Complainant

Respondent

Parties

Declan  Duffy

Forte Healthcare Ltd

Complainant

Respondent

Representatives

Mr. Aaron Shearer, B.L., instructed by Paul Brady & Co Solicitors

 Adare Human Resource Management

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-00025996-001

04/02/2019

The complainant has presented a complaint that he was constructively dismissed on 31 December 2018.

He worked as a territory Manager with the respondent from 1 June 2016 to 31 December 2018.

His gross salary was €3333 per month.

He submitted his complaint to the WRC on 4 February 2019.

The complainant worked from 1st June 2016 as a Territory Manager in the northwest of Ireland selling animal healthcare products with the respondent wholesale and retail company which had operations in Ireland, UK, and Poland. The complainant’s job saw him have responsibility for selling products to veterinary practices, to Agri -merchants, pharmacists and other end users of animal healthcare products.

His complaint of constructive dismissal is based on the respondent’s conduct towards him from May 2018 until his dismissal on 31 December. This conduct of the respondent was intolerable and he became ill and was diagnosed with workplace stress and anxiety.  The respondent’s intolerable conduct was evident in the following situations:

Faulty vehicle

Unilateral attempt to change the terms of his contract in May 2018 by introducing performance management as a new term. The complainant refused to amend his contract when requested.

Placement on a Performance Improvement Plan (PIP) in July 2018.

Exclusion from a sales conference scheduled for 18-20 September.

Faulty Vehicle.

On 9 April the complainant’s company car lost power while he was driving it. He had to pull over immediately. The respondent got him a replacement rental car for 3 weeks until it was returned. It happened again on 4 June on the way to the airport, it just rolled over to the side of the road. He got the car back on 11 June. There were 4 such incidents in all. The company was not taking his concerns seriously.

A risk assessment was done and found the car to be safe. The complainant was not consulted by the risk assessor and believed that the car was unsafe. After he stopped using the car, it was given to a colleague.

Change of contractual terms.

In May 2018, the complainant was asked to sign a document, amending his terms and conditions and to agree to GDPR changes which expressly allowed for an external HR person to have access to many documents, including performance appraisal and assessment, processes which up to that point were unheard of in the company, had never been used before and were not contained in his original terms and conditions or in 2016-17.  He did not believe that a PIP should be shoehorned in to GDPR.

He discussed this with his line manager who said she ‘d come back to him but didn’t.

Placement on a Performance Improvement Plan (PIP) in July 2018.

He believes the company placed him on a PIP because he had raised the unreliability of the company car. PIP was first notification to him of any concern on the employer’s part.

The National Sales Manager, his line manager, had accompanied him on field trips in March, and had indicated no issues. He had a good working relationship with her.

On 5 July, his line manager told the complainant that she wanted to put him on a PIP because sales were not good enough. He had exceeded targets by €30,000 for first quarter of 2018 so he could not understand a reference to disciplinary proceedings should he fail to comply with the improvements which she had specified in her memo of 6 July outlining the details of the PIP. It seemed like a forewarning of dismissal.

Up until 2018 no targets were ever set for him. The busiest time of the year was November to March because the respondent’s products were geared towards lambing and calving which occurred during those months. Summer months were quieter because product range for small animals was not that strong.

From May 2016 – December 2017 he grew sales. He received a bonus at the end of 2017 and in January 2018 for his sales. Some staff did not receive bonuses

Targets for 2018.

He was given targets for January, February and March 2018 which were in excess of what he achieved in 2017 and he had exceeded these 2017 targets by 62%.

He was €10,000 ahead of target in January 2018.In February 2018 he was just €7000 under the target. He exceeded the target of €16,400 for April 2018. He got a first quarter bonus of €1500 in April 2018 salary that was on a par with the 2017 bonus

The sales target for May had been €15,000; the target had been €21,000 for June. These were unachievable targets, not met for two months and so his bonus could not be paid. No red flag was put to him beforehand.

He was also advised of problems with his populating CRM Vision which is a software package and data bank to record sales, record customers visited and customer feedback and comments. He sometimes was unclear as to what he should input.

On 6 July his line manager told him that an area for improvement would be territory planning.

The complainant advised his line manager on the 6 and 20 July that he wished to seek advice about the consequences for him of engaging in a PIP.

The field trip which he did on 19 and 20 July with one of the vets was positive She was happy with his presentation to customers.

in December2018, he requested the respondent to engage with the WRC mediation services about the imposition of a PIP. His request was ignored.

Exclusion from sales event in September 2018.

He found out a few days before the conference that he was excluded from attending. He was being excluded from basic training and product knowledge and it strengthened his belief that the company wanted rid of him.

Contrary to the respondent’s assertion that this event was concerned with products for small animals and not appropriate to his competencies, it was concerned with products for a wider range of animals and not just companion animals. His line manager wanted the complainant to do more work on small animals and a sales meeting would have given the complainant a chance to learn more. The entire sales force from Ireland were asked to go. The staff sell the same products to the same range of customers. The line manager told him that he would be flying from Shannon. Th flight was never booked. There was a plan to discuss performance with the complainant on 7 July.

Other factors influencing his decision to resign.

Sick leave

The trigger for his episode of ill health on 3 September was his nervousness about driving the car. He was not satisfied that it was safe. No one came back to him with an alternate car to do his job.

The respondent failed, unfairly, to send him on his DSP illness benefit. He felt victimised.

When he attended the company doctor on 26 October 2018, he told the complainant that the company had no idea why he was not attending work. The complainant told the doctor about the car, exclusion from sales meeting and sick leave.

Activating the grievance procedure.

 The respondent asked him to travel to Dublin for a meeting on 22 November to discuss the concerns which he had put to the company doctor and whose report had issued to the respondent, but he was unable to attend as he had no car. He asked the company to arrange the meeting in Galway where he works. The respondent offered two further dates on the 26 November and on 27 November, but he had a medical appointment on the 26 November and on 27 November he was scheduled for jury duty.

On 30 November he told the line manager that he would be back on 3 December. He resigned on that date also because none of his issues had been resolved over a 4-month period. He did reconsider his resignation but got no substantive response to his letter of 4 December setting out his concerns and asking the respondent to agree to engage with the WRC to find a solution. The respondent sent him a copy of the grievance procedure one day after telling her he had contacted the WRC which contained no reference to his type of concerns. He wasn’t aware that a grievance procedure existed before receiving it. He never got the company handbook. 

During the period 10-17 December he told the respondent that he would reconsider his resignation. 

The line manager accepted his resignation on the 17 December. He contests the line manager’s email of 17 December, in which she states that he had not withdrawn his resignation though invited to do so and that she accepts his resignation. His emails of 4 and 11 December ticked all the boxes and told her that he wanted to reconsider his resignation. The respondent wanted him gone and that’s why they did not respond to his request to agree to the engagement of the WRC.

Cross examination of the complainant.

He confirmed that he is the Territory Manager promoting a range of animal products and must report to a manager.

Faulty car.

The complainant confirmed that though there were no mechanical concerns after the mechanical report of 30/7/18, he was still worried about the safety of the car. His concerns were not adequately addressed.

To the point that independent mechanic had pronounced the car as roadworthy on1 August, the complainant believed that their assessment was incorrect because it had continued to break down in later months after he had left. If any accident occurred involving the car and a third party, it was he who would be held responsible and not the employer.

Placement on a Performance Improvement Plan (PIP) in July 2018.

Sales’ targets and bonus.

To the point that the company was trying to improve profitability and grows the customer base, he accepted that companies use targets for staff.

He confirmed that he received a bonus in 2017. He confirmed that his contract provides for a bonus.

He accepted that the line manager delivered greater clarity on the basis for the bonus.

To the point that the bonus which was given to staff in the first quarter of 2018 was for motivational purposes, the complainant disputed this and stated that the bonus he received for that first quarter was due to his performance.

He found the targets for May- August 2018 to be excessive based on previous expectations and sales.

He accepts that performance management is a standard tool used by employers.

To the point that the line manager is assessing achieved sales against targets, the complainant stated that she had never spoken to him about sales until July 2018. She has spoken to him about improving his knowledge on small animal products.

To the point that performance is wider than sales, he stated that he did not understand this.

Concerning the request for greater diligence on his part into inputting data into the CRM Vison data bank, he stated that training in its use had not been very detailed. There were difficulties with this system sometimes because of broadband issues.

When presented with a PIP he asked for time to think about it; he was taken aback. It set out a timeline for dismissal.

He stated that supports throughout the PIP were never mentioned to him. It was not set out for him as to how 8 weeks of the PIP process would proceed.

To the point that training, weekly meetings and support would be provided, the complainant stated that the PIP was unnecessary. He had overachieved in the first 4 months of 2018.

He accepted that he needed to improve in the admin area. It was a small part of his job.

He stated that he did not contact the WRC in July. He stated that he was seeking professional advice.

He believes that his email of 20 July in which he requested time to think about the PIP and to seek advice was a grievance. He was not provided with the grievance procedure at that point.

The complainant confirmed that he had a good channel of communication with the line manager

Other matters cited by the complainant indicating a change of attitude towards him.

He disputes that his employer showed his bone fides in relation to sickness benefit; he had to pursue the respondent to get the payments.

To the point that the respondent made reasonable efforts to meet him, the complainant states that they did not, he was asked to travel to Dublin from his work address in Galway.

He confirmed that he resigned on 31 November but did seek clarification on the respondent’s willingness to engage with the WRC mediation services on 4 December. To the point that his contract contains a grievance procedure, the complainant states that he activated the GP.  He wasn’t aware of the specifics.

Mitigation.

The complainant gave evidence of applications for positions.

The complainant secured another position in May 2019 and a further one in August 2022, earning €30,000 per annum.  He was out of work for four months

His total loss, comprising the four months loss of salary and the difference between his current salary and his salary with the respondent, is €27,000

Summing up

Mr. Shearer, BL, stated that the complainant’s letter of 4 December stated that he was willing to reconsider his resignation if they would engage with him. The respondent’s response was to accept his resignation.

September sales conference.

He went to every previous one. He was not informed as to why he was being excluded- no email or calls. There was no benefit to his exclusion. It is disingenuous to say that there was.

The evidence about the reliability of the car is hearsay evidence. It was decommissioned in 2019. The respondent put it on him, unfairly, to sort out the car issue.

 The offer to him to reconsider his resignation was not genuine.

He changed dates for leave at request of the line manager to allow him to attend September meeting. The complainant’s solicitor asked me to consider this last point as the complainant is not in the room with him to enable him challenge the respondent Managing Director’s evidence.

The complainant’s barrister asks that I accept that the evidence clearly demonstrates that the respondent wanted the complainant to leave the company and refused to engage with him.

He asks that I uphold the complaint.

The Respondent strongly refutes this claim. The complainant tendered his resignation and was unduly hasty. He failed to activate the grievance procedure prior to resigning.

He worked as a Territory Manager with responsibility for engaging with vets, pharmacists, buying groups, end users and allied trades promoting the sales of the range of company and subsidiary products. This role of Territory Manager reports to the National Sales Manager, with the main function of the role being the sales, delivery and business management relationship with the respondent customers.

The respondent denies that there was any link between the car issue and the PIP or the September sales conference.

The respondent addressed the complainant’s concerns.

The respondent did not take his concerns for his safety seriously regarding the malfunction of his company car, which caused him anxiety;

that he was forced into a performance improvement plan and

that he was excluded from company events, sales meetings and training.

The Faulty Vehicle.

There had been three incidents where the complainant’s company car had lost power.

On the 30 July 2018 the respondent had the company car assessed by a registered garage mechanic who confirmed that it was roadworthy.

The respondent fully discharged his duty of care with the procurement of 2 expert opinions and a risk assessment.

Placement of the complainant on a PIP in July 2018.

The respondent’s representative stated that performance concerns relating to the complainant, existed for a number of months. The complainant had continued shortfalls in his performance as Territory Manager wherein his sales across the range of products and customers, his weekly and activity reports and his quarterly focus planning were all deemed to be unsatisfactory.

He was invited to performance improvement meeting with his manager on the 5 July 2018. On the 6 of July 2018 a Performance Improvement Plan (PIP) was proposed for an eight-week period.

The complainant texted his manager on 6 July stating that he wished to assess the PIP contents over the weekend and discuss it with her. It was agreed between the parties that this discussion would take place on her return on the 19th of July 2018. On 20 July 2018, the complainant advised his manager in a meeting to discuss his seeking parental leave, that he had been in contact with the WRC regarding his being on a PIP, and that he wasn’t comfortable with the PIP.

Exclusion from the September sales conference

The respondent advised that this meeting was focussed on targeting customers for products designed for small animal. One product Cartrophen Vet was a drug for exclusive use for dogs.

The complaint misunderstood the situation. The fact that an event is ‘booked into the work diary’ is no indication of any individual automatically being asked/permitted to attend. It was a provisional notification.  In the instance complained of, the event that the complainant feels he was blocked from attending related to companion animals, which animals the complainant had indicated to his employer he was not comfortable working around – hence he was not required to attend the event.

The complainant returned to work from parental leave on 20th August 2018 and worked for two weeks. On the 3 September 2018, he submitted a doctor’s cert for the period 3/09/2018 to 17/09/2018 which recorded his sickness absence as ‘Work related anxiety and stress’. The complainant continued on certified sick absence for the periods 01/10/18 – 15/10/18, 15/10/18 – 29/10/18, 29/10/18 – 12/11/18.

He attended a scheduled appointment with the company doctor on Friday 26th October 2018 to determine any supports his ongoing sickness absence might require. The occupational health doctor advised in her report on 1st November 2018 that the complainant had concerns about his own safety and that of other road user’s vis a vis his continued use of the company vehicle together with concerns regarding sick leave and the provision of information on upcoming meetings. The respondent scheduled a meeting for 22nd November in an effort to resolve the complainant’s concerns and to assist his return to work. The complainant advised by email he could not make a meeting in Dublin. The 26th and 27th November in Tullamore were alternative meeting dates offered by the respondent, but the complainant advised he could not attend on foot of a doctor’s appointment (26th) and attendance for Jury duty (27th).

Other issues complained of by the complainant

DSP benefit issue. The complainant ticked the wrong box on the application form for benefit and so the money went into respondent’s account who when they learned of this, forwarded the benefits to the complainant.

Evidence of Managing Director given under affirmation.

This took place at the resumed hearing on 12/12/23.

Mr Shearer asked that all items which Ms Ridge, Adare Human Resource Management had stated would be addressed by the line manager, not in attendance at the reconvened hearing should be disregarded as she was not present to be cross examined.

The respondent stated that the communications of the line manager and the complainant’s responses to them given in evidence on the first day of the hearing should stand.

The witness addressed the three issues on which the complainant bases his complaint of constructive dismissal.

Faulty Vehicle.

Traditionally, the respondent bought and leased cars for staff. Currently they lease cars. The complainant’s car was covered by warranty. Cars are changed every three years for staff.

The witness accepts that faults existed. They were intermittent. When the car was put into a garage, the fault was not evident. The car was declared roadworthy by the service manager of the garage where it was purchased. If a problem arises, the supplier will fix the car or replace it as necessary and advise as to its road worthiness.

The respondent states that at all times they have provided roadworthy cars to staff.

At the request of the complainant, the respondent organised a risk assessment with a chartered risk assessor. He confirmed that the risk was very low. The complainant was on parental leave at the time and did not participate. A copy of the risk assessment was sent to him.

The Health and Safety Authority wrote to the respondent on the 7 August. The witness advised the Authority that a risk assessment had been done on the car. That was the end of the Health and Safety Authority’s engagement with the company.

 The witness advised the complainant to collect the car on the 21 August. He did not avail of that car again. Unknown to the witness, he used his own car after that. He failed to comply with requirement to use a car that was insured by the company. He had never requested to use his car. The respondent has to rely on the advice of mechanical experts. During the remainder of the complainant’s employment, the car didn’t breakdown after he received the roadworthiness report on 1 August. It did break down in 2019.

Placement of the complainant on a PIP in July 2018.

The respondent stated that they had 3 Territory Managers in the Republic of Ireland. The Territory Managers needed to know their territory, know their customers, needed to absorb and retain technical information about products the company was selling and impart such knowledge to customers and potential customers.

As the respondent’s business is a small organisation, the decision to initiate the PIP was a matter which he had approved with the complainant’s line manager and on which he agreed.

The witness saw that the complainant had failed to use the CRM Vison, the data collection device used by the company. He was supposed to input visits, conversion of visits to appointments to sales. The witness saw that he was not giving evidence on sales- where they happened /didn’t happen. He should have populated the site as requested.

The PIP was about assessing performance and putting supports in place for the complainant.

In terms of training and assisting the complainant, a veterinary surgeon accompanied him on a field trip on 19-20 July and completed a report to which the complainant referred in his own evidence as containing positive observations about his work. This was designed to help him with product knowledge and to feed back to respondent what strengths and weaknesses existed. It is a standard form shared between the line manager and the Territory Manager. The veterinary surgeon identified areas for improvement in her report. She recognised his ability and ease when discussing products for horses but less so for small animals. There were good parts to this mentoring exercise.

Resignation.

He submitted his resignation on 31 November. He didn’t use the grievance procedure. The respondent wrote to him on the 3 December and asked him to reconsider it and gave him a week to do so. The latter request prompted no withdrawal of his resignation.

He left the company on the 10 Dec ember 2018.

Cross examination of the witness.

 To the point that the complainant’s letter of the 4 December was a cry for help and that he was looking for answers, the witness stated that he saw this letter as a restatement of the complainant’s concerns. The complainant declined to meet them to discuss his concerns.

To the point as to why the respondent did not engage or answer his letter other than to state that they accepted his resignation, the witness stated that he hadn’t engaged with them.

He accepts that the complainant exceeded performance in Q1. He got a bonus. He accepts that there is no documentary evidence of a bonus issuing merely to motivate staff. The witness stated that he never sent an email out stating that the bonus was for motivation. Everybody got a bonus.

The witness stated that performance is not measured on just sales. He was aware that the complainant had omitted to upload the required data and information on CRM Vision. The witness accepts that he has no documentary evidence of this. While the witness had one meeting with the complainant and knows of other meetings, he has no documentary evidence of having put the respondent’s concerns to him prior to April 2018.

The complainant was given a replacement car by the garage when it was in for repair. He never asked for a new car. Another staff member used the car after the complainant left, but subsequently two problems in 2019 led to the return of the car to the garage.

The witness became aware in December 2018 that the complainant was driving his own car. At this stage he had still not provided the respondent with a fitness to resume work cert and hadn’t the respondent’s agreement to resume work so they were unaware of what car he was driving.

The witness confirmed that he did not advise the complaint of any concerns about insurance on the complainant’s own car.

The witness attended a training meeting with the complainant and noticed his inability to absorb technical information on certain drugs (Cartophren V and R). His preparation and rapport with clients were good.

Training course Sept 2018.

He was not included as opposed to excluded.

The meeting in September was specifically for the drug Cartrophen Vet. The witness stated that the two other Territory Managers went to the training event. The complainant had proved at earlier role plays in training that he could not absorb details about this drug to the extent that he could impart its properties to customers. The September conference was geared towards and in preparation for a London veterinary conference, scheduled for December.  Another Territory Manager whom the witness stated was also struggling did not attend the September training event. The witness stated the complainant would not be able to present at the December, London event so there was no point in sending him to the preparatory event.

To the question as to why he had been told to block off the September training dates by his line manager, the witness stated that it was normal – a generic block. The complainant went to the May sales conference which was about general products.

To the point that their submission made no reference to lack of competence, the witness stated that he lacked competence in the Cartophren Vet drug. They brought the right people to the sales meeting. They had wanted to retrain the complainant in small animal products but decided not to include him after the May meeting, when it was clear that he could not absorb details about the drug, so the witness decided shortly after the May meeting that he should not be included. This was the first conference to which he not been invited. He did not tell him that he was not invited. This decision was made in conjunction with the Technical Manager.

The witness confirmed that the complainant did not need to sell the Cartophren Vet drug

The witness stated that he found it difficult to allow him to talk to veterinary surgeons when he didn’t understand the product. He lacked confidence. The witness confirmed that they sold about 90 products and that the complainant had comprehension of lots of them. His comprehension of generic drugs was fine because he did not need technical knowledge.

The witness addressed the agenda for the September 2018 sales meeting.

The primary focus was on Cartophren.

The witness stated that in day 3, they did address other products which they started selling only in September 2018 and which drew their two biggest customers in the UK to that product. One of these is a large animal product.

Cartophren is licensed for small companion animals only.

To the question how could he improve if he’s not sent to training, the witness stated that the Head of Technical Services and Marketing will speak about the training provided to the complainant.

Changes to his terms and conditions.

He refused to sign the amendment and to accept changes.

Evidence of Head of Technical Services and Marketing.

The witness is a qualified veterinary surgeon and gave evidence under affirmation

September training meeting.

She has a role in determining content of and attendance at training meetings.

The itinerary was sent to all Irish colleagues. It was merely a diary marker, not a definite invite to everybody to attend. They needed to have a pool ready from which they will select those destined for the training event in Birmingham in September. It was an error and oversight on her part that he and another Territory Manager were on the email of 22 Aug. The witness advised the hotel of the list of attendees. The complainant and one other Territory Manager were not on that list.

Attendees for this training were chosen on the basis of who could absorb the details of the product, the technical details, product knowledge and who could best impart that knowledge to vets at the December London conference. It is necessary to learn quickly about products. The complainant had shown at previous training meetings that he was not able to keep up with the group, he couldn’t function in role plays. This served to damage his confidence even further.

Agenda for Sept training meeting in Birmingham 

Cartophren is the biggest selling product for the company. It is sold for small animals. They cannot sell it for equine purposes.

While the introduction took up a short amount of time, the rest of Day 1 and Day 2 at the event was taken up with Cartophren. Day 3 was about the drug Vivofos which has little if any presence in Ireland.

Training on another drug, D, amounting to one hour, was included in the training for probably new staff members. It would have been a waste of time and money to bring someone over to Birmingham for an hour.

Previous training opportunities provided to the complainant.

The complainant attended the March sales meeting for UK and Irish staff. In May 2018, he attended a training meeting in Birmingham.

On 31 August 2018 he was on annual leave and the witness stated that she told the complainant that she would train him at some other point.

At the role play sessions in the training meetings, he had struggled to name the active ingredients in another drug. He struggled to name equivalent competitor products which the respondent wanted to cancel out and replace with their own drugs. The respondent expected him to be able to do a presentation quickly on their drugs. The witness was concerned at his inability to comprehend some animal drugs and discussed it with his line manager, the MD and another Manager.

Training was provided to the complainant on 28 June 2018 for non-medicinal animal products – shampoos, cleaning products, testing equipment, over the counter products.

The witness did GDPR training in May 2018 with him.

Cross examination of witness

He was not included as opposed to excluded.

The witness was asked who should attend the September training and she discussed it with the line manager and the MD. She did have an input in to the decision not to include him but did not personally decide on her own who should attend. She thinks that it was decided at the June 2018 meeting. The witness had an agenda for that meeting which included individual development and plans. The line manager asked her multiple times about attendees for Birmingham.

The witness stated that she booked flights for Birmingham on 4/7/2018. She was unable to say why only five seats were booked. The complainant was not to be on that flight. She has no documentary evidence of the process of not including him but she is giving evidence under affirmation. The witness stated that she did not send a correcting email to the complainant and the other Territory Manager that they were not going – she had sent an email on 27 August stating here’s what you need for the conference. The witness did not tell the complainant that he was not going. It was the responsibility of the line manager to inform him. They never told staff that everybody would be going. Normally they follow up on the original notification to confirm the employee’s attendance eat a training event.

The witness stated that it was not only confidence which hampered the complainant; there was also a knowledge gap. She stated that the report of the veterinary surgeon who accompanied him on the field trip on 19 and 20 July 2018 also influenced the respondent as to who should attend. The witness stated that that report identified strengths and areas for development which were relayed to him and he took on board some of the recommendations.

To the question as to why the respondent would conclude that he could not be trained in Cartrophen Vet when he demonstrated competency in three other products, the witness stated that he was very competent in Curtosil and in another drug but he was only average in other products.

The witness stated that not everyone who went to the September meeting went on to the London conference.

A suite of supports was arranged for him

She confirmed that she had no evidence of a written plan in place to support him. She was guided by the line manager.

Legal Authorities.

The respondent argues that the complainant meets neither of the tests set out in Western Excavating (ECC) v Sharp Ltd (1978), 1RLR 332. There was no breach of contract.

The respondent also relies on Higgins V Donnelly Mirrors Ltd UD 104/1979 which held that the complainant was unduly sensitive and had not borne the heavy burden of proof which lies with a complainant in a complaint of constructive dismissal.

In M Reid v Oracle EMEA Ltd., UD 1350/2014, the EAT found that failure to use internal remedies or appeals without a satisfactory or reasonable outcome having been achieved was detrimental to his complaint of constructive dismissal. Also, in Mary Kirrane v Barncarroll Area Development Co Ltd (UDD1635) the Labour Court held that the person complaining of constructive dismissal must also access available grievance procedures to deal with the circumstances which led him/her to resign.

Summing UP

The respondent discharged his duty to the complainant vis a vis the car.

There were clear deficits in performance as evidence in page 1 of the report by the veterinary surgeon who undertook the field trip with him in July 2018, a copy of which was relied upon by the complainant and was submitted in evidence as testament to his strengths.

Evidence was given at the hearing as to why he fell outside of criteria for attendance at the seminar.

The complainant failed to activate the grievance procedure.

The respondent asks that the complaint be dismissed.

The dismissal is in dispute and therefore it is for the complainant to establish that in the circumstances of this case the dismissal was unfair.

The Law.

Constructive dismissal is defined in s 1. of the Unfair Dismissals Act, as

“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 is or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract without giving prior notice of the termination to the employer”.

 The burden of proof rests with the complainant in a complaint of constructive dismissal. The tests for constructive dismissal were set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) IRLR 332, and repeatedly set out in subsequent complaints of constructive dismissal and described thus:

 “Conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself discharged from any further performance”.

The reasonable test was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected to put up with it any longer, the employee is justified in leaving”

The proofs which the complainant must advance to prove his case are that the behaviour of the respondent and of which he complains correspond with the requirements laid out in one or both of the two tests and was behaviour which left him with no option other than resignation.

The complainant advanced a number of reasons to substantiate his complaint of constructive dismissal.

The failure of the respondent to address the faulty car.

Placement on a PIP in July 2018

Exclusion from a sales conference in September 2018.

The faulty car.

It is accepted that the car was faulty, displayed a red light on the dashboard, lost power on three occasions, had to be taken off the road and taken to a garage where the issue was identified, the defective part replaced, and  was then assessed as roadworthy.

On 30th July 2018 the respondent had the company car assessed by a registered garage mechanic who confirmed that it was roadworthy. Additionally, a hazard risk assessment of driving for work was carried out by a Chartered Member of the Institute of Occupational Safety and Health on the 1st of August 2018 who stated that the red light coming on was a low risk. The complainant did not participate in this as he was on parental leave.

The Health and Safety Authority accepted this outcome and proceeded no further with the complaint lodged by the complainant on the 6 July.

It is difficult to know what else the respondent could have done to address the matter. They were reliant on expert technical advice. The respondent was unaware that the complainant was driving his own car and was not in possession of any information concerning defects in the car after having received the expert advice that the car was roadworthy on 1 August 2018. Nor did the complainant complain about the car after the 1 August or challenge the assessments.

Given this expert advice, available to the respondent in July, fails to identify any threat to the safety of the complainant, I do not find that placement of the car at the disposal of the complainant amounts to a contravention on the part of the respondent of section 8 of the Safety, Health and Welfare at Work, 2005 nor a breach of the equivalent contractual provision in the complainant’s contract.

I take the point that it may have been better if the respondent had assumed responsibility for the car but what is the basis to believe that the expert analysis would have been other than to declare the car to be roadworthy.

I do not find that the assumption that the complainant would retrieve the car amounts to unreasonable conduct or behaviour so unreasonable as to leave the complainant with no choice but to resign.

The placement of the complainant on a Performance Improvement Programme,

The respondent identified the performance issues, described the areas that needed improvement and what was necessary and gave a timescale of 8 weeks within which an improvement was expected. That this happened is uncontested. The complainant ‘s position was that this was a needless overreach on the part of the respondent, and he saw it as the first step in managing his exit from the company. The uncontested evidence is that the complainant did accept that he did not populate the CRM Vison platform with the necessary details such as number of visits to and contacts with customers or potential customers, the conversion rate of visits to sales and details of sales, and future plans to a sufficient extent. I consider these requests to be legitimate. Not reaching sales targets from May 2018 onwards was not the only reason to place him on the PIP. The respondent was trying to grow profitability and MD was aiming to extend the customer base.

I note that no direct evidence was presented about informal efforts to get the complainant to comply with the requirements set out in the respondent’s email of 6 July. I must conclude that the launch of a PIP does seem premature. But to go on from there to conclude that it was step one in an exit programme for the complainant is a step too far. PIPs are not necessarily cul de sacs. The fact that he was told that disciplinary proceedings might follow his failure to meet the requirements of the respondent’s email of 6 July does not mean that he will be dismissed.

He believed sales was the only valid indicator of his performance, but this view was not shared by the respondent.

The Labour Court’s decision in Luke Glogoski v Boots, UDD 187, held that

” However, in the Court’s view it is for an employer to determine its own standards in terms of what it considers are priority tasks, duties and processes, the importance it attaches to particular tasks, duties and processes and the performance objectives that it sets, subject to those standards being consistently applied and not being unachievable.”

Applying Glogoski to the facts of this case, I accept that the respondent was entitled to put their requirements to the complainant.  The complainant contested the validity of the sales targets, considering them to be unachievable, but did not deny the existence of the performance issues -whatever about the importance which he attributed to them (inputting up to date relevant information)- issues which contributed to the decision to place him on a PIP. He did question the validity of the process as a means of addressing whatever deficits in performance might exist. He did not state that this way of dealing with issues was unique to him. He stated that sales targets from June onwards were unachievable and in excess of what he had been expected or asked to achieve previously.

But I find that goals evolve and so measurements of performance will also evolve.

He sought and was given an opportunity to consult on the process but did not engage with the process. He did work for two weeks after its initiation. His preference for his concerns to be addressed via the WRC was not accepted as grounds to replace the PIP with an informal process,

 He did not state that the non- sales requirements were unachievable.

He did not raise a grievance about being placed on a PIP nor did he formally lodge a complaint with the WRC as opposed to asking for information prior to his resignation. His email of Dec 4th to the respondent sets out the issues he wants the WRC to address via mediation and which includes the PIP.

The complainant’s contract provides for disciplinary proceedings to be initiated in the event of poor performance. His contract provides a grievance procedure where any concerns can be examined.

I do not find that the placement of the complainant on a PIP to be a breach of the complainant’s contractual rights.

I believe that the respondent should have had preliminary discussions with the complainant prior to initiating the PIP, I do find that this conduct was unreasonable, but not to the point of compelling the complainant to resign in circumstances where through absence on sick leave, parental leave and the National Sales Manager’s absence, he had only been in the workplace for 10 days since PIP was first proposed, and in circumstances where it had ben paused.

Non-inclusion in the September 2018 Sales meeting.

The reason given for his non-inclusion was that the focus at the seminar was on a drug which the complainant was under par with in terms of comprehension of its properties and its uses and powers. But it was a drug for small animals, and they wanted him to upskill in terms of drugs for small animals.    

It is noticeable that with the exception of one other territory manager, the rest of the Republic of Ireland staff attended the meeting. It is noticeable that he was not advised that he was not on the slate for the September 2018 meeting. The fact that it was a seminar dedicated to a drug in which he is reported to have had shown poor comprehension did not mean they could not have told him why he was not coming. I find this to be poor behaviour towards the complainant.

There something contradictory about the respondent’s position. I accept that the complainant may have been unsettled by their exclusion of him and uncertain as to his future in the company if they were unwilling to invest in training for him.

I do not find his non -inclusion to be a breach of his contractual rights as it is the respondent who designs training according to the company’s needs and selects attendees.

I do find that the respondent behaved poorly in failing to engage with him prior to the conference. I do not consider that it was behaviour of an order which left the complainant with no choice but to resign where the complainant was absent from the workplace from the 1 August, and aside from an enquiry, did not engage with the matter until 4 December after he had resigned.

Requirement to use the grievance procedure.

The requirement to do so in cases of constructive dismissal has been identified in McCormack V Dunnes Stores, UD,1421/2008, and in Terminal Four Solutions v Rahman, UD 898/2011 and has been followed   in many other decisions.

In the complainant’s letter of 4/12/2018, submitted after he had submitted a letter of resignation on 31 /11/2018, he lists placement on a PIP, the faulty car, and exclusion from the September sales conference as the reasons why he had resigned.

The complainant maintains that he activated the grievance procedure.

His contract provides a grievance procedure.

The complaint contends that the respondent was on notice of his concerns. It is correct that he expressed his unease about the PIP and advised the respondent by a W App message on 6 July that he wanted time to think about it and seek advice and to understand the ramifications of committing to such a process. He repeated this in an email on the 20 July when he said he was uncomfortable with it, was awaiting assistance, but never advised the respondent what the advice was or how he would be governed by it or what his plans were. In the meantime, the PIP was paused, and his response did not crystallise until December 2018. From 1 August until his resignation on 31 December, he was in the workplace for less than 10 days.

From 1 August until 3 September, he was on leave. On 3 September he submitted a certificate that he was unit to work due to workplace stress. This continued until the 3 December. The respondent sent him to an Occupational Health Consultant, whom he saw on 26 October and who issued a report to the respondent on 6 November stating that the concerns of the complainant’s giving rise to his stress were the faulty car, exclusion from a sales conference and sick leave and recommended that the Respondent engage with him about these concerns. His line manager actioned this on the 12 /11/18 and suggested a meeting on 22 November in Dublin. His preference was for a meeting in Galway. She wrote again on the 19 November and suggested the 26 or 27 November in Tullamore. He responded to say that he had a doctor’s appointment on 26 and jury duty on 27, for possibly 3 weeks.

There was another stand off-which continued until he submitted his resignation on 31 November. On 3 December the respondent replied to his letter of resignation of 31 November, asked him to allow his concerns to be addressed in discussions with them, asked him to reconsider his resignation of 31 November and to inform the respondent of his decision by the 10 December. The respondent asked him to ring her. He did not do so, and the respondent stated that she would ring him.

On 4 December the complainant requested the respondent to agree to the involvement of the WRC in the discussions on his three issues.

He did not withdraw his resignation, nor did he state that he would like to meet the respondent, nor did he offer a date but asked for their responses in writing to his three concerns. He did ask what kind of future he would have with the respondent.

The respondent provided him with a copy of the grievance e procedure on 11/12/ and asked him if he wished to initiate an informal or a formal complaint. He replied to state that he would revert back to the respondent in a few days as to the route he wished to take but did not.

The evidence indicates a stand-off on his part, hoping, perhaps, the unsigned letter of resignation would prompt them to agree to the involvement of the WRC. But hard as it was for the complaint to comprehend, the respondent is not obliged to have their right to assess the complainant contracted out to a third party. They were entitled to decline that avenue and entitled to discuss matters with him in the first instance prior to engaging with a third party on the matter.

The evidence clearly shows that he chose to forego the opportunities offered to him to engage in direct discussions with the respondent or to ‘prosecute’ his complaints via the grievance procedure. The respondent should have been clearer in their opposition to engagement with the WRC in the first instance. He was amenable, belatedly, to meet the respondent, but only on his terms.

I find that he did not use the grievance procedure.

While it was undoubtedly a very difficult situation for the complainant, short on the latitude expected by him, combined with a respondent who behaved poorly, this is not the bar which the complainant has to surmount to demonstrate that the employer’s conduct was so unreasonable as to leave him with no choice other than resignation.

Based on the evidence and authorities cited, I find that the complainant has failed to meet the tests set out in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332.

I do not find that the complainant was constructively dismissed

I do not find this complaint to be well founded

Failure to use the grievance procedure.