Employee

Employer

Anonymised Parties

Store Manager

Retailer

Representatives

Self

Collier Broderick Management Consultants

Act

Dispute Reference No.

Date of Receipt

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

CA-00035227-001

13/03/2020

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

CA-00035227-002

13/03/2020

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

CA-00035227-003

13/03/2020

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

CA-00035227-004

13/03/2020

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

CA-00035227-005

13/03/2020

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

CA-00035227-006

13/03/2020

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

CA-00035227-007

13/03/2020

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

CA-00035227-008

13/03/2020

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

CA-00035227-009

13/03/2020

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

CA-00035227-010

13/03/2020

The Employee was employed as a Store Manager with the Employer from 4th November 2019 until 1st March 2020 when he resigned his position. The Employee worked a 44 hour week and was paid €480.77 gross per week.

The Employee has submitted ten separate complaints of constructive dismissal under the Industrial Relations Acts, each of which relates to a separate incident of alleged unreasonable behaviour.

The Employee submits that he faced a lot of challenges when he joined the Employer’s company. This included interactions with his Support Manager who was his line manager and Keyholders who were his subordinates.

The Employee submits that he made a formal complaint to HR which he contends was not addressed appropriately.

The Employee submits that he subsequently contacted HR on the 12th December 2019 requesting support in a number of areas but that this was not forthcoming.

The Employee submits that on 17th December 2019 he was threatened by a staff member’s mother after her daughter accused him of bullying her at work. This allegation was investigated and was not upheld but he was issued with a warning. The Employee submits that the accusations, the investigation and the warning were demeaning and impacted on his ability to fulfil his staff management role.

The Employee submits that on 28th January 2020 a manager from another store arrived in his store and informed him that she had assigned to his store for two weeks to support him. The Employee said that he had not been informed about this arrangement and that it undermined his position.

The Employee submits that from 28th January until 17th February 2019, his position was undermined by his Support Manager, the manager for the other store and a Goods Inwards colleague who had been sent from another store to train the Employee’s staff.

The Employee submits that on 18th February 2020, he was invited to an unfair investigation meeting for not giving due care to a member of staff who was injured at work.

The Employee submits that on 26th February 2020 he had his first probation review. The Employee submits that his was not happy with the review process. He felt that it was humiliating and unfair in light of the amount of effort he had put into his role over the busy Christmas period.

The Employee submits that staff shouted at him and were aggressive towards him. He raised this matter with his Support Manger and Personnel but no response was forthcoming.

The Employee submits that he reached out to his Support Manager on multiple occasions but was ignored. The Employee contends, however, that the Support Manager responded promptly to complaints from the Employee’s direct reports and that the only contact the Employee had with the Support Manager was when the Support Manager raised a performance issue with him.

The Employee submits that he was unable to effectively fulfil is duties due to the behaviour of his subordinates yet he was held accountable for any poor performance in the store.

The Employer submits as follows:

The Employee commenced his employment with the Employer on 4th November 2019. The Employee signed the staff handbook acknowledgment form. The staff handbook includes policies on dignity at work, grievances and operational procedures.

The Employee’s Trainee Manager training was delayed due to the Employee’s required attendance at non-employment related pre-arranged engagement on 14th November 2019.   The Employee was provided with two weeks’ training from 25th November 2019 to 6th December 2019 (21 days after he commenced employment with the Employer).

In his evaluation of the Trainee Manager training, the Employee commented that the training was “informative and practical”.

In an email of 20th November 2019 to HR, the Employee acknowledged the “great support in the onboarding process”. In the same email, the Employee thanked HR for “taking the time to engage and help resolve the other issues I raised with you recently”. The Employee concluded his email with the statement that he was “looking forward to your continued support”.

On 12th December 2019, the Employee emailed HR seeking additional support and advice.   HR responded to the Employee’s email on 13th December 2019. In its reply, HR provided advice, sought further information on a number of points, clarified the Employee’s responsibilities and offered that HR or the Support Manager would provide additional help if the Employee requested it.

As a result of the Employee’s store falling behind in relation to standards and processing of deliveries, an experienced store manager from a nearby store was deployed to support the Employee. The other store manager was on site in the Employee’s store from 28th January 2020 to 17th February 2020 and was in touch with the store subsequent to being on site.

The Employee acknowledged the support from the other store manager at a meeting between him and his Support Manager on 6th February 2020 in which he said “I have worked closely with [the other store manager]. She has been supportive and we get along well.” The note of this meeting was signed by the Employee.

The Employer contends that the Employee did not make a formal complaint against his Support Manager.   The Employer accepts that the Employee made an informal complaint against his Support Manager on 18th November 2019 – 14 days after he commenced employment with the Employer.   The Employer submits that this matter was resolved informally.

The Employer submits that a formal complaint against the Employee by a Sales Assistant was investigated but was not upheld due to insufficient evidence.

The Employee made a complaint of alleged bullying by a staff member on 10th February 2020. The Employer submits that the Employee did not give the Employer an opportunity to investigate the issues raised before resigning, notwithstanding the fact that the Employer had conducted investigations involving the Employee previously.

The Employee had his first 3-month probation review on 11th February 2020. The Employee’s self-evaluation was vey positive. The Support Manager, however, identified a number of follow-up actions that were required from the Employee. The conclusion from the review meeting with the Support Manager on 26th February 2020 was that there would be a follow-up meeting the following week and if the Support Manager did not see improvements, the Employee would fail his probation.

On 18th February 2020, the Employee was invited to an investigation meeting relating to a staff complaint for his lack of duty of care provided following a head injury. The investigation found that the Employee did show a lack of duty of care. As the Employee resigned his position shortly after the investigation, no disciplinary action was taken.

It is the Employer’s contention that the Employee did not achieve the standard that was expected of him.

The Employer submits that it acted reasonably in supporting the Employee onboarding and managing the various challenges that he encountered by:

·       Providing the Employee with 2 weeks of detailed and comprehensive Trainee Manager training off-site

·       Acting immediately to address the Employee’s request for additional support through his Support Manager, another store manager and a Goods Inward staff member from another store

·       Providing phone, email and onsite support via HR, a Support Manager, the other Store Manager and the Goods Inward staff member from another store

·       Investigating complaints about the Employee by staff and customers

·       Providing the Employee with feedback and informant on what he had to do to meet the expected performance standards

I have carefully considered the extensive written and oral submissions made by the parties in relation to this dispute.

This dispute was referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 and, in essence, concerns a claim of constructive dismissal. The Employee commenced employment with the Employer on 4th November 2019 and resigned his position as Store Manager by email dated 27th February 2020.

I am satisfied that this case may be informed by the Unfair Dismissals Acts in respect of constructive dismissal cases.

The term “constructivedismissal” is not specifically mentioned in the Unfair Dismissals Acts. However, it is a term commonly understood to refer to that part of the definition in Section 1 of the 1977 Act. The burden of proof in such cases, which is a high one, rests with the Employee. The Employee must demonstrate that he was justified in his decision and that it was reasonable for him to resign his position. The Employee must also demonstrate that he had no option but to resign.

The alleged unreasonable behaviour contended by the Employee which he claims resulted in his position becoming untenable and ultimately led to his resignation can be summarised as follows:

·       He did not receive sufficient support from his Support Manager and HR

·       He was treated inappropriately by his subordinates

·       He was subjected to bullying in the workplace

The Employee worked for the Employer for a total of 17 weeks. During that time, he was absent from his workplace for two weeks on a training course.

The Employee seems to have had ongoing issues with both his superiors and his subordinates over the course of his employment with the Employer. He also appeared to have issues with the level of support he received from the Employer’s HR function.

In my view, the Employer provided significant support to the Employee during the course of his employment. This support was provided by his Support Manager and by the provision of on-site assistance from an experienced Store Manager and a Goods Inwards colleague from a high-performing store. Support was also provided by HR who responded very promptly to a number of issues the Employee raised on 12th December 2019.

I note that the Employee had made a complaint of bullying on 10th February 2020. I find that the Employee took the decision to resign from his employment before he had fully exhausted or utilised all remedies available through the Employer’s internal grievance and disciplinary procedures, some of which he had accessed previously, to address his complaint.

Having regard to the foregoing, I find that the Employee has not established that the conduct of the Employer was such that he had no option but to resign his position. Accordingly, I find that the Employee was not constructively dismissed from his employment.

I recommend the Employee accepts that he was not constructively dismissed from his employment.

Accordingly, I find that all ten of the Employee’s complaints - CA-00035227-001, CA-00035227-002, CA-00035227-003, CA-00035227-004, CA-00035227-005, CA-00035227-006, CA-00035227-007, CA-00035227-008, CA-00035227-009, CA-00035227-010 are not well founded.

Constructive Dismissal – less than twelve months’ service