Complainant

Respondent

Anonymised Parties

A Solutions Architect

A Biomedical Company

Representatives

 IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00038899-001

26/07/2020

The Complainant commenced employment with the Respondent on 8th July 2019 in the role of Solutions Architect and was paid an annual gross salary of €85,000.

The Complainant alleges a breach of the Industrial Relations Acts specifically that as a result of the Respondent’s conduct, he had no option but to end his employment by way of constructive dismissal.

He had just under one year’s service at the time of the termination.

On May 23rd the complainant received a text message from the Company CEO which he did not initially see.

About twenty-five minutes later he got a phone call during which he says the CEO shouted at him as a result of not being able to access the system as a result of new Pin numbers being installed a day or two earlier. The complainant had forgotten to send him the new codes.

The CEO had got so angry he damaged a laptop controlling the hardware and the complainant was on the receiving end of his reaction. This conversation lasted for about twenty-five minutes.

Two days later there was no sign of any type of apology, so he reported the incident to HR. 

The CEO reacted badly to the matter being reported to HR and was quite angry and hung up when the complainant tried to discuss it.  About a week later the CEO approached him to resolve matters but they remained unresolved.

On June 4th he got a text message again seeking to clear the air. This time there was a partial resolution.

A few days he was asked about taking on some project management work which he declined as it would involve more meetings and direct contact with the CEO.  The CEOt referred to his conduct and said, “if you want to avoid me - you’ll do as I say".

The complainant left it at that. He had not heard anything from HR and felt totally alone with the situation getting worse.

On June 12th the complainant was at a staff meeting when asked a question at one point and before answering the CEO said, 'why are you standing there with a blank look on your face'?

He then proceeded to tell all a short story about two workers which the complainant felt this was being directed at him.  The situation deteriorated, and the complainant walked out saying “I’m done," followed by an expletive.

A few hours later the HR manager came to his home and that evening he got a call from the MD proposing that the complainant could work from home for the next week giving the MD time to sort the problem out.  The following week he got a call extending this. 

The complainant said that he did not feel his health or safety was being taken seriously and without changes just could not go back.

Without knowing for certain this would be dealt with he decided that he could not return to work. He took a job with a previous employer.

On 23rd May 2020, the CEO for the Respondent sent a text to the Complainant at 9:55am as there was an issue with the system on one of the machines. The Complainant had made changes to passwords and access to the machines, of which the CEO had not been made aware.

As a result, production was down all weekend, and the Complainant was the only one who could fix the issue.  There was no initial response from the Complainant, and after two further calls eventually getting through to him but was understandably upset and frustrated at the situation.

The conversation concluded on a positive note, with both parties agreeing on a plan to get production back up and running that afternoon.

On Monday morning, May 25th, 2020, the Complainant reported the incident to Human Resources but did not tell the CEO that he was doing so, and he felt aggrieved that the Complainant had reported him as opposed to raising it with him directly.

The following week, the CEO approached the Complainant to discuss the tension that had built up. This interaction ended in further tension between the parties, and it ended with the Complainant ‘storming off’.

On June 4th, 2020, he reached out to the Complainant again asking if they could “clear the air” and that he was sorry about what happened He suggested putting it behind them for now and talk about it later if needed or not at all.

The Complainant agreed to this; wanting to move forward and put this situation behind them.

On June 8th there was another incident. The Complainant’s claim that the CEO was aggressive in asking the Complainant if he could take on more tasks is rejected.  The Complainant reported to the CEO, so such a conversation was not unusual. The Complainant once again left the room at this point without any willingness to resolve the situation.

On June 12th, 2020, a staff meeting was held at which the Complainant was asked several questions.  The Complainant seems to have misunderstood a story being told and took what was said personally.

There were approximately six other individuals present who did not see the story as the Complainant had.

This exchange led to the parties discussing a machine that the Complainant was working on. The conversation ended with expletives from the Complainant, and then him storming out for a third time.

On the evening of 12th June 2020, the respondent’s Managing Director called the Complainant and they both agreed that he would work from home for the following week. This later became a longer-term plan with which the Complainant was happy. The MD also requested that he be included in all communications between the parties for the time being.

An email was sent from the CEO to the Complainant on 18th June 2020 which allegedly caused the Complainant to have anxiety attacks as he believed there had been no change in his attitude.  

The Complainant has asserted that no changes had been made up until this point to ensure his health and safety and he decided to tender his resignation on 24th June 2020 after discussing the situation with the MD, just one month after the initial incident.

His resignation was effective from 3rd July 2020 and the Complainant recommenced employment with another firm immediately after.

At no time during did the respondent wish to lose the complainant as an employee; he was a valuable member of staff, to the extent that the Respondent sought his services after he had left to help with a project.

The Respondent has a grievance procedure in place, through which all grievances are fully and fairly processed, in accordance with the Code of Practice on Grievance and Disciplinary Procedures.

It is the Respondent’s position that before the Complainant resigned, he could have allowed the Company to resolve the issue and complete the grievance procedures as outlined in the company’s policy.

The Respondent maintains that the Complainant acted in a hasty and unreasonable manner by resigning from his position before notifying the Respondent of his concerns and in advance of exhausting internal procedures.

As such, the Complainant did not act reasonably in resigning his employment as he had not previously “substantially utilised the grievance procedure to attempt to remedy her complaints” (Conway v Ulster Bank)

The Respondent rejects the claim for constructive dismissal and says it fulfilled its contractual obligations, implied and otherwise, at all times.

For these reasons, it is the Respondent’s position that the termination of the employment does not represent constructive dismissal.

There is broad agreement on the key incidents in the case in the respective narratives above, although the interpretation of what happened diverges at various stages.

Although this complaint does not fall within the jurisdiction of the Unfair Dismissals Act, as the complainant does not have the required service of one year, the principles that generally apply to constructive dismissal are relevant in approaching the case, and indeed were anticipated by the respondent in its submission.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of any contract of employment.

It is, after all, the breach of a legally binding contract.

When an employer wishes to terminate the contract of employment, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions having regard to the conduct giving rise to the disciplinary proceedings.

The most common source of complaints under the Unfair Dismissals Act results when an employer has terminated the employment, and the criteria just referred to provide the key tests as to whether the dismissal has been a fair one.

On the other hand, and in general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning. In most, if not all cases an action for breach of the employment contract is unlikely to arise.

A different situation arises when an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, the duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that.

 ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

 Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to open an assessment of whether the employer’s conduct has been so intolerable that it justifies the complainant’s resignation.

Thus, the question is whether, in respect of the employer’s conduct, it has been at a level and of a nature that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

The respondent also relied on Conway v Ulster Bank, UD474/1981 in this regard.

Undoubtedly there were a number of unpleasant incidents involving the complainant and his local manager, the CEO. Fortunately, it is not necessary to adjudicate on which of them had the balance of the argument in that regard.

In relation to the first incident there was some evidence of a heated reaction on the part of the CEO, but the complainant accepts he made a contribution by not communicating the new PIN numbers to the CEO (although there can never be a justification for alleged abusive conduct in the workplace, whatever the provocation).

Thereafter, some effort was made by the CEO to conciliate, and with some success.

This was undone by what appears to have been an unfortunate incident at a staff meeting just over a week later when the complainant interpreted remarks that were made as being aimed at him, although this is denied by the respondent (and, although there was no evidence on the point, others at the meeting did not see the remarks as being directed at the complainant.

However, it is what happened next that is decisive. Whatever the truth of events at the meeting the respondent acted swiftly to address the situation.

The HR manager came to see the complainant a matter of some hours later, and this was followed that same evening by an intervention from the respondent Managing Director facilitating the complainant with working from home until he sorted matters out.

This was extended a week later but by that stage the complainant decided that he had had enough and quit his employment. (A letter received from the respondent on June 18th played a part).

The Respondent maintains that the Complainant acted in a ‘hasty and unreasonable manner by resigning from his position before notifying the Respondent of his concerns and in advance of exhausting internal procedures’ and failed to act reasonably in resigning his employment as he had not previously “substantially utilised the grievance procedure to attempt to remedy her complaints” (Conway v Ulster Bank).

In general terms, I agree with this, although it is not strictly true that the respondent was not aware of his grievance.

While the slate was not entirely wiped clean by the somewhat unsatisfactory agreement reached between the parties on June 4th, the effective trigger for the final phase was the complainant’s interpretation of the comments made at the meeting on June 12th.

The responded reacted immediately to that event but the complainant resigned only twelve days later on June 24th. Such a delay in resolving the matter is not ideal but not unreasonable or excessive either. The complainant was working at home and not in direct contact with his CEO.

The email of June 18th which the complainant received from the CEO and which he saw as a last straw was submitted in evidence, but it was unexceptionable and a rather business-like and cordial communication on the part of both correspondents.

On these facts there is insufficient evidence to justify the complainant’s actions in resigning his position. There was some evidence that the complainant also had a ‘short fuse’.

Such grounds for concern as he had been being acted on after June 12th.

It seems that the intervention by the HR Manager was on her, or at least the respondent’s initiative in that there had been no formal complaint by the complainant in the meantime.

By the time the complainant resigned, the point had not been reached (due to delay, for example) where he was justified in leaving his employment by the actions (or inactions) of the respondent.

Accordingly, the complaint fails.

While any allocation of blame in respect of the various episodes involving the parties would not be one-sided, the respondent would do well to review this episode with a critical, and more importantly self-critical eye.

It may be, (and it is a good idea at any time) that the requirements of the Dignity at Work policy need to be refreshed and brought to its employees’ attention at all levels of the company and I recommend accordingly.

The fact that the complainant has not met the high, procedural bar for constructive dismissal should not induce any complacency in the respondent about various aspects of its conduct in the matter.

For the reasons set out above Complaint CA-00038889-001 is not upheld.

I recommend that the respondent review adherence to its Dignity at Work policy at all levels of the company and take such steps as may be necessary to ensure its requirements and general principles are fully understood and acted on.

Constructive dismissal (IR Act), Dignity at Work.