Complainant

Respondent

Anonymised Parties

A Retail Manager

A Retail Group

Representatives

Glenn Kearney, McInerney Solicitors

Mr Hannaway

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-00031511-001

10/10/2019

The Complainant commenced employment with the Respondent on 16 August 2017 as a Store Manager where she managed between 10 – 12 employees. The Complainant worked 40 hours earning a monthly net salary of €2,698.72. She resigned on 11 March 2019 giving 4 weeks’ notice as per her contract of employment.

The Complainant submitted a claim on 10 October 2019 stating she was constructively dismissed from her employment.

Both parties were given an opportunity to present their case and cross examine. The following is a summary only of the written and oral submissions made in this case with all the evidence presented having been carefully considered.

It was the Complainant’s case that having initially enjoyed her role with the Respondent the working environment deteriorated.

The Complainant pointed to two Exit Interviews of former employees dated on 6 July 2018 and 22 August 2018 where allegations were made against the Complainant as the reason for the change in the workplace. The grievance had been raised by one of the leavers prior to her decision to leave which was accepted by the Complainant has having been resolved. The Complainant noted that she would usually carry out the Exit interviews. It was raised on behalf of the Complainant that there were concerns around the Exit Interviews – one was unsigned, one had an additional typed statement rather than handwritten notes, another employee was referred to in the Exit Interview but was not brought in for review by the Respondent.

At the end of September 2018, the Complainant had a sit-down with the Cluster Manager regarding the allegations set out in the Exit Interviews. The outcome of the meeting was that the Complainant would reflect on the issues raised and the Cluster Manager requested that she come back with three learnings from the Exit Interviews. It was the Complainant’s evidence that the Cluster Manager was frustrated by her refusal to provide the three learnings and escalated the matter to the HR Manager.

Following this the Complainant gave evidence that the Cluster Manager avoided her after the meeting. Another example was given when the Cluster Manager went to the other Deputy Manager or Supervisor rather than the Complainant to undo displays the Complainant put together. The Cluster Manager requested the staff rosters from September 2018 for approval, something that the Complainant stated she did not do for other stores.

On 5 October 2019, the Cluster Manager requested the Complainant’s Personal Development Plan (PDP). The Complainant stated she did not provide her PDP as she felt the focus would be Exit Interviews. Further requests came from the Cluster Manager for the PDP.

The Complainant described the next meeting which took place in November 2018 with the Cluster Manager and unusually the HR Manager, but stated she was happy about this. She noted there was no agenda provided however she was aware the PDP would be discussed. She gave evidence that both Managers had a drafted script from which they read. The Complainant felt she was not given an opportunity to reply at this meeting. She felt deflated that when she left the meeting stating that the way the Managers addressed her was “humiliating” and “destroyed my confidence”.

A follow up meeting was scheduled for 12 December 2018 where the Complainant handed a letter requesting that a contact person be present at the meeting in accordance with Company Handbook. At this meeting the Complainant was advised she did not require a contact person. The Complainant raised her concerns about working in the same store as the Cluster Manager but gave evidence the HR Manager was taking sides. It was noted that the HR Manager asked both parties to meet to discuss the issues they were having and put a plan in place. The Complainant emailed the HR Manager in January 2019 with her plan. The HR Manager shared the Cluster Manager’s response with the Complainant.

The Complainant than requested a sit-down meeting with the Cluster and HR Manager on 4 February 2019 to express her ongoing issues in the workplace and her relationship with the Cluster Manager. The Complainant gave evidence that the Cluster Manager asked a visiting store manager if she wanted a coffee but did not ask the Complainant. She stated she rarely spoke to her instead went to the Deputy Store Manager to give directions which resulted in confusion among the staff.

The Complainant felt that this meeting did not resolve the issues she raised and felt she had no option but to resign from her position on 11 March 2019 giving four weeks’ notice which she worked.

Under cross examination the Complainant accepted that there was sit down meetings arranged in February 2019 with the Cluster Manager but only two took place due to sick leave and annual leave.

The Complainant accepted that she stated in an email dated 5 March 2019 to the HR Manager that the weekly meetings with the Cluster Manager were “going well we are communicating a lot more and any issues are being spoken about there and then so it good from that perspective.”

Mr Hannaway for the Respondent raised the Retail Excellence Management Awards Course which commenced on 6 March 2019 in Dublin. The Complainant accepted that she signed up for the course in February 2019 and attended the first workshop, an overnight in Dublin paid for by the Respondent despite her assertion that she was unhappy in the workplace. She accepted it was a big commitment for the Respondent and that it demonstrated they held her in high regard. The Complainant stated she had come back from sick leave and it was when she had time to think, did she conclude she could not see things changing with the Cluster Manager.

Cluster Manager

The Cluster Manager gave evidence that she did not spend much time with the Complainant when she commenced employment in August 2017 as she was initially on maternity leave and then she was focused on another store. She described her office being located within the store. She gave evidence that it was always the case that the Cluster Manager would have rolled up their sleeves and helped out when the floor was busy. She stated there was very little time spent with the Complainant as she was required to travel 3-4 days a week to her other 6 stores and when in the Complainant’s store was in her office on her laptop or meetings. She calculated her time on the shop floor to be between 5-10% of her week.

The Cluster Manager described her relationship with the other employees in the store as being one of long standing as he was previously the Store Manager and the employees were familiar with her. She had concerns when staff being to leave particularly those who had been with the company for many years. It was a company instruction that the Cluster Manager carry out the exit interviews, so therefore she met with two of the four leavers.

The Cluster Manager described the PDP process where all managers had a deadline to complete the forms by October 2018. She had to follow up with the Complainant on two occasions for her feedback and received it in November 2018.

She noted there was a focus on the Complainant’s PDP what had been said in the Exit Interviews and requested that she reflect on the points raised.  

She described a situation in November 2018 at a sales event which required “all hands-on deck” when the Complainant left before closing and was off the following day, so things were left unfinished. The Cluster Manager felt that there was no team direction and was unhappy with the way things were left on that occasion.

Evidence was given that all managers would send their rosters for approval to the Cluster Manager.

In response as to whether the follow up meeting to the November performance meeting was the norm, the Cluster Manager admitted it was not but considering what had been discussed she felt it necessary. She described the meeting as being positive and negative. She stated that both herself and the Complainant agreed they would send actions to each other for discussion.

The Cluster Manager stated the January meeting was supposed to be between the HR Manager and the Complainant but due to annual leave left it to her where she tried to arrange to meet over a coffee. The Complainant was not comfortable with this arrangement and consequently, a meeting room was booked off site. She agreed the HR Manager had an agenda but did not share it with the Cluster Manager as well as the Complainant.

The Cluster Manager gave evidence that the they agreed to meet on a Monday for breakfast in a local café to discuss the week ahead. They also agreed to share a note of their issues with each other to allow them to discuss it. The Cluster Manager submitted her but did not receive the Complainant’s notes.

The meetings held between the two parties were described as very informal, held in the canteen.

The Cluster Manager described the commitment and cost involved in the Retail Excellence course and how only the best managers were selected for the course. She described her “genuine shock” at the Complainant’s decision to resign in March as he had only started the course on 6 March 2019 and there had been no issues around that time.

The Cluster Manager confirmed the Complainant continued to work her month-long notice and never sought for a shorter period of to negotiate payment in lieu. The Complainant was given a gift from the store and a card on her last day at work.

Under cross examination the Cluster Manager stated that the issues in the Exit Interviews were normal store issues. She did accept that there was a focus on the high level of staff turnover. She felt the issues were raised in November, dealt with and everyone moved on. The focus at that time year was sales.

Group HR Manager

The Group HR Manager gave evidence that the Complainant was a standout manager describing her as one of the top three managers in Ireland. An example of a large corporate sale for which the Complainant secured. The store won a county chamber customer service award.

The Respondent had a PDP in place. The Group HR Manager described this process as being a great opportunity for employees to openly discuss matters with management.

The HR Manager gave evidence that she received the Complainant’s letter of 12 December 2018 requesting a contact person. Having explained it was not a disciplinary she also confirmed that she asked the Complainant if she was comfortable to continue which she was. The HR Manager gave evidence that when the Complainant asked about her prepared notes, she to set them aside.   The meeting continued as intended.

The HR Manager was of the view that the follow up meeting of 19 January 2019 resulted in a positive outcome. It was suggested that both the Cluster Manager and Complainant come together on a weekly basis over a coffee, in a less formal setting, to discuss the workplan. Consequently, the HR Manager felt that her input was not needed going forward.

The HR Manager gave evidence of her meeting in February 2019 at the request of the Complainant and the agreement that Cluster Manager and Complainant would meet every Monday.

The email of 4 March 2019 which the HR Manager sent to the Complainant requesting an update was opened. The HR Manager formed the view that things were going well with the two parties from the Complainant’s response.

Evidence was given of the surprise the HR Manager felt when she received the Complainant’s resignation on 11 March 2019. She said she was on annual leave but felt it necessary to respond as soon as she read it. The two parties spoke on 14 March 2019 and the HR Manager suggested that the Complainant take a few days to reflect before making her final decision. The offer of having the parties meet with the HR Manager was made or in the alternatively, if the Complainant felt uncomfortable the offer of having an independent person present was made. A follow up call was scheduled for 19 March 2019. During this call the Complainant declined the offer of having an independent party present at a meeting with the Cluster Manager

On 6 April 2019, the Complainant declined an Exit Interview with the HR Manager.

Under cross examination the HR Manager did not agree with the Complainant’s Solicitor when he suggested she was on notice that the Complainant had a grievance when she requested a “contact person” at the meeting. The HR Manager referred to the role of a “contact person” under the Bullying and Harassment Policy in the Handbook which was not applicable in the Complainant’s case. Reference was again made to the offer of having an independent person attend in an effort Complainant’s concerns in March 2019 which was declined by the Complainant.

Having carefully considered the evidence of both sides, there is very little in conflict between the parties. The submissions of both parties were, in the main, supported by undisputed emails and notes.

Consequently, the next question is whether due to the conduct of the Respondent, the Complainant had no alternative but to terminate her position.

Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal as follows: -

“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”

Section 6(1) of the Act states: -

6.(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

A constructive dismissal claims places the burden of proof on the Complainant to establish that as a result of the Respondent’s conduct the Complainant had no option but to terminate their employment. They also must demonstrate that they were justified in their decision and it was reasonable for them to resign.

In UD 1146/2011 the Employment Appeals Tribunal (EAT) held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

It is also well established that the Complainant must exhaust the Company’s internal grievance procedures in an effort to resolve the grievance prior to resigning and initiating a claim for unfair dismissal. The EAT in McCormack v Dunnes StoresUD 1421/2008 held:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

The EAT further emphasised the need to seek to resolved matters internally as in the first instance in M Reid v Oracle EMEA Ltd UD1350/2014:

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

There are three key facts established that are of consequential importance in this case:

•         The Complainant failed to formal raise an internal grievance despite acknowledging she had a copy of the Employee Handbook and that she read it in advance of drafting her letter of 12 December 2018. The parties had several meetings between November 2018 – April 2019 where the Complainant was actively engaged with by the Cluster Manager and Group HR Manager. The timely responses and efforts made by the Group HR Manager are a clear demonstration of the reasonable efforts the Respondent made in relation to the Complainant. Despite the number of meetings, the Complainant never took the opportunity to formally raise a grievance. Such meetings alone could not be construed as amounting to a grievance. The Complainant accepted under cross examination that she had received third level educational training in HR.

•         The Complainant’s email response to the Group HR Manager dated 5 March 2019 advising her the meetings with the Cluster Manager were going well with open communication.

·         The Complainant declined the offer of having an independent third party meet with her and the Cluster Manager.

Applying the law to the facts of this case, the Complainant has failed to establish she had no option but to resign her position due to the Respondent’s conduct. I find that the Complainant failed to demonstrate that she was justified in her decision to resign and I am satisfied that it was not reasonable for her to do so. Accordingly, I find that the complainant was not constructively dismissed.

Having completed my investigation of this complaint and in accordance with Section 8 of the Unfair Dismissals Act, 1977 I issue the following decision.

I find in all the circumstances, I cannot find that the Respondent’s conduct was so unreasonable as to make it impossible for the Complainant to continue in the employment. Nor could it justify the Complainant terminating her employment by way of constructive dismissal.

Accordingly, I must find that the complainant was not constructively dismissed.

Constructive Dismissal- Grievance – Failure to raise internal grievance – Resignation