Complainant

Respondent

Parties

Alistair McCabe

Prepay Power Limited

Representatives

Not represented

Kirsty O’Sullivan, 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-00040207-001

01/10/2020

Established in 2011 and based in Sandyford, County Dublin, the respondent is a pay-as-you-go provider of gas, electricity and broadband utilities.  Around 250 people are employed.  The complainant commenced working with the company on May 7th 2015 as a field sales representative in the retention department.  His job was to visit customers who were planning to switch to a competitor and make them an offer to persuade them not to switch.  His annual salary was €28,000 and he had the potential to earn a sales incentive bonus up to a yearly maximum of €15,000.

On August 18th 2020, the complainant gave 30 days’ notice of his intention to resign and his employment ended on September 18th.  In his resignation email, he complained that he hadn’t been paid his mileage expenses and that his laptop wasn’t working.  He complained that he earned no sales incentive in October and November 2019 and in April and May 2020.  He took offence because the manager of the retention team initiated a disciplinary investigation regarding his performance.  He said that his work environment had become unsustainable and that he was not treated like an equal.  He said that he felt discriminated and unfairly remunerated regarding commission and mileage, in addition to being disciplined and warned that he may be dismissed.  He claims that his decision to terminate his employment for these reasons amounts to a constructive dismissal and is unfair.

Chronology of Events Leading to the Complainant’s Decision to Resign

On December 17th 2019, the complainant was invited to a meeting to investigate an allegation by his line manager, Anthony Duggan, concerning his conduct in a WhatsApp message on December 5th and in a phone call on December 9th.  in this correspondence, the complainant suggested that other employees were given easy leads and that his target was a joke.  He complained that some of the customers he visited had already been contacted on the telephone by office-based agents and he told Mr Duggan, “you better pay me.”

An investigation meeting commenced on January 13th 2020 and resumed on January 30th.  An email submitted by the complainant shows that on January 29th 2020, he asked to be provided with a tablet.  On February 4th, he sent an email to the head of customer retention in which he said that he was “having quality leads issues for several months.” 

On February 7th 2020, the HR manager wrote to the complainant and confirmed that no formal action would be taken regarding his conduct in the WhatsApp and email messages to his manager.  Mediation was to be arranged between the complainant and Mr Duggan and he was informed of the following expectations:

§    Issues about internal processes are to be raised appropriately;

§    While the company aimed to review and improve its manual processes, the complainant was asked to be patient while this was done;

§    When seeking support, he was asked to send one email to the relevant team and, if escalation was required, to do so in line with the internal communication protocols;

§    He was asked not to use italics, bold and capital letters in email or text messages;

§    He was asked to act in a professional and considerate manner towards customers and colleagues.

The onset of the Covid-19 pandemic in March 2020 meant that the complainant was working from home.  On April 3rd, he sent an email to the head of customer retention seeking permission to purchase, that day, a wireless headset at the company’s expense.  He asked for a laptop, a desk and an ergonomic swivel chair.  He also looked for help with the cost of heating and for information on tax relief on electricity and for using his home as an office space.

The complainant received a response on the same day.  The head of customer retention advised him that he could spend up to €50 on a wireless headset and that he could collect a chair from the office.  He was recommended not to use his personal laptop if he was concerned about damaging it and he was informed that it was acceptable to use his company mobile phone instead.  He was also advised that he could take annual leave or unpaid leave if he felt it was necessary.  Finally, he was informed that the HR department would share information about tax relief on working from home.

The emails submitted by the complainant show that during the lock-down of April and May 2020, he was assigned to work on the phones instead of doing door to door visits to customers.  In those months, his performance was below that of his colleagues and on June 4th, he attended a meeting  with the retention team leader to discuss this.  He said that the reason he was under-performing was due to a combination of factors:

§    In October and November 2019, he got no commission.  The same thing happened in May 2020.

§    The disciplinary investigation in January 2020;

§    Covid-19;

§    The quality of  leads – he was calling customers who had already been contacted;

§    He said that whoever distributes the leads shouldn’t be on the retention team;

§    He had no laptop. 

On May 28th 2020, the complainant wrote to the retention team leader and asked for a laptop.  She replied that, as the lockdown had gone on for longer than anticipated, laptops have been ordered.  The emails submitted by the complainant show that his manager arranged training for him on June 2nd and that he had some success with calls that day.  On June 4th, he wrote to his manager and said, “the need for laptop and lead visibility is paramount.”  On June 9th, he sent an email to his managers to let them know that he drove to a customer in Moate to find that the customer had been contacted by an agent in the office earlier in the day and that “he has it all sorted.”

The investigation meeting re-convened on June 10th.  The retention team leader said that three supervisors would distribute the leads to the complainant and his colleagues on the door to door team and that his manager would be in control of what happens with the leads.  The complainant received a laptop on the same day, which, he said, made a big difference.  However, he said that the laptop he received wasn’t properly configured.  The respondent’s submission states that the problems were fixed remotely by the IT department on June 23rd, by which time the complainant had access on his laptop to the systems and data that he felt would help him to meet his targets.

In September 2019, the complainant had reduced his working hours by 50%, or 20 hours, so that he could help with taking care of his children.  In February 2020, he went up to 75%, or 30 hours.  On June 24th 2020, he asked if he could return to working full-time from July 1st.  However, also on June 24th, all the door to door team were instructed to take annual leave the following day.  The head of the retention team explained the reason as “field metrics have been diabolical month to date and this week has been particularly poor, so there’s no benefit in having the team out tomorrow.”  On June 29th, the retention team manager told the complainant that he would have to remain working 75% of his hours for now.  She said that some other companies were putting their teams back out and that “hopefully, we will have the full time hours for you again soon.”

On Monday, August 17th 2020, the complainant made a complaint about his mileage payment, which he said, should have been paid on Saturday, August 8th.  He also complained that he didn’t get paid any commission in May and June and only €375 in July.  He claims that the sales leads were manipulated and that this negatively impact his commission.  He resigned the following day.

In response his resignation email, the HR manager wrote to the complainant and said, “We are deeply concerned that you have decided to resign” and she asked him to re-consider.  She said that many of the issues he raised had already been resolved and that other matters should have been dealt with in accordance with the grievance procedure.  Two days later, the complainant replied and said that his decision was final.  The HR manager wrote to the complainant again and asked him to give the company an opportunity to investigate his grievances.  When he declined, she wrote to him on August 21st telling him that he would not be required to work his notice, and that he would be paid in lieu.

Reasons for Resigning

On August 18th 2020, in an email to the HR manager and the head of the retention team the complainant set out his reasons for resigning:

§    He said that he had still not been paid his mileage.

§    He complained that his laptop was not properly configured and that he hadn’t got full access to the systems and data that he needed to do his job.

§    As a result of not having a working laptop, he said that he got no commission in April and May 2020.

§    He claimed that if he had been treated equally with the employees who had access to the data and systems, he would have achieved his sales targets.

§    Because he was working 75% of his normal hours, he was down 25% on his basic wages, with the result that he was earning only slightly more than what he would have got if he had been on the Pandemic Unemployment Payment.

§    He said he was offended at the company’s decision to initiate an investigation into his conduct in June, and for the retention team manager to suggest that his failure to achieve his targets might have had something to do with his “head space.”

§    He said that the working environment was cut-throat.

§    He said he received no support for working from home.

§    He said that his poor results in May and June showed that he needed training.

Statement for the Hearing

In a written statement in preparation for the hearing of this complaint of constructive dismissal, the complainant set out the reasons for his resignation in more detail:

He said that about a year before the Covid-19 pandemic, an effort was made by the respondent to reduce the numbers employed so that the company wouldn’t have to pay redundancy. 

He received no commission in October and November 2019 and that he was the only door to door salesperson to receive no commission over the lockdown months.

He said that insufficient leads were produced for him to continue doing his job effectively and that he should have been laid off and allowed to claim the Pandemic Unemployment Payment.

He said that he feels that there was a deliberate effort not to provide him with a computer so that he would get fed up and leave.

He said that he would drive out to a customer who was in the process of switching provider, only to find that they had been contacted by a phone agent.  He said that this happened three or four times a day and that he wasn’t informed of this by the office.  He said that his journey was wasted, leaving him less time to deal with “live” leads.

In December 2019, the complainant asked if he could get a “credit” for every wasted door visit.  He heard that another agent was getting manipulated leads and he sent an email to his manager to ask him what was going on.  On December 9th, he said that he wasted his time visiting three more customers who had already been contacted and he sent another email to his manager looking for an explanation.  He said that he was then contracted by his manager’s manager, who told him that an investigation would be initiated into his tone in the emails.

At meetings in  January and February 2020 to discuss his manager’s complaints about the December 9th email and the WhatsApp message, the complainant said that it was discovered that the way leads were distributed to agents had changed, “unknown to anyone at the time.”  He said that the duplication of lead lists to agents had a detrimental effect on him, particularly as he was working without a laptop.  He said that he “couldn’t see the up-to-date lead status, or if it had been attempted, pitched or who the assigned agent was.”  He said that not disclosing this change in the status of leads explains his poor results.

The complainant said that the outcome from the investigation meeting was that the duplication of lead lists would stop and that he would be provided with a laptop.

In March 2020, the complainant said that he was due to go back to working 40 hours a week, but at the start of the pandemic, everyone was working from home and he agreed to remain on 75% of his hours.

With no laptop to work on, the complainant said that he earned no commission in April 2020.  After a bad first half to the month of May, he was instructed to do some call training.  He was on annual leave for some of that month and he ended up only working on retention leads for five days of the month.  He got no commission for May.  He said that he asked again about a laptop, but that nothing was done.

In June 2020, an investigation was initiated into his failure to meet his sales targets.  He got a laptop on June 10th, but it wasn’t properly configured.  He said that he “started back on the doors” but that he was driving out to leads already dealt with.  He said that his manager advised him to call another agent to get the information he needed before making a call.  He feels that all of this could have been avoided if he had a working laptop.

On June 24th 2020, the complainant said that he asked if he could go back to working 40 hours, but his request was declined because of low work volumes.

On August 10th, he was due to be paid his fortnightly mileage pay, but it was delayed.  On Monday, August 17th, he sent a complaint and asked for €100 in compensation.  He got no reply and he resigned the following day.

Evidence of the Complainant on Day One of the Hearing

Referring to paragraph two of his submission, the complainant said that he was the top performing agent in 2018 and he won an award in the summer of 2019.

Setting out the background to the correspondence he had with his manager in December 2019, the complainant said that of the eight agents on his team, four had laptops.  He and his former colleague who attended the hearing with him were not provided with laptops, plus two Dublin-based agents.

In September 2019, the complainant said that he reduced his hours by 50% so that he could help with caring for his children.  At the beginning of February 2020, he went back up to 75% of his hours.  In the middle of March 2020, with the onset of lock-down, he said that leads dropped by 80% and there was very little work.  When he was working from home, he said that it was difficult to manage with a mobile phone.  He feels that he should have been laid off so that he could claim the Pandemic Unemployment Payment.  Or, he should have been made redundant.

In October and November 2019, and again, in April and May 2020, the complainant said that he didn’t earn any commission.  He said that he felt humiliated when he didn’t meet his targets.  His colleague left in May and after that, he said “I got all the rubbish.”   He said that the office staff were intercepting the leads.  He said that he was only provided with a laptop in June 2020, after his colleague left.  He said that there were continuous problems with the laptop and that it didn’t work.

On May 18th, the complainant sent an email to the head of the retention teams to ask her if he could speak with her privately.  He said that his concerns fell on deaf ears.

At the end of June 2020, the complainant and four of his colleagues were involved in a new campaign and he said this affected his commission. 

Addressing the respondent’s submission, the complainant referred to the argument put forward by Ms O’Sullivan that a complaint of constructive dismissal must satisfy the contract test and the test of reasonableness.  He also referred to the respondent’s criticism of his failure to exhaust the grievance procedure.  In his defence, the complainant said that the company didn’t respect his rights by treating him equally with others on the door to door team.

The complainant argues that his employer breached his contract by “moulding him into becoming a telesales agent.”  He said that he did not consent to this change in his role and that he got no notice of the change.

He said that the company was “messing around with pay, paying late and not paying commission.”  He said that he was treated unfairly when he wasn’t provided with equipment that was essential for him to do his job.  He said that he was subjected to a disciplinary procedure four times over 18 months.  He thinks that this amounts to bullying and harassment.  He said that other colleagues with performance issues were dealt with informally.

In the company’s submission, Ms O’Sullivan said that the HR manager advised employees that they could claim the working from home allowance themselves from Revenue.  The complainant said that he was never advised of this and that this statement is “a complete lie.”   In her submission, Ms O’Sullivan conceded that mileage expenses were paid late due to an administrative error.

Summarising the reason for his resignation, the complainant listed the problems he experienced with his employer:

§    Calling to “redundant doors” – customers who had already been dealt with;

§    Zero commission in October and November 2019 and April and May 2020;

§    No consideration of his request to apply credits to his efforts to meet his targets;

§    The failure to deal informally with disciplinary issues;

§    Being given what he referred to as “suspicious leads” and not being allowed to listen to calls;

§    Calls became cut-throat;

§    Manipulation of leads that he could not investigate because he had no laptop;

§    His sense that he should have been made redundant.

Before he concluded his evidence on day one, I asked the complainant if he would have preferred to be made redundant, rather than continue in employment with the respondent.  He replied that he would have preferred to be on the Pandemic Unemployment Payment.

Ms O’Sullivan did not cross-examine the complainant.

Evidence of the Complainant’s Colleague,  Mr Gerry McGuinness

In response to questions from the complainant, Mr McGuinness said that they received no telephone training and no notice of the change to their terms and conditions of employment in May and June 2020.

Mr McGuinness agreed with the complainant that leads were manipulated.  He said that he often phoned customers who had already been contacted.  He said that laptops were promised but that they were not provided.  He said that they should have been given the tools for the job.  They needed to look through the history of accounts to find out a customer’s status.

Mr McGuinness agreed that mileage expenses were regularly paid late, sometimes months late.  He said that the company used to contribute to the cost of tax and insurance, but that this stopped.

Ms O’Sullivan asked Mr McGuinness about late mileage payments, and he repeated that the payments were regularly late with no warning.

Evidence of the Complainant on Day Two of the Hearing

On the second day of the hearing, the complainant said that he “never got a working laptop with full log-on credentials.”  He said that he received a laptop in July.  In an email dated June 2nd 2020 which was submitted in evidence by the respondent, the head of the retention team informed the complainant that a laptop was being updated for him and that she would let him know when it would be ready for collection.  The complainant said that the laptop that he received wasn’t working and that it took two or three weeks to be fixed.  He said that he didn’t receive log-ins for a couple of weeks.  He said that the day he left the company, the laptop was in the IT department, being repaired.

Just before the conclusion of the hearing, after a short break, the complainant made some closing remarks.  He referred to the respondent’s argument that it was unreasonable for him to resign without resorting to the grievance procedure to resolve the issues that caused him to leave.  He said that he was in a grievance process with his managers.  He argued that the company was in breach of his contract and that his response was reasonable.

In a written submission provided in advance of the hearing of this complaint, Ms O’Sullivan said that the respondent disputes the complainant’s claim that he was constructively dismissed, arguing that he does not meet the burden of proof to substantiate such a claim.  Ms O’Sullivan referred to the contractual test and the reasonableness test which generally determine if a complaint of constructive dismissal can be upheld.

The Contract Test

Ms O’Sullivan cited the case of Conway v Ulster Bank[2] to support the employer’s case that the respondent did not violate any term of the complainant’s contract.  She said that no change occurred to the complainant’s contract to make it “so radically different to what it was before.”  Due to the Covid-19 pandemic, all employees were required to work from home and everyone had to adapt to new ways of working.

The complainant alleged however, that his role changed, and that he was required to phone customers, instead of calling door to door, as outlined in his job description.  Ms O’Sullivan referred to the provision in the complainant’s contract of employment to the effect that his “area of work or specific responsibilities may be altered from time to time by the Company as the needs of the business dictate.” 

In September 2019, due to childcare responsibilities, the complainant asked to reduce his hours from 40 to 20, and to do more phone calls rather than door to door calls.  The company agreed to this request, and in February 2020, they agreed to allow him to increase his hours to 30.

During the pandemic, some of the respondent’s employees were laid off, but all of the door to door team were retained and assigned to calling customers by telephone, rather than home visits.

Ms O’Sullivan submitted that, to justify the decision to terminate his employment, the complainant will have to satisfy the test set in out Western Excavating v Sharp[3], where Lord Denning MR concluded:

“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 discharged from any further performance.”

Ms O’Sullivan also cited the decision of the adjudication officer in A Vat Operations Manager v A Manufacturer of Building and Construction Products[4].  Here, the complainant argued that the tasks assigned to him were outside his contractual obligations and beyond his expertise.  He also claimed that he hadn’t got enough staff and he resigned, alleging that he was constructively dismissed.  The adjudication officer found that, while this complainant was in a difficult situation, he did not meet the bar he had to surmount to show that his employer’s conduct was so unreasonable that he had no choice other than resignation.  He was found not to have met the test set out in Western Excavating and his complaint was not upheld.

The Test of Reasonableness

With regard to the test of reasonableness, the respondent argues that there are two interwoven factors to be considered:

a)  Did the employer act so unreasonably as to render the relationship intolerable?

b)  Did the employee act reasonably in resigning, particularly with regard to how he exercised the internal grievance procedures? 

To demonstrate how these concepts are approached, Ms O’Sullivan referred to the Employment Appeals Tribunal (EAT) case of McCormack v Dunnes Stores[5], where the Tribunal chairman stated:

 “The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his or her employers.  The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make continuation of employment with the particular employer intolerable.”

While the complainant alleged that the respondent’s decision to invoke the disciplinary procedure amounted to bullying and harassment, it is their position that they acted fairly and in accordance with their policies.

In April 2019, a customer made a complaint about the complainant, and an investigation was carried out.  The investigation was concluded and no disciplinary action was taken.  In January 2020, an investigation was carried out following a complaint by the complainant’s line manager about how he spoke to him in an email and in a WhatsApp message.  No disciplinary action was taken and mediation was arranged to address the shortcomings in the relationship between the complainant and his manager.  In June 2020, an investigation was initiated to deal with the failure of the complainant to meet his sales targets.  No sanction was issued and additional training was arranged to support the complainant.

In the early weeks of the pandemic, no one knew how long employees would have to work from home.  The complainant was advised that he could collect a chair from the office and he was authorised to purchase a headset at the company’s expense.  The complainant had the same equipment as his colleagues, and Ms O’Sullivan said that they all seemed to me managing well.  It is the respondent’s case that most of the work that the complainant was engaged in did not require a laptop.  In June 2020, when working from home became a more long-term scenario, he was provided with a laptop.

Ms O’Sullivan said that there was no obligation on the respondent to pay the e-working allowance, because employees could claim this by completing an income tax return.  The complainant was advised about this in May 2020.

Reasonableness – The Requirement to Exhaust Procedures

It is the respondent’s case that, in advance of resigning, the complainant should have utilised the company’s internal procedures to resolve the issues that led to him resigning.  Although he was given an opportunity, he failed to use the procedures.  The respondent therefore maintains that the complainant acted hastily by resigning and by not giving them an opportunity to address his concerns.  As such, similar to the claimant in Conway v Ulster Bank, the complainant had not “substantially utilised the grievance procedure to attempt to remedy his complaints.”

Ms O’Sullivan said that the obligation of an employee to exhaust the grievance procedures exists even where there may be a breach of contract, and in this regard, she referred to the case at the former EAT of Travers v MBNA Ireland Limited[6].  It is the respondent’s case that, like the claimant in Travers, the complainant in the case under consideration here did not utilise all the internal remedies available to him and that this is detrimental to his argument that his resignation amounts to a constructive dismissal.

Concluding the respondent’s case, Ms O’Sullivan referred to the decision of the EAT in Fitzsimons v Mount Carmel Hospital[7].  In her letter of resignation, Ms Fitzsimons made a complaint about her manager.  The hospital carried out a full investigation and invited Ms Fitzsimons to return to work.  They suggested meetings and initiatives to support her return to work, including mediation.  Ms Fitzsimons rejected these offers on the grounds that her relationship with her manager had deteriorated too much.  Finding that Ms Fitzsimons’ claim of constructive dismissal did not succeed, the Tribunal stated:

“It is regrettable that this final step (of acceptance of the return to work offer) was not taken and the Tribunal finds it was unreasonable for the Applicant not to have seen this process through.  The Employment Appeals Tribunal’s primary function is to ensure that internal workplace procedures are fairly applied to individual employees and there is an onus on employees to engage fully in these procedures where a clear effort is being made to overcome past difficulties.”

In light of this finding, it is the respondent’s case that the complainant’s resignation does not meet the test of reasonableness and cannot be considered to be a constructive dismissal.

Evidence of the Complainant’s Manager, Anthony Duggan

Mr Duggan explained that leads are distributed to the company’s door to door sales agents on a geographical basis.  He said that the complainant was based in Meath and that his location depended on where the customers were.  He said that he was mainly assigned to Cavan, Longford and Westmeath. 

Ms O’Sullivan referred to the complainant’s grievance about driving out to customers who had already been dealt with by an agent from the office.  Mr Duggan said that this was unavoidable, that calls come in to an inbound team.  He said that the company had a process to deal with this, and that the inbound team sent an email to the door to door team when a customer had been in touch.

Regarding the complainant’s request for a credit for driving to a customer who had already been dealt with, Mr Duggan said that this “is not a runner.”  If a customer rang in when the complainant was on route to the house, he wasn’t affected.  He was affected when he lost a customer.

Mr Duggan said that his job was to make sure that his agents hit their targets.  He said that there was no manipulation of leads and that his team’s target was his target.  He said that he was the “eyes and ears” for his team and that they couldn’t go around with a laptop.  He said that, compared to the office-based team, the door to door team was more successful at retaining customers.

Addressing the mileage issue, Mr Duggan said that mileage is charged every month and the mileage incurred is based on where the customers are.  He agreed with Ms O’Sullivan that, sometimes, there were delays paying mileage expenses.  Mileage claims had to be approved by the head of the retention team and processed by the finance department.  He said that sometimes, the payments could be delayed by a week.

Asked about the complainant he made about the complainant in December 2019, Mr Duggan said that the complainant was difficult to manage at that time but that “we sorted it out.”  He said that he didn’t take it personally.

He agreed that sometimes, customers could be challenging.  He said that his role was to go out with his team, and to go door to door with the agents and to look at the issues they were facing.  He said that he met the complainant weekly, if not every second week.  He said that the complainant was very experienced.

Cross-examining of the Line Manager

The complainant asked Mr Duggan if, when an agent in the office has access to customer information, this puts the door to door agent at a disadvantage?  Mr Duggan said that the door to door team “never had those visuals and we always had better retention rates” than the office.  He said that, as a door to door sales executive, he likes to go out to talk to the customer and to look at the meter.  He said that the door to door agents are just as successful as the office team, and that they did better.

The complainant said that the retention team manager had agreed with him that leads could be manipulated.   Mr Duggan said that it was “not impossible” to manipulate leads.  However, he said that he trusted his supervisors to assign leads and that there is no benefit to a supervisor in manipulating leads.  The complainant said that the provision of a laptop was a solution to this problem.  Mr Duggan replied, “you were a successful agent.  You hit targets.”  The complainant referred to October 2019, when he didn’t make his targets and Mr Duggan replied, “you got paid anyway.”  He said, “if one agent fails, I fail.”

Evidence of the Retention Team Manager, Barry Delaney

Mr Delaney said that some agents had laptops and others didn’t.  He said that the door to door team was very successful using their company phones.  He said that in December 2019, the complainant achieved 80% of his targets using his mobile phone.  From December 2019 onwards, he said that the complainant did more work on the phones.  He said that he did well, that the conversation was the same as the door to door conversation and that the complainant didn’t need a lot of training.  Systems were not used, just a conversation with the customer.  Mr Delaney said that the team performed well using their phones and that it would have been a cost to introduce laptops.  After the pandemic went on for longer than expected, in June 2020, the complainant and some of his colleagues were provided with a laptop.

Mr Delaney recalled that, in May 2020, he had a discussion with the complainant about handling phone calls.  He said that the complainant was part of a very experienced group, and that Mr Duggan would have had daily conversations with each person on the team.

Mr Delaney said that there aren’t many agents in the office and if there was a spike in calls, the door to door team got a list of customers to contact.

Mr Delaney said that the complainant reduced his hours in September 2019 so that he could help with taking care of his children.  He said that his commission varied depending on his performance.  In certain months, particularly after the start of the pandemic, he did ad hoc duties, and exceptions were made regarding commission.

Before he concluded his direct evidence, I asked Mr Delaney why the complainant didn’t get any commission in October 2019.  He said that, over the course of a year, the commission averages out.  From time to time, maybe a couple of months in the year, no commission is paid.  When an agent is on holidays for two weeks in a month, they get the average of their two weeks’ commission paid for the whole month.

Cross-examining of the Retention Team Manager

In response to questions from the complainant, Mr Delaney said that he didn’t know if anyone else got no commission in October and November 2019 or April and May 2020. 

Mr Delaney said that the complainant was assigned to ad hoc duties when there was a massive drop-off in leads during the Covid-19 pandemic.  In May 2020, he said that he did training with the complainant.  He said that there was no concern about his performance and that “we went over stuff we did in the past.”

The complainant asked Mr Delaney about the need for a door to door agent to have access to the company’s systems.  Mr Delaney said that he understood that the complainant wanted access to “customer view” details.  He said, “we tried to provide you with information.”  He said, “there were months when you hit your targets and you didn’t have a laptop.”  He said, “when leads changed after Covid, you were struggling.  We put procedures in place.  Anthony was available to you.”

Evidence of the HR Manager, Lisa Roche

Answering questions about the disciplinary proceedings, Ms Roche said that no disciplinary action was taken regarding the complainant’s conduct.  The issues were dealt with on three occasions at the investigation stage.

During the pandemic, no employees were made redundant.  Ms Roche said that the teams were just as busy and some did different work.  She said that the company was mindful of the government’s policy to try to keep people working.

In May 2020, Ms Roche said that she  had a phone call with the complainant to address some of his concerns.  She said that some issues were resolved and that the retention team manager went out to meet the complainant.  She said that not everything he complained about could be fixed.

Cross-examining of the HR Manager

Referring to the meeting he had with the HR manager in May 2020, the complainant asked Ms Roche why she didn’t give him a copy of the company’s grievance procedure.  Ms Roche replied that the procedure was available on the company’s intranet. 

The complainant asked what was done to provide him with a laptop.  Ms Roche said that 280 employees were working from home and that he was among many employees looking for a laptop.  She said that the complainant raised other matters at the meeting, such as training.  He said that Mr Delaney was going to do training with him.  Ms Roche said that, at the meeting, she referred to discussions she had with the complainant earlier in the year, and she told him how to escalate a problem.

Referring to ad hoc duties, the complainant asked Ms Roche how much of ad hoc duties she considered to be fair, 10% or 20%?  Ms Roche said that she had no concrete definition.  The complainant’s contract allowed for ad hoc duties depending on the needs of the business.  The complainant said that the ad hoc duties assigned to him affected his commission.  Ms Roche replied that, during the pandemic, the company was trying to keep people in employment.  The complainant was asked to do a number of things, such as collecting modems.  She said that all employees were treated equally.

In December 2019, the complainant said that he believed he was threatened with dismissal.  Ms Roche said that an investigation was initiated into his conduct towards his line manager.  She said that this was not a threat of dismissal and no sanction was applied.

The complainant raised an issue with Ms Roche about how his final commission was calculated.  This became the subject of correspondence between him Ms Roche after he resigned on August 18th.  From August 1st to 18th, the complainant had been on annual leave for some of the time and he had worked for just five days.  The complainant said that he expected to be paid 75% of his normal commission.  He had not been working on door to door selling during this period.  Ms Roche said that because he was not working for most of the month of August,  he received the average commission for the previous two months.  During months when an employee went on holidays, they received the commission for the days worked, plus the average earned in the days that they worked.  The complainant received an average amount in commission in respect of his notice period from August 19th until September 18th 2020.

Constructive Dismissal

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer…”

As a complaint of constructive dismissal, the burden of proof rests with the complainant to show that his decision to leave his job was reasonable in the circumstances that prevailed at the time.

The issue for decision in this case is, taking into consideration the conduct of the respondent in relation to this former employee, was it reasonable for him to resign on August 18th 2020, and to claim that, because of how he was treated by his employer, no other course of action was open to him?

The Context in which the Complainant Decided to Resign

I have reviewed the events from December 2019 to August 2020 which the complainant described in his written submission and in his evidence at the hearing.  It is interesting to note that, before December 2019, the complainant was a high achiever and he met his sales targets.  He said that he was the top performing agent in 2018 and he won an award in the summer of 2019.  His line manager described him as a “strong performer.”  He achieved this level of success without the assistance of a laptop and without access to the customer data that, by early 2020, he thought would help him to achieve his targets.

It is interesting to note that, in September 2019, the complainant went from working 40 hours a week to 20 hours, so that he could help to take care of his children.  In the following two months, he said that he didn’t get any commission, meaning that he didn’t achieve the targets he had been reaching previously.  It occurs to me that there is some connection between the reduction in the complainant’s working hours and his performance from October 2019 onwards.

Having received no commission in October and November 2019, the complainant’s conduct towards his line manager that December was investigated.  No sanction was applied and some practical proposals were put in place to improve his engagement with Mr Duggan and to deal with the issues he raised during the investigation.  Some of these proposals must have worked because, in his letter of resignation, the complainant signed off by saying that he wanted to commend his manager “as a brilliant supervisor, always doing your best & offering whatever help you can and by going above and beyond what is expected…”

In his letter of resignation, the complainant attributes his failure to achieve his targets in April and May 2020 to the fact that he hadn’t got a laptop.  I found his focus on this matter to be out of proportion to the advantage that it could have given him in his job.  As I’ve stated above, he was highly successful before he was given a laptop.  At the hearing, the retention team manager said that the job “is all about the conversation” with the customer, meaning that it is not about the customer’s data.  While I can understand that it must have been frustrating to arrive at a customer’s house to find that they had been intercepted by an agent in the office, I understand that this was the result of inbound calls, and not any cut-throat behaviour on the part of the company or other agents.  There is no advantage to the company to have a field-based sales team on the road and then to undermine them by having agents phoning customers and making their visits unnecessary.

The laptop became the focus of the discussion again at the meeting on June 4th 2020, which was held to discuss the complainant’s performance in April and May.  At the meeting, Mr Delaney pointed out that other agents did not have laptops but they were getting better results.  The notes of the meeting show that Mr Delaney asked the complainant if the problem might be something to do with his mindset.  The complainant said that the problem was Covid-19 and him not having a laptop.  He also suggested that he was being given poor leads.

At a reconvened meeting on June 10th, Mr Delaney said that he trusted his supervisors to distribute leads to the door to door team.  The complainant said that he had received a laptop and that it made a difference.  No sanction resulted from this investigation meeting.  When he resigned three months later on September 18th, the laptop was top of the agenda again, with the complainant saying that he was fed up asking for “a working laptop.”  I find it difficult to believe that an employer would issue an employee with a non-working laptop, as there is nothing to be gained from this.  It is my view that the complainant’s persistent focus on having a laptop was an effort to divert attention from whatever was causing his performance to deteriorate from the previous year.  I accept entirely that in April, May and June 2020, Covid was an issue, but it was an issue for all the door to door agents and not just the complainant.  It seems to me that something was preventing him from achieving his normal rate of success.  I think that the retention team manager, Mr Delaney tried to explore what might be causing the problem, by asking the complainant about his state of mind, but this enquiry was swiftly rebuffed.

On September 17th 2020, the complainant requested payment of his mileage expenses which were late.  The payment had also been delayed the previous month.  It is extremely frustrating and stressful when funds don’t land in a bank account when they are expected and I think that the complainant had a genuine grievance in relation to this, particularly as it happened more than once.  It is regrettable that, before he took the nuclear option of resigning, he did not resort to the grievance procedure to attempt to resolve matters.

Following his resignation, the complainant raised an issue with the amount he was paid in commission during August.  As the subject matter of this enquiry is the complainant’s resignation, and this matter arose after he resigned, I do not intend to deal with this issue.  The evidence shows that the issue was resolved after he resigned.

The Burden of Proof in Constructive Dismissal Cases

We know from the respondent’s submission that an employee who claims that they have been constructively dismissed must satisfy two tests, known as the “contract test” and the “test of reasonableness.”  As a third component to this burden of proof, an employee who decides to resign and who argues that their resignation was because of the conduct of their employer, must demonstrate that they made every effort, by utilising the internal procedures, to have their grievances addressed.

The contract test requires an employee to demonstrate that his or her contract has been repudiated, meaning in effect that the employer has abandoned the provisions of the contract.  By way of precedent, Ms O’Sullivan referred to the seminal case of Conway v Ulster Bank (cited on page 9).  Finding that Ms Conway had not established that her employer “no longer intended to be bound by the contract,” and that no change occurred to make the contract “so radically different to what was before,” her claim of unfair dismissal was not upheld.

The complainant argued that, by assigning him to telephone sales and ad hoc duties during part of the Covid-19 pandemic, the respondent was in breach of his contract of employment.  Employees all over the country were adapting as business were “pivoting” during the pandemic.  Assignment to work other than a door to door sales representative was provided for in the complainant’s contract of employment.  I note also that he participated in training on the work on the phones.  For these reasons, I find that there is no merit in his argument that the respondent breached his contract of employment by giving him work alternative to that of a door to door sales person and he has failed to satisfy this test.

The second test requires the employee to demonstrate that his employer’s conduct was so unreasonable that he had no alternative but to resign.  This was considered in the case of McCormack v Dunnes Stores (cited on page 10), which was also referred to by Ms O’Sullivan.  Here, the Employment Appeals Tribunal concluded that:

“The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make continuation of employment with the particular employer intolerable.” 

It is my view that, in the case of this employee, the conduct of the respondent’s managers in respect of their dealings with him was accommodating and constructive.  When he asked to reduce his hours of work he was given options and he selected one that suited him.  Despite issues with his conduct and performance, the managers treated him with respect, in accordance with the disciplinary procedure and no sanctions were issued.  He was provided with a laptop in June 2020, although he had worked successfully for more than two years without one.  In his resignation letter, he described his line manager as “a brilliant supervisor.”

I accept the serious failure of the respondent to pay expenses on time.  This was the responsibility of the finance department, and I have already stated that it should have been dealt with as a grievance.  It is my view that this poor treatment, stress-inducing as it was, does not reach the height of the conduct that was so unreasonable, described in McCormack v Dunnes and it cannot be relied on as a cause of resignation.

The final aspect of the burden of proof in constructive dismissal requires an employee to demonstrate that they used their employer’s workplace procedures to address their grievance.  Just as an employer contemplating dismissal must act reasonably, an employee must act reasonably when resigning.  It was clear from the evidence at the hearing, that the managers were open to dealing with the issues that the complainant raised regarding hours of work, equipment and how leads were distributed.  I am satisfied that, if he had raised a grievance, it would have been handled constructively.  I find that the managers engaged with the complainant in a positive manner and that they regarded him as a high-achieving employee whose performance, for some unknown reasons, was not what it had been or what was expected.  It is my view that he  did not act reasonably by resigning before giving them a chance to deal with his grievances.

Conclusion

When he resigned in August 2020, the complainant was, as he said himself, fed up.  He attributed his feelings to perceived failings on the part of his employer.  No organisation is perfect, and I agree with him that the failure to pay him his mileage expenses on time was frustrating and disappointing.  In respect of this and his other grievances, he had a responsibility to use his employer’s grievance procedure to attempt to resolve matters to his satisfaction.

Having considered all the evidence, I find that the complainant has not shown that his employer repudiated his contracted, or that any unreasonable treatment of him on their part was the cause of his resignation.  Lastly, like the complainant in Travers v MBNA (cited on page 11) his failure to use the grievance procedure is fatal to his argument that he had no choice, except to resign.  I find therefore, that the complainant has not made out the standard of the burden of proof required to show that, because of the conduct of his employer, his resignation was an unfair dismissal. 

On this basis of the findings and conclusions set out above, I decide that this complaint under the Unfair Dismissals Act is not well founded.

Constructive dismissal