FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : TECH MAHINDRA BUSINESS SERVICES LIMITED (REPRESENTED BY IBEC) - AND - MR JOHN CURRY (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00012942 CA-00016999-001 This is an appeal by Mr. Curry, ‘the Complainant’, of a Decision by an Adjudication Officer, ‘AO’, that he had not been constructively dismissed by Tech Mahindra Business Service Ltd., ‘the Respondent’, contrary to the Unfair Dismissals Acts 1977 to 2015, ‘the Acts’. The Complainant worked for the Respondent from December 2015 to January 2018 as a Trainer. The Complainant states that he had problems with his employment with the Respondent from the outset. He states that he was promised a permanent job but when he joined the company, he discovered that his contract was for a fixed term. He states that he was promised an annual end of year bonus but, initially, this promise was denied by the Respondent. These matters were not resolved until the Complainant met the Head of Operations in August 2016 and, at the meeting, the Head of Operations stated that decisions to make him permanent and to pay his bonus had been made some time previously but had not been conveyed to him. The Complainant states that an issue had arisen about his start date, which was delayed due to a family bereavement but this had not been conveyed to his line manager, who telephoned him on the morning of the funeral. The Complainant states that he had over 30 years’ experience as a Trainer without ever being the subject of complaint until he trained a group in October 2016, following which a trainee made written comments about him of a highly unpleasant nature, in feedback documentation. Another trainee also made unpleasant comments about him. The Complainant requested that the Respondent carry out an investigation. The Respondent did not believe that it was necessary to do so as the view taken was that the comments were feedback and did not constitute complaints about the Complainant. The Complainant raised the issue on a number of occasions as he sought an investigation. The Respondent advised him that if he wished to pursue the matter he should do so through the Respondent’s internal grievance procedure. The Complainant states that this situation made him stressed and that he was absent from work due to work related stress. The Respondent states that the Complainant declined to utilise the relevant procedure. The Complainant was also unhappy about the reaction of the Respondent to an incident when a threatening slogan was written on his work station. The Complainant asked that the matter be reported to the Gardai. The Respondent states that an internal investigation was carried out but that the culprit was not identified. The Complainant was not happy about the scale of the investigation. The Complainant states that he was overlooked for promotion. The Respondent denies this and states that it does not have a policy of internal promotion. The Complainant states that he was persuaded not to resign his employment in February 2017 by the new Training Manager. A further incident arose when the Complainant was accused of speaking about a colleague who had been dismissed but the Complainant states that he was advised that he could not be told who had made this accusation, as it was made by way of a protected disclosure. In late 2017 a new training programme was rolled out. The Complainant sought clarification as to why there had not been an investigation into the complaints about him by an employee who was due to participate in this programme. He was told that he had to train this individual. As a result, the Complainant resigned. He met his manager and agreed to return to work. The Respondent states that it was made clear to the Complainant that the issue of his refusal to train the colleague concerned would have to be dealt with on his return. An investigation was carried out by the Complainant’s manager and a representative from HR. The panel found that the Complainant’ actions amounted to insubordination. They referred the matter to be dealt with under the company’s disciplinary process. They recommended also that issues arising from the concerns of the Complainant regarding the earlier training course feedback be addressed and that the grievance process remain as the avenue for the Complainant to deal with unresolved issues. The Complainant resigned from his employment. The Complainant brought a claim of constructive dismissal to the Workplace Relations Commission. The AO did not uphold the claim. The Complainant appealed to this Court. Summary of the Complainant’s arguments. The Complainant experienced problems in his employment with the Respondent from the outset. He was successful in applying for a permanent position but was advised on starting that funding was available for only a 9 month contract. Some months in, the Complainant enquired of HR about his permanent contract and promised bonus. They denied any agreement. Subsequently, the Complainant contacted the Head of Operations in Ireland, who agreed to make him permanent and to pay the bonus. He indicated to the Complainant that this decision had been made some time ago but had not been conveyed to the Complainant. HR had also failed to convey to his Line Manager that he would miss his start date due to a family bereavement, resulting in a call to him on the day. For some time the Complainant had no line manager and there was no Centre Head, with a manager in India tasked to act in these roles remotely. In October 2016 the Complainant trained a group of trainees. One trainee failed a number of tests. This trainee made complaints regarding the Complainant that the complainant believes were retaliatory. The Complainant provided HR with a detailed report. This employee was taken on for a short period then, subsequently, dismissed. A second trainee, ‘Employee B’, accused the Complainant of being ‘a dictator’, being on a ‘power trip’ and suggested that the Complainant wished trainees to fail. These comments were offensive and defamatory. Another trainee ‘Employee C’ had an input into this second complaint and signed the complaint. The Complainant requested an investigation and a right of reply. HR refused this and stated that it was ‘feedback’ and not a formal complaint. However, the moment that these complaints were documented they became formal. The Complainant had no right of reply. To expect anybody to take these complaints and to consider them as feedback goes against all natural justice and is not in line with HR best practice nor is it reasonable. The Complainant suffered work-related stress and missed some time in work. In December 2016, ‘John Curry 7 days’ was written on the Complainant’s PC. He met Ms. Smyth and asked that the Gardai be contacted. She replied that she had worked with this age group for some time and that this was a ‘prank’. She committed to doing an internal investigation but this consisted of one, single e-mail to all staff. When the Complainant asked if the culprit was not found, would she then contact the Gardai?, he was told that there were more serious issues such as homelessness and car crashes. The Complainant believes that, as the complaints of trainees had not been dealt with, he lost credibility with other employees. In January 2017, the Complainant was advised that the Respondent was seeking a new training manager. His colleague and himself requested that the position be opened internally. This request did not get a favourable response. The Complainant believes that the fact that the issues regarding the complaints about him were unresolved had led to a negative impact on his reputation. In February 2017, the Complainant met with the new Operations Manager and outlined his concerns and decided to give time to see if things would improve. In addition, the Complainant met the new Training Manager, Mr. Michael Duggan, to explain the background. He relayed the difficulty he would have if he was asked to train Employee B and he was told that ‘we will cross that bridge when we come to it’. Soon after, Mr. Duggan told him that HR had received an accusation that the Complainant had been speaking about a colleague who had been dismissed. When he queried the source of the accusation, Mr. Duggan told him that it was a protected disclosure. This is not consistent with the terms of the Protective Disclosures Act. Again, this complaint was not investigated and the Complainant was denied a right of reply. The Complainant was so frustrated that he indicated his intention to resign. Mr. Duggan noted that the Complainant was going on holidays and said that they would discuss this on his return. In late 2017, a new training programme was being rolled out. The Complainant approached Mr. Duggan to convey again his concern about the possibility of having to train Employee B. Mr. Duggan stated that the case was closed as there was no formal complaint. The Complainant followed up with a written note asking why there had been no investigation?; how had HR followed the internal grievance procedure?; why he had been told by the acting manager at the time that there had been a ‘complaint’ but then it had been stated that it was not a complaint but just feedback?; what was a complaint/feedback? Mr. Duggan insisted that the Complainant train Employee B and the Complainant, who was highly stressed and anxious, felt that he had no option but to resign. A number of meetings took place over the following two weeks and Mr. Duggan presented three possible options. The Complainant was hopeful of a resolution and returned to work. To his surprise, Mr. Duggan initiated an investigation and he was invited to a meeting to discuss ‘insubordination’. The Complainant asked who had made the complaint and was advised that it was Mr. Duggan. When he asked under what policy the matter was being investigated?, he was told that ‘the policy used can only be determined after the investigation’. This makes no sense. Mr. Duggan, with Ms. Jessica Quinn of HR, conducted the investigation. Contrary to all accepted practices, Mr. Duggan instigated the complaint, investigated the complaint and recommended disciplinary action. There was no facility to appeal. After making some requests, the Complainant gave in his resignation on 18 December 2017. While the employer will refer to the observations inConway v Ulster Bank Limitedthat an employee must substantially utilise a grievance procedure before resigning, the Supreme Court inBerber v Dunnes Storesobserved that the employer’ s behaviour must be unreasonable so that it may be judged that an employee cannot be expected to put up with it. That is so in this case. The Complainant sought on many occasions to draw attention to a problem that required action by the Respondent. Utilisation of a grievance procedure is not an absolute requirement, as per a recent Labour Court ruling inRoberts v Rehab. The Respondent, rather than investigate a complaint that attacked the Complainant, hid behind an excuse of ‘feedback’. The Complainant was not offered a right of reply. Subsequent to the act of vandalism, the Complainant felt targeted. The Respondent was grossly unreasonable. In the EAT case UD641/2000, the claimant’s conclusion that she could not have confidence in the respondent to address her grievance was deemed a reasonable conclusion in the circumstances of the case. The failure of the Respondent to protect the Complainant from bullying and harassment is a breach of his contract—see caseHSD121. As in the caseUD210/2011,the employer failed to engage in a meaningful way. InKane v. Willstan Racing (Ireland) Limited (UD1263/2008)matters raised were not perceived as complaints and, despite no grievance being lodged, the case succeeded. The Respondent breached their contractual obligations, they failed their trainees and training officer and they handled badly an act of vandalism that occurred because of a lack of action to exonerate the Complainant. The Respondent acted unreasonably on every occasion of difficulty for the Complainant. The torment, hurt, frustration and illness suffered by the Complainant because of the Respondent’s actions left him with no option but to resign. The Complainant was unemployed, following his constructive dismissal, until 24 September 2018. After that time, he was on Disability Benefit for a period and has since set up his own business. His losses are for the January-September period and the remedy sought is compensation for these losses. Evidence of attempts to find employment in that period are provided to the Court. Summary of Respondent’s arguments. It was not open to the Complainant to pick and choose who he trained. While the Respondent accepts that the Complainant was agitated by feedback from trainees, it was not open to him that this be handled in his chosen way outside of company procedures. The Complainant had ample notice that he would be required again to train Employee B and to take advice if he so wished. The Respondent carried out an investigation and the Complainant was unable to provide a rational explanation about why he refused to train one employee but not another who had also given negative feedback about him. This investigation recommended that a disciplinary process be instigated but the Complainant resigned before this was convened. He did so by his own free choice. The issues relating to the Complainant’s contract and bonus were resolved long before his resignation. Nor was he ‘overlooked’ for promotion. The company was engaged in rapid growth and most jobs were filled externally. The Respondent took reasonable steps to deal with the ambiguous comment written on the Complainant’s PC. It was the Complainant himself who styled feedback comments as complaints. In his role as a trainer, the Complainant often gave negative feedback on trainees. This did not give rise to a need for investigations. Despite his claim to have done so, the Complainant did not ‘exhaust all avenues’ as he persistently refused to use the relevant procedure. The Respondent’s grievance procedure is in full compliance with the WRC Code. It is not true to state that the investigation by Mr. Duggan and Ms. Quinn recommended disciplinary action. What was recommended was a disciplinary process. If the Complainant had not resigned a new panel would have been appointed under the company’s disciplinary process to deal with the matter. The AO in his finding made extensive reference to case law and the Respondent is happy to rely on the cases concerned. If the Court should find that there was a dismissal, the Complainant contributed 100% to this. Witness Evidence Mr. John Curry Mr. Curry is the Complainant. The witness explained that he had resigned from a permanent job to work for the Respondent on the basis that he was promised permanent employment. However, when he joined, he was only taken on for a nine month contract. The issue of a promised annual bonus of €2000 was also in doubt. It required him to go directly to the Head of Operations to resolve these matters. Subsequently, his ‘acting’ manager advised him that there had been ‘complaints’ about him by some trainees. However, when he asked to have these investigated, he was told that they were just feedback comments. When he persisted, he was told to utilise the grievance procedure. He did not wish to do so as he was unclear to whom he should make a complaint and was reluctant and unsure about making complaints against trainees. He was left feeling stressed and that he was not believed. When the witness discovered the writing on his PC, he said that he was unsure about what it meant. However, it was explained to him that the comment related to a movie and that in the movie there was a death threat. He spoke to Ms. Smyth, who treated the matter as a ‘prank’. He felt that this made trainers ‘open game’. The witness said that his fellow trainer colleague and himself had both made known their interest in the Training Manager job but that they were told that the job was going outside. In February, the witness indicated that he was going to resign as he felt that what was happening was having too big an effect on him. He met the manager and was hopeful that there might be progress but a promised follow up meeting never happened. In discussion with Mr. Duggan, he had told of his concerns about having to train Employee B. Mr. Duggan said that they would ‘cross that bridge when they came to it’. When Mr. Duggan told him that he had to train Employee B, he had indicated that he had difficulty doing so and that he would resign. He was persuaded to return and was surprised then to be summoned to an investigatory meeting. The witness believes that he was ‘railroaded’ at this meeting. The cumulative effect of events and how they were handled by the Respondent was horrendous for the witness. The witness confirmed his losses and his attempts to mitigate same, as per the submission given to the Court. Under cross examination it was put to the witness that if he had trained Employee B for 90 minutes, all issues could have been resolved, to which he responded by stating that he could not do so. The witness confirmed that he recorded comments about trainees’ performance. The witness denied that he had developed his own policy for trainees regarding toilet breaks and stated that these were developed by trainers to curtail disruption. The witness denied that he had set out to fail any trainee. When it was put to him that he had marked as incorrect an answer that stated ‘consumers’ rather than ‘consumer’, the witness stated the importance of protecting the company by not mis-reading what was on a screen. The witness stated that trainees’ results were read out because that was how they indicated that they wished to receive this information. When asked if ‘ Employee C’ was lying when she said that the witness had automatically debited trainees 10 minutes for comfort breaks, the witness stated that she must have misunderstood as this made no sense. It was put to the witness that three trainees had made what he termed ‘accusations’ but that he had only refused to train one of them. The witness said that he had been told by another trainee, whose name he could not remember, that Employee C was ‘being coached’. It was put to the witness that he had made claims about Employee B’s personality that were not substantiated, including that he had anger issues. The witness described an incident in which an assessor in a screen test had reported seeing this trainee shaking a screen in anger. It was put to him that this assessor had described the incident as ‘nothing much’, to which the witness replied that he was simply reporting what he had been told. The witness accepted that the investigation had proposed a disciplinary process and not disciplinary action and that the report had recommended ‘closing off’ the outstanding issue regarding the comments of trainees. The witness repeated that he had sought to have this situation investigated. With regard to the grievance procedure, the witness said that nobody could explain the nature of the informal process. The witness confirmed that he had received advice from an experienced colleague. He had been reluctant to use the formal process as it involved formal complaints. The witness denied that his first two resignations were attempts to force the hand of the company and that his third resignation was an attempt to run away from a disciplinary process. Under questioning from the Court, the witness agreed that he had no reason to believe he, or his colleague, had an entitlement to an internal promotion but said that it was a failure to give an opportunity to internal staff who were told simply that the role was being filled outside. The witness said that he had wanted the Respondent to take seriously the threat in the act of vandalism on his PC. It was put to the witness that it was surprising that the issues relating to his contract and bonus were included as part of the reasons for his claimed constructive dismissal as they had been resolved. The witness noted that this resolution had taken some time, had required him to go above his line manager and HR and had caused stress to his family and himself. Ms. Jessica Quinn. Ms. Quinn is a HR Business Partner in the Respondent company. The witness described herself as being a 50/50 partner with Mr. Duggan in the investigation of the alleged insubordination of the Complainant. She described the relevant provisions of the company Code of Conduct and that the terms of reference were to investigate this allegation. It was not part of the investigation’s role to recommend sanction but, rather, to establish facts and, if relevant, to recommend that a disciplinary process be commenced. The witness stated that the investigation team never got a satisfactory answer as to why the Complainant was willing to train Employee C, who had also offered negative feedback about him, but was not willing to train Employee B. The witness said that she knew both Employee B and the Complainant as colleagues. She had been Employee B’s team leader and had never witnessed anger issues. She said that, knowing Employee C, she did not find it credible that she would have been ‘coached’ as stated by the Complainant. The witness said that it was not up to the Complainant to decide who he was prepared to train. She agreed that if the Complainant had, at any time, agreed to train Employee B, the matter would have been regarded as resolved. Under cross examination, the witness stated that she did not have details of Mr. Duggan’s experience of conducting investigations. The witness stated that she believed that it was reasonable to ask the Complainant to train Employee B. She was not aware if it was possible to ask somebody else to do so and noted that it was not a matter for the investigation team to explore this. The witness said that the sentiments in the feedback of Employee B and Employee C were similar. When asked if she did not see that one was far more damaging than the other, the witness stated that she did not. Under questioning from the Court, the witness stated that Mr. Duggan was best placed to participate in the investigation as he was the relevant line manager. When she was asked if she considered if it was appropriate that Mr. Duggan, who had made the complaint, was 50% of the team investigating the complaint, the witness acknowledged that, retrospectively, she would see this differently. The witness noted that under the relevant company Code, there was no requirement for the terms of reference of the investigation to be agreed. On re-direct questioning, the witness stated that the management team in the Respondent company was very small in number. Mr. Michael Duggan Mr. Duggan is the Training and Quality Manager the Respondent. The witness said that he commenced working for the Respondent in March 2017 and that he was the Complainant’s manager. He was not working for the Respondent when the feedback of concern to the Complainant had been given. With regard to the investigation that he had conducted with Ms. Quinn, the witness described himself as the lead investigator and he said that the purpose was to establish if there was any legitimate purpose for the Complainant to refuse to train Employee B. He said that the investigation could not establish this and that he could not reconcile why the Complainant was prepared to train Employee C but not Employee B. He felt that a legitimate instruction had been given to the Complainant and that his refusal to comply had to be viewed as insubordination. With regard to the point that his participation in the investigation was inappropriate as he was the source of the complaint, the witness noted the Respondent’s small management team and said that he felt best placed to conduct the investigation. He stated that he had suggested that the Complainant talk to Employee B but he was not agreeable and noted that it would have been obvious, though he had not stated it explicitly, that he would have acted as a mediator. The witness stated that he was not involved in the disciplinary process. With regard to the resignation of the Complainant dated 13 November 2017, the witness said that he read it, processed it and gave it to HR. He met subsequently on two occasions with the Complainant. The first meeting was very informal. The second meeting was more formal and was recorded by agreement by both parties. He said that he outlined three options to the Complainant; work his 30 days’ notice, resign immediately or rescind his resignation. The Complainant decided to return to work on 22 November 2017. At their meeting, the witness said that he had told the Complainant that his refusal to train was going to have to be dealt with. He advised the Complainant on 28 November 2017 of the pending investigation. The witness explained that the Complainant understood the purpose of the investigation and that he brought a witness. It was put to the witness that it had been said that Employee B was an angry man. The witness said that he had no experience of that. The witness said that he could not see any justification for the Complainant’s refusal to train Employee B. Under cross examination, the witness said that he had been told about the incident involving Employee B and the Complainant when he had taken over but had been told by HR that the matter was over. The Complainant had said that this was not so but the witness confirmed that, at the time, he accepted the HR view. His focus was on moving on. The witness said that he had instigated the first informal meeting with the Complainant after he had stated his intention to resign and that he was happy to have him back. He said that the investigation was a chance to put the matter to bed and that he wanted to find solutions for everyone. The witness said that he understood the rules of natural justice but that he did not think his involvement as both the complainant and the investigator was inappropriate as he played no part in the disciplinary process and his role was in fact finding. He felt that his involvement would have benefitted the Complainant. The witness said that he could not recall who had trained Employee B when the Complainant resigned but noted that they were not a trainer. The witness reiterated his view that trainers could not be allowed to decide who they would train. Under questions from the Court, the witness accepted that he could have made an exception to this general principle but that he felt the circumstances did not warrant this. The witness accepted that in reaching a conclusion that there had been insubordination, the investigation was more than just fact finding in nature. He agreed that he was not expert in the relevant policies and could not point to the precise provision for this in the relevant company policies. On re-direct questioning, the witness noted that the Complainant was aggrieved and that there was a grievance procedure in place that he had chosen not to use. Ms. Lisa Stephens Ms. Stephens is HR Manager with the Respondent. The witness stated that there was no certainty that a disciplinary process would lead to a sanction and noted that in some cases it was an opportunity to point somebody in the right direction. The witness explained at the time trainees gave feedback in question, the company was in a state of flux and trainees had no team leader, so that feedback had to be given either to the trainer or to HR. Two trainees had come to HR with their complaints. These were documented and given to the witness who passed them to the Complainant’s manager. She felt no need to do anything further and was surprised when the matter blew up. The witness noted that if she had gone into the training room, asked questions and had the complaints confirmed, she would have had to look at the question of disciplinary proceedings against the Complainant. She wanted to give him the chance to resolve the matters without them being taken any further. She noted that she did not have the resources to pursue every bit of feedback. She felt that the Complainant ought to have discussed the matter with his manager but if he wanted any formal action, she noted that she had reminded him of the existence of the Grievance Procedure on thirteen different occasions. The witness said that she could not understand why the Complainant was unwilling to exercise that procedure., which offered an opportunity to bring an end to the issue. The witness said that the Complainant’s view of Employee B did not tally with her experience of that employee. Under cross examination, the witness said that the issues that arose for the Complainant at the commencement of his employment regarding permanency and bonus were not matters for her and that she would have referred him to his manager. The witness said that she had noted issues with the Complainant’s performance but that the decision regarding his retention on a permanent contract was not hers to make and that this was evidenced by the fact that he was given a permanent contract. She denied that this evidence differed from that given to the WRC. The witness reiterated that the two trainees came to HR and that there was not a pre-arranged meeting. This happened rarely but the witness noted that HR is the point of contact for trainees. Asked if the feedback given was not more significant than normal, the witness said that if the Complainant felt that was so, he had the option to make a complaint under the Grievance Procedure. Alternatively, he could have met the trainees concerned. When it was put to the witness that the Complainant had made nine separate requests for an investigation, the witness stated that this was not how an investigation was launched. The witness said that neither party had given any detailed evidence of their version of events. When it was put to the witness that the Introduction and Stage 1 of the Grievance Procedure were actually the same text, making it difficult to understand, the witness noted that the procedure was a standard version and that the procedure tells a user how it might be used. The witness denied that the feedback from the trainees amounted to an invocation of the procedure. She regarded it as feedback that was passed to the Complainant’s manager, at which point he became defensive. The witness said that the Respondent cannot have a trainer refusing to train somebody a year after an incident, by which time there was reason to believe that all parties had moved on. The witness said that there was no budget for outside mediation in respect of such an everyday complaint and that it would not have been appropriate for her to have taken on the role of mediator. The witness said, with regard to the graffiti on the Complainant’s computer, that she did not think the matter warranted the Gardai being called. The witness said that the training in which the Complainant refused to participate was a 2 hour refresher course, the Complainant was a professional trainer but had refused to do the course. In circumstances where the witness refused to use the Grievance Procedure and refused to carry out the relevant training, an investigation was necessary to look into the matter. Extensive hoops had to be gone through to provide the training that the Complainant had refused to carry out. The witness said that she could half agree with concerns about Mr. Duggan being part of the investigation triggered by his complaint but noted that the issue was obvious as the Complainant was refusing to do his job. In response to questions from the Court, the witness confirmed that sometimes other trainees had given negative feedback about some trainers and she said that in those cases the trainers would speak to the trainees concerned. The witness stated that the Complainant was made aware by her that the feedback had not affected his standing with the company. NOTE; This statement was disputed by the Complainant’s representative. The Applicable Law Unfair Dismissals Act 1. ‘Dismissal’, in relation to an employee, means- (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, Redress for unfair dismissal. 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. Deliberation This is a case of a claimed constructive dismissal. There are two tests in cases of claimed constructive dismissal. The first is the ‘contract test’, namely that an employer has breached an employee’s contract and has severed the contractual relationship as a result. It is clear to the Court that this test is not applicable to the instant case. The second test is the test of ‘reasonableness’, namely that the employer’s behaviour is so unreasonable that it is reasonable for the employee to leave the employment and, thereby, meet the requirements of s. 1(b) of the Act, see above. This is the test that the Court believes is appropriate to apply to the circumstances of the instant case in order to determine if the complaint is well founded. It is clear to the Court that the Complainant was affected quite considerably by the comments made about him by the trainees. The Court notes with some concern the fact that the Respondent appeared to take the view that the Complainant’s concerns were exaggerated in the circumstances. It is impossible for anybody to put themselves entirely into another person’s shoes and the manner in which people react to criticism is subjective and particular to the individuals concerned. There can be no doubt that there is a duty on employers to be mindful of the impact of criticism on their employees, particularly, as in the instant case, where the employee perceives the criticism to be unfounded and unfair. Likewise, the Respondent was unappreciative of the scale of feeling on the part of the Complainant when his computer was vandalised, which served to compound his sense that his concerns were not taken with the sort of serious consideration that he felt entitled to expect. From the perspective of the Complainant, there is no doubt that the outcome of an investigation represented the final straw when a disciplinary process was about to follow a finding of insubordination. The decision to appoint the person who made the complaint to be part of the investigation team is, frankly, inexplicable and contrary to all principles of natural justice. On the other hand, the Complainant’s constant refusal to utilise the Respondent’s Grievance Procedure in order that his complaints would be investigated is equally inexplicable. Whatever argument might be made as to how the wording of this procedure might be improved, its intention is clear and there can be no real excuse for it not being utilised if, as he claims, the Complainant was so aggrieved by the criticisms levelled at him by two trainees. Furthermore, it is hard to consider any possible situation in which this Court could uphold the view that a perceived grievance could form a justification for an employee to simply refuse to do the job for which he is employed. There can be no doubt that any employer is entitled to expect an employee to do any relevant, lawful job for which he is paid and that, at the very least, an employer is entitled to investigate an employee who refuses to obey a legitimate instruction. It follows from the above observations that the Court has to weigh a number of counter balancing considerations in coming to a conclusion regarding the correct application of the law to the facts of this case. It would be fair to note, in line with the observations inMcCormack v. Dunne’s Stores UD1421/2008,that there is a high burden of proof in cases of claimed constructive dismissal and to note, as a fact, that a great many such cases fail to get near this high burden. The instant case is much less clear-cut. A major consideration for the Court to take into account is to examine if all available internal procedures and remedies have been exhausted, prior to a complainant leaving their employment. Indeed, in ‘McCormack’, it was noted that the high burden of proof included the need to demonstrate that all internal grievances had been exhausted. This is consistent with the case ofTravers v. MBNA Ltd., UD 720/2006,in which it was noted that it was ‘incumbent for an Appellant to utilise all internal remedies’ and with the seminal case ofConway v. Ulster Bank UD475/1981in which it was noted that the worker had not acted reasonably by resigning before having substantially utilised the relevant internal procedures. Applying this consideration to the facts of the instant case, it is clear that the Court cannot ignore the fact that the Complainant chose not to utilise the Respondent’s Grievance Procedure despite, as the Court was advised, this procedure having been brought to his attention on thirteen different occasions. The Court’s view is strengthened by the fact that it is not the case that the Complainant resigned because of the comments made about him or because, when he requested it, the Respondent failed to conduct an investigation into his concerns. Rather, he resigned a year after the incident that had caused him concern, when he faced a disciplinary process for having refused to do his job. The investigation that followed was rendered invalid by the breach of natural justice but the fact of the Complainant’s refusal to carry out training, the core function of his job, is not in dispute and it cannot be disputed that such a refusal was unreasonable. In such circumstances, any reasonable employer would consider the instigation of a disciplinary process. Therefore, while it is appropriate to note that the Respondent has questions to answer about how it handled this matter, the balance of circumstances leads the Court to the conclusion that there was not a constructive dismissal and that, accordingly, the Complainant’s appeal must fail. Determination The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
