Complainant

Respondent

Anonymised Parties

An Inspector Manager

A Healthcare Organisation

Representatives

 Liam Doherty, ASK HR Solutions

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-00021686-001

10/09/2018

In August 2009, the complainant joined the respondent organisation as a home-based Inspector Manager.  Until early 2017, he said that he enjoyed a positive working environment, reporting to four-line managers over that time.  In May 2016, the complainant started reporting to a new line manager and over the following months, his life at work became so difficult that, by January 2018, he decided that he had to resign.

The complainant alleges that he was constructively dismissed.  He claims that, for the sake of his health and well-being, he had to leave and take up a temporary job on a lower salary and with less security than that job he held with the respondent organisation for almost nine years.

Background

The complainant has worked in the public and private sector for more than 30 years.  He said that he had a successful and happy career until he started to report to a new line manager in 2016.  He thought that his manager’s appointment was temporary, and, for this reason, at first, he decided to take no notice of what he described as “the change in management style.”  He then began to notice that his manager’s approach became increasingly dismissive, aggressive and disrespectful towards him.

2016 Performance Review

In January 2017, the complainant’s manager gave him a rating of “improving” following his performance review.  At the review itself, she indicated that she had considered a rating of “below acceptable.”  A copy of the review document was submitted in evidence at the hearing and it shows that the complainant began reporting to his new line manager on May 4^th 2016.  On January 19^th, the complainant’s manager sent him a copy of his completed review document and asked him to populate one section from his notes of the meeting and to review the document and track any changes that he wanted to have considered.  On January 20^th, the complainant replied and said that he would not respond until he got advice from his union. 

At some point following this e mail correspondence, the complainant discovered that his manager filed the review form with his electronic signature from an August 2016 report to present it as an agreed document.  On the document submitted in evidence, it appears that the complainant’s signature is in electronic format and the date is August 5^th 2016.  The manager’s signature also appears to be in electronic format, and the date given is January 10^th 2017.

The complainant managed a team of inspectors in a geographic region and he did not attend the office on a weekly basis.  He had a one to one meeting with his manager every six weeks, and apart from this, their communication was generally by telephone and e-mail.  The documents submitted in evidence show that from January 2017, the line manager set up weekly teleconference meetings.  At the hearing, the complainant said that, in these telephone conversations with his manager, “she repeatedly questioned and harangued” him on operational matters.  The complainant said that his manager told him that she was trying to support him, but this was not his impression.  He said that his interactions with colleagues was curtailed and he was not permitted to meet them at a convenient location or support them as their line manager.  He said that he felt that nothing that he did was acceptable to his manager.

Working Relationship in 2017

On April 4^th 2017, the complainant had a meeting with his manager at which she advised him that,

1.  In her view, he was not doing the job he was required to do;

2.  The level of oversight that she was required to maintain was unsustainable;

3.  If the improvements that she expected were not forthcoming, she would “have no option but to proceed to commence formal disciplinary action.”

The complainant’s view is that, arising from having been rated as “improving,” in line with the organisation’s Performance Management Improvement Process, a performance improvement plan should have been initiated.  As, in his view, this had not occurred, the move to initiate the disciplinary process was unwarranted and premature.  He said that the organisation’s own management information system showed that he and his team were carrying out more inspections than other teams, despite the geographical challenges that required his team to travel long distances to do their work. 

The complainant went on holidays in the middle of July 2017, returning on July 25^th.  On that day, he received an e mail from the HR manager inviting him to a disciplinary meeting in Cork on August 3^rd.  In preparation for this meeting, the HR manager included a copy of a letter from his manager to the respondent’s HR manager dated July 19^th 2017.  In this very detailed letter, his manager set out her concerns about the complainant’s performance in direct terms: “I am not satisfied that (name of complainant) is fulfilling the role of Inspector Manager to the required level.”  The manager’s concerns related to the complainant’s competence to make decisions appropriate to the powers delegated to him and his performance as an Inspector Manager which requires him to lead and manage a team of inspectors.

Disciplinary Meeting – August 2017

The complainant attended the disciplinary meeting on August 3^rd 2017 and he provided a written response to the alleged failures identified by his manager, challenging what he considered to be the inaccurate facts.  A copy of this document was submitted in evidence at the hearing.  The complainant said that he felt at a considerable disadvantage at the meeting because it was based on a performance improvement plan which he had not agreed to and was not required under the respondent’s performance improvement policy. 

After the disciplinary meeting, the complainant said that he felt under such pressure that his health began to suffer, and he attended his doctor and a heart specialist.  His doctor recommended counselling and the HR department referred him to an occupational health consultant, which he attended on September 5^th 2017. 

While he was absent, on September 21^st, the complainant’s union representative wrote to the HR manager outlining their concerns about the performance review process and the management of his performance under the disciplinary procedure.  The union representative asked the HR manager to consider changing the complainant’s reporting line, but, this was not accepted.  He submitted a grievance about this matter and he also suggested a role to which he could be transferred.

The complainant attended the occupational health consultant for a second time on September 22^nd and he returned to work on September 25^th.

Appeal of the Disciplinary Sanction

Arising from the disciplinary meeting, the complainant was issued with a verbal warning.  He submitted an appeal of this warning and a hearing took place on November 29^th 2017, hosted by a senior manager in the organisation.  The complainant submitted four reasons why he should not have been issued with a disciplinary sanction:

1.  He said that the issues with his performance should not have been dealt with under the respondent’s disciplinary process, but instead should have been managed under the performance improvement policy.

2.  He said that the findings of the disciplinary investigation were not supported by evidence.

3.  He claimed that the disciplinary process was not conducted in a professional manner or in accordance with the principles of natural justice.

4.  In advance of the disciplinary meeting, the complainant said that he was not provided with adequate information about how it would be conducted.

On January 11^th 2018, the complainant was informed by the senior manager who presided over the appeal meeting that his appeal was not upheld.  The warning was to remain on his personnel file until February 2^nd 2018.  The manager informed the complainant that any further issues regarding his performance would be dealt with under the performance management improvement policy.  In his evidence at the hearing of this complaint, he said that “the outcome of that meeting was perhaps the moment I finally realised that I was no longer wanted or respected by my employer.”

Outcome of the Grievance Process

In September 2018, the complainant had asked to report to a different line manager, but this request was rejected.  He also suggested that he could take on a different inspection role, but this was also rejected.  To deal with this grievance, he had an initial fact-finding meeting with his union representative and an external consultant on November 8^th 2017.  This was only followed up on January 17^th 2018, with a meeting with the organisation’s decision-maker in respect of the grievance.   The complainant had resigned on January 14th.  In any event, his grievance was not upheld, and he was not permitted to change his reporting line.  The complainant’s opinion is that the findings of the grievance process are at odds with the facts presented and this confirms his position that he was not respected or valued as an employee.

Termination of Employment

At the hearing of this complaint on November 30^th 2018, the complainant said that, on January 25^th 2018, he had to go out sick due to the stress and pressure he felt and he then decided that he had no option but to look for another job.  He said that he left a secure public service job for a temporary post at a lesser salary and less favourable terms and conditions.  

The respondent did not attend the hearing.

Date of Submission of this Complaint

This complaint was submitted to the WRC on September 10^th 2018 at 01.25.  The complainant said that he had handed in his notice on January 14^th and that his employment ended on March 10^th 2018. 

Section 8(2) of the Unfair Dismissals Act (amended) provides that a claim for redress under the Act must be initiated within six months of the date of dismissal, or within 12 months, if the adjudication officer is satisfied that there is reasonable cause for the delay:

A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General —

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause.

At the hearing of this complaint, there was no discussion about the fact that the complaint was submitted just one hour and 25 minutes after the expiry of the six-month time limit permitted under the Unfair Dismissals Act.  The complainant did not request an extension of the time limit.  While I have noted that the complaint was submitted very slightly outside the time limit, as the respondent was not in attendance to argue this point, I have decided to examine the evidence and to issue a decision.

Constructive Dismissal

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer…”

The issue for decision in this case, is, taking into consideration the conduct of the respondent in relation to this former employee, and considering how his grievance was addressed, was it reasonable for him, or was he entitled to terminate his employment?

The Reasonableness of the Employee’s Decision to Resign

From the evidence submitted at the hearing, it is apparent that the complainant and his manager were at odds regarding his performance.  Having reported to four different managers over the previous seven years, he was taken aback at the change in approach from May 2016.

In the absence of any direct evidence from the respondent, and from a review of the documents submitted by the complainant, it is my view that the complainant’s line manager was committed to achieving the organisation’s standards for its inspection regime.  The complainant described her as “seeking perfection” and he found this difficult.

One of the most upsetting issues for the complainant was his manager’s decision to deal with his performance under the disciplinary procedure, rather than using the performance management improvement process.  While I have no evidence of the respondent to consider, I find that, from the documents presented at the hearing, and, from the complainant’s own evidence, his manager did initiate a performance improvement process, although it may not have been entirely as prescribed in the performance management policy and there is no evidence that the complainant was formally notified that his performance was being closely managed.  As a seasoned professional however, I find it difficult to accept that the complainant did not consider the weekly or fortnightly calls and follow-up e-mails as a performance improvement strategy.

The complainant said that he had a “happy and successful career” for over 30 years.  It must have been very difficult for him to accept that his performance was considered to be below an acceptable standard.  He acknowledged that there were some shortfalls in his work, but he was distressed at the outcome of his 2016 review and the follow-up close supervision of early 2017.

Having listened to the complainant’s version of what occurred, it seems to me that the approach adopted by his manager from May 2016 was at variance with what the complainant experienced in the past and it appears that he found it difficult to adapt.  His relationship with his manager was not supported by day to day contact in an office environment and he was slightly disconnected from any direct support.  He found the manager’s efforts to stay in touch with weekly teleconference calls unhelpful.

The complainant’s decision to resign, on January 14^th 2018 was as a result of what he said was his perception that he was “no longer wanted or respected by his employer.”  We have no information from the respondent to test this hypothesis, but, in the circumstances in which he found himself, it may not have been an unreasonable state of mind.  In this state of mind, it may not have been unreasonable for him to resign and to go somewhere where he could feel wanted and respected.  I think that many reasonable people would have done the same.

The issue for me however is, does his decision to resign amount to a constructive dismissal, which brings the conduct of his employer into question?

In the Labour Court case of Caci Non-Life Limited v Daniela Paone [2017] UDD 750, the chairman, Mr Haugh stated:

“It is well-settled law that a complainant who is advancing a claim of constructive dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer.  Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective.”

Findings

The burden of proof required in cases of constructive dismissal is a high bar for a complainant.  It requires the complainant to show that the conduct of his employer was either so unreasonable that he had to leave his job, or, that there was a fundamental breach in his contract of employment that made the continuation of his employment untenable.  In the case under consideration, I find no evidence that the respondent acted in breach of the complainant’s contract.  I believe that the complainant was upset and uncomfortable with how his performance was being managed and, as a result, he felt disrespected and unwanted.  It is my view that, from this feeling of discomfort and disrespect, he reached the conclusion that it was best for him to move on.  I find that the complainant has not made out the standard of the burden of proof required to demonstrate that the conduct of his employer was such that he had no alternative, but to leave his job.

I find that the complainant has not demonstrated that his employer behaved so unreasonably, or that there was a fundamental breach in his contract of employment that he had to resign from his job.  Because of this finding, I have decided that this complaint under the Unfair Dismissals Act is not well founded.

Constructive dismissal, performance management