Complainant

Respondent

Anonymised Parties

National Field Sales Manager

Field marketing agency

Representatives

Self- represented

ARAG Legal Protection. Mr Barry O’ Mahony, B.L

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-00030617-001

03/09/2019

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

CA-00030618-001

03/09/2019

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

CA-00030619-001

03/09/2019

CA-00030617-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

This is a complaint of constructive dismissal taken under the Unfair Dismissals Acts 1977-2015

The complainant commenced employment with the respondent as a field manager on 2/1/2017.He states he worked up to 60 hours a week. His gross weekly wage was €673.13. He resigned on 4 March 2019. He submitted his complaints to the WRC on 3 September 2019.

CA 30618- 001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

CA 30619- 001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

Complainant withdrew these identical complaints.

CA CA-00030617-001 Complaint seeking adjudication under Section 8 of the Unfair Dismissals Act, 1977

This is a complaint of constructive dismissal. The complainant’s employment terminated on 4 March 2019

Jurisdictional point.

Date of dismissal and compliance with requirement to submit complaint within 6 months of the contravention.

The complainant refers to the respondent’s contention that having resigned his employment on 1 March and having submitted his complaint on 3 September, he is outside of the 6-month period within which he must submit a complaint of unfair dismissal. The complainant states that the correct date of his resignation is 4 March. He erred in the dates submitted in the WRC form submitted on the 3 September. He sent an email to the WRC on 19 September advising that the correct date of his resignation was 4 March and not 1 March as mistakenly stated.

The HR manager asked him not to attend a staff meeting on the 1 March. But he did receive an email from the HR manager to attend on the 4 March. He recollects that he started work at 9 am on 4 March and visited 3 stores on the northside of Dublin. He spoke to the duty managers in these stores to ensure that clients‘stock (healthcare products) for which the respondent was responsible for promoting in these stores was sufficiently stocked and visible. He did not record his activities on the 4 March nor was he ever required to do so. His only contact with the company offices on 4 March was to return the company car. He was not paid for this day.

Substantive complaint.

The complainant felt that he had no other choice but to offer his resignation.

The complainant states that he had a very successful 2 years in his position, where he had met and exceeded targets and had a positive review. But from November- December 2018 he was called to 5 meetings over a period of 5 weeks regarding performance issues. Prior to these meetings he had not received any review, evaluation or performance engagement, from any senior management. This first meeting or 'chat' (as described by the managing director) took place on 8 November 2018. The second 'chat', four days later (12 November 2018), opened with the managing director handing him a brief list of minutes from the previous meeting. The minutes of the meeting of 8 November recorded the MD’s statement “from my side this can’t continue”. The minutes listed the undertakings the complainant gave to minimise a recurrence of any problems. He understood the minutes to constitute notice as the MD would not clarify his position in relation to his employment when he questioned him about his future. He offered to take on any support available to achieve the improvements which the respondent required. However, no assistance was forthcoming. There were 3 more 'chats' had over the next four weeks resulting in the same attempts to create an adversarial dynamic in the relationship which he had with the company. He believed the series of 'chats' were designed to remove him from his position. He felt targeted by these conversations. He asked for a representative to accompany him to the meeting of the 12 November, but this was refused by the MD. He felt threatened. No solution was offered or requested to justify these 'chats' taking place. The complainant was asked to attend a meeting on the 19 /12 with the HR for a progress report. He was given no advance notice of the purpose of these meetings.

He was never informed that the meetings were part of a disciplinary process, but he understood that they were pre-disciplinary meetings. The respondent diligently took notes. He confirmed on cross examination that he had never requested minutes of any of the meetings. He was given no performance improvement plan, nor timelines. The meetings were designed to harass the complainant and to remove him from the business. No goals were set. There was no purpose to the meetings. Therefore, no benefit could come of the meetings.

Another factor contributing to his decision to resign was the fact that he had only 3 days of sick leave in the 2 years of his employment, yet on two of those days the respondent telephoned him.

The respondent asked the complainant to submit a letter of resignation. He submitted the first draft on 14 January to the HR manager. He did not retain a copy of the signed letter. He stated that he was being harassed and bullied in his letter of resignation (draft1). In this letter, he informed the respondent of the excessive workload, the long working hours necessary to complete the work, the impact the workload and hours were having on his health and the medical advice he had sought re same. He also advised of the shifting expectations and the lack of support for him in carrying out his role. He advised that he felt pressurised into resigning because of the health risks. He had previously conveyed these concerns Mr C, one of his managers. The respondent invited him to a meeting on 14 January in response to this letter (draft 1).

The respondent called the complainant to a meeting on the 14 January 2019 to challenge his resignation letter (draft 1) and to provide another letter of resignation which was more 'to their liking'. Contrary to what was asserted the MD never offered him the option of an investigation into the complaints submitted in draft 1. As requested, he did supply a second letter which is devoid of the complaints listed in the first draft. He requested to stay until he was replaced and to contribute to a seamless transition.

He received no written response to his second letter of resignation until the HR manager circulated an email to all staff on the 25 February announcing his departure on the 1 March.

He was targeted because he highlighted the endless working hours which he had been required to endure. This was as a result of ad hoc requests to cover other colleagues when out sick or unavailable. Some of these required almost 16-hour days covering over 600km of driving, resulting in 75 hour working week, which is considered reckless in other organisations. He had raised this issue with HR and also reported on teams who were also experiencing long hours including other field managers who also had dangerous levels of work being allocated

Unfortunately, the support was never offered, or the training needs identified, but the goal of removing him from his role remained the same.

In all of the circumstances his resignation was justified.

The complainant has not secured alternative employment.

Jurisdictional issue.

The respondent raised the jurisdictional issue of time limits. The complaint was lodged on 3 September 2019. The complainant resigned on 1 March. The respondent cites section 41 (6) of the Workplace Relations Act, 2015 which states as follows:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

Contested date of resignation.

The contravention occurred on the 1 March when the complainant resigned and not on the 4 March as claimed by the complainant after the submission of his complaint form to the WRC. The complaint is out of time.

The respondent submitted the complainant’s letter of resignation dated 14 January 2019. His contractual notice period was 4 weeks. He worked beyond his notice period. An email of 25 February to all staff from the HR manager confirmed that the complainant’s last day of work would be the 1 March. Concerning his claim that the HR manager requested him to come to the office on the 4 March, this is hearsay. The only requirement of him on 4 March was to return the company car. He had no other engagement with the company on that date.

Mr L, Managing Director gave evidence. He stated that the complainant was due to finish work on 1 March. The complainant did not work on 4 March. Mr L stated that the type of work which the complainant reports he was engaged in on 4 March was not the work of a field manager and is work appropriate to the staff who report to the complainant. There is a signing in and signing out process for those stores which the complainant states he visited. The respondent has no evidence that the complainant did sign in or out. Moreover, field managers have shared diaries and there was no entry for that day by the complainant. There are no templates for recording the activities of the field manager. Mr L cannot recall if he was in the office on the 4 March.

The only text sent to the complainant about coming into the office was a request for him to return the car.

The respondent submits that section 41 (6) of the Workplace Relations Act, 2015 denies jurisdiction to the Adjudicator to hear the complaint. Section 41(6)(8) allows for an extension of 6 months if the failure to refer the dispute “is due to reasonable cause”.

As to what constitutes reasonable cause, the respondent relies on Swanska V Carroll DWT38/2013 which states

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time”.

In the instant case, the complainant maintains that resigned on the 4 March and that his complaint is therefore within time. The respondent submits that not only is this incorrect, it is evidence of not presenting any reasonable cause for the delay. The respondent states that no reasonable cause exists. A mistake does not amount to reasonable cause.

The respondent submits that the adjudicator does not have jurisdiction to hear the complaint.

Substantive complaint.

Dismissal is disputed.

Without prejudice to the respondent’s position on the admissibility of the complaint of unfair dismissal, the respondent disputes that the complainant was dismissed. He voluntarily resigned his employment by way of letter dated 14 January to the MD. He was not asked to submit a letter of resignation.

The meetings of 8,12 November and 6 December of which the complainant complains and cites as a contributory factor in his decision to resign were meetings called by the respondent to address some of the respondent’s clients’ concerns about his service to them. The complainant had worked reasonably well in his position yet nonetheless, the respondent was entitled to raise performance concerns.

The issues identified to the complainant by the respondent included clients not being able to contact him, staff   being unable to reach him, lack of support for his direct reports, his team’s failure to complete monthly audits and his lack of awareness of same, his failure to complete required reports showing activities, lack of team meetings , excessive and unnecessary time on road. The respondent states that they offered him guidance and support, but they were not taken up by the complainant.

At the meeting on the 6 December, the complainant presented a plan designed to meet the respondent’s expectation in terms of reports, audits and time management. The respondent submitted copies of emails from November recording the meetings with the complainant and recording the MD’s statement stating that he, the MD, wanted to “fix” the problems.

The respondent opened the complainant’s unsigned resignation letter (draft 1), submitted to the HR manager on 14 January in which he listed an excessive workload, the long hours, and the adverse impact that this was having on his health, and the notification of 25 February to the staff that he was leaving on the 1 March. Upon receipt of this letter, the respondent offered him the option of an investigation into these complaints. He declined the investigation and rescinded this unsigned letter of resignation saying that he was having a “rant”. He continued beyond the end of his notice period which stands in contrast to his complaint that he had to resign because of the behaviour of the employer. Regarding the email of the 25 February, to which the complainant objected, staff were aware that he was leaving as they had to be advised of a replacement.

Prior to his resignation the complainant never made the respondent aware of any health issues. Nobody within the respondent’s employ required him to work the hours which he states he did, and he never raised the matter in a grievance procedure. He was advised to limit the amount of driving which according to the respondent amounted to 35 weeks per year.

Relevant Law.

The respondent refers to section 1 (b) of the Unfair dismissals Act, 1977 which defines a

“ 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 respondent submits that for a complaint of constructive dismissal to succeed, the complainant must demonstrate that the circumstances of his dismissal met one or two of the tests outlined in the Labour Court determination of Paris Bakery and Pastry Ltd v Mrzljak DWT 68/2014. These two tests are behaviour that amounts to a breach of contract and the second test is the reasonable test where the employer

“conducts his affairs, in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer”

In relation to a breach of a contractual term, the complainant has failed to identify any breach of his contract not to mention a breach sufficient to justify his resignation. Concerning the meetings with management characterised by the complainant as threatening, the respondent refers to the judgement of Charlton J in Ruffley V Board of Management of St Anne’s School, IESC33 which stated

“An employer is entitled to expect ordinary robustness from its employees. Correction and instruction are necessary in the functioning of any workplace,,,,,,, It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention.

The respondent was entitled to address concerns with the complainant. No breach of contract was involved here.

With regard to the reasonableness test, the respondent submits that the decision of Conway v Ulster Bank Ltd. UD 474/4/1981 applies in the instant case, and the failure of the complainant to activate the grievance procedure means that he has not discharged his obligations to exhaust the internal procedures apart altogether from declining the invite to have his complaints examined at the point of submitting his letter of resignation.

The respondent’s behaviour was not so unreasonable as to justify the complainant’s decision to terminate his employment.

Loss.

The respondent refers to the decision of Coad v Eurobase UD 138/2013 which requires the complainant “a reasonable amount of time each weekday in seeking work”.

Given that the complainant had completed his evidence, the respondent requested that a decision would issue on the jurisdictional point in the first instance.

I am obliged to establish if section 1 (b) of the Act of 1977 operates to validate the complaint of constructive dismissal in the instant case. Section 1 (b) states

“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.”

Jurisdictional point

But before I do so, I must examine the evidence to decide if section 8(2) of the Unfair Dismissals Act 1977 as amended operates to allow or deny me jurisdiction to hear this complaint.

When did the resignation occur?

There is conflicting evidence concerning the date of resignation and the consequential admissibility of the complaint. A date of resignation on the 1 March means the complainant failed to submit the complaint within the 6 months required of section 8(2) of the Unfair Dismissals Act 1977 as amended.

A resignation date of 4 March means the complaint is within time.

The respondent submitted a copy of the letter of resignation dated 14 January (shorn of any complaints), the notice provisions in the complainant’s contract of 4 weeks, the email of the 25 February confirming his end date as 1 March, his pay slips and Revenue documentation confirming his date of leaving was the 1 March. The MD gave credible evidence that the only possible reason for any text summoning him to the office on 4 March was to return the company car. The complainant’s own evidence was that he was advised not to attend a meeting on the 1 March. The complainant on the other hand builds his departure date as the 4 March based on a random, unauthorised, undocumented visit to 2-3 stores where he engaged in work that was the work of the staff who reported to him and he did not dispute this latter point. He accepts that he was not paid for the 4 March and on being questioned advised that he did not seek payment for same. He corrected the date of resignation after having been advised by the WRC that he was out of time. He did not challenge the email of the 25 February identifying 1 March as his departure date and in fact thanked the HR manager for suppling him with his finishing date.

The complainant’s behaviour – changing his letter of resignation, offering to work beyond his notice, reportedly going to stores on 4 March -might suggest that he was using his letter of resignation as a bargaining tool or that he had second thoughts about his resignation but he did not withdraw his resignation.

Given the complainant was informed of the importance of the date of resignation it is noticeable that the complainant had no evidence from the stores confirming his attendance on that day or any other evidence confirming that he worked on the 4 March. While It may be that the complainant did visit the named stores, I find that he did he did it without any knowledge or approval on the part of the employer. Given all these facts and circumstances it is difficult not to conclude that the date of resignation was the 1 March. I find that the complainant has therefore omitted to submit the complaint within the statutory time limits.

Section 8(2) of the Unfair Dismissals Acts, as amended by the Workplace Relations Act 2015 and other statutes, allows for an extension of the 6-month time limit for good and reasonable cause. As the complainant argued that his date of resignations was 4 March and as I have adjudicated on that point, no case has been made out for reasonable cause to extend the time limit as provided for in the Act of 1977 as amended.

I find that I do not have jurisdiction to hear this complaint.

I do not have jurisdiction to hear this complaint.

Constructive dismissal; date of resignation in dispute; jurisdiction to hear complaint