Complainant

Respondent

Parties

Brian  Griffin

Sage

Representatives

Barry Crushell Crushell & Co Solicitors

Jessica Bielenberg Mason Hayes & Curran LLP

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-00045438-001

29/07/2021

The Complainant was employed by the Respondent from 2nd January 2019 until 22nd July 2021 as a Digital Marketing Manager.

This complaint was received by the Workplace Relations Commission on 29th July 2021.

The Complainant worked for the Respondent for approximately 2.5 years and he enjoyed many fantastic working relationships with team members across the company.

The Complainant feels that his reputation has been irrevocably tarnished by an incident that he believes was mis managed by the company.

An overview of the incident reads as follows. The Complainant worked with Mr. JG (Content Manger, now ex-Sage) without incident for circa 8 months. Calls with Mr. JG were always good spirited during this time. A piece of work that Mr. JG was working on had been delayed by 3+ months, and after setting up recurring meetings over the course of a few months to help Mr. JG the Complainant had an argument with him.

Mr. JG made an accusation against the Complainant in writing, during his exit interview, calling the Complainant a bully. Mr. JG refused to discuss the matter with the Complainant and has now left the company.

The Respondent has told the Complainant that there is nothing that can be done to repair his reputation as Mr. JG has left the company. The Complainant believes that the matter has been mis-managed from the day of the incident to the extent that his reputation has now been irrevocably damaged.

The Complainant reported the incident to his manager Ms. JF (Operations Director for Auto Entry) the same day of the argument.

Ms. JF was very familiar with Mr. JG’s challenges with regards to the role, his inability to take correction and his lack of accountability, not much else was said and the conversation moved on.

Ms. JF did not follow this up with Joe. Had there been some follow up the Complainant believes there is every chance that all of this could have been avoided.

The statement taken from MR. JG was of poor quality. The statement Mr. JG made in writing was devoid of any real detail and included misrepresentations of what happened. Mr. JG was making a seriousstatementagainstthe Complainant, and heshouldhavebeenaskedformoredetail.

This statement was then shared with the Complainant and used as an instrument to correct his behaviour. The Complainant believes there have been numerous instances where the behaviour towards him has changed completely in recent weeks.

The Complainant believes that his manager ignored him at a work lunch which was obvious to the group, hurtful and very embarrassing to the Complainant.

Another team member has been distant towards the Complainant – his manager has informed him that this person has spoken about the matter.

The Complainant feels that no one was listening to him at the meeting with his manager and that her mind was already made up about the matter before the meeting. – The Complainant’s manager told him about a conversation with Mr. JG where she asked him to attend the lunch but he refused saying that he would feel uncomfortable with him (the Complainant) being there. The Complainant believes it was reasonable to say that this was designed to make him feel bad and to side with Mr. JG on the matter.

The Complainant firmly believes that this has influenced his managers attitude towards him.

The Complainant feels deeply aggrieved by the manner in which this has been handled by the company. He has suffered considerable stress and anxiety. His professional reputation has been tarnished within Sage. He has no trust in the ability of the company to properly remedy this issue. The trust and confidence between the Complainant and his line manager has broken down completely.

In order to protect his reputation as well as his health the Complainant felt that he had no option but to resign his position immediately with the Respondent.

The legal representative for the Complainant submitted a booklet of papers consisting of a personal statement from the Complainant and also a comprehensive booklet on legislation and case law. These may be summarised as follows:

In the Complainant’s own words, the following is a summary of his complaint.

 Part One – The accusation

JG was our content manager – J struggled from day one and required a lot of hand holding

-          Slow to understand the concepts, made too many mistakes (some repeatedly)

-          Doesn’t take ownership of his mistakes

-          Doesn’t seem to care about these mistakes

I had 100s of calls with JG up to this point and they were always in very good humour.  Always started with a bit of a laugh, he would bring his kid on camera to say hi, that sort of thing.

JG myself and a graphic designer were working on an e-Book

-          Running months past the deadline and so I had to schedule a weekly meeting to work on it.

-          JG was very unsure about the content for the e-Book and this didn’t seem to be a problem for him.

-          May 13 2021, I finally got frustrated with JG on a call as he didn’t seem to care about the delay or didn’t seem to really care about the quality of the content.

-          I was explaining something to him and he made a sarcastic remark.

-          I got annoyed and told him that he should be careful how he talks to people when they are pulling him up on something.

-          That’s where the call ended.

I worked with JG and the graphic designer over the next few weeks to get the e-Book finished.  Things weren’t as happy-go-lucky as before, but there were zero issues after that, in fact he made decent progress over the next week.

I didn’t hear any more about this until I got a call from my manager to tell me about a complaint that JG had made against me during his exit interview.

Labelled a bully! He’s gone and now there’s nothing I can do about this, no redress.

Part two: How the issue was managed by my manager/employer in chronological order:

(Early-midJune) JG made his complaint against me to JF during his exit interview.

JF accepted his complaint in writing = with very little detail (bullet points)

This was a very serious accusation:

Why wasn’t more detail requested?

-Why wasn’t JG’s account challenged?

-JG was making this accusation and then leaving the company.  The company weren’t going to be able to help once JG had left.  Surely they should have made sure that JG’s statement was satisfactory?

I would have thought that after working 2.5 years of working with me, through thick and thin, that I would have had the benefit of the doubt?

July 2, the Team Lunch

Her behaviour towards me had changed.  She completely ignored me at a team lunch.  This was very embarrassing.

-          Note: JF and I had a fantastic working relationship that was verging on friends.  She added me to her Netflix account, she would tell me stories about team members.  She would promote how well our little team got on to interviewees, agencies, new teams from the regions etc.  She told a couple of people about my recruitment and how excited she was etc.

-          Now she’s ignoring me at a team lunch and then denying it, and then suggesting that maybe she ignored me by accident!

I still wasn’t aware of JG’s complaint at this stage.  So by JF’s behaviour it was clear that she had already made her mind up about this before asking for my side of the story.

-          After 2.5 years of working with her without incident!

July 5, The Monday after the lunch

JF phoned me and told me that JG had made a complaint about me during his exit interview.

She said that she was aware of tensions between myself and JG prior to his leaving.  I had no idea that things were tense as I hadn’t much contact with JG after the e-Book issue.

-          He was working on a block of work for the next few weeks so I didn’t need to have any dealings with him.

-          If JF was aware of tensions between JG and I, I would expect her to try and mediate or do something to address the matter.

When I mentioned that I felt that I needed to talk to HR, JF put a lot of pressure on me not to go to them.  She mentioned a previous similar threat and she told me that she was stressed out by the thought of talking to HR.  She said that she had sleepless nights and she was saying that the whole process takes ages and would be “loads of hassle”.

She then started saying that I should just learn from it and move on.

-          This seemed wrong to me.

-          The whole seemed liked it was being handled on a personal level, rather than a professional.

Attempts to resolve issue internally

There was nothing that I could do about the accusation because JG had already left the company and had refused to talk to me about it.  The damage was already done in that regard.  Again, this could have been avoided if it was managed properly.

It was very clear where JF stood on the matter, so there wasn’t much else I could do.

If this was an issue with a teammate I could have come back, and with some distance and time might be able to get things back on tract, but when it’s your manager this is different.

-          On our call, JF said she wasn’t sure what I was like on calls with other people.  This is a clear lack of trust in me.

-          Had I stayed, and we replaced JG, what would things be like with the new person? Would there be a suspicion about me and my behaviour? I think there would!

An offer was made to include another manager to mediate but this person is the brother of the former CEO and best friend of JF.  JF has strong relationships with all of the senior management and so I couldn’t think of someone to get involved that would be impartial.

This all felt wrong to me, it didn’t feel safe if that makes sense?

Response of Employer

I reached out to HR and got a reply from JH.  She offered to mediate between myself and JF but it was abundantly clear where JF stood on the matter.

We exchanged a couple of emails and included JF.

I listed my issues and JF denied them all.

Debrief

She said that she tried to manage the situation via a debrief with the people involved:

-          This was one month after the call between myself and JG.

-          The MS Teams chat regarding this debrief shows that this meeting would be all about the graphic designer’s performance, nothing about JG.  She didn’t want JG “to be a scapegoat” for the delay.  She added that “he was a goat alright”.

-          It was disingenuous to say that this was an attempt to manage the issue.

Another team issue

JF then added that another member of the team had issues with me.

-          She didn’t try to mediate anything between me and this person either.  I asked JF if this person was “talking about me” and JF said that this person was probably just depressed.

-          I approached this person myself and all was fine.  She said that she took me up wrong on something (English isn’t her first language) and ended up saying that she thought we had a great relationship.

-          This teammate is someone that I have had many calls with her about personal matters as well as advice on how to do more senior work.  I have proof of this exchange via Teams.

-          It felt that JF was trying to make a case against me!

I thought JF’s answers in the email thread were deliberately disingenuous so I suggested we end the back and forth.

JH and I exchanged a few emails about next steps etc and I decided to resign.  I didn’t feel like I had a choice.

Impact of issue

 My immediate reaction was actually a physical one.  I was standing up during the call and I could literally feel my legs going from under me.  I couldn’t believe what I was hearing.

I immediately took the next day off, and then the next as I couldn’t stomach going back into an environment where people/my manager thought this of me.  It might sound a bit weird, but the following week was very quiet.  I was just kind of walking around the house aimlessly.  I couldn’t believe what had happened.

I decided to go to a therapist to talk about this.  I got a lot of peace of mind from this very quickly.  You doubt yourself, but I know that I am NOT a bully and in fact have the personality of empathy, which is probably the opposite of a bully.

Looking for a job when you’re unemployed is stressful, I worry a bit about how this might affect me in the future.  What happens when a prospective employer asks the company for a reference? I have no control over what happens there.  I believe references must be “true, fair, accurate and not misleading” but I can’t believe that I would get a fair reference from JF/the company.

Motivation for Raising Issue

I’ve been falsely accused of something, if this has ever happened to you, you will know that this was a shock on a number of levels.

-          I’ve had to leave my job.

-          I have a new mortgage.

-          Looking for a job when you are unemployed is very tricky.

-          Last but not least.... I need to try to protect my reputation.  It was actually a friend that highlighted this to me, Dublin is a small place and the marketing industry is even smaller.

Redress Sought

Loss of earnings

Pay since August to date (I am currently still unemployed).  I want financial support from the Company time while I look for another job.  I am a preferred candidate for a role and

Retention bonus.  I was due a retention bonus (due this October) for staying with the organisation after the Company bought the Respondent company out.  I would still be in the Company today if this hadn’t happened.

I would expect that my legal fees would be paid for.

Protecting my reputation

I know that realistically I can’t stop JF from telling people about this in the future, but I do need to have something from the Company, in writing, that I can show if this ever comes up again.  Dublin is a small place, and the digital marketing community is even smaller.

What about job interviews in the next few years.? What kind of reference can I expect to get? If I get a bad reference during a recruitment process that could cost me more loss of earnings !.

Legislation and Case Law.

Legal Tests

Section 1 of the Unfair Dismissals Act (the “Act”) defines ‘dismissal’ for the purposes of the Act as follows:

(a)    the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b)    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, or

(c)     the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”

The Act places a high burden on a Complainant in a constructive dismissal case. In order to succeed in such a complaint, a Complainant must establish that because of the conduct of the employer she was entitled to terminate her employment, or it was reasonable for her to do so.

In Berber v Dunnes Stores Finnegan J stated:

“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is as such that the employee cannot be expected to put up with it”.

In Murray v Rockavill Shellfish Ltd it was affirmed that:

“It has been well established that a question of constructive dismissal must be considered under two headings, Entitlement and Reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning”.

In UD142/1987 Beatty v Bayside Supermarkets it was noted that:

“The Tribunal considers that it is reasonable to expect that procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster bank Ltd 474/1981. In this case the Tribunal considers that procedure was not followed by the Claimant and that it was unreasonable for him not to do so. Accordingly, we consider that applying the test of reasonableness to the Claimant’s resignation he was not constructively dismissed”.

A long line of decisions of the WRC, Labour Court, and the Employment Appeals Tribunal before 2015, have established that conduct of an employer which would justify an employee terminating the contract of employment includes a breach of the contract of employment by the employer which goes to the root of that contract or circumstances where the employer’s unreasonable behaviour was such that the employee could not reasonably be expected to remain in the employment.

It has also been established in the decisions of the WRC that a Complainant who contends that they have been constructively dismissed must demonstrate that that they have acted reasonably in the circumstances by, for example, availing of the employer’s grievance procedure in order to allow the employer an opportunity to rectify the problem before they feel compelled to resign.

The Labour Court has held in the case of Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] that: “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a Complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of Travers v MBNA Ireland Ltd[UD720/2006] that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In relation to availing of a grievance procedure, the Labour Court held as follows in Mr O v An Employer (no. 2) [2005] 16 E.L.R. 132:

“The court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal.” See Allen v Independent Newspapers [2002] E.L.R. 84; May v Moog Ltd [2002] E.L.R. 261 and Monaghan v Sherry Bros [2003] E.L.R. 293. See also the determination of this court in New Era Packaging v A Worker [2001] E.L.R. 122)”

Each complaint of constructive dismissal is of course considered on its own merits and on the basis of the circumstances existing in that case but, as a general principle, the WRC and Labour Court have clarified that these are the matters most relevant to consideration of complaints of the nature before this forum.

In this respect the Complainant contends that the trust and confidence between him and his employer was irrevocably broke and therefore he had no other option but to resign.

Contract Test

The first arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his position, often referred to as the “contract test”. This requires that an employer be “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance” as held in Western Excavating (ECC) Ltd. v Sharp.

In this respect the Complainant contends that the employer failed to provide the Complainant, Mr Griffin, with a safe place of work, free from persecution and reputational damage.

The Respondent carried out an ad hoc investigation, without merit, due process or fair procedure, which had significant adverse consequences on the mental health and reputation of Mr Griffin.

ReasonablenessTest

There is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so he/she is justified in leaving. The question for the Workplace Relations Commission to decide is whether, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for him/her to terminate their contract of employment.

In this respect the Complainant contends that the carrying out of an ad hoc investigation into supposed misbehaviour without the typical safeguards afforded to the employees in a comparable position, had a detrimental impact on his reputation and mental wellbeing, amounting to unreasonable behaviour.

Contract or Behaviour?

As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”.

The WRC must first look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract “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”.

Not every breach of contract will give rise to a justified repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.

If the WRC is not satisfied that the “contract” test has been proven, then it is obliged to consider the “reasonableness” test “the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”.

In this respect the Complainant contends that both the contract and unreasonable behaviour tests are satisfied.

Breach of Trust and Confidence

In circumstances where the contract test has not been significantly advanced or satisfied, the WRC may look at the ‘reasonableness’ test and examine whether the employer conducted himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving.

The 'Bond of Trust' issue is best set out in the leading UK case of Malik and Mahmud v Bank of Credit and Commerce International SA [1997] UKHL 23, which confirmed the existence of the implied term of mutual trust and confidence in all contracts of employment.

The House of Lords unanimously held that the term of mutual trust and confidence would be implied into the contract as a necessary incident of the employment relation. This was a term implied by law.

In this respect the Complainant contends that, having suffered negative consequences, both mentally and reputationally at the hands of the Respondent company, the trust and confidence Mr. Griffin had in Sage to protect his interests, provide him with a safe place of work and afford him due process and fair procedure, was irrevocably broken. Given the significant deterioration in the relationship, Mr. Griffin, the Complainant, contends that he had no other option but to resign.

Providing a Safe Place of Work

The Safety, Health and Welfare at Work Act sets out the health and safety requirements of the workplace. Section 8 provides the general duty to ensure ‘so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.’ Section 8(2) provides particulars, including the duty at subsection (e) to provide ‘systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health’.

Section 8(2)(i) refers to the general principles of prevention in Schedule 3 and provides that ‘where risks cannot be eliminated or adequately controlled or in such circumstances as may be prescribed, providing and maintaining such suitable protective clothing and equipment as is necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees’.

Schedule 3 of the Act sets out general principles of prevention, including ‘1. The avoidance of risk 2. The evaluation of unavoidable risks … 4. The adaption of work to the individual … 5. The adaption of the place of work to technical progress … 7. The giving of priority to collective measures over individual protective measures.’

Section 13 imposes duties on the employee, including to comply with statutory provisions and to take reasonable care to protect their safety, as well as to cooperate with the employer.

We refer to Catherine Hurley –v- An Post [2017] IEHC 568, a decision issued by the High Court, concerning a complaint taken under the Safety, Health and Welfare at Work, 2005. In that case there was workplace bullying which was not addressed. The decision stated:

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

The High Court found that the defendant was in breach of its common law duty of care to the plaintiff as an employee under Section 8 of the 2005 Act and exposed the plaintiff to the damage and injury suffered as a result. Failing to address this Complainant’s excessive working hours when on notice of the need for more staff, perpetuating the continuing distress of a disciplinary and monitoring process when in possession of medical knowledge concerning the Complainant’s mental health is a stark indication of this respondent’s failure to observe this contractual obligation. The unlawful, ongoing and excessive working hours, in breach of the Organisation of Working Time Act, 1997, constituted a continuing breach which was allowed to continue and would, of itself, be reasonable grounds for the Complainant to terminate his contract of employment. His contract of employment requires his employment to be governed by the state’s laws. While the company had an obligation under his contract of employment, common law and by statute and its own procedures to investigate clear breaches of law and of health and safety guidelines it declined to do so.

In this respect the Complainant contends that the carrying out of the ad hoc investigation, without due process or fair procedure, could only have ever resulted in having a negative impact on the mental health and wellbeing of the Complainant, Mr Griffin.

Using Internal Grievance Procedures before Resignation

The requirement to substantially utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd. (UD 474/1981) whereby the Employment Appeals Tribunal stated that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd it was noted that:

“We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases, it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

It is well established that the employee is required to exhaust the company’s internal grievance procedures in an effort to resolve their grievance prior to resigning and initiating a claim for unfair dismissal.

In UD1350/2014 M Reid v Oracle EMEA Ltd it was stated that:

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”

In Tierney v DER Ireland Ltd it was stated that:

“... central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”.

In this respect the Complainant contends that he recognises that, ordinarily, an employee is required to exhaust the internal grievance procedure prior to resignation. However, there were compelling reasons why he was not comfortable in doing so.

Failure to Exhaust the Internal Procedure?

There is, however, authority for the proposition that the requirement to exhaust the internal formal procedures is not a fixed or universally applicable rule and that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal.

In Office Administrator v A Manufacturer ADJ-00026208, it was held that, in the absence of a clear grievance procedure, and given the breakdown in trust and confidence between the parties, there was no need to exhaust the grievance procedure:

"In the context of the issue involved the use of a grievance procedure was both pointless and also unclear if indeed there was one in existence, based on the contractual evidence of the employee.

Overall, I find that the Complainant, in the uncontested evidence provided, had significant grounds to resign, without invoking a grievance procedure, due to the Bond of Trust being irrevocably broken down between the parties and accordingly I find the Complainant to be unfairly dismissed."

Other cases:

Beglan v. Scanomat Ireland Limited UD688/2012 where an employee wished to have his grievance referred directly to the LRC (now known as the WRC) as there was no one within the Company he could bring his grievance to, but management had refused as it was an internal matter. Therefore, the employee felt he had no option but to resign and he brought a constructive dismissal case against his employer. The EAT found in favour of the Complainant and that he was constructively dismissed.

Schonfield v. West Wood Club Clontarf Ltd UD1013/2013, the Complainant had no one to complain about the conduct of the General Manager and therefore resigned. The tribunal found that the resignation of the Complainant was involuntary and upheld her complaint of constructive dismissal.

In the case of Allen vs. Independent Newspapers UD 641/2000, the EAT found that the Complainant had been constructively dismissed. The Complainant had contended that she had been subjected to harassment and bullying, that she had been isolated at work and her confidence undermined and her health affected to such an extent that she was forced to resign. She raised issues verbally with management and outlined her general feelings of isolation. The EAT found that she acted reasonably in terminating her employment and it was accepted that a complaint could be processed directly to management rather than using the formal grievance procedure.

In case UDD 1910 (Ryan, Cannon and Kirk Account Services Limited and Kneite) the Labour Court again helpfully set out the law in relation to this issue. The Labour Court set out that in normal circumstances an employee who seeks to evoke the reasonableness test in such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the Contract of Employment before taking the step to resign. The Labour Court quoted the case of Conway -v- Ulster Bank Limited UDA 474/1981. The Labour Court did point out that there can be situations in which a failure to give prior formal notice of grievance would not be fatal and referred to the case of Liz Allen –v- Independent Newspapers 2002 13 ELR Moy Mogg Limited 2002 13 ELR 261 and others.

In this respect the Complainant contends that, given the manner in which an investigation against him was carried out without being afforded due process or fair procedure and in the absence of adherence to typically accepted protocols for such matters, the Complainant, Mr. Griffin, had no trust or confidence in the ability of the company to seriously take any of his concerns on board or remedy any of the issues arising. He had no trust or confidence in the management or HR team thereafter and so declined to use the formal internal grievance procedure.

Notwithstanding, he did, on multiple occasions, engage with the human resources team towards a resolution of this matter, without success.

Application

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract”.

In this respect the Complainant contends that there has been a repudiatory breach by the employer in that they did not adhere to typically accepted protocols for the investigation of such alleged misbehaviour, a failure to adhere to their own policies and procedures and a failure to apply due process which made it reasonable for Mr Griffin, the employee, to terminate his contract.

Redress

Section 7(1)(c)(i) of the Act, as amended by s.6(a) of the 1993 Act provides: -

(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, or

Section 7(2) provides:

(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 said financial loss attributable to an action, 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)  (not applicable

(e) (not applicable), and

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

In this respect the Complainant contends that re-instatement or re-engagement is not an appropriate avenue of redress. Therefore, he is seeking compensation as the appropriate form of redress.

The Complainant was employed by the Company having a commencement date off 2nd February 2019.

The Company was acquired by way of transfer of undertaking on 27th September 2019 and the Complainant’s employment transferred to the Respondent with his existing terms and conditions of employment being preserved.

The Complainant worked within a team in the Respondent which developed software for payroll packages and his remit was that of digital marketing.  This is a small team of approximately seven employees, and all were managed by JF.  During the relevant time period involved, like most employees of the Respondent, the Complainant was working from home.  He worked alongside JG, and they were working on a particular software project – an eBook.

Call/JG Exit Interview

In or around 13 May 2021 during a routine Microsoft Teams call the Complainant spoke to JF – with whom he had an excellent relationship and informed her that he had “lost the plot” with JG over a project.  This was due to frustration.  The Complainant informed JF that the project was back on track.  Ultimately the project was completed.  JF subsequently checked in with the Complainant regarding the project and understood that there had been some frustration in place on the part of the Complainant regarding the project getting off track and there was no reference to JG to any concerns at this time.

On 11th June 2021 during an exit interview – JG then raised a concern with JF regarding the manner in which he had been treated by the Complainant during the aforesaid call.  The statement of JG was that the Complainant had taken an aggressive tone with him during the call on 13th May 2021.  At no time did JG refer to the Complainant as a bully. JF who was undertaking this exit interview, asked JG if he wished to raise a formal grievance and he stated that he did not wish to do so.  JG made it clear that he did not wish for the issue to be discussed with the Complainant until his employment had ended on 30th June 2021.  JF had to comply with his request.

Work meet up event

Prior to 2nd July 2021 there had been arrangements in place for an in-person meetup day event where the members of JF’s team, including the Complainant, would walk from Connolly Station to Howth and thereafter have lunch.  This was to be the first face to face meeting of the team since the Covid 19 pandemic.  The walk was also designed to raise funds for the charity Temple Street.  There was a Whatsapp group in place between the team members and the arrangements were clear for this event and where to meet etc.  JF was out of the office the previous day but was confident that all members of the team were aware of the location and arrangements for this day.  On the morning of 2nd July, the Complainant stated that he would not attend this event, as he was not clear as to the arrangements.  The Complainant informed JF that he had contacted other members of the team to ask if they were aware of the arrangements, but when JF queried this, the team all stated that no such contact was made.  A number of the members of the team contacted the Complainant and he arrived for the lunch at Howth but did not join the walk.  There was no isolation as he contends, and all members of the team were pleased to see the Complainant in attendance.

Feedback

On 5th July 2021 JF spoke to the Complainant to provide feedback provided by JG regarding his view that the Complainant had spoken in an aggressive manner to him on a particular phone call.  She made it clear during this call that the matter would not go any further, it was maintained as confidential and there would be no formal investigation, or any issue taken with the Complainant regarding statement of JG.  Rather, JF couched it in terms of feedback which she felt would be of utility to the Complainant – in particular as the Complainant had informed her that he had lost his temper with JG during that call.  The Complainant stated that he wished to go to HR and make a complaint against JG during that call.  JF stated that no such grievance could be raised in circumstances where JG was a former employee at this stage.  She did not make any reference to having sleepless nights due to a previous HR procedure and rather stated that she had sleeplessness due to the difficult conversation she was having with the Complainant.

JF also during the call of 5th July 2021 made it clear to the Complainant that he would receive support from SW within the wider team within the Respondent as he had provided previous HR advice during the Respondent being the Complainant’s employer.

On 6th July 2021 the Complainant contacted JF and stated that he was stressed about the conversation the previous day and would not attend at work.  SW spoke to the Complainant on 6th July 2021 and encouraged him to raise a ticket (complaint) regarding the conversation of 5th July 2021, if the Complainant wished to do so.

HR involvement

The Complainant raised a ticket with employee relations on 6th July 2021 a copy of which is attached, and thereafter, JH, Employee Relations Consultant, was in contact with the Complainant.  JH had a number of conversations with the Complainant commencing 8th July 2021 and again explained that a formal grievance could not be raised against JG but that the Respondent would facilitate and encourage a grievance being raised in respect of the Complainant’s issues with JF and the contents of the call of 5th July 2021 / any other issues the Complainant had.  Mediation was also offered in line with the Respondent’s grievance procedure.

JH had a number of conversations with the Complainant, many of which were followed up by emails from 8th July to 21st July. 

At all times, JH made it clear that the Complainant could proceed to mediation and/or have any issues of the Complainant dealt with through the grievance procedure.  There was no mention of the mediator identified by the Complainant in his submissions and rather mediation was discussed generally.  The Complainant did not take up the offer of mediation and provided no reason for same.

Resignation

The Complainant then furnished a letter on 15th July 2021 setting out his issues but also making it clear he was furnishing his resignation from employment.  JH responded to clarify whether in fact it was a resignation from employment and the Complainant stated that he would discuss same with his solicitor before confirming.  Clearly, therefore, the Complainant was in receipt of legal advice at this time.

The Complainant then furnished his resignation from employment on 20th July 2021 and JH urged him to reconsider this and provided him 24 hours to review this decision.

The Complainant did not take up this offer and rather confirmed his resignation from employment by email dated 21st July 2021.

Findings.

In or around 13th May 2021 during a routine Microsoft Teams call the Complainant spoke to JF – with whom he had an excellent relationship and informed her that he had “lost the plot” with JG over a project.

 On 11th June 2021 during an exit interview – JG then raised a concern with JF regarding the manner in which he had been treated by the Complainant during the aforesaid call.  The statement of JG was that the Complainant had taken an aggressive tone with him during the call on 13th May 2021.  At no time did JG refer to the Complainant as a bully. JF who was undertaking this exit interview, asked JG if he wished to raise a formal grievance and he stated that he did not wish to do so.  JG made it clear that he did not wish for the issue to be discussed with the Complainant until his employment had ended on 30th June 2021.  JF had to comply with his request.

On Monday 5th July 2021 the Complainant was provided with feedback by JF. During this conversation, it was clear that the Complainant did not agree with the content of the feedback. The allegations raised by JG were concerning in nature and the Respondent felt it necessary to provide this feedback to the Complainant in order to allow him to reflect on the exchange with JG and enable him to improve his manner. During this meeting the Complainant admitted that he had lost his temper (with JG) and raised his voice to him. The Respondent believes that it would have been beneficial for the Complainant to work with JF as his manager to ensure there would be no repeat instances of these poor behaviours.

Immediately after the feedback the Complainant commenced a period of sick leave.

SW (Operations Director) spoke to the Complainant on 6th July 2021 and encouraged him to raise a ticket (complaint) regarding the conversation of 5th July 2021, if the Complainant wished to do so.

The Complainant made a formal complaint (raised a ticket) with HR on 6th July 2021.

On 7th July 2021 the Complainant was contacted by Ms. JH (Employee Relations). During the call on 8th July the Complainant expressed that he wished to raise a grievance specifically about the feedback JG had provided. Ms. JH outlined that this would not be appropriate owing to the fact that JG had left the company but the Respondent would consider a grievance based upon management’s handling of the feedback. The Complainant advised that he would need some time to consider the route he wished to take, it was agreed that a further conversation would take place the following week.

On 15th July another call between the Complainant and Ms JH took place. During this call Ms. JH spoke through the Grievance process and encouraged the Complainant to allow the Respondent to investigate the matter thoroughly for him. This offer was declined by the Complainant as he did not feel that the conversation would be worthwhile / beneficial to him. During this meeting the Complainant alluded to the fact that he wished to resign from his post with the Respondent but also stated that he needed to wait until the end of the day on Tuesday 20th July until he sought advice.

On Wednesday 21st July the Complainant submitted his resignation. Ms. JH did not want him to resign in haste and encouraged the Complainant to take 24 hours to re-consider his decision. On Thursday 22nd July the Complainant confirmed he wished to proceed with his immediate resignation from the company.

Conclusion.

Both parties provided comprehensive submissions in relation to the complaint.

The Complainant sought time to gain advice. I have to presume that the advice was obtained by the Complainant prior to his resignation.

There is a substantial amount of case law in the Complainant’s submission (see above).

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.  Where grievance procedures exist, they should be followed: Conway v Ulster Bank Ltd (UD 474 /1981) In Conway, the EAT considered that the claimant did not act reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints”.  Where there are no formal procedures, advice should be taken as to the most appropriate way of presenting a complaint within the employment.  At the very least an employee should communicate his or her grievance before resigning.

In the instant case the Respondent has quite clearly stated that it was their intention to provide a solution which would enable the Complainant to return to work however it was unfortunate that a reasonable resolution could not be reached. The Respondent has stated that this was not through any fault of the Respondent but through the Complainant’s unwillingness to engage in a formal process.

I agree with Respondent that it was the Complainant’s unwillingness to go through a formal process that ended his employment with the Respondent, and it is for this reason that I must now find that the complaint as presented is not well-founded and therefore fails.

I agree with Respondent that it was the Complainant’s unwillingness to go through a formal process that ended his employment with the Respondent, and it is for this reason that I must now find that the complaint as presented is not well-founded and therefore fails.

Constructive Dismissal