Complainant

Respondent

Anonymised Parties

An Electrical Wholesaler Manager

An Electrical Wholesaler

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-00028793-001

31/05/2019

The following is a summary of the Complainant’s case.

The Complainant claims that he was the manager of the Respondent’s centre. The Complainant said that he had agreed to stay on in his role as manager until the end of March 2019, he indicated to the managing director that he was working on a number of projects and he wanted to complete them before he vacated his role. He said that it was becoming obvious that Mr. A was finding it difficult to find his replacement and asked him to stay on in the role beyond the annual stocktake at end of June into July 2019. The Complainant said that he agreed and told Mr. A that he intended moving over to a role in internal sales when the new Manager was in place. A position would be coming up there following some internal reorganisation.

He said that on 16 May 2019 Mr. A visited the branch and he was in and out during the day at meetings. The Complainant said there was an ongoing issue with one of the employees, Mr. B, who owed up on €5,000 for goods taken from the business on staff discount. Mr. A knew about this and asked the Complainant to speak with Mr. B, who subsequently promised to pay for what he owed but he never did. The Complainant said that on the morning of 16 May he asked Mr. B to set out in writing his proposed payment for these goods by lunchtime. He said that he approached Mr. B while he was putting goods into his car at lunchtime and Mr. B “immediately exploded”. He shouted to him and slammed the door against him and further pushed it against him. He was cursing and threatening the Complainant all the time. The Complainant said that he walked away from him. He tried to calm him down, but he would not stop. Mr. B followed him into the store and around the store and demanded him to come outside and sort this out "man to man". The Complainant said that Mr. B jammed his foot in the office door when the Complainant tried to close it. The Complainant said that he was badly shaken and was afraid to be left on his own with him.

The Complainant said that he told Mr. A everything when he came into his office. Mr. A asked the Complainant to play back the incidents on CCTV and then called in Mr. B, who the Complainant said, admitted that he had put his foot in the door in an attempt to push his way into the office. Mr. A told him his behaviour was unacceptable and he sent him out of the room. He turned and asked the Complainant what he wanted to do. The Complainant said that he should not have to take this behaviour from anyone and “either he goes out the door this minute or I do”. Mr. B was sent home. He told Mr. B that he was not being suspended, just to go home and wait to be contacted. He told him not to contact the Complainant. Mr. A asked the Complainant to get a copy of the CCTV and to think things over that evening.

The Complainant said that he went home very confused, upset and got very little sleep. He made an appointment with his doctor for the following day and was certified unfit for work. The Complainant said that he received a number of phone calls and messages from both Mr. A and Mr. B the following day. He said that he informed Mr. A at 3pm on 17 May that he was certified out of work on sick leave. The Complainant said that he was medically unfit to engage with anyone at that time. At 4.29pm he received a text from Mr. A saying that since he was out, he had told Mr. B to come back to work the following Monday. The Complainant said he felt that in a series of further messages it was like Mr. A was trying to blame him for what had happened.

The Complainant said that he was getting more stressed out with the whole thing. He wrote to Mr. A saying that he was unable to return to work when the person that assaulted him was still there and it was like a “constructive dismissal” situation. The Complainant said that Mr. A informed him that he was handing the matter over to another Manager, from a different region, to undertake the investigation.

The Complainant said that due to the constant harassment in the form of emails, phone calls, whatsapp messages, while he was out sick, his daughter asked Mr. A to stop contacting him, that it was having a detrimental effect on his physical and mental health and to correspond through herself in the future.

The Complainant said that the person appointed to carry out the investigation Mr. E, is a branch manager, he is not impartial, has no qualifications or training in this area and was not in any way suitable to investigation. The Complainant said that Mr. E just took statements from staff members to the effect "hear no evil, see no evil". He said that naturally people don't want to put their own jobs at risk and cooperated. He said Mr. A was just attempting to sweep the matter under the carpet.

The Complainant said that his employer terminated his employment on 26 June 2019, however, he said that his employment effectively terminated on 16 May 2019 when he was assaulted at work. The Complainant said that he believes that he would still be working there until normal retirement date if this incident had not happened. He said he was unfairly dismissed.

The following is a summary of the Respondent’s case.

The Respondent is a distributor to the electrical wholesale trade and has a number of individual profit centres which operate largely as stand-alone businesses. The Complainant started employment as profit centre manager (PCM) on 20 February 2018 at a salary of €45,000 per annum. The Respondent said that the Complainant resigned at a meeting with Mr. A on 21 January 2019. He was asked to stay on until a replacement was found. His employment with the Respondent ended as of on 28 June 2019 as was agreed.

The Respondent said it's managing director Mr. B, at the time, wrote to the Complainant on 13

February 2018 to offer him employment, where he attached to the letter a written statement of the

terms of his employment pursuant to the terms of Employment (Information) Acts 1994–2012 and the Respondent's handbook of employment. On 20 February 2018, the Complainant signed to acknowledge that he had received, read and understood the statement and handbook which formed part of his contract of employment. The statement informed the Complainant that if he had any questions or grievances about his employment, he could raise them with his manager. The procedure explained that any grievance should be raised with the manager informally in the first instance, and in writing, if it remained unresolved.

Mr. A later took over as Managing Director and at a meeting on 21 January 2019, the Complainant told Mr. A that he was resigning because he did not feel suited to the Respondent’s decentralised and autonomous business model. Mr. A said that he was disappointed but recognised that the Complainant struggled with some aspects of his role. However, the timing of his resignation was difficult because the profit centres in the region were preparing for their forecast meetings at which the performance of each profit centre was discussed with the owners of the business. It would be Mr. A's first as managing director. The Complainant confirmed that he was not moving to a competitor and Mr. A asked the Complainant to delay his departure until a replacement was found and the profit centre was refurbished. The Complainant later agreed to stay on until Friday 28 June 2019. Mr. A said that he agreed to increase the Complainant's salary accordingly.

The Respondent said that Mr. A confirmed the discussion in an e-mail to the Complainant on 21 February 2019 and asked him to confirm the agreement or whether there was anything else that he thought should be included or clarified. The Respondent said that the Complainant responded the same day saying, “That covers everything we agreed. I'll carry on as usual.”

On 27 March 2019, Mr. A met an internal salesperson, Mr. B, to give him his profit share cheque, which acts as a bonus to reward employees' efforts in the past and incentivise them to remain with the business and work hard to help the business achieve profit in the future. The sum was based on the Complainant's commendation on Mr. B's efforts and his recommendation that he be given a company car so that he could begin selling externally. The Respondent said that Mr. A noticed that there were transactions on a work account that identified as goods bought at a staff discount, but not paid for on the same day. Mr. A said he explained to the Complainant that was not good practice and to speak with Mr. B.

On 2 May 2019, Mr. A issued a memo to everyone in the Northern Ireland and the Republic of Ireland branches informing them that; “[the Complainant] has advised me of his wish to relinquish his role as PCM and pursue other career opportunities. [He] leaves the business on Friday 28th June and will assist with the running of [the Respondent] until that date. I wish to thank [him] for his contribution to [the Respondent] in the short time he has been there and wish him every success for the future. A separate memo will be circulated regarding this position.”

Mr. A issued a second memo that day to the effect: “Following “[the Complainant] decision to relinquish his role as [the Respondent] an excellent opportunity now arises for an ambitious person in this Profit Centre. The business is located … and operates with an experienced team of 12 from a 7300 sq. ft premises and covers a large and varied customer base throughout the local area. If you feel you have the necessary drive, ambition and ability to take on this exciting challenge please apply in the strictest confidence to … Closing date for applications is Friday 24th May 2019.”

Mr. A went to the centre on 16 May 2019 for a scheduled visit. Mr. B said that he wished to speak to him. When Mr. A told the Complainant, he became angry and accused Mr. B of going over his head. He said that Mr. B had still not paid for his goods and that he had promised to do so. The Complainant was going to prepare a payment plan. Mr. A said that there was no need for a payment plan, that Mr. B had the goods and should pay for them immediately. Mr. A returned later that day after an external meeting. The Complainant told him that he had demanded a payment plan from Mr. B, an argument had ensued in the car park in which Mr. B had hit him twice with his car door, become aggressive and threatened him. He claimed that Mr. B. had followed him to his office and used his foot to prevent him closing the door. He had then called the Complainant a coward.

Mr. A asked the Complainant what he wished to do because, if true, it would warrant dismissal. Mr. A reviewed CCTV footage of the incident in the car park and was said that it did not show Mr. B hitting the Complainant with his car door. He spoke to a witness, Mr. D, who said that he refused to get involved. They called Mr. B into the office and he denied deliberately hitting the Complainant with his car door, being aggressive or threatening him. He said that he had put his foot in the door and apologised for that. The Respondent said that the Complainant did not accept that apology.

Mr. A said that he sent Mr. B home. The Respondent said that the Complainant was very upset and said 'either [Mr. B] goes, or I do’. Mr. A said that it explained that the business would need to follow its formal disciplinary process before deciding on anything and agreed to speak with him the following morning.

The Respondent said that the next day, 17 May 2019, the Complainant did not come to work. He did not contact the workplace until later in the day and said he would be out on sick leave. Mr A met Mr B offsite and said since the Complainant would be absent, he should return to work. The Respondent said that the Complainant had not responded to Mr. A's earlier messages about how he wished to proceed with the incident. The Respondent said that the Complainant returned to the Centre at the weekend, with very few around and took with him the CCTV footage.

The Respondent said that Mr. A arranged for the incident between the Complainant and Mr. B to be

formally investigated. He said that he made several attempts to contact the Complainant. However, he was not getting a reply. He said that the Complainant's daughter, made contact with him and said that her father was ill and could not assist in the investigation. The Respondent said that Mr. E, a PCM, from another region, interviewed Mr. B, who had now been suspended from work until the investigation was completed. Mr. B again denied threatening or abusing the Complainant. The Respondent said that other members of staff were interviewed, and their account of events did not fully confirm the Complainant’s version of events. The Respondent said that the Complainant's employment ended on Friday 28 June as was planned earlier in the year. However, he still had the Respondent's car, its laptop and company mobile phone. It said that despite requests from Mr. A, he has not returned them at that point in time.

The Respondent said that on 3 July 2019, the Complainant contacted the Respondent to say that he was now prepared to assist in its investigation. The Respondent said that Mr. E arranged to meet the Complainant and interview him like he had done with the other members of staff.

The Respondent said that it did not dismiss the Complainant, he had resigned in January 2019, and that resignation was effective from on 28 June 2019 as was agreed. The Respondent said that there was no other arrangement for him to fill any other post in the company. The Complainant had relinquished his post and it was planning to recruit a new manager who would have responsibility to determine the branch requirements. There was no other arrangement in place. The Complainant was not dismissed nor is it a case of constructive dismissal as he never left until his employment came to an end as of 28 June2019.

The Law

Section 1 of the Unfair Dismissals provides the following definition of “dismissal”:

“dismissal”, in relation to an employee, means—

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(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.”

The key material facts in this case, including the fact of dismissal, were very much in dispute between the parties. Accordingly, it is a matter for the Complainant to establish that he has been dismissed by the Respondent. 

It was not in dispute between the parties that the Complainant was a manager for the Respondent and was relinquishing his post after a discussion in January 2019. There was a difference of opinion as to why, but I am satisfied that nothing hangs on that fact. There was also a substantial difference of opinion as to what was happening when the Complainant stepped aside from his management role. The Complainant said that he was going to step into another role in the Respondent in internal sales as a post was about to become vacant. The Respondent said that was not the case, he was relinquishing his post to “pursue other career opportunities”; a new manager was coming who would determine his requirements. The Respondent said that it even had to check with the Complainant to ensure that he was not about to join a competitor before it considered asking him to stay on as its manager up to the end of June 2019.

What is factual here and undisputed is that two memos were sent by Mr. A within the Respondent’s staff in both Northern Irish and the Republic of Ireland branches on 2 May 2019 looking for the Complainant’s replacement. They read in turn,

“[the Complainant] has advised me of his wish to relinquish his role as PCM and pursue other career opportunities. [He] leaves the business on Friday 28th June and will assist with the running of [the Respondent] until that date. I wish to thank [him] for his contribution to [the Respondent] in the short time he has been there and wish him every success for the future. A separate memo will be circulated regarding this position.” [my emphasis added]

“Following “[the Complainant] decision to relinquish his role as [the Respondent] an excellent opportunity now arises for an ambitious person in this Profit Centre. The business is located … and operates with an experienced team of 12 from a 7300 sq. ft premises and covers a large and varied customer base throughout the local area. If you feel you have the necessary drive, ambition and ability to take on this exciting challenge please apply in the strictest confidence to … Closing date for applications Friday 24th May 2019.”

From the very clear wording of the emails, which it was established were sent to all staff including the Complainant and no issue was raised, that it was understood by the Respondent that the Complainant would “relinquish his role” to “pursue other career opportunities” and he “leaves the business in Friday 28th June”. On the balance of probabilities, I am satisfied that the situation at play here was that the Complainant’s employment was due to end on 28 June 2019. I have not been presented with alternative evidence to suggest anything else. Accordingly, I find that there was no dismissal.

I am satisfied that the key areas of conflict between the parties from the evidence in this case relates to matters that transpired from 16 May 2019 onwards. It is common case that the Complainant and Mr. B had an alteration. It is totally understandable that the Complainant was upset and his evidence, which I accept as genuine, was that this affected him greatly after that date and he was unable to operate within the workplace for some time. However, the Complainant has given clear evidence of what he expected the Respondent to do. He said that “either he [Mr. B] goes out the door this minute or I do”. He also took umbrage how the Respondent was trying to get in contact with him while he was on sick leave. He was upset that Mr. B was allowed to return to work while he was out. He felt that Mr. B should have been just dismissed and he was not accepting that another manager was asked to investigate matters, he questioned Mr. E’s motives and would not have the training or wherewithal to manage this properly. He held that all these matters collectively constituted constructive dismissal.

I have considered the entirety of the evidence and I cannot deem that the circumstances of the case lead to a conclusion of constructive dismissal. The Complainant was out on sick leave and unable to return to work when his contract came to an end. I note that the Respondent tried to keep in contact with him during this time. I note that the Complainant had not made himself available to the investigation until 3 July 2019 a period after the termination of his contract. I note the Respondent continued with the investigation and the Complainant was interviewed as part of that investigation.

I am satisfied that the unsavoury ending of the Complainant’s employment relationship has left him unhappy. He clearly demonstrated that in the presentation of his evidence at the hearing. However, I am mindful that the Respondent has to be given time to follow its own procedures for investigation of the matters. The Complainant has raised some questions as to the investigation, however he has not supported these allegations with any evidence to suggest that the process or the investigator was flawed. I am satisfied that the Complainant felt that the matter was cut and dry in his favour and could not accept that fact that a process needs to established first and foremost. However, the Respondent has a duty of care to all involved and carried out its investigation properly as per its procedure. I note the Complainant had stated that he was not in a position to assist in that investigation until July, unfortunately this would have not helped in expediting the investigation.

Accordingly, for all the aforesaid, I find that complaint for dismissal is not well founded.

I find that complaint is not well founded.

Unfair Dismissals Acts - relinquish his role – no dismissal