Complainant

Respondent

Parties

Jerome Morel

Teleflex Medical Europe Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Barry Crushell Crushell & Co

Julie Galbraith Eversheds Sutherland

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-00041291-001

27/11/2020

The Complainant commenced employment with the Respondent on 24/8/2015 and resigned effective from 19/6/2020. The Complainant contended he had no option but to leave his employment due to the conduct of the Respondent which assertion was disputed and denied by the Respondent. This is a case of alleged constructive dismissal and consequently the burden rested on the Complainant to establish he was unfairly dismissed.

The Complainant outlined his duties with the Respondent as a General Ledger and after two promotions as a General Ledger Supervisor and then a Financial Controller. The Complainant stated that his position was demanding but that his working relationships with colleagues was pretty good albeit a bit intense. The Complainant outlined various challenges he encountered in the workplace including additional responsibilities he undertook, dealing with a SAP (Systems Application Product) crash at the end of 2018 and covering for the previous Financial Controller for nine months whilst the latter was on sick leave whilst at the same time continuing to do his own work. During this time, the Complainant stated that he had to travel to France every month to manage the financial controller activity and whilst he was in Ireland he commuted between Galway and Athlone where the business was situated. He stated that he was not provided with any additional resources during this time and that the lack of resources and continuous pressure and overwork impacted on his productivity and health.

The Complainant stated that in the two years prior to his resignation the Respondent underwent significant restructuring and he outlined the impact of this restructuring on his work and within the Respondent’s business including its business operation in France. The Complainant stated that as a result he encountered a difficult understaffing situation.  He stated that he repeatedly brought the understaffing situation to the attention of the Respondent but to no avail. Notwithstanding he stated he continued to work as productively as possible. However due to the circumstances the Complainant stated that he experienced burnout and had to take sick leave. He stated that he explained his frustration with the working practices to his Manager and the HR Manager and after doing so on at least three occasions, he initiated a formal grievance about being overworked, stressed and ill as a result of the difficult working conditions he was suffering.

The Complainant stated that he advised his Manager that he could not continue “in this kind of environment” and that he wanted to return and continue his work from France so as to avoid the daily commute from Galway and monthly commute to France. The Complainant stated that the Respondent was not favourable to this proposal and indicated that if he moved back to France he would lose his international stature which would impact his career going forward. The Complainant stated that there was also an issue with his bonuses and a salary increase at the time which was resolved after six months.

The Complainant stated that he had decided in March 2020 to resign as he could not continue in the working environment. He stated that he spoke to his Manager in order to establish if it was possible “to organise [his] departure” whereby he could continue to work for a number of months and receive “a kind of retention bonus or something like that or an indemnification…” and then he would transfer the French ledger activities. The Complainant stated that the Respondent would not agree to this and advised him to submit an official request or raise an official grievance. The Complainant stated that he did not wish to initiate an official grievance as he considered “it won’t be beneficial for everybody”.  However, he also stated that he “arranged the grievance,….. wrote the grievance letter and…..”. The Complainant stated that when he raised his grievance the rules had changed and HR did not give him the opportunity to discuss his grievance with the Senior Manager or to explain his case and that he wanted “something less conflictual”.

In the course of his evidence the Complainant gave a detailed account of his concerns about his working conditions including inadequate staffing, excessive hours/up to fourteen/day, lack of resources and unreasonable pressure and demands at work. He stated that as a result he could not take all of his annual leave in 2018 and that due to the demands he frequently worked during annual leave. The Complainant referred to various emails in support of his position. The Complainant stated that there was no capacity for him to say no or refuse additional work. He outlined the impact on his physical and mental health which resulted in him being “really tired” at work and “not able to do anything”. The Complainant stated that he consulted his GP in February 2020 and started seeing a psychotherapist which he paid for from his own money. He stated that he did not attend the  Employee Assistance Scheme (EAS) as by then he had lost trust in the Respondent.  The Complainant  also took sick leave in February 2020. The Complainant stated that he got additional resources after a return from sick leave but by then his physical and mental well-being had deteriorated.

The Complainant stated that the Respondent was on notice of his difficulties as he had raised them with his Line Manager at his last performance evaluation in September 2019 when he requested to revert to a normal pattern of working. The Complainant lodged his grievance on 21 April 2020. The Complainant stated that three days later he received an email from HR advising that his grievance would be handled by another person. The Complainant’s resignation letter was dated 30 April 2020  effective from 19 June 2020 which was intended by him to give the Respondent sufficient time to implement a smooth transition – though he stated this did not happen. Nor was his grievance procedure finalised by his resignation date and in that regard, the Complainant stated that it was “technically not possible” to continue working for the Respondent after he initiated his grievance as he considered it would impact on working relationships. He stated that he had sought financial compensation and to be treated financially like other employees. He stated that he received the outcome of his grievance seven days prior to the termination of his contract and that he did not appeal the outcome as he had the “impression everything was delayed so he couldn’t appeal”.

The Complainant was cross examined on his evidence. Under cross examination he accepted that his resignation letter did not explain the reasons for his leaving. He was questioned on when he raised his issues and he responded that he raised issues with HR and his Line Manager in September October and December 2019. The Complainant accepted under cross examination that he was offered a meeting in December 2019 to discuss his issues and that he refused as he didn’t want to signal any conflict. Other matters on which the Complainant was cross examined included taking on more work as a result of promotion, discussions in relation to resources,  the SAP crash at the end of 2018, operations in France, his sick leave in February 2020 and the EAS. The Complainant was questioned on his communications and emails with the Respondent prior to his resignation and that he resigned prior to the outcome of the Grievance Procedure. It was put to him that he was seeking compensation and the opportunity to return and work from France.  The Complainant replied that he wanted a solution and that he wished to continue his role in France but was advised that this would result in the loss of his international profile. He stated that at all times he was seeking a constructive solution and that he gave a months’ notice of his resignation to ensure “a proper transition”. He stated that he considered he did not have sufficient time to appeal the outcome of the Grievance Procedure as by then he had resigned and returned to France.

It is the position of the Complainant that the Respondent acted unreasonably, that it failed to reach out to the Complainant in order to address or resolve his legitimate concerns and that as a result of the Respondent’s failure to provide adequate resources and take protective measures to provide a safe working environment, he had no option but to terminate his employment. The Complainant stated that contrary to what he had hoped for the Grievance Procedure inevitably led to the commencement of a confrontational process and that by that stage “bridges had been burned”,  that his issues/grievances were “swept under the carpet” and that the workplace was a “cold house to return to”. The Complainant stated that he reluctantly resigned as his professional career had progressed with the Respondent, that he had given his very best but paid the price, in terms of his physical and mental well-being. The Complainant stated that he was paid up until 19 June 2020. He outlined his current work, his efforts at mitigation and his loss of income due to the dismissal.

The Respondent stated that it was a global provider of medical technologies with its headquarters based in Athlone Co Westmeath.  The Respondent outlined the Complainant’s career history with the company in terms of being appointed in 2015 and been promoted in March 2017 and August 2018 as Acting Financial Controller for the Respondent’s French entity which position he was formally appointed to in March 2019.

The Respondent stated that the Complainant was a well-regarded employee and that there were no material issues of note during his employment. The Respondent stated that the Complainant often took on too much work and had to be encouraged to delegate and use available resources. The Respondent also stated that in December 2019 the Complainant complained of being overworked and about lack of sufficient resources in his team. At the time the Respondent stated that it’s HR Official met with him and offered to arrange a meeting with his Manager “and look at solutions” which the Complainant declined. The Respondent stated that following the Complainant’s return to work after three weeks sick leave in February 2020, he informed his Manager that he felt tired and was considering moving back to France. The Respondent stated that the Complainant enquired as to what options would be available if he was to leave and that in response his Manager advised him that he would discuss the matter with HR.

On 23 March 2020, the HR Official contacted the Complainant and asked him to visit the Company Doctor and she furnished him with a copy of the Respondent’s Grievance Policy.  The Complainant’s Manager followed up on this the following day. The Respondent stated that the Complainant launched his grievance almost one month later on 21 April 2020. The Respondent stated its Grievance Policy provided for the right of representation and an appeal stage and that the policy was readily available on the Respondent’s intranet. The Respondent stated that the grievance was conducted by another HR Manager who by letter of 30 April 2020, scheduled a grievance meeting with the Complainant on 1 May 2020. The Respondent stated that the Complainant attended the meeting on 1 May 2020 notwithstanding that he had submitted his resignation on the day prior – i.e. on 30 April 2020. The Respondent stated that the HR manager carried out an extensive review of the matters raised by the Complainant and met with those he identified and others relevant to the process. The Respondent maintained that in conversations with the HR Official the Complainant stated that he wished to return to France and was seeking a financial payment. The HR Manager did not uphold the Complainant’s grievances and she issued an outcome letter on 11 June 2020 which the Respondent stated was comprehensive detailing her consideration of each issue raised by the Complainant. The outcome letter advised the Complainant of his right to appeal which he did not avail of.

The Respondent outlined the resources and supports available to the Complainant and it rejected the Complainant’s assertions that he was not supported with regard to his workload and resources. The Respondent stated that his Manager had discussed these matters with the Complainant.  The Respondent stated that the Complainant was also offered the option of remote working in order to avoid his 180km round-trip daily commute and that he could reserve a hotel room during busy periods. The Respondent also rejected the Complainant’s contention that he did not take his annual leave or that he was expected to be available to work whilst on annual leave.

Evidence of Respondent’s Manager:

The Manager outlined his responsibilities including the nature of the financial operations and he detailed busy/challenging times in that regard.  The Manager outlined the work of the Complainant and stated that he raised no issues prior to 2018. The Manager did not agree that the Complainant did not have sufficient support to perform his duties and he stated that in response to a request from the Complainant for half a resource this was put in place by December 2019. The Manager gave evidence in relation to his conversation with the Complainant about the latter’s workload in September/October 2019 and that the Complainant never stated that half a resource was not sufficient. In March 2020 the Manager stated that he sat down with the Complainant to do a workplan for the additional half resource. The Manager also stated that the Complainant “could have been better at delegating”.

The Manager was cross examined on his evidence including in relation to the matter of reassigning duties and the Complainant’s annual leave and sick leave. In response he stated that he tried to re-assign duties and referred to emails in that regard. He stated that the only sick leave he was aware of was in February 2020.

Evidence of the HR Official:

The HR Official stated that the first time the Complainant raised an issue with her was in December 2019. At that time the HR Official stated that the Complainant spoke of his high workload, of the stress he was under but also spoke of his respect for his Manager. The HR Official stated that she followed up the matter with the Complainant’s Manager and offered the Complainant a follow-up meeting between the Complainant and his Manager which the Complainant declined. The HR Official gave evidence in relation to the Respondent’s policy of supporting staff experiencing stress including its EAS scheme. She outlined her contact with the Complainant in March 2020 and stated that she felt the Complainant was not interested in additional supports. The HR Official stated that the Complainant never made a formal request or application to relocate to France. The HR Official

outlined her dealings with the Grievance Procedure and stated that two days after the initiation of the grievance on 21 April 2020, the Complainant informed her in a telephone call that  he was resigning.

The HR Official was cross-examined on her evidence. Under cross-examination, the HR Official stated that the Respondent did not formally ask the Complainant to reconsider his resignation. The HR Official clarified under cross examination that the Complainant’s medical certificates stated “stress” or “medical illness” but did not state workplace stress. She also confirmed that the Respondent had not referred the Complainant to an Occupational Health provider but stated the option was available to the Complainant to attend the company Doctor.

Evidence of the HR Manager:

The Respondent's HR Manager give evidence in relation to her role in carrying out the grievance investigation.  The HR Manager confirmed that she was aware the Complainant had resigned but that at the grievance meeting on 1 May 2020 she focused on addressing the grievance issues raised by the Complainant. The HR Manager stated that the Complainant did not mention relocation at all during the grievance meeting. In relation to the matter of compensation which had been sought by the Complainant, the HR manager stated that she was surprised by this as it was not the usual purpose or outcome of a grievance procedure. The HR Manager stated that the Complainant attended the grievance meeting unaccompanied, that he did not appeal the grievance outcome and that had he sought an extension of time within which to appeal this would have been granted.

The HR Manager was cross examined on her evidence. In relation to the matter of whether the Complainant was obliged to work during his annual leave, the HR Managers stated under cross-examination that the Complainant was not expected to reply to emails whilst on leave. The HR Manager also stated under cross-examination that it was not apparent to her in the course of her investigation that the Complainant was “working excessive hours”. She also stated that it was not specifically brought to her attention that the Complainant was attending psychotherapy in a private capacity.

The Respondent rejects that it did not address the Complainant’s concerns including those raised via its Grievance Policy or that it acted in an unreasonable manner or that it did not reach out to the Complainant in December 2019. The Respondent stated that the Complainant did not provide any medical evidence to show he was vulnerable at work. It is the position of the Respondent that the Complainant was not unfairly dismissed, that he resigned of his own volition, that he had no intention of staying regardless of the outcome of the Grievance Procedure as he simply wanted a financial payment and to return to France.

The legal provisions in relation to unfair dismissals are set out in the Unfair Dismissals Act [1977-2017] and for the purpose of this decision I consider the following provisions relevant:

Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as follows:

““dismissal”, in relation to an employee, means –

a) the termination by his employer of the employee’s contract of employment with the employer…..

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 I would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

The Complainant is claiming that he was constructively dismissed and had to leave his employment due to the conduct of the Respondent and its failure to provide him with a safe working environment. Accordingly, I must consider whether or not on the balance of probabilities, there was a dismissal in accordance with the provisions of section (b) above. There are two tests to establish if a constructive dismissal occurred – the ‘contract test’ – i.e. that there was a breach of the contract of employment, such that an employee is entitled to terminate his/her employment and the ‘reasonableness test’ – i.e. that the behaviour of the employer was so unreasonable that the employee was entitled to terminate his/her employment. The reasonableness test asks whether the employer conducted its affairs in relation to the employee so unreasonably that a complainant could not fairly be expected to put up with it any longer. These tests were enunciated in Western Excavating (ECC) v Sharp [1978] ICR 221 and have been relied on by the Labour Court. For example in NCBI v Ms Mary Cawley [UDD2138] the Court explored whether there was “any fundamental breach going to the root of her contract” such that it was reasonable for the Complainant to terminate her contract and/or whether the employer conducted its affairs “in relation to the employee so unreasonably that the employee cannot be expected to put up with it any longer, [and] if so…is justified in leaving”.  By the same token, a complainant is under the burden of establishing that they have conducted themselves reasonably in terms of affording the employer the opportunity to address the issue(s) which ultimately led to the termination of the employment. In that regard, in referring to the need to utilise established internal grievance procedures, the Employment Appeals Tribunal held as follows in Beatty v Bayside Supermarkets [UD142/1987]:

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases…”

For the most part the facts of this case are not in dispute in terms of dates, documentation and meetings. From my consideration of all the information, I am satisfied the Complainant was a diligent employee and was committed to best practice in the workplace and working to the best of his ability.   Accordingly, I am not disputing the Complainant’s bona fides nor the impact of the workplace environment on him – especially when he considered that his workload was too onerous or unreasonably excessive. Nor is it in dispute that he availed of sick leave in February 2020 and in that regard I note from the sick certs submitted that in the period from 10/2/20 – 23/2/20 he was deemed medically unfit for work due to “stress” and deemed medically unfit due to “Medical Illness” in the period 24/2/20 – 28/2/20. In an email of 10 February 2020 the Complainant stated that he had suffered from the flu and a chronic cough from middle of December 2019 to end of January 2020.  

I am also satisfied from the evidence and documentation that the Complainant was reluctant to initiate a grievance procedure as he considered this could create a lasting or awkward conflict in the workplace for him. In this regard I note in an email he wrote on 5 March 2020 that he stated he had “no intention to create unnecessary trouble” and in a further email of 24 March 2020, he referred to being obliged “to talk about detail [he] would like to avoid”. There is no doubt that by its nature instigating and pursuing a Grievance Procedure can be a difficult, it is not a mediation process and can often therefore be challenging and confrontational. That being said however, it is an essential tool of employment practice as required by SI 146/2000 which stipulates that:

“Such procedures serve a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. It is important that procedures of this kind exist and that the purpose, function and terms of such procedures are clearly understood by all concerned”.

I had carefully considered the extensive submissions, the sworn evidence of the parties, the  correspondence, emails and case law cited and have reached the following conclusions:

-        I am satisfied the Respondent endeavoured to engage with the Complainant towards the end of 2019, that he was referred to the Respondent’s EAS, advised he could contact the company Doctor and furnished with copy of the Grievance Procedure;  

-        I am satisfied the Complainant was afforded fair procedures at the outset of the Grievance Procedure investigation in terms of the right to be accompanied, an opportunity to state his case and a right of appeal;

-        From the sequence of events in 2020, I am not satisfied the Complainant exhausted all avenues at workplace level prior to his resignation. In this regard I specifically refer to the following:

o   The email to the Complainant of 23 March 2020 which encouraged him to contact the Respondent’s EAS, which recommended he contact the company Doctor and furnished him with copy of the Respondent’s Grievance Procedure;

o   The thrust of the evidence including the HR Official’s email to the Complainant of 23 April 2020 which demonstrates in my view, that the Complainant had decided to leave his employment and return to France prior to his initiation of the Grievance Procedure. This was encapsulated in the Complainant’s evidence and submission wherein he stated that:

“I took the decision to resign I think in May, not exactly, it was March because when I went on sick leave in explained to my manager that I cannot continue, and we need to find a reasonable solution for that case. I say to him, I cannot continue in that condition, is it possible to organise my departure and say look I continue to work for a certain number of months and then you give me a kind of retention bonus or something like that or an indemnification and then I will transfer the French ledger activities to someone else. But he explained to me that we can do that, but you need to raise an official request, an official grievance, and explained the reason why you want to get this kind of agreement. So, I say to him, look if you want an official letter, an official grievance, I can do that but it would be beneficial for everybody……. So I arranged the grievance, I wrote the grievance letter…..”;

o   The fact that the Complainant tendered his resignation on 30 April 2020 – just nine days after he submitted his formal grievance letter of 21 April 2020 and on the same date he was invited to the grievance meeting of 1 May 2020. Accordingly, I am satisfied the Complainant had decided to resign prior to the commencement let alone completion of the Grievance Procedure and he also decided not to appeal the grievance outcome. I also note that the letter of resignation indicated the Complainant’s resignation to be effective from 19 June 2020 thereby providing for a notice period. In that regard, I accept the Respondent’s position that the provision of a notice period is generally inconsistent with constructive dismissal.  The resignation letter also stated “Please let me know how I can be of help during the transition period. I wish you and the company the very best going forward”.

I have already stated that I do not doubt the Complainant’s bona fides, that he genuinely considered he had no option but to resign for the good of his health and that he was also anxious to avoid potential workplace conflict. However, having made the decision to resign, I consider that the evidence and submissions show that the Complainant’s primary focus was on seeking to arrange an acceptable exit strategy to facilitate his return to France and financial compensation. With regard to the latter I note from the minutes of the grievance meeting of 1 May 2020 (which was furnished to the Complainant on 22 May 2020) that the Complainant was asked what would resolve his grievances and that in the course of his response, he stated that “The only thing that I would like to agree on is compensation before I leave”.  By email to the HR Manager of 5 May 2020, the Complainant detailed the financial compensation he was seeking and he stated “Remaining at your entire disposal to discuss about those amounts and start an eventual negotiation”.

In all the circumstances, I conclude that the Complainant has not demonstrated that he was prepared to engage with the Respondent via the Grievance Procedure for the purpose of addressing his grievances or affording the Respondent an adequate opportunity to remedy/resolve matters – from the perspective and/or objective of staying in the employ of the Respondent. Instead the Complainant for his own legitimate reasons, had decided he had had enough – which decision any employee is entitled to make, but that does not always – as in this case – equate to constructive dismissal.

In light of the foregoing, I have reached the conclusion that the Complainant’s resignation was precipitous from the perspective of constructive dismissal. I consider that he has not demonstrated that the Respondent breached his contract of employment or acted so unreasonably that he was justified in resigning. Accordingly, I find that the Complainant has not discharged the burden of proving that he was constructively dismissed pursuant to the Unfair Dismissals Act [1977-2017]. 

CA-00041291-001

For the reasons outlined this complaint is not well founded. 

Constructive Dismissal; Grievance Procedure