Complainant

Respondent

Parties

Sean  O'connell

The Carphone Warehouse Limited Dixons Carphone Ireland

Complainant

Respondent

Anonymised Parties

Representatives

  In person.

Jessica Bielenberg, Mason Hayes & Curran

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-00040699-001

30/10/2020

The Complainant commenced employment with the Respondent on 15 September 2003. On 4 July 2012 he was promoted to the position of branch manager.

Employment ended on 15th July 2020.

This complaint was received by the Workplace Relations Commission on 30th October 2020.

In November 2019 the Complainant was notified of an investigation to be carried over his perceived failure to manage a company process called 'Workforce Management’.

Prior to this no mention of this issue was addressed to the Complainant by his line manager nor was the internal Carphone Warehouse/Dixons Carphone disciplinary processes adhered to. This investigation was subsequently carried out on the 10th of December and it was left until the 31st of December 2019 that the Complainant was notified that this investigation outcome was now being referred to the disciplinary procedure. The Complainant was then invited to attend a disciplinary interview on 7th January 2020.

No opportunity to resolve the issue within this time frame was made and the Complainant contends that this is contrary to the internal procedures.

A very prolonged disciplinary interview took place on the 7th of January 2020 during which some rather questionable evidence was introduced. This information had not been shown to the Complainant before this meeting and the Complainant feels that he was denied the opportunity to respond to this new information. The Complainant contends that the disciplinary meeting was nothing short of an ambush.

Following the disciplinary interview the Complainant was issued with a final written warning for gross misconduct.

This decision weighed heavily on the Complainant and he felt it was very unfair after his 16 years of unblemished service.

The Complainant then felt he had no option but to go to his GP who subsequently signed him off work. The Complainant contends that prior to this absence he had possibly missed no more than 10 days in 16 years prior to this. Sickness certificates were sent in a timely manner over the next 6 months to the Complainant’s line manager and the companies Human Resources Employee Relations executives and he states that he followed the company’s sickness policy.

The companies Employee Relations executive wanted more details on the sickness certificates supplied by the Complainant and was asking what was wrong with him. He was implying that the complainant’s sickness absence was conveniently done following the disciplinary process the Complainant had just gone through.

The Complainant had to attend counselling sessions as a result of the treatment levelled against him and contends that he fully complied with the company’s request to be assessed by the companies appointed occupational health doctor who confirmed that his illness absence was legitimate. The Complainant was also put on medication by his own GP.

 The Complainant subsequently felt that he had no further option but to resign and did so on the 15th of July 2020.

An appeal was arranged that resulted in a downgrade of the initial final warning after he had left the Respondent’s employment. This appeal was held on the 6th of October 2020.

Prior to this appeal hearing the Complainant had requested some information such as copies of his line manager’s store reviews and some explanation as to why the company had failed to adhere to its own set of rules and procedures. The Complainant states that he was ignored every-time or issued with very non-descript answers that did not answer his questions.

There was no dismissal of the Complainant; rather he resigned from his employment, in the absence of utilising the Respondent's grievance procedure and prior to prosecuting his appeal of a disciplinary sanction of January 2020;

Therefore, there was no dismissal as alleged or at all of the Complainant.

The references to the mediation process or contents therein by the Complainant are unlawful and will be strictly objected to by the Respondent at the hearing.

Factual background

TheComplainant commencedemployment withtheRespondenton15September 2003.On 4July 2012 he was promoted totheposition of branch manager based at the Respondent's Wilton branch.

The Complainant's contract of employment and employee handbook contained a clear and accessible grievance procedure to which he had recourse for any issues he experienced during his employment. At no time during his employment did the Complainant raise any issues or concerns formally or informally, in particular with the disciplinary process which concluded in January 2020 and he failed to invoke the grievance procedure. In addition, the Complainant failed to appeal the disciplinary outcome of January 2020 prior to submitting his resignation from employment in July 2020.

At page 22 of the Republic of Ireland employee handbook a detailed grievance procedure is set out making it clear that if an employee has a grievance arising from their employment, it should not be ignored, and details are provided as to how a grievance can be raised, both formally and informally. At no stage during the Complainant's employment was this procedure invoked.

On 11 November 2019 the Complainant had a conversation with Stephen Kelleher, Store Manager, where he was informed that he had been flagged for investigation for some time regarding apparent failure to manage the workforce management compliance system within his branch. It was made clear to the Complainant that his non-compliance should be addressed.

On 14 November 2019 the Complainant was invited to an investigation meeting to gather information in relation to his apparent failure to manage workforce management compliance within his branch. Mr Diarmuid MacElean (General Manager) was appointed to conduct the meeting.

Whilst the Complainant raises issues with the apparent non-compliance with the Respondent's conduct and capability policy, and paragraph 6 thereof, it is clear that the informal approach referred to therein is discretionary and is only implemented "where appropriate". In relation tounderperformancediscussions again thisisdiscretionary, andtheevidence willbe provided that the Complainanthaving been spoken to on a number of occasions regarding hisfailuretoproperlycomplywiththeworkforce compliance requirements of hisbranch.For theavoidance of doubttherewasnobreachof theconduct andcapabilitypolicyasallegedor at all.

It is also the case that Matt Simms, Regional Manager, had spoken to the Complainant on a number of occasions regarding the non-compliance with the workforce management system in place. This is an important system as it monitors staff attendance, hours of work, staff absence, annual leave and rosters. Mr Simms will provide evidence of the Complainant receiving regular training on the workforce management system and being spoken to regarding his poor performance with compliance, and use of, the workforce management system. Evidence will also be adduced on the peer supports provided to the Complainant, by way of other managers being appointed to provide guidance to the Complainant on the workforce management system and its operation. The Complainant also received regular coaching from Mr. Simms during regular store visits.

On 1O December 2019 an investigation meeting took place with Mr MacElean to gather evidence relating to whether the Complainant had failed to manage the workforce management compliance withinhisbranch.This meeting was1.5hoursinduration.

Following the investigation meeting the decision was made to proceed to a formal disciplinary meeting and by letter dated 31 December 2019, the Complainant was invited to a formal disciplinary meeting on 7 January 2020 to take place in his branch. This would be conducted by Mary Haugh, Branch Manager. The Complainant was afforded the opportunity to have a colleague accompany him and the reason for the meeting was set out as clearly being in respect of his "alleged failure to manage workforce management compliance", which couldbe abreachof histermsandconditions ofemployment.TheComplainant wasprovidedwiththe evidencewhichwouldbeconsideredatthedisciplinarymeeting.

The Complainant attended at the disciplinary meeting accompanied by Nicola Carew, on 7 January 2020. Ms. Haugh, Branch Manager, conducted the meeting. This meeting was detailed in nature but there was no aggressive behaviour on the part of Ms. Haugh as alleged or at all. In fact, this was confirmed subsequently by Ms. Carew who rather described frustration on the part of Ms. Haugh as to the non-answering of questions posed. The disciplinary manager, Ms. Haugh, wished to take some time to consider the outcome, if any but to the Complainant insisting on the outcome being delivered that day, she took 90 minutes to consider the outcome. Having considered the matter during this time Ms. Haugh found as follows:

·         That the peers of the Complainant and regional management had discussed workforce management compliance with the Complainant;

·         The Complainant had acknowledged ignoring communications from regional management and peers in relation to his non-compliance.

·         Ms.Haugh concludedthat the actions of theComplainant constituted gross misconduct and sheimposed afinalwritten warning which wouldremain for 12months ontheComplainant's file.Ms. Haugh concluded that the Complainant was guilty of managing the workforce management compliance within the Respondent by failing to manually input clocking’s for clients.Thesefindings werebasedontheinsubordinationoftheComplainantandtheserious consequencesofhis actions.

On 15 January 2020 the Complainant commenced a period of sick leave.Whilst the Respondent has referred to the Complainant commencing a period of sick leave in subsequent correspondence,there is no element of any criticism of the Complainant inthis regard and anyclaim tothecontrary istobedenied.The Respondent wasentirely unaware of thereasonfortheComplainant's sickleaveuntilitreceivedcorrespondencedated25May 2020 from the Complainant's solicitor referring to the reason of the absence being work related stress.The Respondent responded to the correspondence from the Complainant's solicitor on 25 June 2020 making itclear that it would make areferraltooccupational health inrespect of theComplainant's sick leave, theComplainant couldprocess his appeal during his sick leave or upon his return to work andhe was also informed toremain incontact with his line manager.

On 25 May 2020 the Complainant's solicitor referred to work related stress being the reason for the Complainant's absence and was critical of the delays in having occupational health assess the Complainant. Any delays were caused by the Covid pandemic and difficulties the Respondent experienced with obtaining a date for an occupational health referral. This correspondence was responded to on 9 July 2020 where the Respondent's HR Department furnished a copy of the occupational health report and made it clear that it wished to meet with the Complainant in order to discuss his current circumstances and facilitate a return to work as per the occupational health report.

On 16 June 2020 the Complainant attended with occupational health advisors appointed on behalf of the Respondent. This report concluded that the issues of the Complainant were mainly IR/ER issues and could be managed in an appropriate way in the employment by way of utilising the procedures in work. The Respondent was encouraged to engage with the Complainant to address any work-related issues which it did thereafter, but the Complainant failed to engage with the Respondent.

During the currency of the Complainant's sick leave, Mr Simms remained in regular contact. He offered to meet the Complainant personally during these welfare meetings (and to travel near the Complainant's home), but the Complainant refused to meet with him.

Entirely out of the blue and in the absence of any warning on 15 July 2020 the Complainant furnished his resignation from employment on 15 July 2020. The Complainant stated

"It is with a heavy heart that [he} is now taking an opportunity to furnish you with notice of my resignation from the role of branch manager of the Wilton store in Cork Ireland following 16 years of loyal service... The fact of the matter is that I simply cannot countenance continuing my employment with Dixons Carphone any further and I am left with no alternative to resign."

The Complainant thereafter was critical of the investigation and disciplinary processes carried out by the Respondent and referred to having raised concerns regarding his treatment therein. It is clear that the reason the Complainant furnished his resignation from employment on 15 July 2020 was in order that he take up alternative employment. The complaint form furnished by the Complainant makes it clear that he took up new employment five days after and therefore there was no resignation from employment. On 28 July 2020 the Respondent replied to the resignation letter and made it clear it was willing to enter into a meeting with him to discuss possibilities of his retention but on 30 July 2020 the Complainant responded to state that he was still resigning. This is unsurprising in circumstances where he had taken up alternative employment.

In August 2020 the HR Department was in contact with the Complainant to ascertain whether he wished to lodge an appeal into the disciplinary sanction as decided in January 2020. Following prompting on the part of the Respondent on 31 August 2020 the Complainant issued a letter of appeal alleging a number of appeal points:

·         That the disciplinary meeting had been heavy handed;

·         There were insinuations made regarding him being sick;

·         The questions he had raised were outstanding in relation to documentation requested;

·         He queried who had appointed the investigator as the investigator was not his line manager;

·         The informal processes had not been followed;

·         The outcome was predetermined;

·         Documentation including emails and a witness statement were handed to him during the disciplinary meeting and were not provided in advance;

·         He was not given the minutes of the disciplinary meeting until a subject access request;

·         There was no regard to the fact that no training was provided to him in relation to workforce management compliance; and

·         He was not afforded the opportunity to improve in the workforce management compliance area.

On 6 October 2020 Declan Souch, Regional Manager, held an appeal hearing with the Complainant to consider the points of appeal in relation to the disciplinary sanction of final written warning imposed in January 2020.After the meeting on 12 October and 13 October 2020 Mr Souch sought clarification from Ms Carew, Ms Haugh, Mr Cooke and Mr Simms regarding certainpoints which hadarisen.TheComplainant was affordedtheopportunity to makefurther pointsinrelationtohisappealposttheappealhearing anddidsoon19October 2020.

On 23 October 2020 Mr Souch issued the appeal outcome in relation to the disciplinary process. He found that it was appropriate to downgrade the sanction to a first written warning, which would apply for a period of six months in relation to the Complainant.

It is submitted, therefore, that the resignation of employment of the Complainant was precipitous as he failed to await the outcome of the disciplinary appeal, he resigned to take up alternative employment and he failed to raise any grievances during his employment regarding the issues which he now seeks to canvass before the Workplace Relations Commission.

Legal submissions

Section 1(1)(b) of the Unfair Dismissals Acts 1997 (as amended) provides the two-tier test on which constructive dismissal is to be objectively assessed:

''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 that the termination to the employer".

The two-tier test was evaluated in the case of Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332with Lord Denning MR describing the contract test as:

If the employer is 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.'

And the reasonableness test asks whether the employer:

conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, [if so} the employee is justified in leaving.

This evaluation of the test for constructive dismissal was endorsed by the Supreme Court in the case of Berber v Dunnes Stores Ltd [2009] IESC 10. The Court held that the behaviour of the employer must be unreasonable 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. There is no evidence of such treatment and the Complainant and no issues were raised in her letter of resignation-which makes no reference to any alleged poor treatment.

Redmond's Dismissal Law, third edition, notes that there is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer's grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignations. The EAT in Conway v Ulster Bank Ltd UD474/1981 found that the employee had not been unfairly dismissed by way of constructive dismissal and held that the Appellant did not act reasonably in resigning without first having 'substantially utilised the grievance procedure to attempt to remedy her complaints'.

There was no dismissal of the Complainant and he rather resigned from his employment. He did not invoke the grievance procedure of the Respondent prior to his resignation from employment. He failed to prosecute the appeal of the disciplinary outcome prior to his resignation from employment. He also provided no notice of his intention to resign from his employment and failed to take up the offer to meet with the Respondent, prior to and after, his resignation of employment.

In Looney and Co Ltd V Looney UD 843 / 1984 the Employment Appeals Tribunal (EAT) summarised as follows:

‘It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did or decide as it did , as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’.

In the instant case, as the Adjudication Officer, my job is to look at the procedures followed and to decide if the outcome was the outcome an employer, acting reasonably, would make.

On 11 November 2019 the Complainant had a conversation with Stephen Kelleher, Store Manager, where he was informed that he had been flagged for investigation for some time regarding apparent failure to manage the workforce management compliance system within his branch. It was made clear to the Complainant that his non-compliance should be addressed.

On 14 November 2019 the Complainant was invited to an investigation meeting to gather information in relation to his apparent failure to manage workforce management compliance within his branch.

It is also the case that the Regional Manager had spoken to the Complainant on a number of occasions regarding the non-compliance with the workforce management system in place. This is an important system as it monitors staff attendance, hours of work, staff absence, annual leave and rosters. The Complainant received regular training on the workforce management system and had been spoken to regarding his poor performance with compliance, and use of, the workforce management system. Peer supports provided to the Complainant, by way of other managers being appointed to provide guidance to the Complainant on the workforce management system and its operation. The Complainant also received regular coaching from the Regional Manager during regular store visits.

Following an investigation into the Complainant’s failure to manage the workforce management system he was invited to attend a disciplinary interview to be held on 7th January 2020.

Ms. Haugh (the manager conducting the disciplinary interview) concluded that the Complainant was guilty of managing the workforce management compliance within the Respondent by failing to manually input clocking’s for clients. These findings were based on the insubordination of the Complainant and the serious consequences of his actions.

On 15th January 2020 the Complainant commenced a period of sick leave. The Respondent was entirely unaware of the reason for the Complainant's sick leave until it received correspondence dated 25th May 2020 from the Complainant's solicitor referring to the reason of the absence being work related stress. The Respondent responded to the correspondence from the Complainant's solicitor on 25th June 2020 making it clear that it would make a referral to occupational health in respect of the Complainant's sick leave, the Complainant could process his appeal during his sick leave or upon his return to work.

On 16th June 2020 the Complainant attended with occupational health advisors appointed on behalf of the Respondent. This report concluded that the issues of the Complainant were mainly IR/ER issues and could be managed in an appropriate way in the employment by way of utilising the procedures in work. The Respondent was encouraged to engage with the Complainant to address any work-related issues which it did, but the Complainant failed to engage with the Respondent.

On 15th July 2020 the Complainant furnished his resignation from employment on 15th July 2020. The Complainant stated

"It is with a heavy heart that [he} is now taking an opportunity to furnish you with notice of my resignation from the role of branch manager of the Wilton store in Cork Ireland following 16 years of loyal service... The fact of the matter is that I simply cannot countenance continuing my employment with Dixons Carphone any further and I am left with no alternative to resign."

In August 2020 the Respondent contacted the Complainant to ascertain if he wished to proceed with the appeal against the Final Written Warning that had been issued after the Disciplinary interview that had been held in January. The Complainant did wish to proceed with the appeal and wrote to the Respondent on 31st August and stated the following:

·         That the disciplinary meeting had been heavy handed;

·         There were insinuations made regarding him being sick;

·         The questions he had raised were outstanding in relation to documentation requested;

·         He queried who had appointed the investigator as the investigator was not his line manager;

·         The informal processes had not been followed;

·         The outcome was predetermined;

·         Documentation including emails and a witness statement were handed to him during the disciplinary meeting and were not provided in advance;

·         He was not given the minutes of the disciplinary meeting until a subject access request;

·         There was no regard to the fact that no training was provided to him in relation to workforce management compliance; and

·         He was not afforded the opportunity to improve in the workforce management compliance area.

Following a lengthy appeal hearing the Final Written Warning was reduced to a Written Warning, this was communicated to the Complainant by letter dated 23rd October 2020.

The Respondent has quoted from Redmond's Dismissal Law, third edition, notes that there is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer's grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignations. The EAT in Conway v Ulster Bank Ltd UD474/1981 found that the employee had not been unfairly dismissed by way of constructive dismissal and held that the Appellant did not act reasonably in resigning without first having 'substantially utilised the grievance procedure to attempt to remedy her complaints'.

In the instant case prior to any disciplinary investigation being notified to the Complainant he had not raised any grievance in his 15 years of employment with the Respondent.

Overall, I am satisfied with the procedures followed by the Respondent although I would have to be critical of some of the delays on the Respondent’s part.

The issue of a Final Written Warning was disproportionate and the Respondent recognised this and reduced the sanction to a Final Warning.

It is more than obvious that the Complainant was looking for alternative employment during his absence from work and was successful in gaining it. This is not a case of constructive dismissal and for this reason I have to conclude that the complaint as presented is not well founded. 

It is more than obvious that the Complainant was looking for alternative employment during his absence from work and was successful in gaining it. This is not a case of constructive dismissal and for this reason I have to conclude that the complaint as presented is not well founded. 

Constructive Dismissal.