Complainant

Respondent

Anonymised Parties

Operative

E-Commerce Company

Representatives

  self

Mr Ger Connolly Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00054085-001

09/12/2022

The Complainant worked under a particular Supervisor for the period March 2017 to June 2020. It is this working relationship that was described as oppressive and is the cause of this referral. The Complainant believes that his Supervisor was bullying him.

The Complainant raised a grievance about how he was being treated. This led to the Supervisor being moved to another team and since then the reporting relationship has been to a different Supervisor.

In March 2019 the Complainant received a verbal warning for poor timekeeping. In June 2020 he also received a final written warning for a serious issue relating to how he had used the company case management system. This system is central to how the company trades as an ecommerce company. This sanction was appealed. However, the appeal did not change the original sanction.

The Complainant’s mental health has been affected by what he sees as unfair process and an unsupportive HR function.

The Complainant believes that how the Company responded to his grievance against his supervisor; by failing to uphold his allegations of bullying has led to a situation where he had to leave the Company to protect his mental health. He also alleged that the disciplinary procedures and appeal process was flawed as managers who were involved in the original decision to sanction were then involved in the hearing of the appeal.

The Company has been fair and proactive in managing both disciplinary and grievance investigations. There is no legal basis to maintain this claim.

The facts do not show that this Employer acted unreasonably so that the employee had to resign.

Chronology:

1.       Verbal Warning issued October 2019 relating to timekeeping.

2.       6th of April 2020 Complainant raises grievance against his Supervisor.

3.       The outcome of grievance was issued on the 19th of August 2020 and Complainant declined to appeal.

4.        Separate to grievance process a disciplinary process commenced on or about 8th of April 2020 to investigate allegations of misuse of the customer case management system. Final written warning issued June 2020.

5.       Final written warning appealed, and this appeal upheld original decision. The appeal decision issued on the 6th of July 2020.

6.       New Supervisor appointed to manage Complainant June 2020.

7.       The Employee resigns on 10th June 2022.

The Complainant believes that he was unfairly treated by one Supervisor and the Company was too passive and did nothing about it. It is alleged that this Supervisor was oppressive towards him while at work and outside of work where it is alleged, the Supervisor harangued him and abused him verbally. The Company did not investigate the external social incident as it had not occurred in work or at a work-related event.

The Complainant has opened extensive medical records that show how his mental health was seriously impacted by events at work.

The Complainant never received the outcomes that he expected from the complaints and grievances he made against his Supervisor.

In assessing if the conduct of this Employer was so unreasonable that it led to this Employee being constructively dismissed, I must apply an objective standard. It is not doubted or questioned that this Complainant has indeed experienced very serious mental anxiety and depression arising from his experience at this Company.

The Employer has argued that the matter is out of time as the issues complained about go back to June 2020. The Employee argued that his mental health continued to be affected due to managements failure to positively support him and this was central to his decision to leave.

The facts do not support the Employee’s view that objectively this Company acted so unreasonably that he had no choice but to leave.

His grievance was fairly heard. No manager who was involved in a previous decision was also assigned to hear an appeal. The process followed by the Company was fair. His own actions and failures contributed to disciplinary sanctions.

This Employer has acted fairly and attempted to reach a pragmatic solution. At no time can it be said that it dragged its heels and the Company investigated both the grievance and disciplinary in a timely manner having regard to the Complainant’s absence from work that caused some delay.

Murdoch and Hunt’s Encyclopaedia of Irish Law (2016 edition) defines Constructive Dismissal as follows:

A dismissal which is inferred where it is reasonable for the employee to terminate the contract of employment because of the employer’s conduct: Unfair Dismissals Act 1977 s.1. The Employment Appeals Tribunal has recognised two forms of constructive dismissal: (1) where the employee is entitled to terminate the contract of employment and does so; this entitlement is not conferred by the 1977 Act, but rather recognised by it; and (2) where it is reasonable for the employee to terminate the contract of employment and he does so: Fitzgerald v Pat the Baker [1999 EAT] ELR 227.

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

The resignation of a manager whose position has been undermined may amount to a constructive dismissal: O’Beirne v Carmine Contractors [1990] ELR 232. A constructive dismissal may arise where an employee leaves because the employer (a) fails to relieve a bad atmosphere in the workplace: Smith v Tobin [1992 EAT] ELR 253; (b) fails to comply with a requirement of the Health & Safety Authority: Burke & Ors v Victor Collins Enterprises Ltd [1993 EAT] ELR 37; or (c) deals inadequately with complaints of bullying and harassment: Allen v Independent Newspapers [2002 EAT] ELR 84; Monaghan v Sherry Brothers Ltd [2003 EAT] ELR 293.

The Unfair Dismissals Act 1977 as amended at section 1 defines Constructive Dismissal as:

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

This statutory definition in turn has been elaborated upon to include two tests:

Redmond on Dismissal Law (Bloomsbury Professional 3rd Ed. 19.04):

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. The analysis of contractual entitlement in Chapter 21 is relevant here. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment, but its conduct may be nonetheless unreasonable.

In law there is a contract test and a reasonableness test.

At all times the grievance of the Complainant has been taken seriously. The Company also separated the two protagonists so that the alleged toxic working relationship would not continue. The conduct of the Complainant both regarding time keeping and a serious failure to follow company procedures about customer case management in turn led to proportionate and fair sanctions. The right to appeal was exercised regarding the final warning. The conduct of the Employer has been measured and patient.

The failure of the Company to act on allegations that the Supervisor harangued the Complainant outside of work is a difficult area to navigate as it occurred outside of work.

In a wrongful dismissal action Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

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 Complainant has not made out a case to show that the Employer was in fact unreasonable. On the balance of probabilities this employer was more than reasonable and fair. There was no intent to undermine the employment relationship. No term or condition was changed. The facts do not support the case alleged that the employee had to leave the employment.

In Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee must be considered when assessing if constructive dismissal has in fact occurred; and the following 4 principles applied by the court are also relevant in this case:

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 test to be applied is an objective one. I must consider the behaviour of both the employee and the employer. On the facts the employee left his employment of his own accord. There was no fundamental breach of the contract nor was the behaviour of the employer unreasonable.

Looking at the cumulative interactions between the employee and what the employee views as systemic failures by management and HR to stop bullying and a failure to find for him and against the Supervisor, does that meet the threshold of unreasonableness?

The employee’s grievance was independently and fairly heard. There is no substance in the complaint that would meet the test as set out in Berber.  The factual matrix clearly demonstrates that the behaviour of the employer was fair and reasonable in the context of an employee who also had failed to meet his contractual obligations.

Can the cumulative effect of all interactions, concerning the conduct of both the employee and employer, have crossed the threshold having regard to the effects of that behaviour on the employee; where the cumulative effect of that behaviour could be deemed to have been improper and seriously damaged the relationship of trust and confidence? It is very clear that the interactions between the employee and one Supervisor unsettled the complainant and caused stress. However, the interactions while difficult, were acted on and the two protagonists were separated.

 There was no improper behaviour that cumulatively and seriously damaged the relationship. There was one incident where an external exchange between the Supervisor and Complainant could have been addressed more formally; however, that is not as clear cut as the Complainant believes, as the exchanges occurred outside of work. That failure does not amount to a serious breach of trust based on the entire factual matrix.

The fact of dismissal is in dispute in this case and the employee has not discharged the burden of proof that he was dismissed, 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. Therefore, I find that the employee was not unfairly dismissed and dismiss the claim.

There was no improper behaviour that cumulatively and seriously damaged the relationship. There was one incident where an external exchange between the Supervisor and Complainant could have been addressed more formally; however, that is not as clear cut as the employee believes, as the exchanges occurred outside of work. That failure does not amount to a serious breach of trust based on the entire factual matrix.

The fact of dismissal is in dispute in this case and the employee has not discharged the burden of proof that he was dismissed, 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. Therefore, I find that the employee was not unfairly dismissed and dismiss the claim and determine the Complainant left his employment by reason of resignation.

Constructive dismissal-Resignation