a PPMP but that was because no significant issues with their performance had arisen.  He was only aware of its use previously with one lower level employee where performance could be objectively assessed.  He also maintained that there had been previous issues around the Complainant’s work before the workplace investigation instigating the PPMP in question.  It was put to him that there was no evidence that Paragraph 2.1.3. of the PPMP (as cited above) had been followed, requiring exploration of whether personal issues or other circumstances had resulted in any reduction in his work performance, particularly given that his father had recently passed away.  Mr B said he was unaware of the Complainant’s stress at the time of implementing the PPMP and/or that it was work-related until he had attended the Respondent’s Doctor in April 2016 and availed of the Company’s counselling service.  However, he felt that it was beneficial to maintain the PPMP and had been the best thing to do.  After he became aware of the Complainant’s stress, he tried to support him with more structured work and time-management skills.  He was questioned about the level of training provided to the Complainant and deferred to Ms A.  He was also asked about the basis upon which his performance was being assessed.  He contended that the Complainant’s main issue was time management and knew how long tasks should take from his own experience.  He accepted that the assessment was subjective to some extent and satisfactory performance could only be adjudged by the absence of complaints about his work over a period of time.  He also accepted that the PPMP did not expressly make provision for further review meetings once a satisfactory level of performance was reached such that the process was to be discontinued.  In response, he said that the initial period was not long enough to ensure that the same issues would not re-emerge, and six monthly review meetings were the only way of monitoring same and providing feedback.  He confirmed that the Complainant was required to attend so many meetings as distinct from other managers as he was subject to the PPMP.  When asked what would have happened if the Complainant had not left when he had, Mr B said that the process would have moved on to the issuing of sanctions.  When it was suggested to him that there was an inevitability about the process, Mr B responded that it did not have to be that way and denied a ‘fait accompli’.  He also denied searching out issues with the Complainant’s performance and said that they had come to him.  He denied any bullying, harassment or unfair treatment towards the Complainant and said that this allegation had been withdrawn at their meeting.  Unlike the position with the workplace investigation giving rise to the PPMP, he felt that it had been appropriate to deal with this complaint informally.  He agreed that he had been guided by Ms A throughout the PPMP process.

Ms A, the HR Manager gave evidence confirming her position with the Company since 1999 and said she had enjoyed a good professional working relation with the Complainant over the years.  She had to address her own issues in 2010 and Regional Managers including the Complainant had received one-to-one coaching in relation to handling grievance and disciplinary processes.  Additionally, the Complainant had received assistance with an IT package during the course of the PPMP.  She confirmed that she had oversight of HR matters and assisted managers with applying procedures properly.  She outlined the PPMP and the five stages which ultimately lead to disciplinary sanction.  She said that despite being deemed to reach an acceptable level of performance in April 2015 under Paragraph 2.3.3., the Complainant had remained subject to the PPMP in the instant case to assist him and Mr B had been reluctant to remove him from the PPMP as to do so would remove his supports.  She said it was difficult to put a measurement on how long a PPMP should go on for as it was only through continual monitoring but with less frequent meetings that the situation regarding the Complainant’s poor performance could be addressed.  In this respect, she contended that when new issues arose, the Respondent could resume the process where it left off at Paragraph 2.3.4. providing: “If there has been some improvement but the employee has still not reached the required level of performance, the Manager may consider extending the review period.”  She refuted the contention that the PPMP had been used as a tool to pressurise the Complainant “to move towards the door” and maintained that it was to provide him with assistance and supports.  She made reference to her minutes of both the formal and informal meetings with the Complainant and sought to explain her position regarding same.  She contended that at all times she had been trying to assist the Complainant and give him helpful advice regarding his situation but he had not been very forthcoming with the information required to assist him.  She had also referred him to the Company’s counselling service and between 10^th April 2016 and 27^th July 2016, he had availed of eight sessions with a report from the Provider stating: “…the client has made significant progress towards identified goals.”  When he had confided in her about his difficulties and being “stressed-out” during their discussion on 3^rd November 2014, he had declined her offer for him to attend a company doctor.  She referred to the PPMP as a tool used by both Parties to provide support and guidance to an employee.  She also said that her role regarding the delay in the initial workplace investigation instigating the PPMP had been investigated and she had also been held to account.  Regarding the Complainant’s health and complaint of work-related stress and anxiety about the ongoing nature of the PPMP as outlined in the Respondent’s Doctor’s Reports, she said that she had met him and offered him all the necessary supports and could not have done anything differently. 

Ms A pointed out that as at his return to work meeting on 14^th April 2016, the Complainant seemed happy to be back at work.  However, there were ongoing issues with his performance and as per their informal meetings held in June 2016, she could not definitively say how long he would be subject to the PPMP.  She had been surprised at the Complainant’s allegation of bullying against Mr B and felt that Mr B was not bullying him and was just under his own work pressures.  She was trying to support the Complainant and considered that bringing them together at an informal meeting was an appropriate way of handling the matter.  She also felt that her comments to the Complainant in the subsequent informal meetings including the reference to “…going down the slippery road which is very difficult to turn around…” towards disciplinary actionwere fair and reasonable given that he had gone downhill so badly after the initial improvement.  She was also of the view that it was reasonable to offer him his former role and/or a termination agreement in the circumstances.  She had been trying to be open and honest and have the Complainant take responsibility for his work.  She felt that a formal sanction much earlier on in the process would have been appropriate, but the Respondent had not resorted to this course.  Ms A maintained that the Respondent cannot be held responsible for the issues arising with his performance where adequate supports had been provided.  She also outlined her final meeting with the Complainant on 28^th July 2016 in the absence of Mr B as per her minutes where he had handed her his letter of resignation after she could not give him a definitive date for cessation of his PPMP.  She had thought he was in a good place after completing his counselling and was satisfied with his decision to resign.  He had also called her on 2^nd August 2016 to say that he “…was feeling much better now, the weight had been lifted off his shoulders, it was a load off his mind.”  She also referred to their subsequent exchange of correspondence outlined above regarding the Respondent’s offer of work as a Health and Safety Consultant and had construed his letter declining same on personal grounds as referring to his father’s passing.

Counsel for the Complainant questioned Ms A about the level of support and training offered to him around the time of the workplace investigation giving rise to the PPMP.  She accepted that he had received no formal HR training at the time but had the benefit of ongoing support and guidance from HR and a formal Handbook on Procedures was subsequently furnished.  It was also put to Ms A that as the Complainant had reached an acceptable level of performance as per Paragraph 2.3.3. of the PPMP, the wording did not allow for a resumption where it had left off and the PPMP would have to be restarted.  It was further put to her that it was inappropriate to have an indefinite review period and the PPMP could not be considered as a support system where it would result in formal sanction.  She disagreed and contended that further review meetings were required to provide support and feedback given the issues that had arisen.  She also stood over her actions including the appropriateness of her comments to the Complainant during their informal meetings and her holding of an informal meeting to deal with his complaint of bullying against Mr B.  She denied being instructed to send the letters to the Complainant expressing an interest in having him back to work as an independent Health and Safety Consultant as an attempt to sound reasonable and contended that this had been his proposal.  When asked why the Respondent would consider having the Complainant back to work given that he had been subject to a PPMP, Ms A confirmed that there was no issue as this was an area which he enjoyed and with less work, he would be better able for it.  Finally, she confirmed that the Respondent had been unaware of the level of the Complainant’s mental health issues as there had been no red flags raised in the Doctor’s or Counselling Reports.

Detailed written submissions on behalf of the Respondent set out the factual position from its perspective also quoting from the undisputed minutes of the various meetings outlined above.  As they broadly mirror the Complainant’s evidence and are not materially in dispute, it is unnecessary to repeat them save than to outline the Respondent’s divergent views.  At the outset, it was noted that prior to the Complainant being placed on the PPMP in question, he “…was a good member of staff who had built up long-standing relationships with all management within the Respondent.  There were no issues of a personal nature involving the Complainant or indeed anyone else within the middle management team.” and “There were no disciplinary issues arising with the Complainant but for present purposes it should be noted that the Respondent regards the genesis of the issues leading up to the Complainant’s voluntary and amicable resignation to be the decision to place him on the Respondent’s Poor Performance Management Procedure.”  It was submitted that the termination of employment had come about on foot of “…an unexpected but formal and amicable resignation by the Complainant.”  With reference to the statutory definition of constructive dismissal as provided by Section 1(b) of the Unfair Dismissals Act 1977, it was pointed out that the Complainant had never characterised his resignation as a dismissal.  He had given one month’s notice without intimating that his decision was in any way connected or attributable to the conduct of the Respondent.  In relation to the application of the contract and reasonableness tests for constructive dismissal and the high burden of proof resting on an employee to prove that a resignation was not voluntary, reliance was placed on the EAT decision in Daniel O’Gorman -v- Glen Tyre Company Limited UD2314/2010 and A Maintenance Supervisor -v- A Charity ADJ-00002881.  In this respect, it was submitted that the PPMP was contained in the Employee Handbook and hence its use in the instant case was in keeping with the Complainant’s contract and he had sufficient notice of same.  He had also used it to manage employees and was therefore familiar with the procedure.  It was appropriately applied given the serious and accumulating performance issues arising, it had moved sequentially and made provision for ongoing monitoring.  When further issues arose, it would not have made any sense to have gone back to the start.  The PPMP was not of an indefinite duration as ultimately disciplinary action would have to follow and whilst this may have been justified in the instant case, the Respondent had not resorted to same.  In the circumstances, the Respondent was duty-bound to retain the Complainant on the PPMP and could not allow him back to perform poorly.  Therefore, the manner in which it had been used could not be considered unfair or unreasonable. 

Regarding the Complainant’s assertion that his periods of sick-leave were attributable to work-related stress, it was submitted that this was not borne out by the medical evidence as outlined above.  As of his return to work meeting on 14^th April 2016, he had indicated that he was happy to be back in work.  Without prejudice and with reference to the requirement to consider the conduct of the Parties giving rise to an dismissal under Section 7 of the Unfair Dismissals Act 1977, it was submitted that if the Complainant’s poor performance issues had led to his resignation, the Respondent could not have done any more to support and assist him.  He had been accommodated with periods of paid sick leave, he had been offered the assistance of a company doctor, he had been asked to provide ways in which he could be assisted in his role and offered various solutions to alleviate aspects of his work and his former role had been offered to him when requested.  However, the Complainant had rebuffed all such offers because he off-and-on refused to recognise the need for the PPMP.  He had also been afforded the Company’s employee counselling service to positive effect.  The Respondent had spent considerable resources on the Complainant in an effort to manage him back up to normal performance levels.  The Complainant had not warned the Respondent that he had considered resigning and it was clear that there were other aspects of his personal life at play such that his workplace situation was not the primary cause of this decision.  Furthermore, he had not afforded the Respondent an opportunity to address his issues by utilising the Company’s grievance procedures.  After his resignation, he had also refused the Respondent’s offer to create a new Health and Safety role and apply for the position.  Other arguments around his capacity to undertake his role and frustration of contract were made to submit that the Respondent’s conduct towards the Complainant had been reasonable in all the circumstances. 

Findings and Conclusions:

For a successful complaint of constructive dismissal under Section 8 of the Unfair Dismissals Act 1977, the Complainant must satisfy the definition in Section 1(b) which provides: “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 Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the Labour Court elucidated the ‘contract’ and ‘reasonableness’ tests used either individually or together to assess whether an employee has been constructively dismissed.  The ‘contract’ test arises: “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 “…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, the employee’s response to the employer’s conduct must be assessed objectively as follows: “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.”  Unlike complaints of unfair dismissal, the definition also firmly places the onus/burden of proof on the employee to show that the resignation was justified.  As outlined above, the case law overwhelmingly confirms that save for exceptional situations, an employee must have firstly exhausted all alternative avenues before tendering a resignation.

In the instant case, the main issue for determination is whether the Respondent’s conduct towards the Complainant and in particular, its decision to place and/or retain him on a Poor Performance Management Plan (PPMP) was so unreasonable as to justify his resignation.  Whilst most of the facts are not in issue (particularly as there is no dispute as to the accuracy of the minutes recording same), the Parties clearly have diametrically opposing views regarding the reasonableness of the Respondent’s conduct.  I must therefore consider the factual matrix presented in light of the aforesaid law to determinewhether or not the Complainant is entitled to succeed in this complaint.

Notably, it was common-case between the Parties that up until the issue of his handling of a workplace investigation instigating the PPMP, the Complainant had a good working record of some 15 years at management level.  While Mr B sought to refer to prior poor performance in his direct evidence as a basis for the PPMP, it was clear from the minutes and correspondence that the PPMP was invoked solely as a consequence of Mr B’s perceived delay in his handling of the workplace investigation and need to address his time management issues.  It is clear from the list of criteria (albeit non-exhaustive) cited above that the PPMP was envisaged for use where there had been consistent poor performance over a period of time.  In circumstances where only one issue had been raised with the Complainant’s performance, I am firstly of the view that the imposition of the PPMP was a wholly disproportionate response from the outset.  Secondly, Paragraph 2.1.3. expressly required exploration of “…whether there has been any personal issues or other circumstances that have resulted in a reduction in work performance.  If this is the case, appropriate advice/support will be offered, targets set for improvement and a date set to review the situation within a reasonable timescale.”  I am satisfied that both Ms A and Mr B were well aware of the Complainant’s personal difficulties before implementing the PPMP.  The Respondent’s own minutes of the meeting of 15^th October 2014 note that the Complainant had explained to them that he was adversely affected by the recent passing of his father when asked to explain his actions around the workplace investigation.  He had also alluded to other difficulties including his workload and lack of training.  He further outlined his difficulties and being “stressed out” and “can’t sleep” as a consequence of the investigation during an informal meeting with Ms A on 3^rd November 2014.  However, it was clear that she had already formed the view that the PPMP was an appropriate route as opposed to taking disciplinary action as she noted: “In my professional opinion the issue in hand did not require disciplinary action however support and guidance on a long term basis to be managed through the poor performance procedure.”  In the absence of any evidence to the contrary, I am satisfied that none of these factors were adequately explored before the decision was made to place him on the PPMP as confirmed in a letter dated 10^th November 2014.  It is simply not sufficient to rely on the fact that he had declined an offer to attend a company doctor, and if the Respondent was serious about meeting its obligations as an employer, an appropriate referral should have been made.  I am also of the view that the decision to place someone of the Complainant’s standing and managerial level on a PPMP was also flawed, because by Mr B’s own admission it was not possible to assess his performance by way of any objective or measurable criteria thus leading on to the later difficulties.

Having found that the imposition of the PPMP was inappropriate from the outset, I am further of the view that there were significant shortcomings with the manner in which it was implemented.  Firstly, Mr B acknowledged the subjective nature of the Complainant’s work and the absence of a defined means of objectively measuring his performance.  Essentially, he contended that his performance would be deemed satisfactory when there were no complaints about his work for an undefined period of time.  This did not allow for any consideration of whether complaints against him were well-founded or a process for adjudicating on same e.g. Mr B formed the view that the Complainant had mishandled a workplace investigation without any formal findings from a disciplinary process.  I also note the arbitrary reduction in his bonus as a consequence of being subject to the PPMP.  Additionally, the meetings appeared to morph into a general discussion about day-to-day issues without setting any particular performance-related targets and timelines.  Of particular concern was the manner in which the Complainant was retained on the PPMP without any end in sight and notwithstanding a finding that he had reached an acceptable level of performance and the process was to be discontinued in April 2015.  It was also apparent from exchanges at the hearing that the wording of the PPMP was open to interpretation and had been interpreted in a manner favourable to the Respondent e.g. even on the cessation of the PPMP, Mr B sought the Complainant’s written agreement to ongoing review meetings and expressed his disquiet when he refused.  Likewise, when Mr B considered that further performance issues had arisen, he interpreted the PPMP as allowing for a resumption of the process from where it left off.  Notwithstanding the red flags raised in the Respondent’s own Doctor’s Reports and the Complainant’s expressed distress at the ongoing nature of the PPMP and numerous requests for a definitive timeline, there was no evidence of any engagement with its own Doctor, of provision of the requested feedback or indeed of any clarity.

Whilst the Respondent may not have purposely set out to ‘micro-manage’ the Complainant into a position where he felt compelled to resign and indeed the concerns about his underperformance may well have been validly held, the manner in which he was retained on the PPMP ultimately led to it becoming a self-fulfilling prophecy.  This was not helped by the constant usage of the words ‘Poor Performance’ as opposed to ‘Performance Improvement’ throughout.  Although it may not have been intentional, there was a subtle and gradual erosion of the employment relationship.  From the Respondent’s Doctor’s findings and various minutes, it is apparent that the ongoing scrutiny of the Complainant’s work was having a detrimental effect on his wellbeing and hence his performance.  This trajectory was reflected in Ms A’s comments which I regard as inappropriate in a HR context notwithstanding the informal setting and particularly references to “the slippery road which is very difficult to turn around” towards dismissal and offer of a compromise agreement “…as sometimes as people get older they don’t want to continue doing the same thing.”  I also regard the minutes as a misguided attempt to create a paper trail demonstrating that the Respondent had acted reasonably at all times and do not accurately reflect the reality of the situation.  Most telling in this respect is the comment “…the Company are satisfied that we can demonstrate that we are doing everything to help him.”  It was not disputed that the Respondent had required Regional Managers including the Complainant to take on HR functions without any formal HR training.  Added to this was the fact that that the Complainant held a dual Health and Safety role and also managed a side-project.  Whilst I am not in a position to determine whether or not his complaints of overwork were justified, I am not satisfied that the Respondent did all that was reasonable to address the situation.  When it became apparent that no headway was being made with agreeing his workload, an employer with the Respondent’s resources should have reasonably sought an independent assessment of his role.

Throughout the hearing, I observed the Complainant’s demeanour and he struck me as a reserved, genuine and quietly spoken person who preferred to avoid confrontation and this was also evident from the minutes.  However, regarding his decision to resign, it is absolutely clear from the minutes of his final meeting with Ms A on 28^th July 2016 that this was primarily motivated by the ongoing nature of the PPMP.  He had asked Ms A repeatedly to give a definitive end date and when this was not forthcoming, he tendered his pre-prepared letter of resignation.  I also fail to understand the Respondent’s approach given its own Doctor’s recommendation “…that the organisation engages with him next week to ensure there is complete clarity on his performance issues and what the status of his PIP is at present.”  Furthermore, and in circumstances where the Complainant was clearly caught up in a deteriorating workplace situation, I do not regard his enquiries about alternative employment during his sick-leave as being inconsistent with this position.  I therefore reject the Respondent’s characterisation of his benign letter of resignation as constituting “an unexpected but formal and amicable resignation”.  I further find the Respondent’s offer to have him back to work as a Health and Safety Consultant to be wholly inconsistent with its position that there were serious issues with his performance and therefore regard it as an effort to cover its tracks, appear reasonable and stymie any impending complaint/s.  Applying the objective test as set out above, I am of the view that the manner in which the Complainant was subject to the PPMP without any end-date or certainty, unreasonably left him in a limbo situation from which there was no escape other than by way of resignation.  I therefore find that he meets the reasonableness test and has therefore discharged the onus/burden of proving that he was constructively dismissed by the Respondent.

As well-established in caselaw including Conway -v- Ulster Bank Ltd UD 474/1981, there is also a heavy onus on an employee to exhaust all alternative remedies before revoking a contract of employment by resigning as a last resort.  In the instant case, I am firstly satisfied that through the numerous verbal complaints made by the Complainant to both Mr B, his Manager and Ms A, the HR Manager at their various meetings including his discussion around leaving with Ms A on 22^nd June 2016, the Respondent could not be under any illusion as to his disquiet with his workplace situation.  Secondly, under the Respondent’s grievance procedures, the only person left to whom he had recourse was the CEO and given his unsympathetic attitude during their last interaction, accept the Complainant’s position that there was no remaining avenue of recourse before his resignation.

Decision:

Section 8 of the Unfair Dismissals Acts 1977- 2015 requires that I make a decision in relation to this complaint of unfair dismissal, and if successful, that it consists of a grant of redress in accordance with Section 7 of the 1977 Act.  For the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977 and conclude that the Complainant has discharged the burden of proving that he was constructively dismissed by the Respondent.  Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress to which an employee shall be entitled upon a finding of unfair dismissal including either reinstatement, re-engagement or financial compensation.  Relevant to the instant case where compensation only is being sought, Section 7(1) of the Act provides for an award of up to 104 weeks remuneration where the employee has incurred financial loss attributable to the dismissal and up to 4 weeks remuneration where no financial loss has been suffered.  Section 7(2) sets out the factors which should be considered when determining the amount of compensation and of most relevance to this case (in circumstances where I am satisfied that the Respondent’s conduct wholly resulted in the Complainant’s dismissal), is the extent to which the Complainant has mitigated his losses.  Based upon his oral evidence and vouching documentation comprising of job applications until early 2017, I am satisfied that he actively searched for alternative suitable employment for approximately six months after his resignation and has mitigated his losses in this respect.  However, from the time that he set up his own Health and Safety Consultancy business in early 2017, save for attending a few unsuccessful interviews, I am not satisfied that he continued to pursue alternative employment with the same vigour.  Additionally, I do not consider it reasonable that the Respondent should also be made liable for future loss of earnings arising from a shortfall in income owing to the set-up of his new business.  Neither do I consider that compensation in lieu of contractual/statutory notice to be appropriate for inclusion within an award for constructive dismissal particularly in the absence of a specific complaint.  I therefore consider it just and equitable in all the circumstances to award a sum of compensation equivalent to approximately six months remuneration.  The Respondent is therefore ordered to pay the Complainant a total of €46,500 in compensation (subject to any lawful deductions).

CA-00009316-002 – No Updated Contract under Terms of Employment (Information) Act 1994

Summary of Complainant’s Case:

The Complainant gave evidence confirming that further to the Respondent taking over the Company in 2010, his contract of employment had never been updated to reflect this and/or he had never received a statement in writing updating the particulars of his employment, contrary to Section 5 of the Terms of Employment (Information) Act 1994.  The Complainant contended that he was adversely affected by the absence of same and sought an award of compensation in respect of this breach of the Act.  It was not in issue that he had received the Respondent’s various Handbooks.

Summary of Respondent’s Case:

The Respondent contended that the particulars/terms of the Complainant’s employment had remained the same when it had taken over the Company and his employment in 2010.  Additionally, he had been furnished with the Respondent’s Handbooks setting out the terms of his employment. 

Findings and Conclusions:

For the purposes of determining this complaint, it is necessary to consider the evidence adduced in light of the relevant statutory provisions.  Relevant to this complaint, Section 5(1) of the Terms of Employment (Information) Act 1994 provides that: “Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than- (a) 1 month after the change takes effect,…”  The Respondent provided no evidence to rebut the Complainant’s evidence that his contract had not been updated after it took over the Company under which he held his original contract.  No updated contract of employment for the Complainant was produced to meet this complaint.  Whilst such a failure will usually have a de minimis effect in terms of updating the particulars required under Section 3(1) of the Act, arising from the aforesaid findings, I am satisfied that the Complainant was adversely affected by the lack of clarity around his dual roles as a Regional Manager and Health and Safety Manager and hours of work.  I am also of the view that is not sufficient for a transferee to discharge its statutory obligations under the Act by simply furnishing its Company Handbook/s to existing employees without agreeing any necessary contractual changes.  I consider this to be an ongoing breach of the Act and in the circumstances, am satisfied that this complaint is well-founded. 

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6.  Based upon the aforesaid, I am satisfied that this complaint is well founded.  As specified by Schedule 6, once a complaint has been declared well-founded under Section 7(2)(a), Section 7(2)(b) and (c) provides for the giving of directions regarding the particulars to be contained in a written statement, and Section 7(2)(d) provides for an award in respect of a contravention of: “compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under Section 17 of the Unfair Dismissals Act 1977.”  Having regard to all of the circumstances, I deem it just and equitable to direct that the Respondent pay the Complainant compensation in the sum of €3,500, equivalent to two weeks remuneration.

Overall Award:

For the avoidance of doubt, the total award to the Complainant is €50,000, comprising of €46,500 (less any lawful deductions) in respect of CA-00009316-001 and €3,500 for CA-00009316-002.

Dated:   24^th May 2019

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words: Constructive Dismissal – Unfair Dismissals Acts 1977-2015 – Reasonableness Test – Terms of Employment Information Act 1994 – No updated employment contract after transfer