Complainant

Respondent

Anonymised Parties

A Development Manager

A Credit Company

Act

Complaint Reference No.

Date of Receipt

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

CA-00028613-001

21/05/2019

This case involves a claim for Constructive Dismissal following a 6.5-year work history. The claim is contested by the Respondent.

The Complainant presented as a Lay Litigant and the Respondent was represented by MP Guinness BL.

The Complainant gave an outline of his claim. He commenced work as a self-employed Agent for the Credit Company before taking on the role of Development Manager in May 2012.   He also covered the Northern Ireland base for 7 months where he worked alone as Customer Services manager. His working week was 35 hours and he earned €44,290 annually.

He transferred back as Development Manager to the South in May 2018 and was delighted to be back in a team network.

The Complainant explained that the company operated a small loan facility which involved domestic contact time. Part of this service involved an incentivised sales tool for existing customers referred to hear a “T”. This involved a cash sum paid to specific clients who recommended new business.

This was a uniform practice across the business, but one area had excelled at this practice and this was harnessed into a Power Point Presentation on 16 October 2018 at the complainants work base.

The high achieving Sales Manager communicated the practice that had led to the success in another part of the country. The Complainant picked up that the incentive was being applied to “all new doors and businesses” and this was a clear departure from the standard operating practice of the client recommending a target. The Complainant became uncomfortable as he interpreted this as fraudulent practice and asked for clarification. The revised practice was expanded on together with a declared endorsement attributed to Senior Managers. The Complainant sought further guidance from his immediate manager and the practice was endorsed and he was directed to operate it by delegation to his 9 Agents in the field. He followed this direction, but noted the agents expressed reservations.

A week later, on October 22, 2018, the Complainant attended a Fraud awareness seminar at the workplace. He took the opportunity to raise his concerns surrounding his disquiet on how the incentive scheme had changed but felt he had been disregarded and brushed off. He had a crisis in confidence regarding not being heard.

He carried on with his work for a further two weeks. On 8 November 2018, he received instruction that the revised practice had been curtailed and the original practice on “T “had been restored. He understood that this had been influenced by Agents reservations. The complainant submitted that this news shocked him.

This caused him further distress as he had tried as Development Manager to table this message of objection, but he had not been heard. The Complainant equated this moment with his decision to leave the business.

The Complainant detailed his understanding of company unrest  as certain employees were suspended before their eventual re-instatement in 2019.

While continuing to carry some unease in relation to what had happened, on November 22, he contacted the company help line for protected disclosures and recorded his concerns, waiving his anonymity. He was told someone would get back to him, but nobody did.

He gave his notice to leave the company on 30 November and left a week later to take up new work on December 7. He was asked not to discuss “T” and was facilitated in taking up his new work a week later.

The Complainant recalled that he had returned to meet an Investigation Team in early December where he imparted his version of events and he received minutes of this.

The Complainant gave his reasons for leaving the company” as having been instructed to carry out a task that was fraudulent, unethical and against my morals as a person and manager. I was completely ignored and disregarded each time I raised concerns with Senior Management”. He submitted that he had felt worthless.

The Complainant outlined the Organisational chart at the Business.

General Manager

Area Operational Manager

Area Manager

Development Manager

Self-employed agents

The Complainant denied leaving his job due to travel but accepted that travel was a component of the job. He had recorded 300 -350 miles in Northern Ireland. He confirmed that he felt 100% better off psychologically since leaving the business which carried a 24/7 pressure.

He had, however sustained a financial loss of €1400 per month, company car and pension.

During cross examination,

The Complainant confirmed that he didn’t see the point in raising his concerns regarding the revised “Practice with the higher level of Management. He had confirmed that he knew an investigation was underway when he made his call to the protected disclosure help line.

He confirmed that the “T “issue was one of several reasons for leaving.

The Complainant had attended interview for his new job on November 20 and received a job offer on November 30. He had expressed interest in this company previously and this was a new application. The job was closer to home.

The Complainant stressed that he had been humiliated and was vague on the process of raising a grievance but confirmed that he had not raised his concerns in written format within the company. He confirmed that he told his Line Manager that “T “was the main reason, he was leaving.

In summary, the complainant submitted that he had loved his job and had looked forward to returning to the South as he had a lot to offer. He observed that he had felt unsupported at times in his work. In the context of his response to the revised “T” He felt compelled to follow his principles and realised that it would come back to “bite him”.

He concluded by submitting that his mental health had suffered through his experience of “T “. He did not submit medical evidence of same.

The Respondent operates a Financial Company which is a subsidiary of a UK company. The claim for constructive dismissal is denied.

The Respondent manages a home credit function provided by self employed Agents who report into the Respondent hierarchy of Managers across the country.

The Respondent displayed a Human Resource Fact sheet in tandem with Grievance, Bullying and referred to Whistleblowing Policies.

It was common case that the complainant worked for the respondent as described. His vast experience was acknowledged, and his role oversaw the activities of self-employed agents.

The Respondent outlined the “T “system as a loyalty programme which provides a cash payment in response to a positive recommendation. Payment is contingent on business completion.

On 23 October 2018, the company was placed on notice by its protected help line that an anonymous caller had reported alleged malpractice concerning the “T “system. An internal investigation was set in motion which prompted a full investigation by a Risk Officer. This probed the practice surrounding “T “within the company network.

A month later, on November 22, the protected help line reported another anonymous call regarding bullying directed at the complainant and 3 other staff regarding “T “.

The Complainant submitted his resignation 9 days after this call. He attributed his departure mainly to spending €500 on fuel per month in travelling to and from work. He also mentioned the “T “as a factor, but did not avail of a suggested contact with HR. The Complainant told his Manager that he had found new work closer to home.

The respondent received a completed exit interview survey on December 1 which cited his reasons for leaving as improved work life balance, enhance career prospects and location.

On December 5, the Respondent hosted the complainant at an Investigatory meeting on “T “related allegations. The complainant recalled the Power Point Presentation of mid October 2018 regarding the variance in “T “. He told the investigation that it was not right, but the speaker had given him to understand that the practice had been endorsed by a higher level.

The Complainant also told the investigation that he had queried whether “spot checks “were undertaken on “T “at a subsequent meeting with the Risk Manager and had been assured in the positive. The Complainant had refuted that he had been placed under pressure to operate the revised “T “instead, it was a management instruction.

The Complainant went on to explain his frustration surrounding the company’s heeding of agents concerns of “T “when his stated concerns had gone unheeded.

His experience with “T “was corroborated by two of his colleagues at investigation.

The Investigation concluded that the complainant had been asked to operate “T “outside of the agreed criteria but did not conclude that the complainant had not been bullied in doing so. An extensive Disciplinary process followed. On 15 February 2019 the complainant was informed that his complaints had been partially upheld.

The Respondent disputed that the complainant was forced to resign or that his resignation amounted to a constructive dismissal in accordance with the Unfair Dismissals Acts. The Complainant was aware of the procedural Investigative framework regarding “T “and the fact that the company were taking the matter very seriously. He participated fully in the Inquiry.

Instead, the complainant left to take up new work closer to home and no fundamental breach of contract had taken place and the respondent had conducted matters reasonably in investigating “T “and reversing an unsafe practice.

The Respondent concluded that the complainant had failed to discharge the burden of proof necessary for a Constructive Dismissal. He had not raised or processed a grievance through his contract. In this, the respondent relied on EAT jurisprudence in

Conway V Ulster Bank ltd UD 142/1987

Harrold V St Michaels House UD 112/2004 and Gregory V Canon Hygienic products UD 283/1992

The Respondent asked for a consideration of the short passage of time between the complainant raising his concerns on “T “to the date of his resignation without recourse to a formal grievance. This did not permit an adequate time frame in which to investigate his concerns.

Evidence of Mr B, Complainants Line Manager:

Mr B addressed the complainants stated reasons for leaving as cost of travel to work and his having a young family. He facilitated his prompt start in his new job without requiring notice. He did not recall a discussion on “T “but confirmed that an investigation was under way.

Evidence of Ms A, Human Resources Manager

Ms A told the hearing that she had visited the southern division over 3 days during November 2018.She was aware that the site was unsettled but nothing had been raised formally. She confirmed that the Protected phone line was highlighted through Poster display.

The Respondent concluded by stressing the responsible and measured steps taken by the company to cease the revised practice in “T “. The flawed practice had ceased, and the status quo prevailed. There were no circumstances to justify an involuntary dismissal.

I have carefully considered both parties oral and written submissions in this case. I have listened carefully to the evidence adduced and the facts which emerged.

The case has not been made by the complainant that he made a protected disclosure on November 2

From the outset, I think it important for me to describe how the Law recognises a Constructive Dismissal.

Section 1 of the Unfair Dismissals Act 1977 recognises an involuntary termination of employment as

S.1(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which , because of the conduct of the employer , the employee was or would have been entitled , or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer .

This place the burden of proof on the complainant in this case and it is a high burden.

The Inquiry addresses both tests.

1. The Contract Test

The Complainant must argue “entitlement “to terminate the contract

This is reflected in the succinct words of Lord Denning in Western Excavating (ECC) ltd V Sharp [1978] IRLR 322

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself as discharged from any further performance “

He goes on to point out that:

But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains, for if he continues for any length of time without leaving, he will lose the right to treat himself as discharged. He will be regarded as having elected to affirm the contract.

In this Lord Denning stated a preference for considering a claim for constructive dismissal reliant more on the “contract test “He pronounced an apprehension regarding the second test of “reasonableness “

It has led to acute differences of opinions. It has led to findings of constructive dismissal on the most whimsical grounds “

The Contract been applied in Ireland In Higgins and Donnelly Mirrors ltd UD 104/1979

2 Reasonableness Test

This test refers to a consideration of the conduct of both parties with a emphasise on an objective assessment to ascertain whether having regard for all the circumstances, was it reasonable for the employee to have resigned?

It has been applied in Conway V Ulster Bank UD 474/1981, Smith V RSA Ireland ltd UD 1673/2013and Berber V Dunnes Stores ltd 2009 IESC 10

In this case, I am obliged to consider the facts as raised under both tests before I decide whether the complainant has proven his case.

I begin with a short analysis of the facts. The Complainant was clearly very experienced in the role of Home-based Finance. By the time of the events of this case, he had worked as a self-employed agent, customer service manager and laterally as a Development Manager from May 2018. This told me that he had an in-depth knowledge of the business. I did pick up that he had a sense of restlessness regarding supports available to him in the company and he referred several times in evidence to a more defined communication forum available in the UK. However, the complainant has not expressed any tangible concerns regarding his position until October 2018, specifically the “T “presentation.

I accept that he was incredulous regarding the liberties taken by the revised practice in “T “. I accept that he correctly identified it as wrong and unsound practice. I accept that he made key inquiries on that day to ascertain for himself whether this revised practice enjoyed company approval. He was further shocked to be told it had been endorsed by his Manager and those above him. There is no doubt that the complainant had a high level of ethical concern and dilemma on the evening of October 16, 2018. He then followed through on the instruction to appraise the 9 self employed agents on the revisions in “T” and delegated the revised practice to them.

He did not leave it there, he raised the matter at a “Fraud “presentation on October 23 and felt that he got nowhere and was not heard.

However, I learned at hearing that the first call to the helpline was recorded on the same day at 4pm. From my reading of the record of this call, it was clearly titled “Dishonest behaviour -Fraud” whereas the Complainants recorded call on November 22 was entitled “Human Resources /Bullying “and named his Manager as the alleged Protagonist.

The First call declared an expectation that” the practice be investigated as it makes the employees who are doing the right thing look bad”. The Second call declared an expectation that a Senior Manager would contact him.

On November 22, the complainants call had been pre-dated by another expression of concern regarding “T “.

It is important for me to reflect that the revised practice of “T “reverted to the status quo on November 8, 2018. Three weeks following the first instruction. This was not a seamless or even an automatic process. The first call to the help line on October 23 seems to have triggered an immediate scrutiny by the respondent which led to the revision in “T “It is this action which has troubled the complainant most.

The Complainant has pointed to a disenchantment with his Manager in relation to being directed to undertake a clearly unpalatable task in delegation something so financially unsound. I clarified the Organisational Governance Chart with him and was satisfied that there were two levels of higher authority open to him on October 23 which were not utilised by him.

I do not wish to stray in a “whimsical consideration “here but I have some understanding of the ethical dilemma the complainant spoke about, he had a lonely position of having identified a flawed practice and he wished to navigate his concerns but was in my opinion impeded by his lack of confidence. He accepted that the Speaker on 16 Oct had delegated authority to revise “T “. It may have been useful for him to test that premise at the highest level of the business. I found that he clearly internalised his concerns and “followed orders “reluctantly. However, I am satisfied that he raised his concerns to all but got lost in that process.

Everything changed for the complainant by his own evidence when he was informed of the revision to the status quo in “T “on November 8. He was clear that this U turn had been influenced by Agents who he believed that had been heeded over him. This serve as his “last straw” moment and crystallised his decision to leave.

I fully accept that that the Complainant carried some trauma regarding “T” he did not submit medical evidence of same, but he was very troubled by what he understood he was compelled to do in the name of the company.

However, he did not formalise his concerns until November 22, 2018 through the help line. By then, his disquiet was firmly directed at the pressure he understood that he and his colleagues had been faced with in directing agents in a known wrong practice. This is a slightly different topic that the October 23 submitted concern on the practice itself. He confirmed in this report that he was open to discussing this further and participated fully in the investigative process. However, by 22 November, it had become a rear-guard action set amidst several parallel enquiries.

The Respondent submitted that the “T” revision was addressed in real time once concerns were raised. For me, at least, this raises a concern regarding real time Governance as to how such an exalted practice could thrive in such a regulated industry. However, the practice ceased summarily following higher level intervention , elaborate and extensive corrective action followed this.

The Respondent accepted the complainants call through their protected helpline and affixed the November call of concern to the parallel investigation. I could not establish any human interaction around just where this was explained to the complainant. This fell short of best practice in my opinion.

I found the human relations gap between the “safe call “and the December 5 to be pronounced, however, by then the complainant had made his mind up to go and had terminated his contract in favour of new work.

Through a large part of this case, I formed the view that the complainant had a strong desire to ventilate the events as he experienced them. I was happy to listen to his submissions. However, this suggested to me that this was unfinished business and unspoken words from his employment. This caused me to review the events surrounding his exit, which was hastened by his being allowed to leave to take up new work on 7 December 2018. He did not serve notice and did not say what he wanted to say to his employer before he left. From the Respondent point of view, they did provide him an opportunity to ventilate his concerns, but he did not avail of them. I note that the complainant referred his case to the WRC on 21 May 2019. This was almost 6 months after his employment had concluded.

My role is to decide whether a repudiatory breach in contract occurred or whether his action of termination of employment was reasonable in response to the circumstances he endured?

I have thought a lot about these tests and find that while the Complainant was requested to participate in an unsound financial practice, he has a protective clause in his contract of employment

It is your responsibility to effectively manage the section of Agents to which you are assigned either permanently or temporarily to maximise profitability. You will perform such duties as may be reasonably required of you.

This is couched by compliance measures for the Financial Industry and enshrined by Section 15 on the Grievance Procedure, which permits recourse to “your Managers superior “. This was not undertaken by the complainant and sadly serves as a fatal flaw in his case.

I am not satisfied that the complainants were faced with the sole option of resignation on November 8 or any other date thereafter. Instead, I have identified that he was struggling in his job and work life balance. Primarily, he became angry that someone was heard over him, who may have been junior to him at the company. I accept that prompted him to feel isolated and humiliated as he had been “first out of the traps “with his concerns regarding “T “

However, while I expressed serious misgivings about the longevity of the revised “T “in the company, I am satisfied that the complainant was proximate to the revised “T “for a period of 3 weeks and he had done all he could informally during that time to raise concerns to his subordinates and line Manager. These circumstances did not warrant an involuntary termination on his behalf. This is a case which would have benefitted greatly by representation as permitted in the respondent policies.

I did have a concern that the Respondent conflated the allegation of bullying into a Fiduciary Inquiry. However , the complainant did not advance an appeal of this outcome .

He did not utilise the breadth of the company procedures in seeking to resolve his core concern of humiliation and alienation . I appreciate that he carried a serious conscientious objection to the proposed practice of “ T “ but as a seasoned manager , he was required to do much more to resolve issues prior to leaving . Conway / Ulster Bank .

I have to conclude that the complainant has not experienced a repudiatory breach of contract nor was it reasonable for him to resign from his position of Developmental manager . I have identified that “ T “ an its fallout was not the main reason why he left . He has not attained the necessary burden of proof .

The claim is not well founded.

Decision:

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

I have found the claim for constructive dismissal to be not well founded .

Claim for Constructive Dismissal