Complainant

Respondent

Parties

Joanne  Fitzpatrick

Apple Distribution International Ltd.

Complainant

Respondent

Anonymised Parties

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Representatives

  Self -Represented

David Pearson J W O'Donovan LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00044006-001

11/05/2021

The Complainant submits that she had to leave her job due to the conduct of the Respondent and that this amounts to constructive dismissal. The Respondent denies the claim and submits that the Complainant resigned her position without first exhausting the internal grievance procedure.

The Complainant commenced work as a Customer Relations Advisor on 9 October 2017 and had a gross monthly salary of €2833 when the employment ended on 30 April 2021.

The Complainant gave evidence under affirmation. The Complainant applied for a permanent Team Manager’s job in Apple Care Partner Relations (APCR) . She was unsuccessful.  However,  one of the  managers Valentin Hermans, asked her  to meet with him and advised her that  he was really impressed with her interview and would like to offer her a Temporary Assignment for 11 months  as a Team Manager in ACPR. This was  a paid promotion offer. She was excited about this prospect and was happy to accept the offer.  She contacted her line manager, Aga Gawlowska, and felt that she (Aga) was unhappy about the offer because it meant the Complainant moving from her team. Aga advised her to contact HR. She checked with HR twice, where she understood that there was no difficulty. Mr Hermans advised that the Complainant could celebrate and tell family, friends, and colleagues; which she did. However, on 22 May 2020 she was told at a meeting with Ms Gawlowska and Mr Hermans that the offer was revoked. She was told she was not  eligible for the role as she  was currently on a rotation that could not be changed, and that the recruitment department had made a mistake. The Complainant felt  humiliated and distraught as she had already told family and colleagues that she had been promoted. No support or assistance was offered to her on what had transpired.

 The Complainant  had her  Annual Performance Review (APR) review on 2 October 220.   She submitted her  self-evaluation , her  self-ratings, and the names of the people she  wished her  manager to request feedback from. She  found out that her peers never received requests for feedback, though that was the norm.  Within the deadline period, the Complainant asked  her manager, Ralph Quinlan,  if he had escalated her  request for feedback but  he never got back to her.

The Complainant’s APR meeting was set up with Mr Quinlan and Ms. Gawlowska. The Complainant  alleged that Mr Quinlan did not give any feedback about her time in Customer Relations (CR) instead she alleges he said, “we should all be lucky to have a job with Covid” and “other advisors did better than you” without anything to back it up. The Complainant  was extremely upset in this meeting and was crying when trying to clarify why she  had no evaluation, feedback, or peer feedback from CR and why her APR salary increase was so low . The Complainant  felt she was unjustly and unfairly treated in this matter because everyone else got a 12-month APR and she didn’t, and many people in management and senior management were aware and accepted  this. The Complainant followed up with an online  call to her area manager Ms. Darmody but she  was unhappy with the response because she felt the responsibility was put back on her by Ms Darmody  for not following up at the meeting about the lack of feedback.

The Complainant  was extremely upset after these two events (the ACPR Temp Assignment Team Manager position being revoked and her unfair and deficient/incomplete APR review and lack of follow up). The Complainant returned to Customer Relations but remained unhappy with her work environment as a result. On 7 Dec 2020, the Complainant  took  sick leave after having a very upsetting discussion about it with her doctor.

The Complainant contacted  HR on  7 January 2021. She  spoke with Ms. Emma Hurley and explained about the issues above.  On the 20 January 2021, Ms Hurley  emailed the Complainant to advise she had passed on the grievance to Colin Ryan, People Business Partner, who would be better able to deal with this complaint. The Complainant did not hear further until Ms.  Helena Buttimer took up the case on 29 March 2021. The Complainant asserted that the  delay of nearly 3 months caused her  a lot of stress and anxiety.

The Complainant contends  that the  investigation was inadequate. She resigned on 31  March 2021, giving a 30-day notice with her  last day being 30 April 2021. The Complainant asserts that her reasons for resigning were extreme upset, humiliation, wrongdoing, disappointment, unworkability, and irreconcilability of working with the wrong doers and in that work environment.  

In Cross-examination the Complainant  accepted that she commenced employment with another company, Tik Tok, on 6 April 2021 even though she remained also  as an employee with the Respondent until 30 April, whilst being certified unfit for work with the Respondent and at the same time in receipt of the Respondent’s sick pay benefits. She acknowledged that she did not tell the Respondent about taking up work with another employer when her grievance was being dealt with. The Complainant agreed she gave no reasons for her resignation in her email  of resignation to the Respondent.

Legal Argument:

The following is a summary of the Complainant’s legal argument;

 The Complainant quoted Section 1 and Section 6(1) of the Unfair Dismissals act 1977, as amended (hereinafter “the Act”)

The Complainant submits It is clear from s.1 of the Unfair Dismissals Act, 1977 that there are two circumstances which are envisaged where a resignation may be considered a constructive dismissal. First, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstance the employee would be entitled to regard himself/herself as having been dismissed. This is referred to as the contract test. It was held in Western Excavating (ECC) Ltd. v. Sharp [1978] ICR 221  that to meet the “contract test” an employer must be: “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance” .

 Secondly, the Complainant asserts that  s.1 of the Act envisages a reasonableness test. This test may be relied upon as either an alternative to the contract test or in combination with that test. The reasonableness test as set out in Western Excavating   where it  asks whether the employer: “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, [if so] the employee is justified in leaving.”

 The Complainant submits that the tests are generally interchangeable. The Complainant cites  A General Operative v. A Religious Society ADJ-00002814 (28 March 2017), where the Adjudication Officer referred to the Supreme Court decision in Berber v. Dunnes Stores Limited [2009] IESC 10 and stated, in relation to a claim of constructive dismissal, that: “In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment. In this regard The Supreme Court has said that: ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’ (Finnegan J in Berber ) In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.”

Revocation of offer of Temporary Team Manager:

The Complaint asserts that the conduct of the employer is a common thread to both the contract test and the reasonableness test.  The Complainant submits that the events  made her feel like a source of pity rather than being treated with esteem.

The Complainant cited three cases  Kennedy v. Foxfield Inns Ltd UD 549/1994 ,  In Gallery v. Blarney Woollen Mills Ltd [1990] ELR 143, which outlined the case where  intolerable conditions and unreasonable behaviour justified the resignation of employees

 The Complainant cites  O’Kane v. Dunnes Stores Ltd UD 1547/2003, where the principle of the maintenance of mutual trust and confidence was enunciated as being an implied term in  the contract of employment. In Berber at page 14, it was held that: “There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer's behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee's behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.”

 In applying the above to the current facts of this case, the Complainant submits  that the conduct of creating deeply humiliating, upsetting, distressing and unfair situations, when objectively considered, has caused serious damage to the relationship between Respondent  and the Complainant and therefore a breach of the implied obligation has occurred. The Complainant  further contends that this same implied term applies in this case and the conduct of the Respondent  complained of above, has breached the implied term and obligation of mutual trust and confidence.

The Complainant submits that the provision of managerial support was held to be an implied term of the contract of employment in McGrath v CA Jenkins & Sons Ltd UD 227/1978. The Complainant  submits that the lack of support from management, caused the breach of this implied term. In O’Leary v Cranehire Ltd UD 167/1979 the right to be treated with respect by an employer and not to have to endure physical violence and humiliation was considered to be implied terms. The Complainant submits  that her right not to be humiliated was breached when she was made to share the news of the promotion which was later retracted. In the circumstances it is reasonably foreseeable that the conduct of the employer would have caused the Complainant to be humiliated.

 Incomplete Performance Review:

 The Complainant asserts that as  a result of Ralph Quinlan not assessing the Complainant’s performance adequately her APR was unfair, incorrect and an inaccurate reflection of her performance. This in turn led to the lower end of the lower scale increase in salary in circumstances where all of the other employees on that team had a fairer and complete APR.  The Complainant submits  that this was unacceptable and that she should not be negatively impacted by Ralph Quinlan’s lack of preparation and adequate assessment which left her with an APR for only five and a half months. She was unjustly and unfairly treated in this matter because her other colleagues had a full 12-month APR with the appropriate outcomes. The Complainant submits she  was really overwhelmed because of the frustration and felt humiliated and let down once more and was upset while trying to comprehend and clarify why  there had been  no evaluation, or peer feedback for her time in Customer Relations where she had been covering as a manager.  

Unsatisfactory  Grievance Procedure:

The Complainant refers to the near three months delay in starting the grievance process and the apparent haste with which the investigation was carried out, due to the inordinate delay which subsequently did not provide any satisfactory resolution.  It was an express term of the Complainant’s contract of employment with the Respondent  that: “In the interest of fairness and justice, a Grievance Procedure is in place to enable employees to express any problems or concerns they may have and to have them resolved quickly and satisfactorily.”

The Complainant cites  Conway v. Ulster Bank Ltd UD 474/1981, where it was held that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.  The Complainant asserts that she  acted reasonably in using the grievance procedure to attempt to remedy her complaints. The conclusion of the grievance procedure was in favour of the Complainant on the facts. However, it was apparent from the findings that negligence on behalf of management was denied and there was no satisfactory remedy provided. The Complainant submits that it should be noted that the Complainant went out on sick leave in December 2020 and spoke with HR on 7  January 2021. The Complainant received an email where she was told that her Grievance had been passed to Colin Ryan of People Business Partner, who is the same person who had advised that he was more comfortable with retracting the position. It is submitted that having the grievance passed on to Colin Ryan to carry out the investigation and the grievance process, was a breach of the principles of fairness and justice as he was one of the parties involved in the complaint.

The Complainant did not hear anything further about the Grievance Process until  29 March 2021 when Helena Buttimer told her that she had taken over and would start the investigation. The Complainant submits that  this delay of nearly three months, in addressing the Complainant’s grievance and conducting investigations, was a failure on the Respondent ’s part, causing the total grievance procedure duration to be four months. The nearly three-month delay and the protracted grievance procedure duration caused the Complainant further stress and anxiety to the extent that the Complainant submits she  had already started contemplating leaving  due to a lack of support and delay in addressing her grievance. The Complainant submits  that the delay was a breach of the above-mentioned express term of the contract of employment as the concerns and problems raised by the Complainant were not resolved quickly as well as being in breach of the principles of fairness and justice.

The Complainant cites two cases of A Customer Service Worker v. An Airline ADJ-00005029 (16 February 2017),  and  In Adjudication Officer Recommendation ADJ-00000314 (19 April 2016), where the Adjudicators felt that undue delay in processing grievances was unacceptable. The Complainant argues that the reasoning in the above cases can be applied to her circumstances and that the near three months delay represents, by any standard, undue delay on the part of the employer in dealing with the issues and concerns raised and, this was in breach of the express term in the contract of employment in relation to the provision of a quick and satisfactory resolution, and that was unreasonable and unfair to the Complainant.

The Complainant submits that her  first interaction with Helena Buttimer was another failure as she had to start everything from scratch in asking the Complainant to explain everything from the beginning and her repeated advice to the Complainant was to make an informal complaint and not make a formal complaint as a formal complaint would make it hard to continue working with the people who the complaint was against. The Complainant advised that she like to make a formal complaint. The Complainant submits that  soon after the Complainant concluded that  meeting, she could not face going back to the Respondent  and therefore submitted her resignation.

The Complainant  contends that the recommendations set out in the Grievance Letter falls  short of providing any adequate remedy to address the negligent failings of the Respondent. The Complainant submits that the fact that there is one express term and three implied terms, which on the balance of probabilities have been breached, it is clear that those repudiating breaches form part of the main cause of her resignation. The Complainant argues that  it also establishes that the Respondent no longer intended to be bound by those essential terms of the contract of employment. The Complainant contends  that Respondent is guilty of conduct which is a significant breach going to the root of the contract of employment and that the Respondent  no longer intended to be bound by one or more of the essential terms, in this case express terms and terms implied by law, of the contract which entitled the Complainant to treat herself as discharged from any further performance. She also submits  that the Respondent  conducted its affairs so unreasonably that the Complainant could not fairly be expected to put up with it any longer and was therefore justified in leaving.

The Complainant contends that she  satisfies both the contract test and the reasonableness test, and her case is one of constructive dismissal under s.1 of the Act  where it was reasonable for the Complainant to terminate her employment because of her employer’s conduct and consequently a dismissal within the meaning of the Act has taken place and such a dismissal was unfair.  

The Respondent submits that the Complainant resigned her employment without first exhausting, or fully utilising, the Respondent internal Grievance Procedure and, furthermore, resigned after the Grievance Outcome Report found in favour of the Complainant and made recommendations to support the Complainant.

The Respondent contends further that the Complainant resigned her employment without first affording the Respondent any opportunity to implement the recommendations contained within the Grievance Outcome Report dated 28 April 2021. The Complainant failed to actively engage with the Respondent on the recommendations in the Grievance Outcome Report.

Summary of the Evidence of Ms. Helena Butler, Employee Relations.

The witness gave evidence of dealing with the Grievance after occupational Health advised that there was a work issue with the Complainant. She rang the Complainant on 26 March 2021 and invited her to a meeting which took place on 31 March. She was accompanied by a notetaker, Ms. Sheila Hayes-Ryan. (Minutes of the meeting were exhibited). The witness said she had interviewed each person who was referenced in the Complainant’s grievance and the Complainant made lots of comments at the meeting.  The Complainant resigned after the meeting by email but there was no mention of a resignation at the meeting. The witness gave evidence of keeping in contact with the Complainant, on 8 April and particularly on 15 April where she advised the Complainant by email that the investigation report was going to me mainly in her favour.

The Grievance Outcome Report was sent by the witness to the Complainant on 21 April 2021. The witness gave a description of the recommendations whilst referring to the exhibited report. The report upheld the Grievance complaints made by the Complainant. In addition to upholding the Complainant's grievances, the Grievance Outcome Report contained a number of recommendations personal to the Complainant as follows: -

•       That in the interest of fairness and making things right with the Complainant, that the Respondent management team would look to conduct an out of cycle review that covered the period of time that the Complainant was in the TMA role giving her the evaluation and feedback on her time as acting Team Manager.

•       That a detailed development plan be agreed with the Complainant to support her development in achieving her career objectives in Apple

•       That the Complainant be given the opportunity to join the TMA programme again.

•       That a meeting be set up with recruitment to support the Complainant in identifying if there were any other areas of the business she might wish to pursue. The Respondent's business employs in excess of 6,000 in Ireland with many opportunities for career development in different parts of the business.

•       That Apple engage an independent trained mediator to facilitate mediation between the Complainant and the managers in respect of whom the Grievances were lodged.

The Grievance Outcome report also made a number of recommendations that involved the Respondent organization as follows: -

•       That Apple take appropriate action based on the complaints being upheld including notifying the next level manager of the series of events that have taken place so that senior management can take appropriate follow up action with the individuals involved.

•       That the Respondent's Rotations Policy needs to be reviewed, amended, updated and rolled out with the addition of Temporary Assignment being clearly called out in the policy. -This recommendation was being actioned by the Respondent in advance of the Grievance Outcome Report issuing.

•       That training on the APR process is provided to managers including the management team in the Customer Relations organisation on what is required of a manager conducting an APR and that this training be updated annually and be held centrally within the Respondent and be available to managers.

In cross-examination the witness acknowledged that it was occupational health that had contacted her and that it had not come to her as a formal grievance. She acknowledged that the Respondent had dropped the ball in some respects but that this was reflected in the report.

Summary of the Evidence of Ms. Emma Hurley, Employee Relations Business Partner:

The witness worked in HR intheComplainant’s area. She said that it was incorrect for the Complainant to suggest that the first contact on her grievance was 7 January 2021, when it was 23 December 2020. The witness attested to a series of online chats to support this. The witness said the Complainant opted for the informal route and she passed this on to Colin Ryan.   

In cross examination it was put to the witness that Colin Ryan was involved in an aspect of the grievance and therefore his handling of the grievance was inappropriate. The witness replied that she was unaware of this.   

Summary of the Evidence of Ms. Sheila Hayes-Ryan:

The witness was part of the People Support Team and was notetaker at the grievance meeting between Helena Buttimer and the Complainant. The witness sent an email to the Complainant on 1 April 2021 asking the Complainant to reconsider her resignation and to await the report of the investigation. The Complainant did not get back to her and she had no further involvement with the matter.

Summary of the Evidence of Ralph Quinlan – Team Manager UK Customer Team.

The witness stated that his role in the Annual Performance Review (APR) was to initiate an online form only. These were his instructions. It was up to the Complainant’s Line manager to follow through on this. He never managed the Complainant directly. In cross-examination it was put to the witness if he agreed with the grievance report outcome that the Complainant should have had an APR review. The witness accepted this but explained that he was just back from leave of absence, and he was going on the instructions of his area manager that it was the Complainant’s line manager who should have carried out the review.

Summary of the Evidence of Angela Darmody – Area Manager, Customer Relations.

The witness said she was aware of the complaint surrounding the incomplete APR and that it came to her attention after the fact. She gave evidence that the Complainant had reached out to her about the review. It was put to the witness if she accepted the end report which said the manager fell short in the understanding of the APR process. The witness said she accepted the findings of the report, though she may not necessarily agree with its conclusions.    

Summary of the Evidence of Mr. Valentin Hermans, Area Apple Care Partner:

The witness gave an account of how he offered the position of Temporary Team Manager to the Complainant and how it had to be revoked after advice from HR regarding rotation processes. In cross-examination the witness stated he agreed with the outcome of the grievance report.

Summary of the Evidence of Aga Gawlowska, Calibration Manager.

The witness described how she was ordinarily the line manager of the Complainant and that she had supervisory responsibility for 10 to 15 specialists every day. The witness described events regarding the job offer of temporary Team Manager and how it had to be revoked on HR advice. The reason being that an employee cannot be out of a permanent role, in a temporary position, for more than a maximum of 11 months. She spoke with Colin Ryan in HR, and he advised her to meet with Mr. Hermans and the Complainant and formally withdraw the offer to the Complainant.

On the issue of the APR, she said she wrote up a comprehensive review of the Complainant for the period of the six months she was working with the witness. It was more than 3,000 words/characters. She believed the Complainant was happy with this review.

The witness disagreed with the evidence of the Complainant that she (the Complainant) was unhappy that she was moving. She said she always encouraged the growth and development of colleagues.

In cross-examination the witness said she accepted the report.

Summary of the Legal argument of the Respondent.

The Respondent submits that it has been well established in law that in proving a claim for Constructive Dismissal a Complainant must demonstrate that they were justified in their decision, and it was reasonable for them to resign.

The Complainant must demonstrate that she had no option but to resign. In addition, there must have been something objectively wrong and unreasonable with the employer’s conduct.

 The Respondent cites  Berber v Dunnes Stores [2009] IESC 10  where Finnegan J, in considering the conduct of each party stated:

“The appropriate test must be applied to that conduct. In relation to the test the following matters are to be noted:-

1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

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

 The Respondent cited a number of cases where the Respondent argues that the findings were that a complainant must exhaust procedures before opting to resign. These were:- Murray v Rockabill Shellfish Limited [UD1832/2010],  Beatty v Bayside Supermarkets [UD142/1987],  Reid v Oracle EMEA Ltd [UD1350/2014] ,  Travers v MBNA Ireland Limited [UD720/2006],

The Respondent asserts that the findings in the recent case  of General Operative v Telecommunications and Transport Infrastructure [ADJ-00026427]affirmed the aforementioned position of both the EAT and Supreme Court regarding conduct of the parties and the necessity of the Complainant to exhaust all internal remedies prior to resignation. In that case the Adjudicator decided that  the Complainant had failed to establish a case for constructive dismissal, citing (in part) the following reasons;

a. “I do not uphold the Complainants allegation of unfavourable treatment that warranted his resignation.

b. I also find that the Complainant failed to utilise and exhaust the grievance procedure, as is required and as stated in the above cases.

c. I find that it is a requirement that an employee raises and exhausts the grievance procedure before they contemplate resignation.

d. I find that there is an onus upon the employee to ensure that their employer was aware that they were contemplating resignation and that the employer was given every opportunity to address the grievances before the resignation.

e. In this case I find that the Complainant did not make the Respondent company aware that he was contemplating resignation.”

The Respondent submits that the Complainant was  required to exhaust the company’s internal grievance procedures in an effort to resolve her  grievance prior to resigning and initiating a claim for unfair dismissal. The Complainant  lodged her formal grievance on the 29 March 2021 and  gave notice of resignation of employment on  31 March 2021 to take effect on 30 April 2021. In the meantime, the Respondent asserts,  the Complainant participated in the grievance investigation without ever advising the Respondent that she had taken up full-time employment with TikTok on  6 April 2021. Her resignation took effect two days after the Grievance Outcome Report issued. Throughout the Grievance Investigation the Respondent sought to have the Complainant withdraw her resignation  which she refused to do but never explained that she had already taken up alternative full-time employment.

The Respondent submits that the failure of the Complainant to remain with the Respondent  throughout the Grievance Investigation and the failure to either afford the Respondent a reasonable period of time to implement the recommendations or indeed to appeal the outcome if she was unhappy is fatal to any claim based on Constructive Dismissal. In short, the Respondent submits, the Complainant failed to exhaust all internal remedies available to her.

In addition,  the Respondent asserts that the  Complainant withheld critical information from the Respondent throughout the Grievance investigation process by not being honest in advising the Respondent that she had already taken up full time employment elsewhere. The Respondent contends that that the Complainant acted in an  underhand fashion and misled the Respondent during the Grievance Investigation. The Complainant also took salary from the Respondent while she was working full time for an alternate employer, Tik Tok. The Complainant never told the Respondent she had already left the employment and never repaid salary that she was not entitled to receive and would not have received in the circumstances.

The Respondent submits that the Adjudicating Officer take serious notice of the conduct and misleading behaviour of the Complainant throughout the Grievance Investigation.

 The Respondent submits that the Complainant’s conduct after submitting her grievance complaint demonstrates she had no interest or intention of finding a solution within the grievance procedure and only initiated the grievance to argue she had exhausted all internal procedures prior to her resignation. The Respondent argues that this was only a “box ticking” exercise and that the Complainant’s notice of intention to resign and her failure and/or refusal to engage in the outcome confirms this submission. Furthermore, the Respondent argues, the Complainant declined several requests to withdraw her resignation during the Grievance Investigation process to allow the investigation to conclude even where she was advised that it appeared likely the Grievance Investigation would find her complaints to be justified.

Section 1 of the Act   defines constructive dismissal 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 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.”

There are two tests for determining if a constructive dismissal has occurred. The first test is the ‘Contract Test’. The Complainant  opened the   Western Excavating (ECC) ltd. v. Sharpe [1978] ICR 221:  where it was stated:

 “If an 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  the case of Debbie Kearns v Silverfern Properties Ltd. (UD2428/2010)  the EAT held that “In order to succeed in a claim of constructive dismissal a claimant must show, that either their contractual terms were altered in such a way, going to the root of the contract, as to justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal.”

The burden of proof in constructive dismissal cases is firmly on the Complainant. In   Nicola Coffey v. Connect Family Resource Centre ltd. (UD 1126/2014),  it was held by the Employment Appeals Tribunal that “the bar for constructive dismissal is very high.”

In considering this test I have to reflect on whether a term of the  Complainant’s  contract was breached by the actions of the Respondent such as to make it reasonable for  the Complainant  to determine that the contract had been terminated. The evidence from both sides did not throw up any substantial conflict in facts. My  decision here is based around the argument as to whether the manner in which the Complainant was offered a temporary job, only to see it being withdrawn,  a subsequent incomplete performance appraisal,  and the Respondent’s alleged lack of support in both instances, constituted a repudiatory breach of the contract by the Respondent , so as to justify the claim of constructive dismissal, by reference to what is termed “the contract test”.

The Complainant also cites the “Reasonableness Test”. This is a testin which there is a burden of proof on a Complainant to establish that the behaviour of an employer was so unreasonable that it was reasonable for the employee to terminate their contract of employment. There is also a reciprocal duty on a  complainant to show that they acted reasonably.

The Contract Test:

Mr Hermans gave evidence of mistakenly offering the Complainant a position of temporary Team Manager position only to withdraw it again based on the fact that the offer was made outside the HR guidelines for moving to such a  position. This undoubtedly created great unhappiness for the Complainant, who had already informed her colleagues and friends of a promised promotion. This happened in May 2020. Later that year, in October, the Complainant  had her  Annual Performance Review (APR) review.  It later transpired that a subsequent ill-informed instruction from the area manager to a team manager resulted in  her peers never having received requests for feedback, though that was the norm. This left her feeling distraught and she stated in evidence that when she followed up with the area manager,  she felt the blame was being put on her for not raising it at a meeting. I note that in both incidents outlined  above the Complainant did not follow through with an immediate grievance. Though both  events have caused  unhappiness, it is central  in this case to determine whether the events constitute repudiatory breaches of the employment contract, thus justifying a claim of constructive dismissal.

The Complainant  opened the Supreme Court case and in particular Berber v. Dunnes Stores Limited [2009] IESC 10  where Finnegan J stated:  “In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment. In this regard The Supreme Court has said that: ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

The Respondent similarly relied on Finnegan J from Berber where he outlined  the test on repudiation of the contract of employment  as follows:

“The appropriate test must be applied to that conduct. In relation to the test the following matters are to be noted:-

1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

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

The question then to address is whether there was a breach of a fundamental term, expressed or implied in the Complainant’s contract, which indicated that the Respondent no longer intended to honour the contract. That normally arises, for example,  in cases where the employer refuses to pay wages, or it could arise where there is bullying and harassment, thus undermining the essential term that the parties must have mutual trust and confidence in each other. The question then is  if   the two events as described indicated behaviour so intolerable as to constitute a repudiatory breach of the contract of employment so that the Complainant had no option but to resign.

The receipt of a mistaken job offer can indeed be distressing., and indeed it was distressing for the Complainant in the circumstances she described , however as Finnegan J pointed out the test is objective The more recent decision of General Operative v Telecommunications and Transport Infrastructure [ADJ-00026427]affirmed the aforementioned position of both the EAT and Supreme Court regarding conduct of the parties and the necessity of the Complainant to exhaust all internal remedies prior to resignation.

The Adjudicator in ADJ-00026427decided the Complainant had failed to establish a case for constructive dismissal, citing (in part) the following reasons;

a. “I do not uphold the Complainants allegation of unfavourable treatment that warranted his resignation.

b. I also find that the Complainant failed to utilise and exhaust the grievance procedure, as is required and as stated in the above cases.

c. I find that it is a requirement that an employee raises and exhausts the grievance procedure before they contemplate resignation.

d. I find that there is an onus upon the employee to ensure that their employer was aware that they were contemplating resignation and that the employer was given every opportunity to address the grievances before the resignation.

e. In this case I find that the Complainant did not make the Respondent company aware that he was contemplating resignation.”. It was clear to me that there was no intention by Mr Hermans, or Ms Gawlowska  , to create distress or maliciously target the Complainant. It was a failure of management no doubt, but it can reasonably be  described as inadvertence which reasonably cannot be described as a breach of trust and confidence that went to the heart of her contract. I am satisfied from the evidence that  Mr Herman’s intentions were good, but he misunderstood the established HR guidelines at the time.

 An incomplete  annual performance  appraisal some months later can understandably be frustrating and demoralising, as it was in this case, when framed against the earlier revocation of a job offer.    Inadvertence by management reared its head again but there was no evidence that the incomplete appraisal was malicious or intentional, as is a recurring trait in many  constructive dismissal cases. I am satisfied that such an  error cannot reasonably be classed as treatment  so severe that it breached the implied duty of trust and confidence, rendering the working relationship intolerable.

Based on the evidence in this case, I conclude  that the events mentioned can rightly  be laid at the door of the Respondent on the basis of carelessness and unfair treatment (later acknowledged, but not stated in such terms in the Respondent’s investigation report). However, I note that the Complainant did not make a grievance of either issue at the material time but instead only chose the informal route on 14 January 2021. The grievance  procedure states:  “Minor areas of concern will usually be dealt with on an informal basis.” This option infers  that the Complainant believed the issues, though serious to her, were not at the stage of being intolerable to the stage where her resignation was justified .

 I conclude that the withdrawn job offer and the incomplete performance appraisal, which were near  six months apart,  while unquestionably  sources of  unhappiness,  could  not individually or collectively constitute repudiatory breaches of the  contract by the Respondent.

Reasonableness Test:

There is invariably, as in this  case a crossover between the “contract test” and the “reasonableness test” and the Complainant submits that there was a combination of both.  This test asks whether the  employer conducted their affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer.   The seminal case is  Conway v Ulster Bank Ltd. (UD 474/1981) where the Tribunal found that the claimant had not acted reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints.”  

In Murray v Rockabill Shellfish Limited [UD1832/2010] the EAT affirmed that:

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

A fundamental of the test, based on the many established authorities,  is that an employee who seeks to rely on the test of reasonableness,  must act reasonably themselves. This normally involves providing the employer with an opportunity to address whatever grievance they may have.  

The Complainant raised the point that the delay by the Respondent in processing her grievance was a breach of an express term of the contract and should be considered as a contributory factor in assessing both  the “contract” and “reasonableness” tests. The Complainant utilised the informal grievance procedure by confirmation email on 14 January 2021, albeit she was contacted on 23 December 2020 by  Ms. Emma Hurley, after a communication from occupational health. Ms. Hurley passed it on to Mr Colin Ryan, HR contact person  for her  area. Unfortunately, and according to the  evidence,  unknowns to Ms. Hurley, Mr Ryan was on sick leave at the material time and the informal complaint remained unaddressed, obviously causing more frustration and unhappiness for the Complainant. Occupational Health then informed Ms. Buttimer and Ms. Buttimer initiated a formal grievance procedure on behalf of the Complainant on 26 March 2021.

There is no time frame identified in the informal grievance procedure, but it does state in the introduction to the grievance procedure that:- “You’re encouraged to express any problems you may have, and those issues will be resolved as quickly as possible.” The Respondent again was remiss by not checking that Mr Ryan was available to deal with the Complainant’s grievance. However, I must also take into account the implied obligation, as is well established in workplaces, that grievances should also be submitted as soon as possible after an event takes place so that timely  investigation can be carried  out. I note here that the Complainant did not chose to pursue grievances at the material time of the happenings that were eventually brought for investigation.

The fundamental issue in this case on the issue of test  reasonableness is that there is long list of precedents where it established that there is an obligation for the employee to act reasonably when they impute a charge of unreasonableness against an employer.  Conway v Ulster Bank transposed it formally into employment law and it has been followed diligently  in  subsequent constructive dismissal cases. The Complainant in this case pursued a grievance, and it is difficult to ignore the argument of the Respondent that this  was merely a “box ticking” exercise , after due  consideration of the facts. The plain fact of the matter is that the Complainant did not exhaust the grievance procedure, thus she did not afford the employer the opportunity to deal with her concerns. Moreover,  the Complainant set herself out to the Respondent during the grievance procedure as being certified unfit for work whilst drawing benefits from the Respondent’s sick pay scheme without informing the Respondent that she had commenced employment with another employer. Therefore, I find that the Complainant did not establish that the  Respondent had acted so unreasonably as to justify her resignation.

In conclusion, and as outlined above,  though the withdrawal of a job offer and an incomplete performance review  created substantial unhappiness for the  Complainant, I am  satisfied that the gravity of the occurrences was not of a degree where  the Complainant could consider a repudiation of contract  by the Respondent. Moreover, in consideration of the reasonableness test the fact that she did not exhaust the grievance procedure and  the Complainant’s  subsequent unreasonable behaviour in not disclosing her new employment status trumped any complaint by her of unreasonableness by delay, or otherwise. Therefore, I find that the Complainant was not unfairly dismissed by nature of constructive dismissal.

For the reasons outlined above, I find that the Complainant was not unfairly dismissed.

Unfair Dismissals Act 1977, Constructive Dismissal, Contract Test, Reasonableness Test