Complainant

Respondent

Anonymised Parties

VAT Operations Manager

Manufacturer of building and construction products.

Representatives

Tully Rinckey Solicitors.

IBEC

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-00029282-001

25/06/2019

This is a complaint of constructive dismissal investigated under section 8 of the Unfair Dismissals Acts, 1977-2015 .

The complainant commenced work with the respondent as a VAT Operations Manager in November 2014 . He was unwell and on sick leave from 13 September 2018 until his resignation on the 23 May 2019.

His monthly salary was €6,730. He was eligible for an annual performance bonus of up to 10% of salary. He worked 40 hours per week.

He submitted his complaint to the WRC on 25 /6/2019.

The change in the respondent’s name following a merger was notified to the WRC on 17/8/2020, was accepted by the complainant, and is incorporated in this decision.

The complainant was appointed as VAT Operations Manager, European , Middle East , Africa region (EMEA) in November 2014 in the respondent’s Global Finance Department in Dublin. The respondent manufactured industrial components and goods. His career progressed   with no significant issues regarding his conduct, technical skills or in the performance of his own or his team’s functions until 2017. His 2015 review records that ‘ he meets expectations”. In February 2017, he received a favourable commendation and a pay increase from the Tax Director, Global Compliance.

In April 2017,after the departure of his then line manager, Mr X , Vat Manager, EMEA, his new line manager, Ms Y, Senior Manager, EMEA asked him , while significantly over -worked, and understaffed to begin filling out new management reports and to set management objectives and aspirational goals. His new manager and her supporting HR Territory Leader advised him in the later part of 2018 that he lacked the requisite technical knowledge necessary for the job of VAT Operations Manager without offering him any measurable quantifiable course, test, or accreditation.

Thereafter, and without due cause, he was placed on his first Performance Improvement Plan (PIP ) on 18 Jan – 18 May 2018. He was placed on a second PIP on 5 June 2018.He was placed in a disciplinary process on 25 May 2018.

In 2017 and in January 2018 he notified HR of the often 70 hours a week worked by him in 2017.

He was medically diagnosed   in January 2018 as suffering from workplace stress and placed on medication. He brought this to the attention of the respondent on 29 May 2018. The respondent still failed to provide him with additional resources.

The complainant’s position became untenable because of the failure of the respondent to fulfil their overarching obligation to provide a safe place of work .

He tendered his resignation on 8/5/2019.

Complainant’s evidence.

The complainant in evidence stated that he was overworked and undersupplied with the resources necessary to carry out his role as VAT Operations Manager.

Until October 2016, he reported to the then EMEA Vat Manager, Mr X, located in Belgium who had a strong grasp of the technical elements of VAT. When Mr. X left in April 2017,the audits were passed on to the complainant to complete. That level of expertise and volume of work was previously not expected of him. In recognition of the lack of staffing, Mr X had done preliminary work in identifying and advertising for a Senior Vat Analyst, but the respondent decided to postpone the appointment process so that Mr. X’s replacement could have an input into the decision.

During 2017, he frequently worked from 8.30 am to 6pm and rarely took a lunch break. In addition, he regularly worked from 7-10 pm at home. He reported this to Ms. Z, HR leader, during November and December 2016, and informed her that he had insufficient resources. He cannot recall her response.

In July 2017 at a team building day ,he submitted his concerns about his excessive working hours and burnout to his new line manager ,Ms Y ,Senior Manager, EMEA . She told him he was being too flexible with the team and to request more overtime from them . She told him “shit travels down” Despite the respondent’s refutation of same, the complainant stands over this statement having been made to him.

PIP 1, January – May 2018.

In January 2018 he was placed on a PIP. He objected to this move to his line manager and to HR on 18 January. He objected to the unfavourable 2017 end of year review in a meeting with the Global Director , Tax, and his line manager on 26 January. This review fed in in to the respondent’s decision to instigate the PIP. He also set out the constraints in terms of software supports and staff resources that contributed to late filings and errors. The respondent disregarded his objections and proceeded with the PIP. The plan to appoint additional staff was abandoned after the new manager took over. She believed software was the answer. On 5 June he again objected to the PIP process. He felt that he was being singled out and mistreated

He handed the HR Leader   his written objection to placement on PIP on 19 June 2018 . He stated to HR that he had trebled the vat returns without any additional resources to accommodate the increased workload. On the same day, 19 June, he gave the HR Leader a statement from his doctor describing him as having suffered from workplace stress since January 2018. He had been on medication for his ill health since January.

PIP 2,June – August 2018.

He was not in a great place at the time of the initiation of the second PIP on 5 June. He again objected in   a letter, addressed to the HR team on 27 August 2018 to his placement on PIP.

Upon cross examination ,the complainant accepted that when the respondent went to check the number of hours worked by him, it was not possible to identify the number as he had not maintained records on the relevant system, explaining that it was not always possible to log on remotely to record the extra hours . He stated that the company did not challenge him when he advised them of the extra hours which he had put in.   Contrary to the respondent’s assertions ,the complainant pointed to copies of emails sent after working hours in Jan, February and in April 2018

Complainant’s refutation of the basis for the PIP.

In defence of his performance to date and in challenging the needless placement of him on PIP ,he pointed to favourable reports which up until 2017 were devoid of any of the alleged performance gaps used to justify the initiation of a PIP. He submits that VAT returns improved from 800 in 2015 to 2600 in 2018 , which averages at 216 returns per month, without any extra resources. The complainant’s solicitor stated that the complainant fulfilled the core function of the job for which he was appointed - Vat and Tax compliance. The tax consultancy element of his job was a different role. The PIP was an invalid response to any of the difficulties presenting. He sought an informal approach to deal with any performance issues.

The stated basis for activation of PIP was the complainant’s alleged failure to “personally take ownership”, “review”, “support and deliver” and “strive for excellence” to “lead authentically” and “inspire the team.” This management speak disclosed no tangible measurements. The complainant was held not to have met these aspirational and woolly goals.

Before the complainant’s appeal against the first PIP had even been resolved, the complainant was moved on to a formal disciplinary process in late May. In tandem, a second PIP commenced on 5/6/18. A disciplinary hearing took place on the 16 July. No formal sanction was to be applied. Instead, the second PIP was to take its course. The complainant submitted medical evidence for   consideration at the disciplinary meeting on the 16 July 2018. This was not considered at that meeting.

Because of being placed on a PIP, the complainant was deprived of a 10% (max) bonus. This amounted to a sanction without the complainant being given the opportunity to appeal this sanction, contrary to the respondent’s own disciplinary procedure.

Relevant Law.

The complainant’s solicitor referred to the two situations comprehended by Section 1 of the Act of 1977 as amended which may justify the complainant’s resignation. The established tests which a complainant must meet to succeed in a complaint of constructive dismissal were set out In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332. In the first test, the “contract test” an employer must be “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance “

Secondly , the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test, asks whether the employer conducted his or her affairs in relation to the employee

“so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so he is justified in leaving.”

In terms of the contract test and applying these tenets to the instant case, the respondent failed to honour his contractual obligation to provide a safe place of work and to provide competent co-employees. The complainant’s solicitor relies on Catherine Hurley –v- An Post [2017] IEHC 568 , a decision issued by the High Court ,concerning a complaint taken under section 8 of the Safety, Health and Welfare at Work, 2005. In that case there was workplace bullying which was not addressed . The decision stated:

“The Court is satisfied that there is a common law duty on an employer to take all reasonable precautions for the safety of its employees and not to expose them to a reasonably foreseeable risk of injury.”

The Court found that the defendant was in breach of its common law duty of care to the plaintiff as an employee under Section 8 of the 2005 Act and exposed the plaintiff to the damage and injury suffered as a result. Failing to address this complainant’s excessive working hours when on notice of the need for more staff, perpetuating the continuing distress of a disciplinary and monitoring process when in possession of medical knowledge concerning the complainant’s mental health is a stark indication of this respondent’s failure to observe this contractual obligation.

The unlawful, ongoing and excessive working hours, in breach of the Organisation of Working Time Act, 1997, constituted a continuing breach which was allowed to continue and would, of itself, be reasonable grounds for the complainant to terminate his contract of employment. His contract of employment requires his employment to be governed by the state’s laws. While the company had an obligation under his contract of employment ,common law and by statute and its own procedures to investigate clear breaches of law and of health and safety guidelines it declined to do so. Instead the complainant was driven through a disciplinary and monitoring process such that his statutory entitlement to a safe place of work was not respected, serious medical issues that were brought to the attention of his manager and HR informally in December 2016 and formally in June 2018 were ignored. The respondent’s conduct demonstrates that they no longer intended to be bound by the essential terms of the contract and their behaviour left the complainant with no option other than resignation.

While the need for a complainant to exhaust internal procedures prior to resigning was set out in in In Beatty v Bayside Supermarkets UD 142/1987, the understandable lack of faith in the employer’s ability to properly or effectively address her grievances and her failure to use the grievance procedure did not invalidate the complainant’s claim of constructive dismissal in Allen v Independent Newspapers (Ireland) Limited [2002] ELR 84. The Tribunal held that it was reasonable on the facts of that case for the complainant not to have faith in the employer’s ability to properly or effectively address her grievances and her failure to use the grievance procedure did not invalidate her complaint. In the instant case the complainant complied with the steps set out in the respondent’s grievance procedure. He notified the respondent of excessive working hours from    December 2016 onwards ; he informed the Senior manager ,EMEA ,in July 2017, the HR Leader in January 2018, the Global Director, Income Taxes and Finance, in January 2018 ,on 16 July 2018 at a disciplinary meeting. In May 2019 the complainant was forced to resign because of the significant physical deterioration clearly recorded by the respondents own occupational health reports . He was medically incapable of returning after date and raising a grievance.

Furthermore, the complainant lodged an appeal against the activation of a PIP on 17 June 2018 ,on 16 July 2018 at a disciplinary meeting and in a letter dated 27 August and delivered on 28 August 2018.

The instant case clearly   concerns a significant breach going to the root of the contract. The imperative of exhausting grievance procedures is emphasised more in cases concerning the reasonableness of the employer’s conduct as was set out in UDD2015 and UDD2010.

Reasonableness of the employer /Conduct of the Employer test.

The complainant’s representative stated that the respondent knew that the complainant was working in breach of the Organisation of Working Time Act, 1997. They knew of the complainant’s ill health. This   is reflected in minutes produced by the company and in three subsequent medical reports of the 2/10/2018, 12/11/2018, and 25/1/2019, prepared by the company.

It is an obligation of senior financial management to ensure that financial and accounting staffs have the appropriate level of functional expertise and resources to accomplish operational objectives and maintain professional standards.

The alleged non-activation of a grievance procedure is not relevant when the respondent was actually aware of, and actively ignoring clear and obvious breaches of employment law and health and safety issues.

The employer allowed the complainant to literally work himself into exhaustion and the complainant’s incapacity created by the respondent should not be accepted as some sort of defence for the respondent.

The respondent’s conduct amounted to a breach of its own bullying procedure which includes “public and private humiliation” and “unfair and unreasonable expectations” as elements of bullying. The respondent’s behaviour matched these descriptions. He was engaged in work outside of what he was initially hired to do. He was not hired as a tax expert to do VAT queries.

Overall the respondent   failed to provide a safe place of work, denied him the extra resources which he sought and responded to this request by punishing him and placing him on a PIP.

Efforts to mitigate loss.

The complainant took up employment on 5 June 2019 on an 11-month contract on a salary of €85,000.No discretionary bonus comes with this position. He took up a further appointment in May 2020 on an annual   salary of €116,000 date with a discretionary bonus of up to 10% .

Remedy; Compensation.

The respondent denies that the complainant was dismissed . He chose to resign voluntarily on the 8 May 2019.

The complainant was appointed as EMEA Vat Operations Manager. He was hired to develop a shared services centre.

Reasons for PIP.

His mid-year and end of year 2017 appraisal identified gaps in his performance- in terms of his level of VAT knowledge and learning, Leadership skills and Competency (Operational excellence – delivery of business results. Coaching and mentoring during 2017 failed to improve matters to an acceptable level. PIP 1 was initiated on 18 January and as insufficient improvement emerged from that process, a disciplinary process was activated, and a second PIP was initiated on 5 June.

Evidence of witness 1.

PIP 1; background and progress of PIP.

Ms Y commenced working with the respondent in July 2017   as Senior VAT Manager, EMEA and took over from Mr X as the complainant’s manager.

She gave the background to the decision to instigate PIP 1 on 18 January 2018. Previously, the witness had raised matters such as VAT returns with the complainant informally. He responded that such matters were not his responsibility. She conducted audits with the complainant and did not leave him to do them a on his own as stated by the complainant. Weekly meetings were held with the complainant who was advised that if he couldn’t complete the work to tell her on a Monday and she would reassign tasks, or if he couldn’t deliver by the end of the week to tell her, but he did not.

A survey conducted by the respondent showed that the shared services team , the team managed by the complainant, was the least performing department. Internal customers complained of the bad quality of service received from the team. It was established to offer added value. Ms. Y had siphoned off staff from other departments to populate the team. Colleagues in other countries complained of exposure and actual penalties being levelled against the company from France and Spain due to the complainant and /or his department missing deadlines.

Gaps in VAT knowledge and Learning.

The complainant did not always apply the new rules and changes affecting VAT and Tax returns, routinely emailed to him, with fines being levelled at the respondent as a result.

He gave incorrect answers on EU VAT law to internal customers notwithstanding that staff had two hours every Friday to update themselves on EU VAT law and regulations.

Following on from repeated instances of late VAT submissions, the witness advised the complainant of the necessity for an action plan to ensure compliance with VAT regulations and timelines. He did not devise an action plan; none existed.

The respondent did provide the complainant with training at external seminars, but he did not pass the knowledge on to his team

Competency -Operational excellence.

The complainant exhibited a lack of knowledge of what different business units within the company were doing.

The witness refutes the complainant’s assertion that the goals under the heading of Operational Excellence were woolly or unclear. He was required to follow a particular model ( Premier Performance Delivery Model). Contrary to the requirements of this model , the respondent received emails   from internal customers and from tax authorities advising that the complainant had not responded to emails or queries sent to him and supplied conflicting invoices due to lack of diligence.

Outcome of PIP 1 which ran from January – May 2018.

His performance during PIP 1 was reviewed on a monthly basis. While the respondent acknowledged definite improvements in the complainant’s performance and his willingness and positivity about what needed to change, his shortcomings in the three requirements identified to him on 18 January continued to pose major problems for the company. He accepted the priorities and changes identified to him   but stated that he did not have the time to attend to these priorities. A second PIP was deemed necessary. In addition, he was notified on 25 May that a disciplinary process would commence.

PIP 2.

PIP 2 was activated on 5 June 2018.

The witness advised that the complainant accepted on June 5 that the performance gaps existed, that change was required, that the PIP 2 goals were feasible but his preferred route for addressing them was through an informal process with his manager. The witness stated that she had to act to turn things around.

He identified lack of resources as a major factor affecting his performance. The respondent hoped that the PIP would help the complainant to bridge the gaps in knowledge and performance. Currently the workload is higher, but the software is assisting greatly, and they have a compliance measurement process in place which has led to a reduction in the workload. They have incurred no penalties in the past year. The witness did not see PIP 2 as a disciplinary process, though she was aware that while on a PIP he would be ineligible for promotion and   a bonus.

During the lifetime of   PIP 2,because of the late filing of a   VAT return, the respondent incurred a potential penalty of €220,000 fine for late payment of €2.1 m to France, in June. The respondent also incurred penalties for late filing of and late payments in Spain ,in June and in August, and in two other EU countries. The witness successfully appealed these fines.

Leadership skills and competence.

The complainant did not, as requested, fill out the Performance Management Process documents, designed to show how he was leading the team to reach their objectives and goals. He failed to advise the team of his expectations of them and their priorities and goals. He didn’t know the status of some of the team’s work – what projects needed to be developed further by him or brought to completion or what was necessary to bring them to completion.

PIP 2 ended with the complainant being advised on 7 September 2018 that performance deficiencies remained, and that a disciplinary process would be activated.

The complainant went on sick leave on 13 September until his resignation on 23 May 2019.

Reported excessive workload and company’s response.

Concerning the complainant’s complaint that the number of VAT registrations grew, the witness stated that it is normal that there would be fewer at the beginning as they were growing the department. Regarding the extent of the workload, the respondent has not replaced the complainant. The department which he was managing is functioning with 2 less employees because of the use of e smart software which would have helped the complainant.

The complainant told the witness of a 70-hour week in 2018. She told the complainant his records indicated that he was working less than 8 hours a day. She did not see 70 hours in his deliverables. The witness formed the view that the complainant was not making the best use of his time nor was he prioritising tasks. In 2017 the complaint advised the witness that there was a need for an additional person on the team but did not explain the exact role which he had in mind for that person or what functions he/she   would perform. Resources such as a software package, costing €150,000, put in place in 2017 and 2018 was aimed at helping him accomplish his tasks. From October 2017 until after the complainant’s departure,   a contractor was engaged to prepare vat returns for the complainant though there was a hiring freeze in the organisation. An analyst was promoted to the position of Manager in 2018, relieving the complainant of the French VAT returns plus audits in Italy and France.

The witness confirmed to the complainant’s solicitor that she did not ask HR to investigate his working hours because the records failed to reveal a 70 hour a week workload.

The complainant’s workplace stress.

On cross examination, the witness Ms. Y, Senior EMEA manager confirmed that she did not see the medical cert attesting to workplace stress . HR and not the   complainant had told her of this. She cannot remember the date. In July 2018, the witness advised HR to tell the complainant of the availability of EAP. She gave the complainant more flexibility, for example she gave him three weeks leave in September ; this was not provided to other staff. She cited 15 examples of when she offered him flexible work times

The complainant never told her that he had workplace stress.

The witness stated in relation to the disparity between the performance review of 2017 and earlier appraisals , it was her responsibility to appraise him when she took over.

Witness 2.

Ms Z, HR Territory Leader was in charge of HR during the contested events. She linked in with witness 1 ,his line manager who assessed his performance.

The witness agreed with the line manager’s placement of the complainant on a PIP. The complainant’s performance fell below what was expected of one in such a senior post.

At a meeting on the 18 January 2018 with his line manager and the Tax Director, the complainant   stated that he wished his performance issues to be dealt with outside of a PIP process. Concerning the gap between the 2015 and 2016 evaluations and the 2017 end of year evaluation,   the HR Leader advised that goals evolve and change. He needed to keep up to date. He needed to ensure basic and timely compliance with VAT regulations; these were the 2017-18 goals.

The complainant met the Global Director, Tax and Finance on 23 January 2018 and laid out the reasons why the 2017 end of year evaluation should be reversed. The Global Director Tax and Finance did not accept the complainant’s reasons as to why the evaluation should be altered, nor the PIP halted.

The witness responded in cross examination to the progress of the complainant’s passage through the processes applied to him.

The respondent complied with its own disciplinary procedure. They counselled the complainant and utilised the informal steps of the disciplinary process prior to conducting a disciplinary hearing with the complainant on the 16 July 2018. The hearing decided that no disciplinary sanction should apply, instead PIP2 would   take its course. As no sanction flowed from the disciplinary procedure, a right of appeal as claimed by the complainant did not arise. The respondent’s representative referred to the evidence proffered by Witness 1 on the first day of the hearing and to a record of 18/1/2018 , signed by the complainant, referring to earlier mentoring and guidance which had occurred in 2017, prior to the activation of a PIP and the disciplinary procedure.

Witness 2 stated that the non-payment of a bonus was not a disciplinary sanction as it was discretionary. The bonus is deferred. Being on a PIP renders all employees ineligible for a bonus. .

She does not accept that a PIP is part or should be part of a disciplinary process. it’s a tool for improvement.

The witness advised that the absence of a sanction at the end of the disciplinary process in July did not debar the respondent from continuing with the second PIP notwithstanding improvements. The HR leader agreed to the second PIP as he needed to mitigate risk for the company and avoid legislative issues with the VAT authority. Serious performance issues continued during PIP 1.

The witness refutes the assertion that he had experienced “public and private humiliation and “ unfair and unreasonable expectations “,identified as two elements of bullying in the respondent’s own bullying procedure. Witness 2 accepted that his previous manager had undertaken much of the VAT work with which the complainant now had an issue, but after he had left in 2017 and the VAT environment , regulations and trading platform model changed, the complainant was expected to update his knowledge as processes and regulations changed and that this expectation on the respondent’s part did not constitute bullying.

Excessive workload,

Witness 2 accepted that the complainant told her of excessive hours in 2018 but not in 2017 as contended. Nonetheless, she accepted that he did work extra hours in the transition of his former line manager to his current line manager from September 2016- April 2017. She   advised the complainant that nobody expected or wanted him to work excessive hours or the hours reported by him.

There was an open line of communication between complainant and a HR executive while he was on sick leave .

Witness 2 was not involved in the disciplinary hearing of in July 2018, , but she did tell those conducting the hearing that he that he was suffering from work related stress.

Response to workplace stress.

Regarding the complainant’s assertion that his medical certificate should have been sent to the   disciplinary committee, the witness states that it was not appropriate. Upon being notified of his workplace stress , the complainant declined the offer of the services of the company doctor. She advised him to get support. She recommended the use the EAP facility.

Use of procedures.

The Law

The respondent points to the obligation resting with the employee in light of section 1 of the Unfair Dismissals Acts 1977-2015 and to the established principles adopted by the Tribunal and the Courts, to prove that he was entitled to submit his resignation either because of a breach of his contract or unreasonable conduct on the part of the respondent. The respondent’s representative states that the respondent fulfilled its contractual obligations toward the complainant. No breach occurred which would permit the complainant to succeed in a complaint of   constructive dismissal, Assignments were legitimately within the remit of his role.

Concerning the reasonableness test, the second test which permits an employee to resign where the employer’s conduct is so unreasonable as to obviate anything other than resignation, IBEC refer to the obligation which lies with the employee as well as the employer to show that their behaviour was reasonable in all the circumstances.

The conduct of the employer.

The respondent refers to the Labour Court’s decision in Luke Glogoski v Boots, UDD 187, which held that

”it is not for the Court to establish whether or not the Complainant was incompetent or under-performing in the discharge of his duties. Were the Court to adopt that approach it would in effect be trying to second-guess, from a removed stand-point, the Respondent’s managers who are responsible for managing performance of subordinates and who are best placed to evaluate performance on the job.

Rather the Court's role is to decide on whether or not the employer's decision was reasonable such that it was properly arrived at by virtue of being based on up-to-date and relevant information which had been considered through appropriate processes applied in a consistent manner in accordance with basic fairness and in observance of the rights of fair procedures”

The difference in measurement between 2016 and 2018 is because goals evolve. Goals in 2017-2018 were about delivery. He needed to keep up to date. In response to complainant’s submission that he went from 30-100% compliance with VAT returns demonstrating that a PIP was unnecessary, the respondent expects the complainant to have basic VAT knowledge, plus timely compliance skills, plus operational excellence. The respondent’s representative stated that Vat knowledge was an integral part of the complainant’s contract; it was not outside of his remit. He was not requested, as asserted, to perform another role. The respondent representative points to efforts to assist the complainant. Software was brought into assist the complainant. They refute the under resourcing contention. The respondent maintains that it acted within the bounds of fair procedure . No sanction was applied in respect of PIP 1, nor had PIP 2 led to any sanction prior to the complainant’s resignation.

Had the respondent been notified of a formal grievance in relation to the PIP outcomes , they would have investigated same.

The respondent submitted a copy of a letter of 4/7/2018 to the complainant advising that all pertinent facts plus his statement delivered on 19/6/2018 would be considered at the disciplinary meeting scheduled for 16 July. After this meeting and having considered the case made by the complainant, the increase in the number of returns, the respondent chose not to apply any sanction to the complainant. This is illustrative of a reasonable employer.

Conduct of the employee: failure to exhaust grievance procedures.

Use of procedures.

While he did object ,he did not pursue a grievance about the 2017 end of year review. The company’s code of conduct provided for this in their grievance procedure . There was an appeal mechanism to the director of HR.

He could have appealed the findings of the PIP using the grievance procedure. He did not do so. HR advised him on 19 June when he presented written documents objecting to the initiation of a PIP that he could initiate a grievance about this placement on a PIP and its conclusions or he could opt to have his objections considered in the report on PIP 2. He opted for the inclusion of his objections in the PIP reports. Had the respondent been notified of a formal grievance in relation to the PIP outcomes , they would have investigated same.

The HR director received no complaint from him.

The complainant did not act reasonably in resigning his employment before exhausting the respondent’s grievance procedure. This was set out as a fundamental requirement in Conway V Ulster Bank UD 474/1981.

The respondent submits that even where there is a purported breach of contract , the obligation still exists to utilise the procedures to the full as decided in Travers v MBNA Ireland ltd,UD720/2006, where the Court found that though the respondent changed the complainant’s role” in a manner not in keeping with his contract of employment” , that did not relieve the complainant of the obligation to exhaust the grievance procedure and his complaint of constructive dismissal did not succeed.

The respondent also referred to the decision of Fitzsimons V Mt Carmel Hospital UD 855/2007 where the complaint of constructive dismissal was not upheld in circumstances where the complainant declined the offer of returning and activating the grievance procedures.

The cases cited by the complainant do not assist him. In the Allen case there was no one available in the company to hear the complaint.

The respondent state that they did not receive a letter of appeal from the complainant on 28 August and the person to whom he states he gave it was on leave on that date.

He resigned voluntarily. Other options were available to him.

The respondent acted in accordance with Health and Safety requirements.

Management of performance does not amount to bullying. Tasks were achievable within normal working hours.

The respondent submits that on the basis of the evidence submitted   the authorities cited, the complainant’s behaviour does not fulfil the test of reasonableness necessary to succeed in a complaint of constructive dismissal.

The respondent requests the Adjudicator to find in their favour.

I am obliged to establish if section 1 (b) of the Act of 1977 operates to validate this complaint of constructive dismissal . 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.”

In light of the statutory definition contained in section 1 of the Act of 1977 as amended, the established principles adopted by the relevant fora and the courts, the onus lies with the complainant to demonstrate that his resignation was justified.

In justifying his decision to terminate his employment the complainant will have to demonstrate that the circumstances of his dismissal met the tests as set out by Lord Denning, MR in Western Excavating (ECC) v Sharp (1978)IRL 332, and described thus:

“conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself discharged from any further performance”.

and the reasonable test which was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected to put up with it any longer, the employee is justified in leaving”

These tests were followed in a line of Irish authorities.

Breach of the complainant’s contract.

The complainant argues that the some of the functions assigned to him were beyond his contractual obligations and beyond the level of expertise which he had brought to the company. Allied to being asked to take on responsibilities outside of his known competence level, was the understaffing of his team which resulted in an excessive workload and hours. The cumulative effect of these developments was to bring about workplace stress requiring medication. These factors led to him being pushed into a needless PIP on two occasions and a disciplinary process which was side-lined temporarily.

His contract, submitted in evidence, provides for the assignment of duties by his manager or designate. The complainant did identify the completion of audits as new work being assigned to him from 2017 onwards and that it was step up in expertise, and he did state to his line manager in 2017 that VAT returns were not part of his role – a contested opinion- but while he expressed these opinions ,he did not pursue the removal of these functions when the respondent challenged the validity of his views. His evidence did not identify which of his contractual provisions or elements of his job description had been breached in requiring him to perform the functions assigned to him.

Breach of contractual entitlement to a workplace that respects his safety, health and welfare.

This contention is based on the respondent’s disregard for the hours worked by the complainant and for the toll this was having on his health.

With the exception of the 10 afterhours emails of January, February and April 2018,the complainant was not aided by the fact that his verbal evidence of a 70-hour week was not matched with records . The complainant did raise his excessive hours on 5 occasions with the respondent but when the respondent challenged his estimate, he did not pursue the matter through a grievance procedure. The respondent should, he maintains, have pressed the pause button on any activities which had by then contributed to his workplace stress upon receipt of medical confirmation of same on 19 June.

I note that the doctor did not declare the complainant unfit to work though on medication nor unfit to engage in the PIP processes or disciplinary processes prior to his commencement on sick leave in September. When provided with the medical statement ,the employer pointed him in the direction of the Employee Assistance Programme. He declined the offer of assistance form the company doctor.

The solicitor asks that I find parallels in Hurley in that this respondent ignored the risk and injury to the complainant’s health and was guilty of bullying behaviour. Did the evaluation of the complainant’s performance, the workload and the nature of the assignments constitute acts of bullying? I was not provided with evidence to shows that his assignments were beyond what his role or contract could allow. While the leap in expertise   expected of him may have been significant, the complainant, it seems , let it overwhelm him or assert it was not his job rather than pursuing the removal of these functions in a structured way. I do not find that Hurley assists this complainant as the Court recognised that the respondent, An Post, had allowed proven bullying to continue unabated and had   dissuaded the complainant from making a complaint. The complainant did not make a complaint of bullying until he submitted his letter of resignation on 8 May 2019,and no such dissuasion operated here.

It is undoubtedly the case that the placement of the complainant on a PIP was a disturbing development for a conscientious, well intentioned employee and embarrassing as a team leader. However, the Supreme Court, in 2017 in Ruffley v Board of Management of St. Anne’s , IESC 33,concerning an allegation of bullying by an employee put through a disciplinary process because of performance issues did not accept that this was bullying though they accepted that the process used was imperfect. The judgement   differentiated between the conduct of an employer which is upsetting for an employee and conduct that constitutes bullying . Charleton J’s judgment 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 is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention……. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary.”

I do not find that the placement of the complainant on a PIP was an act of bullying or a contravention on the part of the respondent of section 8 of the Safety, Health and Welfare at Work, 2005 nor, as asserted, a breach of the equivalent contractual provision in the complainant’s contract.

Conduct of the employer.

The needlessness or necessity of a PIP.

The Labour Court in Luke Glogoski v Boots, UDD 187 ‘slimmed down’ their scope to determine if the complainant had fallen below the required standard. That was the preserve of the employer. An adjudicative body is required to   establish that the decision to evaluate an employee’s performance on the job is based on “up-to-date and relevant information which had been considered through appropriate processes applied in a consistent manner in accordance with basic fairness and in observance of the rights of fair procedures”.

Applying Golgoski to the facts of this case, the complainant did not deny the existence of the performance issues ( up to date relevant information) which constituted the basis for the PIP, merely the process for addressing them. Concerning the requirement to employ processes characterised by basic fairness and fair procedures, the processes - PIP one and two- were conducted in accordance with the company’s procedures. The basis for same was documented and provided to him in advance of PIP meetings. He sought and was given an opportunity to object to the processes. His objections containing mitigating factors such as lack of staff and excessive hours were not accepted as grounds to replace the PIP with an informal process, nor to alter the conclusions that problems continued with his performance. The evidence tilts in the respondent’s favour to show that informal coaching had occurred but did not remedy the shortcomings.

Fair procedures

The complainant argues that the non-payment of the bonus was a sanction and he should have been afforded the protection of the disciplinary procedure prior to non-payment. It is an obvious loss for the complainant, but his contract states he will be eligible for payment of a bonus which will be payable according to his performance against objectives agreed with his manager. I accept that payment of a bonus is a function of a PIP and not a disciplinary sanction. It is not listed in the array of sanctions contained in the disciplinary procedure. In the application of the disciplinary procedure which concluded without a sanction being applied, the evidence indicates that the respondent complied with its own procedures and S.I 146./2000. The respondent IT director who conducted the disciplinary process advised the complainant on 23 August 2018 that no sanction was to be applied as improvements and a willingness to cooperate were evident, but that PIP 2 would continue. He was offered the right to appeal the decision to maintain him on PIP 2 . He stated that he submitted an appeal within the 5 days. The written and oral evidence favours the non-receipt of an appeal by the respondent.

I do not find that the respondent was deprived of the right to initiate PIP 2 before the disciplinary process emanating from PIP 1 had commenced.

He objected to his line manager and to HR on 18 January, he objected to the 2017 end of year review in a meeting with the Global Director , Tax and his line manager on 26 January. On 5 June, he objected to PIP 1 , on 19 June submitted a folder to HR. HR offered him the opportunity to activate the Grievance Procedure, but he declined, opting instead to have his objections factored into the PIP investigation report.

Obligation to exhaust grievance procedures prior to resigning.

The requirement to do so in cases of constructive dismissal has been identified in McCormack V Dunnes Stores, UD,1421/2008 , and in Terminal Four Solutions v Rahman, UD 898/2011 and has been followed   in many other decisions. In the complainant’s letter of resignation of 7 May 2019, he lists unfair treatment, difference in treatment relative to his peers and a lack of respect for his dignity. The respondent asked him to reconsider his resignation and to allow his concerns to be investigated either through the Bullying and Harassment Procedure or the Grievance Procedure. He declined this invitation. His GP did not declare him unfit to work or unfit to engage with the processes employed by the company in the period January – September 2018 when he might have activated the procedures. The Occupational health report of 25 January 2019 recommended dialogue with his employers. He chose to forego those opportunities.

He did object to the 2017 end of year review, but when his objections did not alter the course of events he did not activate the grievance procedure. He did raise his working hours, but when his estimate was not accepted, he let it lie. He objected to the mechanism of PIP 1, its report, and to the mechanism of PIP 2 but, again, did not activate the grievance procedure, the end stage of which was a referral to the HR Director.

The Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: in considering the ‘reasonableness test’ stated

“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.”

Applying Berber, while it was undoubtedly a very difficult situation for the complainant, short on the latitude expected by him, this is not the bar which the complainant has to surmount to demonstrate that the employer’s conduct was so unreasonable as to leave him with no choice other than resignation.

Based on the evidence and authorities cited, I find that the complainant has failed to meet the tests set out in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332.

I do not find the complaint of constructive dismissal taken under the Unfair Dismissals Act 1977-2015 to be well founded.

I do not find that the complainant was unfairly dismissed.

Performance management; use of grievance procedures.