Complainant

Respondent

Parties

Frank  O'Dwyer

Tesco Ireland

Representatives

Barry Sheehan 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-00045463-001

29/07/2021

The Complainant commenced working with the Respondent on 17 September 2007 where he was employed as a Team Leader and earned an average of €467 per week. He stated that he was left with no alternative but to terminate his employment on 2 July 2021 as a result of having been bullied by the Store Manager in the shop where he worked.

The Complainant firstly gave evidence of a difficulty he had with the Store Manager in 2015 when the Store Manager directed him to manipulate the Respondent’s club card system by instructing the Complainant to put points he (the Store Manager) had earned in respect of a purchase he had made onto a blank club card. When the Complainant subsequently encouraged other customers to do likewise, he was disciplined, although this sanction was subsequently overturned on appeal. The Complainant asserted that the overall incident reflected poorly on the Store Manager and claimed that he inferred afterwards that he would exact revenge on him.

The Complainant stated that this revenge began after he transferred from the petrol station to the main store in 2018 due to the role of Team Leader in the petrol station no longer being required. He alleged that in early December 2018 at a group meeting with the Store Manager, he proposed ideas which he believed would assist with the smooth running of the front end of the store during the busy Christmas period. Although it was unanimously agreed at the meeting that these suggestions would improve efficiency and were accordingly implemented, the Store Manager changed the Christmas Eve roster. The Complainant asserted that this gave a clear message to staff that the Store Manager had no respect for him and made his job more difficult, allowing others to also undermine his position.

The Complainant also alleged that during this Christmas 2018 period, the Store Manager stationed him on check outs instead of allowing him to perform his functions as Team Leader and asserted that a general assistant was assigned to perform his duties instead.  

The Complainant stated that in April 2019, the Store Manager called him down to the front door of the store and asked him why he had not ensured that customer trolleys had been collected. The Complainant stated that he apologised saying that as they were so busy in store, he did not have the time to check them. The Store Manager also demanded that the Complainant keep an eye on the trolleys and stated that he would not accept any excuses. The Complainant stated that of all the team leaders and supervisors on duty at the time, he was the only one called to account for the build up of trolleys and felt singled out.

Further to this incident, in May 2019, the Store Manager spoke to the Complainant when he noticed that some of the trolleys were jammed. Specifically, he insisted that the Complainant should have recognised this and that any litter lying around should have been cleared. The Store Manager also brought the Complainant outside to show him how the trolleys were jammed and ordered him to release them. The Complainant also stated that it was unfair he was singled out for this task when it did not fall within area of responsibility and asserted that it was part of the Store Manager’s broader campaign of bullying against him.

The Complainant also stated that on 6 June 2019, while in a conversation with the Store Manager, his mobile phone rang, and he was asked why he was carrying it as staff were not allowed to carry phones. The Complainant accepted this but informed the Store Manager that his line manager had authorised team leaders to carry their personal mobile phones in order to photograph issues as they arose on the shop floor and report them in the group chat. The Store Manager informed him however that it was not necessary and he should not have had the phone on him. The Complainant asserted however that the Store Manager allowed other team leaders and supervisors to use their phones in this capacity and alleged that he was isolated from the group chat and the group as a result of being unable to use his phone. He stated that he went to the Personnel Manager to explain his difficulty but claimed that nothing was done.

Subsequently on 7 June 2019, his line manager arranged a meeting with the Personnel Manager to identify ways that could resolve the issues the Complainant was having with the Store Manager. No resolution came from this meeting however despite a discussion around some new equipment and reorganisation.

On 25 June 2019, the Complainant stated that on his way to the cash office to finish the morning cash run, the Store Manager charged over to him shouting and told him that a cage of empty cardboard boxes had been left at the window of the shop. The Complainant informed him that as he was in the process of performing the cash run, he had not spotted the cage. He stated that the Store Manager berated him in front of his colleagues shouting that he should have seen the boxes and that it was his responsibility to ensure that it did not happen. The Complainant stated that several colleagues said to him afterwards that the Store Manager should not have spoken to him in such a manner.

On 16 August 2019, when the Complainant was working in the store, a customer walked off without paying for goods to the value of €65. Further to this, on 17 August, the Complainant asserted that the Store Manager accused him of leaving the store in chaos the previous evening because queues had been allowed to build up and, as a result, the aforementioned customer had walked off without paying. The Complainant stated that the Store Manager decided this alleged chaos was grounds enough to remove him as team leader. Specifically, the Complainant asserted that the Store Manager refused to listen to his side of the story and told him “I’m going to have a performance review done of you with a view to demoting you as team leader”.

On 18 August 2019, the Complainant stated that he was threatened and verbally abused by an intoxicated customer who threatened to beat him up some night when he least expected it.  Subsequently on 20 August 2019 the Store Manager inquired of the Complainant as to what happened. When the Complainant informed him of the incident, the Store Manager stated that his only concern was for the store’s sales targets. The Complainant asserted that this demonstrated the complete disregard that the Store Manager had for him.

On 29 August 2019 while supervising staff under his control, the Complainant was asked by one of his team to get a sel number for a customer. He stated that he gave a colleague his headset so he could call out the required number to her from where they were located at so as not to delay the customer. This required him to move to another part of the store. On his return to his designated position, the Complainant stated that the Store Manager asked him why he had left his position and ordered that he not do so again. The Complainant stated that this was impractical, would not have been required of any other team leader and was another example of the Store Manager’s bullying of him.

Later that same evening, 29 August, the Complainant stated that he requested support from the duty manager asking for relief staff to be provided on the tills. The Duty Manager suggested that the Complainant go on the tills himself and he could cover his duties while he was doing so. When the Store Manager saw the Complainant working on tills, he asked him why he was not supervising. When the Complainant told him that the duty manager had told him to work on the tills, the Store Manager told him that he would check this with the duty manager. The Complainant stated that the interaction with the Store Manager was tense as well accusatory and was an example of the culture of fear created in the store.

On 2 September 2019, the Complainant inquired of the Store Manager at a meeting what could be done to prevent the constant barrage of criticisms, arguments and complaints and asked him what he wanted from him. The Complainant stated that the Store Manager told him that they did not argue but that they debated and that if he was not able for the debates, then he was not able for the job. The Complainant stated that the Store Manager also told him that he was a good worker but was not suitable for the job of Team Leader and that it wasn’t worth him doing the job for €1.25 per hour. The Complainant stated that he understood from this that the Store Manager wanted him to step down from his position as Team Leader and informed him that if he was allowed to perform his duties without his (the Store Manager’s) interference, he would agree to step down if he was found to be incapable of performing the functions of his role. He asserted however that the Store Manager was not interested in any such compromise.

The Complainant stated that the review into his performance, referred to in the meeting with the Store Manager on 17 August 2019, took place during a meeting with the Deputy Manager of the store on 5 September 2019. He stated that he was questioned about the events of 16 August 2019 and it was put to him that he left the store in chaos. He asserted that he was encouraged at this meeting to resign his position as Team Leader and believed that the Store Manager was behind this.

On 6 September 2019, the Complainant stated that as he was walking away from a checkout that he had just opened for a till assistant during a busy period, the Store Manager came from behind him, grabbed his arm and while pushing him forward told him aggressively to get another staff member off the computer and onto the checkout. The Complainant said that he felt humiliated following this physical assault.

Further to the review meeting of 5 September, the Complainant was made aware by the Deputy Manager that colleagues had written complaint letters against him. He believed that these colleagues had been encouraged by the Store Manager to write these letters and decided at this stage that he could not take any more of the treatment he had been subjected to in the workplace. As a result, he attended his doctor on 9 September 2019 and was signed off on sick leave from which he did not return before resigning from the Respondent effective 2 July 2021.

The Respondent stated in evidence that there had been no issue with the Complainant’s performance during his employment and highlighted that he had been promoted from the position of Customer Assistant in the filling station to that of Team Leader prior to being transferred to the main shop in October 2018.

Further to a grievance made by the Complainant in December 2019 that he had been subjected to unacceptable behaviour in the workplace by the Store Manager, an investigation was carried out by the Area Manager. The Complainant attended three meetings as part of this investigation and was accompanied by his union official. During the initial meeting the Area Manager asked the if he would consider the possibility of transferring to another store but the Complainant refused to do so. He was also furnished with the minutes of the meetings that the Investigator held with all 13 of the witnesses interviewed as part of the process. The investigator did not uphold the allegations made by the Complainant in a report issue to him on 21 August 2020.

On 2 September 2020, the Complainant appealed several findings from the Investigator’s report and the Colleague Relations partner was appointed as the Appeals Officer. Further to meeting with the Complainant on 21 September 2020, the Appeals Officer also met with other relevant parties who had been highlighted by the Complainant during their meeting. On 27 October 2020, the Appeals Officer met with the Complainant and explained her findings.  While she upheld some of the points of appeal, the substantive findings of the original investigator, namely that the Store Manager had bullied the Complainant were not upheld.

Further to the conclusion of the Appeals process, the People Relations Partner was appointed to facilitate a mediation process between the Complainant and the Store Manager. She telephoned the Complainant on 20 November 2020 to explain the process and despite some initial misgivings, the Complainant’s union official confirmed on 13 January 2021 that he would participate in the process when the Level 5 restrictions were lifted. Despite this confirmation, the Complainant subsequently engaged in further correspondence seeking clarification around the mediation process and ultimately chose not to engage in the process, deciding instead to resign on 21 May 2021 on the grounds that his grievances were not properly investigated.

Further to this, on 24 May 2021, the People Relations Partner wrote to the Complainant confirming that the grievances and appeal were fully investigated and asked that he reconsider both his resignation and participating in mediation. In this correspondence, the People Relations Partner stated that if he did not make contact by 7 June 2021, the Respondent would reluctantly accept his resignation based on his 21 May 2021 request. On 10 June 2021, the People Relations Partner wrote once more to the Complainant confirming that as he had not contacted the Respondent, his resignation was reluctantly accepted based on his request on 21 May 2021. The Complainant’s termination date was note as 2 July 2021 and he was given a further opportunity to retract his resignation and make contact within 7 days of the letter.

On 6 July 2021, the People Relations Partner received a letter from the Complainant requesting mediation by a third party nominated by himself. On 13 July 2021, the People Relations Partner wrote to the Complainant confirming that as per her letter of 10 June 2021, his resignation had been accepted and highlighted that the Respondent had allowed him two opportunities to retract his resignation, which he had not availed of. Accordingly, his employment with the Respondent terminated on 2 July 2021 based on his request.

The Law

This is a claim of constructive dismissal pursuant to the Unfair Dismissals Act. The Act at s.1(b) defines constructive dismissal in the following manner

“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,”

Findings

As the Complainant is alleging constructive dismissal, the fact of dismissal is in dispute. The onus of proof therefore rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify him in terminating his employment.

The statutory definition and the relevant case history envisages two circumstances in which a resignation may be a ‘constructive dismissal’. They are where the employer’s conduct amounts to a repudiatory breach of the contract of employment such that the employee is ‘entitled’ to resign, often referred to as the ‘contract test’. In the seminal case of Western Excavating (ECC) v Sharp [1978] IRLR 332, this was said to require that the employer was 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”.

The second circumstance, which can be relied upon either as an alternative or in combination with the contract test, is where the employer conducts his affairs in relation to the employee so unreasonably that the employee cannot be expected to put up with it any longer. Described as the reasonableness test, it was stated in Western Excavating (ECC) v Sharp [1978] IRLR 332 that an assessment should be made of “the conduct of the employer and whether it 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”. As set out in Conway v Ulster Bank Limited UDA 474/1981, the Complainant is required also to act reasonably by providing the employer with an opportunity to address whatever grievance they may have.

Contract test

The Complainant’s representative highlighted that it is a statutorily implied term of the Complainant’s contract of employment, by virtue of section 8(2)(b) of the Safety, Health and Welfare at Work Act 2005, that the Respondent would manage and conduct its “work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of [its] employees at risk”

I find firstly that the bullying of the Complainant by the Store Manager, of which he gave wholly credible evidence, was sufficiently intolerable and injurious to his health as to constitute a significant breach of the employment contract. Specifically, I noted that the Store Manager repeatedly undermined and humiliated the Complainant as outlined above. In addition, I find it unacceptable that he placed his hand on the Complainant on 6 September 2019 when he pushed him while walking away from a checkout till. I also noted that as he did not attend the hearing to give evidence, there was no direct evidence presented by the perpetrator either to rebut the allegation of bullying, to suggest that he was aware of the Respondent’s bullying and harassment policies or that he knew bullying would not be tolerated in the workplace.

In the absence of any of the aforementioned evidence from the perpetrator, I find that the Complainant has met, and Respondent has breached, the contract test set out in Western Excavating referenced above.

Reasonableness Test

While I have found that the Complainant has met the contract test, I will also examine for the purpose of completeness whether he acted reasonably in deciding to terminate his employment.

In assessing whether he has done so, I note that the Complainant provided the Respondent with the opportunity to address his complaint both by raising a grievance and by fully exhausting the Respondent’s grievance procedure in accordance with the requirements of the Employment Appeals Tribunal in line with the Ulster Bank case cited above. While much was made by the Respondent of his refusal to engage in a mediation process with the perpetrator, I find that the Complainant’s unwillingness to do so was reasonable given the extent to which he had been bullied and humiliated. I also find that the Complainant’s refusal to transfer to another store was not unreasonable given the treatment he had been subjected to and the possibility that the perpetrator could also be transferred to that store in the future.

In terms of the reasonableness of the Respondent’s behaviour, I note that a comprehensive investigation was carried out into the grievance made by the Complainant and that he was afforded the right to appeal the findings of this investigation. In addition, I recognise that he was given the opportunity both to transfer to another store as well as engage in a mediation process. As highlighted above, the perpetrator did not attend the hearing to give evidence however. Given his failure to do so, I must consider the evidence to be preferred; that of the Complainant who gave compelling and direct evidence of the bullying he was subjected to or that of the Investigator and the Appeals Officer who carried out very detailed and comprehensive investigation processes into the complaints but relied on evidence that was not presented at the hearing and was not subject to cross-examination.

In making this decision, I note O’Donnell’s J findings in Zalewski v An Adjudicator Officer [2021] IESC 24 which determined that where there is a conflict, which in the instant case there is between the version of events presented by the Complainant and the Respondent on behalf of the perpetrator, evidence should be given under oath when required and there should be a right of cross examination:

145:.Finally, in this regard, it is striking that the Act sets out specific procedures for the adjudication officer (and the Labour Court) to follow. Section 41(5) requires the adjudication officer to permit the parties “to be heard” and “to present evidence”…… The Act contemplates “evidence” being given by “witnesses” having the same privileges and immunities as witnesses in the High Court. As long ago as Re Haughey, these features of court proceedings, and the ability to cross-examine the opposing party, were regarded as fundamental to fair procedures, and the right of cross-examination (which was excluded by the procedures adopted by the Committee of Public Accounts) was one of the rights without which no party could hope to make any adequate defence of his good name..”

Given both the compelling evidence of the Complainant and the failure of the perpetrator to present direct evidence or allow himself to be cross-examined, I find that the Respondent acted unreasonably by failing to uphold the allegations made by the Complainant against the perpetrator. Accordingly, I am of the view that the Respondent has not met the reasonableness test set out in Western Excavating above.

Considering all of the foregoing, I find that, as the Complainant has met both the contract and reasonableness tests, he was unfairly dismissed.

THE LAW

Section 7 of the Unfair Dismissals Act which, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, 

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee, 

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt  measures, to mitigate the loss aforesaid, 

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, 

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, 

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

Section 7(3) of the Act further states that:

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation”;

FINDINGS

Having decided that the Complainant was unfairly dismissed, I must now examine the appropriate form of redress in accordance with section 7 (1) of the Act set out above. In making this decision, I recognise that the Complainant has reached retirement age since his constructive dismissal and his preference for compensation as a remedy.  I therefore find that this is the appropriate form of redress in this case.

In examining from what date to begin calculation of his financial loss, I note firstly that the Complainant is seeking compensation from the date he went on sick leave in September 2019 to when he reached retirement age in April 2022. I find however, in accordance with section 7 (1) of the Act, which states “where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress” (my emphasis), thatthe relevant period for assessing compensation is from the date on which the Complainant was constructively dismissed, namely 2 July 2021, until when he reached retirement age on 18 April 2022.

In calculating the level of compensation to award, I have regard to the decision of the Adjudication Officer in ADJ 32667, where she stated inter alia that: 

“in considering compensation, regard must be had to all of the subsection of Section 7-and the tests are not confined to the efforts of the former employee-or the Complainant in this case. In circumstances where the Respondent is found not to have met the tests set out in subsections (c) and (d) …. and the Complainant made no contribution to the decision to dismiss her under (a) (b) or (f) It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort of mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.” 

In the instant case, I have found, as outlined in my analysis above, that the Complainant acted reasonably in deciding to terminate his employment and that he therefore made no contribution to the unfair dismissal under section 7(2) (b) or (f). In addition, I have outlined above that the Respondent acted unreasonably and has not met the test outlined in 7(2) (a). I must recognise also however that the Complainant did not make any efforts whatsoever to mitigate his financial loss in accordance with the requirements in section 7(2)(c) above. While he stated that he was certified as medically unfit for work as a result of ill health, caused by the perpetrator’s treatment of him, from 2 July 2021, the date of dismissal, until he reached retirement age in April 2022, no direct evidence was presented at the hearing by a qualified medical professional to establish that this was why he could not seek alternative employment. This was unlike the case of Allen v Independent Newspapers [2002] ELR 84 where evidence was given at the Employment Appeals Tribunal hearing by both Ms Allen’s GP and a psychiatrist, to whom she was referred, that her inability to find work as a result of ill-health and depression was attributable the conduct of her employer. As the Complainant in the instant case was constructively dismissed, I find that section 7(2)(d) and (e) of the Act above do not apply.

I also recognise that the Complainant lost his rights under the Redundancy Payments Acts, 1967 to 1973, as set out in section 7 (3) above, as a result of the termination of his employment. Given that the Complainant was on sick leave from 9 September 2019 to 2 July 2021, I have disregarded all but 26 weeks of this period he was not in work in accordance with the provisions of the Redundancy Payments Acts.

Considering all the foregoing, I make an award of €15,000 in respect of the unfair dismissal.