Complainant

Respondent

Parties

Caolán  Higgins

Rushe’s of Naas Supervalu

Representatives

Self-Represented

Mr. Patrick McCormack, Maguire McNiece Solicitors

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-00046262-001

15/09/2021

The Complainant commenced employment on 27th March 2017. At all times the Complainant’s role was described as “store assistant”. The Complainant was a permanent employee, in receipt of an average weekly wage of €392.00. The Complainant resigned his employment, with such resignation taking effect on 30th July 2021.

On 15th September 2021, the Complainant referred the present complaint to the Commission. Herein, he alleged that the conditions of his employment became so intolerable that he was entitled to resign and consider himself constructively dismissed. In denying this allegation, the Respondent submitted that the Complainant had not met the high bar for success in such claim, particularly in light of his failure to engage with the internal grievance procedure.

A hearing in relation to this matter was convened for, and finalised on, 11th November 2022. The Complainant gave evidence in support of his complaint, while the Respondent called two witnesses, a store manager and a director of the company to defend the complaint. All evidence was given under affirmation was opened to cross examination by the opposing side.

At the outset of the hearing the legal of the Respondent was amended on consent. No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

The Complainant commenced work in 2017. At this time, the Complainant was a student and his hours were part-time during the academic year, with full time hours being provided during the summer months.

In evidence, the Complainant outlined a number of unpleasant interactions he had with his line manager. He stated that in June of 2020 he was attacked in store, suffering damage to his glasses. Thereafter, the manager agreed to compensate the Complainant for the same. Some weeks later, the manager stated that he would not be making payment for the same. In so deciding, the manager stated that he believed that the Complainant did not act appropriately in dealing with the issue and that the altercation was, at least in part, his fault. Thereafter, the manager stated that he would give the Complainant additional hours so as to allow him to earn back the cost of the glasses.

In circumstances whereby the Complainant was deeply uncomfortable with this response, he sought a meeting with the Director of the Respondent. During this meeting, the Complainant (whilst accompanied by his parents) outlined the ongoing poor treatment he received from his manager. He outlined that he had been shouted at, called names and poorly treated in a general way. This behaviour cumulated with the manager agreeing to pay for the glasses and then refusing to do so.

By response, the Director apologised for the behaviour the Complainant had received and agreed that he should be directly compensated for his glasses. The Director offered a meeting with the manager in an effort to resolve the issues raised, to which the Complainant advised that he would be uncomfortable with such a meeting. At the end of the meeting the Director advised that he would have a meeting with the manager and advise as to the next steps.

On 29th June 2021, the Complainant was asked to fill in as back room manager for a number of weeks. The Complainant received approximately fifteen minutes of training in relation to this role prior to commencing his duties. On 8th July 2021, the Complainant’s manager reacted angrily to his supposed failure to send dockets to his office, a task the Complainant was not instructed to complete. Over the weeks the Complainant fulfilled this role he was constantly belittled by his manager. On 27th July 2021, the Complainant had a particularly difficult interaction with his manager whereby he shouted that the Complainant was incapable of doing the job assigned to him. After weeks of such treatment, the Complainant felt that he could not continue in the role and handed his letter of resignation to the manager. No effort was made by either management of HR to address his issues prior to his leaving.

By submission, the Complainant stated that his manager had made the conditions of his employment intolerable. He stated that he raised these issues with the Director of the Respondent but never received any reply and, in effect, nothing changed. He stated that matters came to a head when he was appointed back room manager and had to endure bullying behaviours on an almost daily basis.  As a consequence of the foregoing, the Complainant submitted that he was entitled to resign his employment and consider himself constructively dismissed.

At the outset, the Respondent denied that the Complainant had been constructively dismissed.

In evidence, the Complainant’s manager denied, in general terms, the behaviour attributed to him by the Complainant. He stated that contrary to the Complainant’s account, he believed that they were on quite friendly terms and had a good working relationship. Nonetheless, the witness stated that he was the Complainant’s manager and did have to issue instruction and gentle reprimands from time to time. The Manager stated that the issue with the glasses was resolved at the relevant time with no further issue being raised thereafter. He stated that following the same, he remained on good terms with the Complainant. Regarding the Complainant’s move to back room manager, the Manager stated that he considered the Complainant for this role, which he viewed as a promotion, on account of their good relationship. He did accept that issues arose during the weeks the Complainant undertook this role and he had cause to correct the Complainant on numerous occasions in respect of the same. He accepted that he suggested that the Complainant move back to his prior role. The Manager stated that he was surprised to receive the Complainant’s resignation but that he forwarded the same to the HR department on receipt. He stated that the Complainant finished his notice period without any further issue arising.  

In answer to a question, the Manager accepted that he did not fully review the Complainant’s letter of resignation but simply forwarded the same to the relevant department.

In evidence, the Director of the Respondent accepted that he met with the Complainant and his parents in 2020. He stated that the Complainant’s primary issue was in relation to payment for his glasses, which was immediately resolved. He stated that the Complainant raised some issues regarding his relationship with his manager. In this regard the Director offered to arrange a meeting to resolve the same between the parties, which the Complainant declined. As far as the Director was concerned this represented the end of the matter and he was unaware of any further issues that arose between the parties. In answer to a question the Director denied that he stated that he would issues a report regarding the matters raised by the Complainant in the course of the meeting.

By submission, the representative for the Respondent stated that in circumstances whereby the Complainant failed to raise a formal grievance in accordance with the Respondent’s internal procedures, his complaint must fail.

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 has alleged that the conditions of the his employment, and in particular the bullying treatment of his manager, made the conditions of his employment intolerable to the extent that he was entitled to resign and consider himself constructively dismissed. In the alternative, the Respondent called witnesses to deny the Complainant’s allegations on a factual basis and submitted that his failure to engage with the Respondent’s internal procedures was fatal to his complaint.

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”.

In the present case, the Complainant has stated that he brought these issues to the attention of the Respondent in 2020. While the Respondent has accepted that the matters were raised informally, they submitted that the Complainant never properly engaged with the formal grievance procedures retained for this purpose. In this regard, it is agreed that the Complainant met with the Director and outlined the issues he was having with his manager, the Director stated that he would speak with him and offered a face-to-face meeting, which the Complainant declined. Following the same, it is apparent that the Director spoke with the manager and no further issues was raised. Having regard to the same, I find that the Respondent acted appropriately in this regard. Most such issues can should be dealt with informally prior to engaging with the formal procedures. If the Complainant felt that this informal process did not have the desired effect, he could have raised the matter formally and allowed the Respondent to investigate the same.

Regarding the later issue, it is apparent that the Complainant’s move to the back store was the cause of much consternation in his employment. Following a fractious number of weeks, it is apparent that matter came to a head and the Complainant issued written notice of his resignation. This correspondence stated that,

“I am leaving as I can no longer put up with your aggressive behaviour towards me, when doing a job for which I have not been trained. You are constantly berating me for not doing work, which I am unaware is required in the role of Back Stores Manager.”  

Having regard to the same, it is apparent that the Complainant gave written notice of the grievance that caused him to resign his employment. In the days that followed, the Respondent made no attempt to address the Complainant’s concerns or respond to this grievance in any manner. In addition to the foregoing, it is apparent that the matters raised by the Complainant are significant in nature. On these grounds I find that the Complainant gave notice of his grievance prior to his termination, and that the Respondent failed to address these concerns when given the opportunity.

Having regard to the accumulation of the foregoing points, I find that the Complainant was constructively dismissed within the meaning of the Act and consequently, his complaint is well-founded.

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that his application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, I find that compensation is the most appropriate remedy in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses following his dismissal. In this regard, I note that the Complainant’s evidence that he secured alternative employment shortly after his dismissal. Having regard to the foregoing, I award the Complainant the sum of €2,850.00 in compensation.

Constructive Dismissal, Letter of Resignation, Grievance