Complainant

Respondent

Parties

Greg  Clarke

Rentokil Initial Limited

Representatives

Clodagh Bric B.L. instructed by  Malone Hegarty Solicitors

Thomas Wallace O’Donnell B.L. instructed by  Dundon Callanan LLP Solicitors

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-00047720-001

17/12/2021

The complainant worked for the respondent from 1979 to 1999 and returned for a further period of employment from 2001 to 2004.  The complainant resumed employment with the respondent in 2001.

The complainant felt that he had no alternative but to resign his position with effect from 20/0-8/2021.  He submitted a complaint of constructive dismissal to the WRC on 17/12/2021. 

The respondent does not accept any of the allegations asserted by the complainant and submits that he did not invoke the grievance procedure.  He has not demonstrated that any events took place which would warrant his resignation as a constructive dismissal. 

The complainant was paid €5763.73 gross per month and worked a 40-hour week.

The complainant gave evidence in relation to his work history with the respondent.  He initially worked as a service technician and then returned as service manager and was subsequently promoted to branch manager. He outlined his roles from 2011 to 2021 where he was a key account manager, operational manager and sales manager. He has a qualification in biotechnology.

The complainant gave evidence of the state of affairs in the branch he was assigned to.  There was no team ethos and no management structure.  There were serious issues, and he was responsible to ensuring a turn around of these matters.  In doing so he worked long hours and frequently highlighted the lack of staffing resources.  He required additional service technicians and administration support.

In March 2020 he highlighted concerns in relation to how the respondent was dealing with him.  He felt that there was limited communication and he highlighted the example of the introduction of the TWSS scheme, and he was not told about it.  The payment of his salary was delayed on two occasions and his concern was dismissed by Ronan Greany.  There was also a restriction on overtime, and he was not given notice of this.  The complainant also gave evidence that the respondent had wanted to get rid of the “leads commission” which was worth 5% commission.   The complainant gave evidence that these issues caused a lot of “kick-back” from the technicians he was responsible for, and he was not given any or insufficient information in relation to these matters.   The complainant also felt that his role was being undermined as staff were required to contact Mr O’Mahoney, Managing Director directly in relation to overtime approval.  When he raised this with Mr O’Mahoney, he felt that the response he received was nothing more than a “tick box” response.

The complainant also gave evidence that he observed what he considered to be the falsification of some records and he had noted that he became aware of this on 06/01/2021.  This related to how the works on certain sites were recorded so as to improve the overall performance.  The complainant also gave evidence that he was subjected to bullying and harassment from Mr Greany.  This took the form of a combination of things, and he felt that he was being picked on regularly by Mr Greany.  The complainant gave further evidence that he was placed on sick leave in January 2021. On his return he felt that things were no better and in particular the lack of communication with him from senior management and their failure to respond to his queries were good examples.  There was a staff morale problem, and he was not given any support in relation to this.

The complainant gave evidence that he had a back to work interview with Mr O’Mahoney and he put things down to stress.  The complainant felt that he was being bullied by both Mr O’Mahoney and Mr Greany and he was working in a toxic atmosphere.  The complainant confirmed that he felt frustrated, was not sleeping well and that his team were dismantled.  The complainant gave evidence that he did not invoke the grievance procedure as he had no faith in it.  Mr O’Mahoney was his direct manager, and he was certain that he would not get a fair hearing.   Invoking the grievance procedure in such circumstances he said would be a “frivolous exercise”.  The complainant gave evidence that he had tried to use the grievance procedure previously and nothing was done. 

The complainant confirmed that he gave notice of his resignation on 30/08/2022.  He subsequently had a telephone call with Mr O’Mahoney while he was on annual leave.  An exit interview was due to take place, but this never happened.

The complainant gave evidence that after his resignation he needed to take some time off before looking for work again.  He completed a digital marketing course and done some work with the CSO in February.   He was in receipt of the jobseeker’s allowance.  He got his first job in August and was working as a pest controller.  He was working for a limited company he had previously established.

Under cross-examination the complainant was asked to confirm that he submitted a letter of resignation on 30/08/2021.  He confirmed that he did, and it was put to him that in that letter he was telling the respondent that he was resigning.  He confirmed that that was the case.  The complainant was asked if he was expecting the respondent to do something after he sent that letter and he confirmed that he was.  It was put to the complainant that of the eight issues that he highlighted six of there were all to do with management and the way things were done in the company.  The complainant said that these all had an effect on him over time.  It was put to the complainant that he made no reference to any alleged fraud or any allegation that Mr O’Mahoney had asked him to do something fraudulently.  The complainant confirmed that was correct.   It was put to the complainant that at the time of his resignation the main issue was  in relation to the alleged fraud.  At that time Mr Greany was off work.  The complainant had concerns about his own health, and this led to his resignation.  The complainant confirmed that this was also correct.  It was put to the complainant that when he returned from sick leave in January 2021, he was advised by Mr O’Mahoney to contact Laya healthcare which was the respondent’s employee assistance provider.  The complainant denied that he was advised to do so.  The complainant also confirmed that he did not take any more time off for health reasons.  The complainant was asked if he had any evidence in relation to his health issues and he confirmed that he only had what his doctor told him on 31/12/2020.  He confirmed that he was prescribed anti depression and sleep medication, but he decided to only take the sleeping medication.  The complainant was asked if he was taking any medication when he submitted his resignation on 30/08/2021.  He confirmed that he was not but that he was well aware that he was not sleeping.  It was then put the complainant that he pulled the trigger to resign eight months after he had an issue with ill health and therefore his health had nothing to do with his resignation.  The complainant disagreed with this proposition.

It was put to the complainant that resourcing was an executive decision.  The complainant said that he would not agree particularly if you were the one responsible for fulfilling the customers’ requirements.  He was asked if it was correct that he was allocated three additional operatives in January 2020 but due to the arrival of COVID-19 these operatives could not start.  The complainant said that was what he was told at the time.  The complainant was then asked to explain his concerns about the TWSS scheme and how the respondent was operating it.  He said that he believed that the respondent was making more money and agreed that the respondent had to jump through hoops to get the benefit of the TWSS scheme.  It was put to the complainant that Mr Greany would give evidence that the respondent used the TWSS appropriately and that they complied with all the rules.  Mr Greany will also give evidence that all managers were kept up to date during the weekly covid calls.  The complainant agreed that he would expect Mr Greany to say so.  The complainant was also asked if the respondent had set up an on-line enquiry forum called “Ask Ronan” in order to help people submit queries about Covid.  He agreed that there was such a process in place.  It was then put to the complainant that eight employees submitted queries.  Two of these were appropriate queries.  One of these was subsequently explained to the employee concerned.  In that context Mr Greany done all he could to support the TWSS.  The complainant said that he was told by colleagues that they did not get a reply when they submitted a query on this forum.  It was also put to the complainant that turnover was down 23% and therefore the respondent qualified for the scheme.  The complainant said that he believed that the turnover figure was down because Mr Greany changed the invoicing system. He explained that this involved changing from an advance to arrears payments.

It was put to the complainant that he was wrong in his view that the bonus system was banned or that overtime was removed.  What had occurred was that the bonus system had to be approved by Mr O’Mahoney and because of COVID-19 and lockdown there was no need for overtime.  The complainant said that he would disagree with that view.

The complainant was asked if he would confirm that Mr Greany shared data in relation to productivity with him and he agreed that he did. The complainant was asked if it was important to retain existing clients of the respondent and he agreed that it was.  The complainant disagreed that new clients were a small part of the respondent’s business at that time.  It was also put to the complainant that Mr Greany did not remove any allowances.  The complainant said that he did not remove them but the implied threat to removed them remained.

The complainant was cross examined in relation to his loss following his resignation.  He confirmed that he had previously established a limited company called Pentomic ltd.  This was a building company.  He confirmed that he had created a new company called Biopest in 2009 and he was the company secretary.  It was put to the complainant that on 30/04/2021 a number of people with the surname Clarke either resigned or were removed from the company and a Mr KH became director and the complainant became company secretary. He confirmed that this was correct, and the complainant also confirmed that Mr KH previously worked for the respondent.  The complainant confirmed that this company was restarted at the end of April 2021.

It was put to the complainant that in April 2021 he made a decision to reactivate that company.  He had his mind made up that he was leaving the respondent.  The complainant confirmed that this company was initially going to do renovations.  This did not happen and when he left the respondent and could not get any jobs, he asked Mr RH to resign his directorship.  It was his intention that in April 2021 he would be able to do this business on the side. It was put to the complainant that he gave earlier evidence that he was overworked by the respondent and yet he was in a position to undertake all this other work.  The complainant explained that this was renovation type work and would be done at weekends.  It was then put to the complainant that (a) he was planning his exit from the respondent, and he kept this to himself, (b) he set up a website just two weeks after Mr KH was made a director and (c) if his plan was to “work on the side”this was a breach of his contract of employment as he failed to notify the respondent “in writing any hours you work with any other employer at the time you join the company (if applicable) and thereafter during the course of your employment with the company…”.  The complainant was unable to say when the website was set up and he confirmed that the first job he got was on 6th August. 

The complainant was asked if he was familiar with the respondent’s grievance procedure, and he confirmed that he was but from his experience it was unsuccessful.

The complainant was asked about a data access request that he submitted by e mail on 31/08/2021 and why he copied fellow employees on this e mail.  He said that only some were copied.

The complainant was asked if he received a bonus payment in 2021 and he confirmed that he received this in the August payroll, but he had been promised it since April.  He was then asked to confirm the amount and he confirmed that it was €10,378.   The complainant was asked if the timing of his resignation was a coincidence in that he waited until he received the payment.  The complainant replied that “you can make it sound like that”.

It was submitted on behalf of the complainant that there was significant evidence heard in this case.  This was a contentious employee and when he raised his grievance Mr O’Mahoney did nothing about the bullying allegation and he did not inform Mr Greany about the allegation.  In that context it is clear that the respondent disregarded its own policy.

Given that situation it is apparent that the complainant would not have got anywhere with any grievance as Mr Mahoney did not even inform Mr Greany about the earlier complaint.

The respondent’s HR could not a process a meeting.   The complainant at all times was trying to do his best.  Other employees also left. The complainant had to deal with a lot of issues and he was allowed to take the fall by the respondent.  He had no alternative but to resign given the repeated concerns which he had.

Mr Michael O’Mahoney gave evidence on affirmation for the respondent.  He confirmed that his is the Managing Director and has worked for the respondent for 45 years.  He confirmed that he knew the complainant and they had an excellent working relationship.  He would view him as a friend.  He was held in high esteem and was a valued employee.  Mr O’Mahoney confirmed that the complainant returned in 2019 as a branch manager and he made that decision.

Mr O’Mahoney outlined that overtime was permitted where appropriate.  They had to be careful when and where it was done.   Mr O’Mahoney also gave evidence that they were fully resourced at that time as they did not have access to a lot of customers.  Mr O’Mahoney also confirmed that their turnover was down 23%.

Mr O’Mahoney was asked if the complainant’s duties were diminished in 2020/2021.  He gave evidence that they were no.  The complainant continued to work normally. As a branch manager the complainant would deal with customers.   Mr O’Mahoney confirmed that the team were not told to bypass the complainant and deal with him.

In relation to the allegations of bullying Mr O’Mahoney explained that the complainant was a manager of 45 colleagues.  He would have been aware of the Employee Assistance Programme.  Mr O’Mahoney confirmed that he suggested to the complainant that he contact this programme after he returned from stress leave.  Mr O’Mahoney confirmed that there were no other health issues brought to his attention by the complainant and he did not notify him of any other incidents.  Mr O’Mahoney also confirmed that he could not recall the complainant bringing any issues to his attention from January to August 2021.

Mr O’Mahoney was asked about the complainant’s resignation letter.  He was on holidays when the letter was submitted, and he rang the complainant.  They had an amicable conversation, and he did not want to lose him from the team.  Mr O’Mahoney gave evidence that the complainant confirmed to him that he had his mind made up, but he asked him to think long and hard and to reconsider his decisions.

Mr O’Mahoney confirmed that after this they continued to have the regular day-to day chats.  He agreed to have an exit meeting with the complainant, but the complainant was dissatisfied with the person who would be attending with Mr O’Mahoney.

Mr O’Mahoney was cross examined by Ms Clodagh Bric, BL, on behalf of the respondent.  He was asked if the first became aware of the complainant’s allegation of bullying in January 2020.  He said that his recollection and the complainant was back on board after that.  Mr O’Mahoney was asked if he had any alarm bells after the complainant was out sick for one week.  He said that he had and that he went through what had happened with the complainant.  It was put to Mr O’Mahoney that he had an obligation to ensure that these matters are dealt with through the proper process.  He said that he had and that he had a very good relationship with the complainant. Mr O’Mahoney was asked why something was not done to alleviate the stress the complainant was under.  Mr O’Mahoney said that he advised the complainant to contact the EAP and that at that time the complainant was back in full flight.  Mr O’Mahoney was asked to clarify what follow up he undertook with the complainant.  He said that he had regular chats with the complainant and that the matter was never raised again by him or the complainant.  Mr O’Mahoney confirmed that they did not let any employee go during the Covid period.  In relation to recruitment Mr O’Mahoney confirmed that it was impossible to recruit at that time and they stopped recruiting in order to protect the jobs of the teams in situ.  Mr O’Mahoney was asked if the complainant needed more staff and he replied that during that time it was not appropriate to take anyone on.  It would not be a wise business decision to start recruiting.  Mr O’Mahoney was specifically asked if they had a need for technicians at that time.  He replied that if the work was the same as pre-Covid then they would but not during the Covid period as there were a lot of premises that they could not access, and they did not deal with any residential calls.  Mr O’Mahoney said that the technicians were not working their full contract hours at that time due to the restrictions in place.

Mr O’Mahoney was asked if the complainant was under pressure to get technicians.  He felt that they had capacity within the existing teams to deal with the workload.  Mr O’Mahoney also outlined that the overtime issue which the complainant raised was linked to this as it was his view that no overtime should be sanctioned if teams had not completed their full quota of hours.

Mr O’Mahoney asked if he had any evidence of bullying in relation to the complainant.  He outlined that he was clear that the complainant never accused him of bullying.  Mr O’Mahoney was asked who the complainant accused of bullying, and he responded that it was Mr Greany.  Mr O’Mahoney was asked if this was serious, and he said that after he had the conversation with the complainant it made sense to move on and to keep harmony within the team.  He heard no more about it, and he was also aware that the complainant did not want to go formal with his concerns.

Mr O’Mahoney was asked about the respondent’s use of the TWSS scheme and the payroll problems as they related to the complainant’s team.  Mr O’Mahoney said that the TWSS was a very complicated scheme, and it took some time to understand and implement it.  The complainant would normally deal with payroll but because this was a new scheme the complainant was not involved.  Mr O’Mahoney agreed that the complainant should have been communicated with in relation to the scheme and how it would be implemented in the team.

Mr O’Mahoney was asked about the Covid survey which was undertaken.  He described this as “an extra layer of protection for employees”.  He said that the results of this were not given to the complainant was they had a more centralised and streamlined process which was more efficient for the respondent. Mr O’Mahoney confirmed that this was the same process in all their branches.

Mr O’Mahoney was asked if he had a role in relation to the input of site visits and bonus payments on the system and he confirmed that he had.  He was asked about the complainant’s view that there was falsification in relation to these inputs.  Mr O’Mahoney outlined that he always tried to motivate managers to get their bonus and his encouragement took place on an ongoing basis.  The gateway for the bonus was to receive 95% of the stated service.  When “outcards” were added in this would improve the overall branch performance.  He said that the complainant’s specific point in relation to how credit was recorded would have no bearing on the branch.  Mr O’Mahoney was asked if he encouraged the complainant to add false service cards and he stated that he always told managers to do what we need to do for you to get the bonus.  This was not encouraging false recording.  Mr O’Mahoney was asked why the complainant would add a false site visit on his direction.  Mr O’Mahoney clarified that site visits had no impact on the bonus payments.  He added that “I would not perpetuate fraud”.

Mr Ronan Greany gave evidence on behalf of the respondent.  Mr Greany is the Area Commercial Director for the respondent, and he has been employed by the respondent for 28 years.  Mr Greany outlined the impact that the COVID-19 Pandemic had on the business.  He outlined that they are primarily a “business to business” operation and as most businesses were closed, they were unable to fulfil the contracts in place.  Mr Greany outlined that the respondent availed of the TWSS scheme in order to protect employees and to ensure that staff had the same level of income.  Mr Greany gave evidence that this support scheme was rushed in and as a result they subsequently had to deal with about eighteen iterations of clarifications.  These iterations had a significant impact on the payroll process which had to be regularly adjusted to take account of the changes.  Mr Greany confirmed that the respondent took legal advice in relation to the scheme, and they also availed of external payroll professionals to ensure the accuracy of its implementation.

Mr Greany gave evidence of the internal meetings which took place.  These were conducted virtually and were held nightly.  This was designed to allow people give feedback and also to give managers a “heads up” on issues.  Mr Greany gave evidence that the complainant was invited, and most people attended these meetings.  Mr Greany confirmed that it was widely reported in the media that people may subsequently have a tax liability in relation to TWSS.  Mr Greany outlined that the bonus was paid to employees after the annual audit was signed off and the payment approved by management.  The TWSS did not affect the bonus payments.  The 2019 bonus payment was not paid until September and the reason for this was that the audit was delayed due to the pandemic and the consequential delay in having it signed off by head office.  Mr Greany confirmed that the bonus payments were suspended in 2020 and an alternative process was put in place.   Mr Greany outlined that if the respondent did not use the TWSS scheme then it was likely that employees would be placed on lay-off.  The TWSS gave them an alternative to lay-off.

Mr Greany outlined that new business and pest control represented less than 20% of their annual business.  Mr Greany said that they had a “portfolio” of contractual work which was significant.  This work was seriously affected by the pandemic as they were unable to access premises in order to carry out the work.  The only premises open at that time were hospitals and supermarkets.  During this time, they carried out approximately 60% of their contracts.

Mr Greany was asked to explain his understanding of the complainant’s request for additional staff.  He stated that the complainant was looking for assistance as some of the technicians were refusing to work outside their contracted hours unless they received overtime payments.   Mr Greany gave evidence that he undertook an analysis which showed that the technicians were not actually completing their core hours.  This was his advice to the complainant, and this was the reason that overtime would not be paid until the core hours were completed.

Mr Greany was asked to outline the reasons why employees pay was late.  He stated that there were two occasions which led to late payments.  One was related to the implementation of the TWSS rules and although these were late, they were still paid on time.  There was a second occasion whereby Revenue made a change to the TWSS, and this required a complete recalculation of their payroll.

Mr Greany was asked about the complainant’s reference to the grievances he submitted in July 2020.  Mr Greany explained that he set up a Google Form platform so that employees could clarify issues in relation to the TWSS scheme.  He done this as there was considerable pressure on payroll in relation to queries.  This was a process whereby employees could get information to assist their understanding and any further queries could be submitted.  Mr Greany outlined that there was a total of 10 such queries and 8 of these related to the TWSS scheme and all these queries were answered.  The other two queries were not TWSS related but were dealt with separately.

Mr Greany was asked about a specific contract which was received in July 2020 and to explain his involvement in it.  Mr Greany outlined that they were asked by a sister client company in the UK to deal with this contract.  Mr Greany outlined that he was involved due to his previous role.  This contract was in the complainant’s area and the day the work was required was changed at short notice.  This contract coincided with the issue the complainant had with the technicians who were refusing to work outside their core hours unless overtime was paid.  As a result of this no technician from the complainant’s team done the work and it was done by a technician from another area.

Mr Greany was asked about his attitude when dealing with the complainant.  He said that he provided the complainant with supporting data in relation to the hours worked by the technicians.  He was providing support to the complainant, and he was expecting that the technicians would attend to their customer’s needs.  However, the complainant was unable to get any of his team to do this work.

Mr Greany was asked about the complainant’s submission that he was bullied by him and that his text messages to the complainant left him feeling bullied and humiliated.  Mr Greany said that he was surprised at this, and he confirmed that the first he knew of this was when he read it in the complainant’s submission to the WRC.  Mr Greany stated that he was not aware that the complainant had submitted a grievance.

Mr Greany was asked to explain the issue in relation to the hazardous waste which occurred in July 2020. He outlined that this related to the inappropriate segregation of rodenticide.  He observed that this was mixed with Waste Electrical and Electronic Equipment (WEEE).  The complainant was based in Kerry at that time due to the pandemic and he took photographs and passed them to the complainant. Mr Greany confirmed that the complainant dealt with the matter but that it occurred again in September 2020 along with good service equipment being left outside.  He asked the complainant what supports he required to deal with this.  Mr Greany was asked to outline his response to the complainant’s submission that he had rodenticide on his arms.  Mr Greany said that a risk assessment should have been undertaken and that this waste is classed as hazardous waste. Any employee dealing with this waste must be a trained professional user which is known as “PMU” and have a PMU number. 

Mr Greany was asked how the respondent got involved with COVID-19 waste.  He outlined that the HSE and Dublin City Council contacted them and were asked to assist due to a build-up of this waste.  They agreed and agreed to store this.  Mr Greany explained that they were able to utilise existing employees who were not fully working.  Mr Greany was asked how this impacted on access to their store and he explained that any restriction on access was time limited and was due to a delivery of the waste.  This was a health and safety compliance matter.  There was access prior to and after the delivery.  Mr Greany outlined that the legal issues in relation to this and he explained that the respondent had met all the requirements outlined in the Waste Management Act 1996.

Mr Greany was asked about the complainant’s assertion in relation to the falsification of records in 2017.  Mr Greany outlined that he was not aware of any.

Mr Greany was cross examined by Ms Clodagh Bric, B.L.

Mr Greany was asked to confirm that the first time he became aware of the complainant’s issue with him was when he read the WRC submission and not when Mr O’Mahoney received the complainant’s complaint.  Mr Greany confirmed that he could not recall having been told about this complaint.  Mr Greany was asked why the complainant was invited to a meeting after he submitted his resignation.  Mr Greany stated that he was not involved in that meeting, and he did not instruct HR to organise.  Mr Greany outlined that he was absent on sick leave from July to September 2020 that year and so was not involved.  Mr Greany confirmed that he had no knowledge of the complainant’s grievances.  Mr Greany also confirmed that he was not aware of the complainant’s grievance with him which was submitted on 14/07/2020.  Mr Greany stated that he “had no recollection of any grievance” submitted by the complainant.

Mr Greany confirmed that the complainant was a valued employee.  Mr Greany was asked to clarify a number of issues raised by the complainant.  It was put to Mr Greany that the respondent was in a good position financially and that the work done for HSE, and Dublin City Council would have been well paid.  Mr Greany clarified that they only charged for the costs that they incurred in dealing with that waste product. It was put to Mr Greany that the stores were closed on many occasions.  He outlined that they were closed only for health and safety reasons when certain waste products were being delivered.  On one occasion they were closed for three days, and this was due to staff absences.  Mr Greany was asked if it was correct that a stock order was turned away in February 2021 as it could not be delivered.  Mr Greany said that this could happen if staff were unable to take the goods in.  Mr Greany clarified that there were arrangements made to take in goods that were deemed urgent.

Mr Greany confirmed that he was responsible for setting up the “Ask Ronan” help line.  He confirmed that he was and that everyone who contacted him on that site got a response.  Six were responded to immediately while two did not submit a proper query but they were responded to.  Mr Greany outlined that he set this up as payroll was under a lot of pressure in relation to the TWSS scheme and this site was designed so that employee’s questions could be answered and if not then they had a facility to submit a query.  Mr Greany confirmed that the respondent availed of the TWSS from March 2020 to August 2020.  Mr Greany confirmed that this was a complicated scheme and it had very specific requirements.

Mr Greany was asked why he told the complainant that overtime was not warranted.  Mr Greany stated that at time, due to the pandemic, they were only working at 60% of their capacity and overtime could not be justified in those circumstances.  Mr Greany stated that cash and invoices were not coming in at the same rate as they were pre pandemic.

It was put to Mr Greany that the business was still doing well at that time.  He outlined that they were unable to do work for come customers as their business were closed.  They changed how they invoiced customers so as to assist them with their cash flow.  Mr Greany stated that invoices are not a measure of turnover.  At this time the overall turnover was substantially down.

It was put to Mr Greany that staff were asking the complainant about what was going on, but he was not getting answers and that he did support the complainant.  Mr Greany stated that the nightly calls were used to keep people inform and he expected the managers to verbally cascade the information to staff.  This was also the case in relation to the late wage payments.

Mr Greany was asked why the “leads commission” was pulled.  He explained that there were concerns in relation to the business.  As a result of this they created a new form of leads scheme which would be paid in December.  Mr Greany emphasised that this was a management decision.  It was put to Mr Greany that there was no need for this.  He explained that there was.  Their priority was to keep employees paid and they topped up everyone’s salary.  They removed any variable pay schemes to help them to do this.  The management team also took voluntary pay waivers and when these were restored, they were not backdated.

Mr Greany was asked to explain why he told the complainant that the grading allowances would be removed if the disgruntled staff did not to the work for which they wanted overtime in view of the fact that the complainant successfully got a technician from another branch to undertake the work.  Mr Greany outlined that grading allowance was discretionary and was measured against performance criteria.  Mr Greany confirmed that he suggested to the complainant that if a technician was uncooperative then they could have that discretionary grading allowance removed.  There were two technicians who were not delivering their core hours on the complainant’s team.  It was put to Mr Greany that despite the fact that the complainant got another technician to do the work he was still threatened that his technicians would have the allowance removed.  Mr Greany denied that he issued any threat to the complainant.  Rather, he suggested to the complainant that he could remove the allowance.  Mr Greany emphasised that he never issued an instruction to the complainant to remove the allowance.  It was put to Mr Greany that he was not happy that the complainant succeeded in getting a technician from another branch and hence his text messages: ”the grading allowance is still coming out”,  “The dye is cast so”,  “Incredible”.  Mr Greany stated that he felt that it was incredible that the complainant could not get anyone from his team to do the work.

It was then put to Mr Greany that his conduct led the complainant to feel that he was being bullied.  Mr Greany said that he would refute that suggestion. Mr Greany explained that he sent the complainant a very detailed spreadsheet which showed the breakdown of the work done by the technicians on his team and the number of hours that should be available.  Mr Greany said that he undertook to provide this information to the complainant to support him in his efforts to get the work done by his team.

It was put to Mr Greany that the expression, “the dye is case” put the complainant under pressure and was nothing but dismissive and belittling to the complainant. Mr Greany responded that he did not threaten the complainant and he did not belittle the complainant and he never issued an instruction to the complainant to remove the grading allowance.

Mr Greany was asked about the bonus payment of €2,500 which the complainant requested.  Mr Greany said that he did not recall the complainant asking him for this.  It was put to Mr Greany that the complainant subsequently asked again, and Mr Greany explained that bonus payments were not paid until after the annual audit was completed and then the bonus payments were authorised by head office.

It was put to Mr Greany that he had seen the waste at the hazardous waste facility and he disregarded the complainant’s view.  Mr Greany said that the way the materials were left was wrong and the complainant rectified this when he brought it to his attention. 

It was put to Mr Greany that the complainant was repeatedly under pressure, and he could not rely on him to support him.  Mr Greany said that he had asked the complainant what help and support he needed.

Mr Greany was asked if the complainant’s resignation came as a surprise to him.  He confirmed that it was, and he was not expecting it.  Mr Greany was asked if it was correct that panic set in when he resigned and hence the meetings were organised.  Mr Greany said that he was not aware of this.

It was put to Mr Greany that the complainant had no choice but to leave on 09/08/2021.  He had to “take the hit”.  He was completely disregarded, and Mr Greany wanted to take him down.  Mr Greany said that this was not correct.

It was submitted on behalf of the respondent that the starting point in this case is the complainant’s letter of resignation.  This letter sets out his reasons for the resignation.  Some of the incidents cited occurred a significant time before the resignation letter.  The WRC complaint form expands these.  It is also significant that after he submitted his resignation form the complainant did not want a formal meeting.  There was a lot of evidence on a variety of matters, and all of these were part of the Executive function.  At no stage did the complainant engage in the grievance procedure and the “Ask Ronan” platform was not part of the grievance procedure.  In that context there was nothing raised by the complainant in relation to the incidents he cited.

It is also relevant that the complainant set up his own company and he done this before he left his employment.  The two tests in relation to constructive dismissal are relevant and it is for the Adjudication Officer to decide if the complainant’s complaint meets these tests.  What is also important is the timing and decisions of the complainant and what was driving those decisions.

The Law

Section 1 (b) of the Unfair Dismissals Act defines ‘dismissal’ for the purposes of the Act in circumstances where:

• “(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”.

Section 6(1) of the Act states:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Deliberation

Where the fact of dismissal is in dispute a complainant must establish that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act. In order to succeed in a claim of constructive dismissal under the Act, a complainant must demonstrate that his decision to resign his employment resulted from either a repudiatory breach of his contract of employment by the employer or such unreasonable behaviour by the employer that he could not fairly be expected to put up with it any longer. Was there a repudiatory breach of the complainant’s contract of employment?

To amount to a repudiatory breach, the employer’s breach has to constitute a fundamental breach of the employment contract. A repudiatory breach allows a party not in breach to accept the breach and affirm the contract or to repudiate the contract. If the employee decides to repudiate the contract by resigning, he needs to do so in a timely manner otherwise his continuing to work can be taken to amount to an affirmation.

The test by which a repudiatory breach of contract can be identified was set out by Lord Denning M.R. in Western Excavating Limited (ECC) v Sharp [1978] IRLR 332as follows:

“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.”

In assessing whether the employer’s conduct in this case amounted to a repudiatory breach of the complainant’s contract of employment the I find that he did not establish any facts that there was a breach of the complainant’s contract of employment such that he was entitled to regard himself as having been dismissed.

Was the employer’s behaviour such that it was reasonable for the Complainant to resign?

The second question for the Adjudication Officer to assess is whether the complainant was entitled to terminate his employment because of the actions of the Respondent. In cases of constructive dismissal, the Adjudication Officer must examine the conduct of both parties. This requires an assessment of the events leading up to the termination of the complainant’s employment.

At the hearing, which was conducted over two days, evidence was heard about the employment relationship between the parties.  It is not disputed that the complainant was held in high regard and was a valued employee.

There is a direct conflict of evidence in relation to what happened that led the complainant to submit his resignation.  What is clear is that the working relationship between the complainant and the respondent around this time and communication between the parties was poor.  A number of events and/or incidents were cited by the complainant and are consolidated as follows:

a)      Lack of resources and in particular sufficient technicians to enable him to service the respondents’ contracts for which he was responsible. The increase in turnover of staff was due to a number of decisions implemented by the respondent.

b)     The complainant was notified in January 2020 that his branch fell short of the service level required.  The complainant submits this situation arose due to falsification of records.

c)      The respondent’s use of the TWSS scheme caused serious problems for the employees that the complainant managed. The complainant had concerns about how this was utilised and implemented.

d)     The respondent was late in paying wages and the complainant was left to deal with the issued faced by the employees in his branch.  He was not supported in this and was met with a combination of silence or responses which did not address the issues.

e)     A number of technicians in the complainant’s branch resigned due to issues with their pay and changes to their contracts.

f)       The complainant was under pressure to remove the grading allowance for technicians on his team when the overtime was removed.  The complainant submits that he felt bullied and belittled in the manner in which the respondent dealt with this.

g)      The complainant felt that the respondent was displaying an unreasonable and intimidatory conduct towards him as a result of the fact that no technician from his branch would carry out a particular work assignment.  He felt that his authority as branch manager was undermined and at the same time his workload was increasing.

h)     The complainant submitted a complaint of alleged bullying and the respondent failed to inform the subject of the complaint and utilise its procedures for dealing with such matters.

i)       As a result of this the complainant had to take a period of sick leave and when he informed the respondent at a return-to-work interview about the reason for his absence the respondent failed to remedy or address any of the matters which lead to this situation.

j)       In responding to the complainant’s concerns the respondent did not engage in a positive or proactive manner but sought to attribute all blame to the complainant.

Was it reasonable for the Complainant to resign?

The question for the Adjudication Officer to consider is whether the cumulative effect of all of the interactions between the complainant and the respondent crossed a threshold so as to damage the relationship to such an extent that it was reasonable for the complainant to resign.

The Act places a high burden on a complainant in a constructive dismissal case. In order to succeed in such a claim, a complainant must establish that the employer’s unreasonable behaviour was such that he was justified in believing that he could not continue any longer in that employment. An employee must alert the employer to his situation by availing of the grievance procedure, where one exists, in order to allow the employer an opportunity to rectify the problem before resigning.

The complainant told the hearing that he was aware that there was a grievance process to go through. He told the hearing that his attempts to utilise the grievance procedure were ignored when he submitted a complaint of alleged bullying in July 2020 and that the respondent failed to deal with this.  As a result of this the complainant felt that it was apparent that he would not have got anywhere with any grievance.

At stated previously, in any case of constructive dismissal, the Adjudication Officer must examine the conduct of both parties. A failure to invoke the employer’s grievance procedure can be fatal to a complaint of constructive unfair dismissal.

In this case the complainant did not invoke the grievance procedure prior to his resignation.  An employee is normally expected to be able to demonstrate that having brought a concern to his employer’s attention that he gave the employer a reasonable opportunity to address those concerns before resigning. The evidence given by the respondent’s witness was that he had a very good relationship with the complainant. Mr O’Mahoney was asked why something was not done to alleviate the stress the complainant was under.  He advised the complainant to contact the EAP and that at that time the complainant was back in full flight. The respondent’s witness also gave evidence that he had regular chats with the complainant and that the matter was never raised again by him or the complainant. 

I have reviewed the timelines applicable to this case.  The complainant first worked for the respondent from 1997 to 1999 and left to take up another role.  He resumed working again with the respondent in 2011 and was promoted to Branch Manager in January 2019.  The complainant raised an issued with staffing resources in December 2011 and in January 2020 the sanction for three additional technicians was withdrawn due to COVID-19.    Around the same time the complainant was informed that there was a shortfall of about 4.5% in the service level for the branch.  With the arrival of COVID-19 and the various restrictions the respondent decided to utilise the TWSS scheme.  This caused a lot of difficulties for employees and led to significant issues for the complainant in dealing with these.  He escalated these to the managing director and/or commercial director but did not get any response or assistance in dealing with these.  In July 2020 a number of technicians submitted grievances to the commercial director.  At this time a particular contract in the complainant’s area was deemed essential and due to the various difficulties, none of his technicians would complete the work.  This led to the involvement of the commercial director who was at a loss to understand why they would not attend to a client’s needs.  The complainant also had issues in relation to the store access and additional Covid related work.  It was these latter interactions that led the complainant to submit a complaint to the managing director about the behaviour of the commercial director towards him and by which he felt belittled and bullied.  The complainant did not receive any follow up from this and he tendered his resignation on 30/08/2021.

It is clear from the complainant’s evidence that some of these issues started in 2019 and continued in 2020 and 2021. I note that the respondent provided copies of the complainant’s review performance for 2019 and 2020 in their submission.  His performance for 2019 was summarised as “Greg had a great year overall exceeding all the key metrics set out for him”.  For the year 2020 the summary was “Despite the year gone by being very challenging for Greg he still managed to adapt and deliver.  Greg and his team won the Branch of the year 2020”.  These positive performance reviews do not seem to have given the complainant the reassurance that he was successful in the role and that his contributions were noted and acknowledged by the respondent.

I am also satisfied that many of the matters highlighted by the complainant were as a consequence of decision made by the executive management team.  These decisions were made in the best interests of the company and its employees.  They were not specifically “targeted” at the complainant, and they effected all employees.   I am also satisfied that the complainant was a manager of a depot, and he had regular meetings with his manger and particularly during the pandemic.  This was an information sharing process and although voluntary it provided an opportunity for all managers to be kept informed of changes and issues that were occurring.

Determination

In all the circumstances, the I find that the behaviour of the respondent was not unreasonable such as to justify the complainant terminating his employment by way of constructive dismissal.

I determine that the complainant was not constructively dismissed, and I determine that the complainant’s complaint is not well founded.

Constructive dismissal