ADJ-00029395

Complainant

Respondent

Parties

Alex  O'Brien

Inspire Control Limited

Representatives

Self-Represented

Mr. Tom Smyth, Tom Smyth & Associates

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039348-001

24/08/2020

The Complainant commenced employment with the Respondent on 11th July 2011. Shortly after the commencement of his employment, the Complainant was promoted to the position of “operations manager”, a position he held until the termination of his employment. The Complainant was a full-time, permanent employee, in receipt of an average weekly wage of €951.17. The Complainant’s employment was terminated by his resignation on 27th March 2020.

On 24th August 2020, the Complainant lodged the present complaint with the Commission. Herein he alleged that the actions of his employer were such that the termination of his contract was reasonable in the circumstances and he was entitled to consider himself constructively dismissed. By response, the Respondent submitted that the Complainant had not reached the threshold imposed by the Act on such claims. In addition to the foregoing, the Respondent submitted that the Complainant’s failure to exhaust the internal grievance procedures is fatal to the present complaint. 

Hearings in relation to this complaint were convened for 5th November 2021 & 7th January 2022. These hearings were conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

In advance of the hearing both parties submitted detailed and comprehensive submissions. Further submissions were received following the hearing and were duly exchanged. In the course of the hearing the Respondent called three witnesses to give evidence, the Managing Director of the company, the Respondent’s office manager & an independent workplace mediator engaged by the Respondent. The Complainant gave evidence in support of his submission and called one former colleague in relation to one particular evidential point. All witnesses gave evidence under oath and were cross examined by the opposing party.

As the Complainant terminated the contract of employment, he accepted the consequent burden of proof imposed by the Act. Having regard to the same, the Complainant presented his evidence prior to the Respondent opening their case.   

The Complainant commenced employment with the Respondent on 11th July 2011. At the commencement of his employment his role was that of “general operative”, however the Complainant was soon promoted to the role of "operations manager". The Complainant gave evidence to the effect that he enjoyed his role at the outset but found the lengthy hours a challenge.

In January 2019 the Complainant was offered a role in a different business. While considering his position in respect of the same, the Complainant sought certain assurances from the Respondent in the event that he remained in employment. In particular, the Complainant sought assurances regarding a bonus structure that was to be put into place to reward the long hours he was dedicating to the business. The Complainant sought further assurances that his role would be upgraded to one with a greater control over the operation of the business. Over the coming months the Complainant made several representations regarding the bonus, which went unanswered. Much to the Complainant’s displeasure, he observed colleagues of lesser tenure than himself receiving pay increase in the period where he was supposed to receive his bonus.

In December 2019, the Complainant began to work with a business coach appointed by the Respondent. In February 2020, following a number of sessions, the Complainant reported that he felt that he was receiving no benefit from the sessions and requested that they cease. In evidence, the Complainant stated that he felt the purpose of the business coach was to allow the Respondent to gather information regarding his activities.

In February 2020, an incident occurred between the Complainant and the office manager. Following a conversation regarding the office manager’s levels of absence, she discussed her concerns with the Managing Director regarding the manner in which the Complainant spoke to her. At the time, the Complainant was not informed about the content or outcome of these discussions. On 12th February 2020, the Complainant has cause to speak with the Office Manager regarding an error that may have impacted customers had it not been rectified by the Complainant. The Complainant stated that such errors were common and served to increase an heavy workload. Following this conversation, the Office Manager emailed a letter of resignation to the Complainant and the Managing Director. Shortly after receipt of the same, the Complainant spoke with the Managing Director who informed him, for the first time, that the Office Manager had reported concerns regarding his management style in recent time. The Complainant was provided with no specifics of these allegations or a statement of any description. Later on, the Complainant received a call from the Managing Director. During this call, it was apparent the Managing Director was in the presence of the Office Manager and the Complainant was on speaker. In the course of this call, the Office Manager aired her various grievances regarding the Complainant. This took the Complainant entirely by surprise, at the time of the call he was sitting in his car and was entirely unprepared for any conversation of this nature. The Complainant was pushed for a response to the allegations, however in the circumstances he could not respond and stated that he had nothing to add at that point. Towards the end of the call, the Managing Director reprimanded the Complainant while the Office Manager was still on the call and criticised his management style. In evidence, the Complainant outlined that he was appalled by this interaction. He stated that the Managing Director had reached an outcome without any form of investigation, he was not provided with any details of the grievance, he was not given notice of the meeting and he was not given a right of appeal.

The following day, the Complainant issued an email to the Respondent entitled “My Concerns”. In doing so, the Complainant intended to initiate the first stage of the grievance procedure regarding the events of the previous days and other issues that had arisen during his employment. The Complainant spend much of the following week on the road so as not to interact with the Managing Director and the Office Manager. On 19th February, the Complainant returned to the office and noticed the two parties sitting and laughing together. On that day the Complainant was informed that an independent mediator had been appointed regarding the interpersonal dispute that has arisen between the Complainant and the Office Manager. By response, the Complainant stated that he wished for the issues between himself and the Managing Director to be discussed during this meeting.

On 24th February, the Complainant attended the mediation meeting. During the initial consultation, it became apparent the Mediator had only been appointed to discuss the issues between the Complainant and the Office Manager, and did not intend to become involved in the issues between the Complainant and the Managing Director to any significant degree. The Managing Director also stated that he was unwilling to confirm that the issues to be discussed would not constitute, or later form part of, a formal grievance on the part of the Office Manager. Having regard to these issues, the Complainant stated that he was no longer willing to participate in the mediation process.

Following these events, the Complainant raised a formal grievance on 26th February 2020. This grievance outlined the issues regarding the Office Manager and further outlined issues that had risen in the course of employment including not being consulted about new hires and the Complainant’s advice regarding certain customers being ignored. At this time, the Complainant also became aware that a new recruit was being hired to take over some of his duties.

On 28th February, the Complainant commenced a period of certified sick leave. On that date the Complainant was informed that his emails would be forwarded to various members of the Respondent’s workforce. The Complainant objected to the same on the grounds that these emails contain personal information, however this concern was ignored.

By email correspondence, the Respondent initially agreed to have an independent third party, who was known to the Complainant, chair the formal grievance meeting. On 6th March, this person indicated that he believed it would be inappropriate for him to chair the meeting, and put forward three alternative names. The Complainant’s certified sick leave was due to expire on 16th March. In anticipation of the same, the Complainant sought certain re-assurances regarding his return. These re-assurances were not provided and the Respondent continued to remove the Complainant from any form of remote access to employment.

On 13th March, the Complainant noticed that the Respondent had not paid expenses or his bonus in his monthly salary. The Complainant also discovered that the new member of staff, who was in the Complainant’s view hired to replace him, commenced employment on 9th March. On the evening of 13th March, the Complainant resigned his employment as be believed that these matters were not going to be resolved. At this point, the Complainant offered to work his notice remotely, this offer was in line with the restrictions arising from the Covid-19 pandemic that had, at that time, just been implemented. Much to the Complainant surprise, his resignation was accepted straight away. In evidence, the Complainant highlighted the difference in practice between his resignation, and that of the office manager, who was persuaded to retract her resignation.

Following his resignation, the Complainant engaged in the grievance investigation in order to demonstrate the poor treatment he had received at the hands of the Respondent. While the investigation did find partially in the Complainant’s favour, he submitted that it did not provide a satisfactory resolution to his grievances.

In cross examination, the Complainant denied that he had resigned his employment prior to engaging the with the grievance procedures. He stated that he fully engaged with the mediation process, but that the same was too narrow in scope and could not possibility have resolved the difficulties he had experience in work. He further submitted that he was willing to meet with the independent investigator, and pointed out that he fully engaged with the process, albeit after his resignation. Nonetheless, he submitted that the delay in appointing the investigator, in addition to the Respondent failure to provide certain basic assurances regarding his return to work led him to believe that there no prospect of the matter being resolved. Regarding, the assurances sought, the Complainant denied that these were excessive, but stated that the same necessary in order to allow him to complete his role in a managerial position.

At the outset, the Respondent denied the Complainant’s allegations and submitted that they had treated him fairly at all times. The majority of the evidence in this respect was provided by the Managing Director of the Respondent.

The Managing Director stated that the Complainant was hired when the company was much smaller and quickly rose to senior managerial position. The Managing Director stated the throughout his employment the Complainant was a dedicated, hard-working employee and an instrumental part of the Respondent’s managerial team. He stated that he recalled the discussions regarding the Complainant’s potential move and denied that he reneged on any agreements made at that time. He stated that all bonuses agreed during that period were paid. He further stated that the Respondent had no difficulty in giving the Complainant a different job title, but that they could not make him a statutory director of the company without significant corporate restructuring.  He stated that if the Complainant had a difficulty with his alleged failure to honour the terms of any agreement at this time, the Complainant should have raised a grievance at the relevant time.

The Managing Director accepted that he appointed a business coach to assist the Complainant but absolutely denied that he was appointed in order to harvest information regarding the Complainant’s activities. The Managing Director stated that the appointment of the business coach demonstrated his willingness to invest in the Complainant’s ongoing development in a managerial role.

In February 2020, the Office Manager came to the Managing Director advising that she wished to resign her employment on foot of an interaction with the Complainant. The Managing Director stated that he spoke with the Office Manager and asked her to retract her resignation and advised that he would speak with the Complainant. Following this conversation, the Managing Director spoke with the Complainant advising that the Office Manager had resigned and that he was going to attempt to resolve the situation. Shortly thereafter, the Managing Director called the Complainant in the company of the Office Manager. He stated that the purpose of this call was to “clear the air” between the parties and resolve the matter informally. While he accepted that he was critical of the Complainant’s conduct during this call, he stated that this was not a disciplinary sanction or any other form of formal outcome. Rather, he stated that he simply wished to put the matter behind them and return the business to a normal operations.

On receipt of the Complainant’s formal grievance, the Managing Director elected to engage the services of an independent mediator. He stated that as the difficulties were primarily inter-personal in nature, he hoped that the same may be improved following mediation. However, this process was cancelled when the Complainant refused to engage in the same without written confirmation that the Office Manager would not submit a formal grievance regarding the Complainant’s activities. Following the refusal of the Complainant to constructively engage with the mediation process, he engaged the services of a well-respected, independent third party to investigate the Complainant’s grievances. While a meeting in respect of the same was being arranged, the Complainant was due to return from certified sick leave. Prior to the Complainant’s return, he issued a list of demands in advance of the same, many of which were completely unworkable given the nature of the Complainant’s role. By response, the Respondent advised that it would be best to allow the investigator to examine the grievances and subsequently produce his report. Notwithstanding the same, the Complainant resigned his employment the day after the independent third party was engaged and without engaging in the grievance procedure to any practical degree. Notwithstanding the same, the Respondent went to the considerable expense of continuing the engage with the investigator and accepted the findings that issued in due course.

In answer to a question, the Managing Director accepted that he could have handled the grievance between the Office Manager and the Complainant in a more constructive manner at the outset. He accepted that it may not have been best practice to seek to resolve the dispute over the phone and without prior notice to the Complainant. Notwithstanding the same, the Managing Director reiterated that he was simply seeking to find a common sense resolution to the difficulties the company was facing. In answer to a further question, the Managing Director denied that it was inappropriate to engage the mediator to resolve the inter-personal difficulties between the Complainant and the Office Manager only. The Managing Director stated that he wished to resolve the issues between the Office Manager and the Complainant prior to moving on to the more formal grievance between the Complainant and himself. In answer to a question, the Managing Director denied that a new person had been hired to replace the Complainant, rather he stated that the business had required further staff for some time and the Complainant himself and outlined the staff shortages experienced by the Respondent. In this regard, Managing Director outlined that the increase in staff was designed to assist the Complainant in his role, rather than replace him.

In addition to the foregoing, brief evidence was taken from the Office Manager and the independent mediator appointed supporting the factual basis of the Managing Director’s evidence.

By submission, the Respondent submitted that the Complainant did not meet the high bar to succeed in the complaint of constructive dismissal. In addition to the same, the Respondent submitted that the Complainant’s failure to engage with the internal grievance procedures prior to the resigning his position is fatal to the present complaint.

Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal as follows:

“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”

In Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

In Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘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. If he does so, then he terminates the contract by reason of the employer’s conduct.”

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 the present case, the Complainant had alleged that the conduct of the Respondent was such that he was entitled to consider himself dismissed and consequently succeed under the Act. In the alternative, the Respondent has denied that the Complainant was poorly treated at any stage of his employment, and that his failure to engage with the internal grievance procedures is fatal to the present complaint.

In presenting his complaint, the Complainant has referenced matters that occurred years prior to his resignation. In so doing, the Complainant has sought outline the dysfunctionality in the management of the Respondent. However, I note that the Complainant was, for the relevant period of the purposes of the present complaint, a senior member of management of the Respondent. Having regard to the same, the Complainant would be expected to be familiar with the internal procedures regarding the reporting and investigation of grievances. Indeed, the Complainant demonstrated an intimate knowledge of these procedures towards the end of his employment. Having regard to the same, the Complainant’s failure to raise a formal grievance in respect of these issues at the relevant time, supports the Respondent’s contention that the Complainant has sought to retrospectively view the same as a form of ongoing mismanagement, rather a series of individual incidents.

Regarding the incidents that ultimately gave rise to the Complainant’s resignation, there was acceptance by both the Complainant and the Managing Director that matters could have been handled in a more constructive manner. The Complainant accepted that manner in which he spoke to the office director was inappropriate, but was borne out of frustration experienced as a result of his role. Similarly, the Managing Director accepted that the manner in which he conducted the informal meeting was unfair towards to the Complainant. Having considered the evidence in this manner, I accept the Complainant’s contention that the Managing Director sided with the Office Manager regarding the dispute that had arisen and laid the blame on the Complainant without conducting any form of investigation. On foot of the same, it is apparent that the Complainant had a genuine grievance regarding the conduct of the Respondent, and one that would require investigation by an independent third party in circumstances whereby it implicated all levels of management of the Respondent. 

Initially, the Respondent took the correct course of action regarding the grievance as raised by the Complainant. The Respondent is correct in their assessment that the disputes were primarily inter-personal in nature and the appointment of an independent mediation was a reasonable step in seeking to resolve the same. However, the decision of the Respondent to instruct the mediator to engage with the inter-personal difficulties between the Complainant and the Office Manager only, served to greatly reduce the effectiveness of this approach. It also contributed to the Complainant forming the, not unreasonable, view that the Managing Director did not view any of the issues experienced in the workplace as arising from his own conduct. Notwithstanding the same, the Complainant acted unreasonably in withdrawing from the process on the basis that the Office Manager would not give an undertaking not to formalise a grievance regarding his own conduct at a later date.

With the mediation process being duly abandoned, the Respondent again undertook the correct course of action in appointing an independent third party to investigate the Complainant’s grievances.  Thereafter, it is common case that the Complainant resigned his employment prior to meeting with the investigator and engaging with the process.

To succeed in a complaint of constructive dismissal, it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures. In the matter of Beatty v Bayside Supermarkets UD 142/1987 the Employment Appeals Tribunal held that,

“…it is reasonable to expect that the 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 Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

In the matter of Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. While the Complainant in this matter initiated the company’s internal grievance procedures, he resigned without lodging a final appeal. In this instance the Tribunal found 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”

And,

“…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 an inescapable facet of this case that the Complainant resigned without engaging in with even the first step of the Respondent’s formal grievance procedures. While I do note a short delay in appointing the investigator, such a delay is an inevitable consequence of such an appointment and does not negate the Complainant’s duty to engage with the procedure. While the Complainant stated that he could not continue in employment any longer at the point of his resignation, he could have remained on leave until such a time as the process was finalised.

Much of the Complainant’s submission drew a parallel between his own resignation, which was readily accepted, and the resignation of the Office Manager, who was asked to re-consider the same. Having regard to the same, I note that these resignations were fundamentally different in character. It is apparent the Office Manager resigned in the heat of the moment and later reconsidered the same. This may be contrasted with the Complainant’s resignation which was sent whilst the Complainant was absent from work and was about to commence investigation under the formal procedures. In such a situation, it cannot be said that the Complainant resigned in the heat of the moment and the Respondent is not under a duty to request him to reconsider the same.

Having regard to the accumulation of the foregoing points, I find that the Complainant has not discharged the burden placed on him by the Act and consequently his complaint is not well-founded. In so finding, it is clear that the Complainant had a legitimate grievance in respect of some of the Respondent’s actions. However, his failure to fully engage with the grievances procedures and seek to resolve the same internally prior to issuing his resignation undermines his complaint and consequently, I find that the same is not well-founded.

I find that the Complainant was not unfairly dismissed and consequently, his complaint is not well-founded.

Constructive Dismissal, Mediation, Grievance Procedures