Complainant

Respondent

Parties

Amy  Peggs

Tesco Ireland Ltd

Representatives

  Self-represented

Ibec

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-00052053-001

02/08/2022

The complaint referred to the Workplace Relations Commission on 2 August 2022 is one of constructive dismissal pursuant to the Unfair Dismissals Acts 1977-2015.

The complainant’s case is that she had no choice but to leave her job as a driver with the respondent due to its failure to address workplace issues she raised with it.

The respondent disputed the complaint against it.

The complainant worked as a customer delivery driver in the respondent’s grocery home service department.

She was employed from 9 June 2021 until her resignation on 8 July 2022.

The complainant was forced to leave her employment with the respondent due to workplace issues/bullying she reported to managers and a team leader, which were not dealt with properly or in accordance with the respondent’s grievance procedures. 

The respondent breached the employment contract as it failed to follow its grievance procedure.  The respondent’s conduct was unreasonable. 

The complainant sought re-engagement with the respondent.

Summary of complainant’s affirmed evidence

The complainant reported bullying and other issues to the respondent’s managers and a team leader.  She wanted these matters formally addressed.  The complainant referred to reporting two separate minor collisions in which the complainant was involved to a team leader and, in respect of which, no accident report forms were completed. The complainant talked to her line manager, Mr Hand, about bullying behaviour she was being subjected to.  He failed to investigate any of the incidents she reported.  The complainant gave Mr Hand the names of the people about whom she was complaining and told him she wanted to follow the respondent’s procedures.  In this regard, the complainant referred to a text message she sent to Mr Hand on 15 June 2022. Around the end of June 2022, the complainant raised a bullying incident with a deputy manager.  This concerned someone touching her phone in the canteen.  The complainant also reported at the end of June 2022 an incident to her senior line manager, Ms Early.  The complainant provided the names of those involved and told Ms Early that she wanted to follow the respondent’s grievance procedure. 

The complainant gave her team leader verbal notice that she was leaving the company and gave a letter of resignation to her line manager on her last day of employment on 8 July 2022.  She did not receive a response to her letter of resignation.

When asked in cross-examination about a resignation letter from the complainant addressed to the complainant’s line manager, Mr Hand, dated 27 June 2022, the complainant said that she didn’t recognise the letter and that it wasn’t signed.  The complainant said that she had asked her line manager and senior line manager two or three weeks before her resignation to investigate two separate incidents.  The complainant did not make a written complaint at the time but she made a note of the dates she reported the incidents to the respondent.

The complainant confirmed she is earning more money in her current employment than what she had earned with the respondent.   She also confirmed that she applied for roles with the respondent after her resignation from employment.

The complainant confirmed to me that she was aware of the respondent’s grievance procedure from the respondent’s employee portal.  The complainant further confirmed she had attended an exit interview with Ms Early on 16 July 2022, that she had been offered a new employment opportunity and that she had raised at the exit interview the issues she had experienced in employment with the respondent.  The complainant did not hear anything further after the exit interview.

The respondent disputed the complainant’s dismissal.  Its position was that she resigned voluntarily after she secured alternative employment and that she had submitted a letter of resignation to this effect to her line manager on 27 June 2022.

The respondent had been happy with the complainant’s performance in her role as customer delivery driver.  At no stage during her employment did the complainant raise a claim of bullying.  The respondent addressed two issues raised by the complainant in an appropriate manner.

At the complainant’s request, her line manager provided a reference for the complainant to a prospective employer.  This was before the complainant gave notice of resignation. 

After the complainant’s resignation, she contacted payroll on 14 July 2022 with a pay query.  The respondent’s People Partner followed up with the complainant on foot of her email and an exit interview was held with the complainant on 16 July 2022.  At the exit interview, the complainant said she had left to go work for another employer and that she enjoyed her work with the respondent 90% of the time.  The complainant subsequently contacted the respondent’s People Partner to inquire about the possibility of doing work with the respondent as a driver on a voluntary basis.  The respondent could not facilitate this for insurance reasons.  The complainant has since applied for vacancies in the respondent’s store.

It was submitted that the respondent neither breached the complainant’s contract of employment nor acted unreasonably such that the complainant could legitimately resign and seek relief for constructive dismissal.

Summary of Mr Hand’s sworn evidence

Mr Hand was the complainant’s line manager.  He was rostered on the same shift as the complainant.  His role involved managing pickers and drivers and dealing with any problems that arose.

He recalled having received complaints from the complainant on two occasions.  On the first occasion, the complainant asked to speak with him in private.  She told him that she was unhappy with the language used by the drivers in the yard; that it was abusive language between the drivers.  The complainant wouldn’t provide any names but that she just wanted to make him aware.  Mr Hand told the complainant that he needed names to properly investigate an issue.  The complainant would not give names.  Mr Hand spoke to all the male drivers in small groups about being mindful about language used.   The second time the complainant raised an issue was about another driver coming up behind the complainant and touching her neck.  Mr Hand spent some time asking the complainant to provide further detail and the name of the driver concerned as he wanted to go down the formal route on this issue, but the complainant did not want to make an official complaint.  Mr Hand told the complainant that to resolve the issue, he needed to know the name of the driver.  He told the complainant he could address it in an informal manner with the driver.  Ultimately the complainant provided the name and Mr Hand spoke to the driver about it and advised that it would be a serious disciplinary matter except that the complainant wanted it addressed informally. 

Mr Hand described as absolutely perfect his working relationship with the complainant.  She had been a driver with whom he had no issues and never had complaints about.  

Mr Hand confirmed that the complainant gave him her letter of resignation dated 27 June 2022.  He had never seen the resignation letter dated 7 July 2022 until it was provided by the complainant in her hearing documents. 

The complainant had told the witness a few weeks before she gave in her letter of resignation that she was doing interviews with a named company.  Mr Hand had tried to persuade the complainant not to leave over the following weeks as she was a great worker.  The complainant handed in her notice when she knew she was getting the job with the other named company.  The complainant had asked him could she provide his contact details to the named company.  When Mr Hand was contacted by that company for a reference, he told them that the complainant was an excellent worker.

Mr Hand disagreed when it was put to him by the complainant that she had never named the company she was doing interviews with.  Mr Hand did not agree with the complainant when she said she had raised complaints with him after she asked him to provide a reference. 

Summary of sworn evidence of Ms Paula Early

Ms Early was a senior manager in the store at the relevant time.  The complainant only raised one specific issue with her which concerned another driver pushing the complainant’s sandwich off the toaster.  The complainant was upset about it and the witness brought her to the office.   The witness spoke to the other drivers in the canteen at the time.  The complainant knew the driver concerned personally, and she didn’t want to pursue the issue. 

Ms Early conducted the exit interview with the complainant on 16 July 2022.  It should have happened before the complainant finished up working with the respondent, but Ms Early was on holidays at the time.  The exit interview went very well; the witness and the complainant had a chat about everything.  Ms Early asked the complainant about what she had written in response to the question regarding what she enjoyed least about working for the respondent, which referred in a negative manner to the people the complainant worked with.  The complainant, in response, said that there are people like that everywhere.  There was no mention of the grievance procedure in this meeting and the witness probably didn’t offer the complainant the grievance procedure at this meeting.  The nature of the meeting was such that it was taken up with discussing the complainant’s new job.

In the lead up to the complainant handing in her notice, the complainant openly spoke about applying for a job with another company.  The witness personally did not want her to go because she was very good at her job.

This is a claim of constructive dismissal pursuant to the Unfair Dismissals Acts 1977-2015 (the “Acts”).

Constructive dismissal is included in the definition of “dismissal” at section 1(b) of the Acts as follows:-

“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,”

The definition provides for two circumstances in which, because of the conduct of the employer, an employee could consider themselves dismissed; where the employer has repudiated the contract of employment (the “contract test”) and where it was reasonable in circumstances where they could not be expected to put up with the conduct in question (the “reasonableness test”).

The fact of dismissal is in dispute in this case with the respondent’s position being that the complainant’s resignation was voluntary.  The complainant’s case is that she did not resign voluntarily but was forced to leave due to workplace issues/bullying as there were no proper procedures followed by the respondent.

The Contract Test

The accepted statement of this test is from Western Excavating v Sharp [1978] ICR 221 where Lord Denning MR held:-

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the  essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance … [T]he conduct must … be sufficiently serious to entitle him to leave at once.  Moreover, he must make up his mind soon after the conduct of which he complains:  for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.  He will be regarded as having elected to affirm the contract.”

Reasonableness Test

This involves an assessment of the employer’s conduct as to whether it acted so unreasonably that the employee could not fairly be expected to put up with the conduct any longer.  It is well-established in this context that an employee must also conduct themselves reasonably, including affording the employer an opportunity to address the issues giving rise to the termination of the employment.

Analysis of the Evidence

To succeed in this case, the complainant must prove that the respondent did not address workplace issues raised by her in an appropriate manner, or at all, and that such conduct entitled the complainant to resign from her employment or that it was such that it was reasonable for her to resign. 

There was a significant conflict between the parties regarding the issues raised by the complainant.

The complainant’s evidence was that she raised several complaints from October 2021 to June 2022, that she had provided detail in relation to these complaints and asked for them to be formally investigated.  Mr Hand’s evidence was that the complainant came to him with two issues in late 2021; on the first occasion the complainant was not willing to provide names of the workers the subject of her complaint and Mr Hand spoke generally to drivers about acceptable conduct, on the second occasion he spoke informally to the driver the subject of the complaint, as agreed with the complainant. 

I have carefully considered the documents submitted by the complainant which detail the issues and dates reported, the evidence given in this regard and the evidence in relation to the exit interview.  Based on the foregoing and on balance, I accept Mr Hand’s evidence in terms of how the issues were raised by the complainant and find that his response to the issues raised in late 2021 was appropriate in the circumstances and in line with the respondent’s grievance procedures.   I further find, based on the cross-party evidence, that the complainant was upset following an incident in the canteen on or about the 29 June 2022 and that the complainant spoke to Ms Early about the incident and the driver involved.  I accept Ms Early’s evidence that the complainant told her she did not wish to pursue the issue with the relevant driver and that Ms Early spoke generally to the driver cohort in the canteen at the time.  I consider this to have been an appropriate response in the circumstances and that it was in line with the respondent’s grievance procedure. 

I accept the complainant’s evidence that she spoke to Mr Hand about communications on a work chat group in June 2022 and that she provided him with the names of the persons involved on 15 June 2022.  There was no evidence before me that this issue was addressed or dealt with by the respondent.

I also accept the uncontroverted evidence of the complainant that she reported to the deputy manager on duty an instance of dangerous/careless driving in the compound area at the end of June 2022.  There was no evidence before me that this issue was addressed or dealt with by the respondent.

I am satisfied that the approach taken by Mr Hand and Ms Early to issues raised by the complainant in late 2021 and on 29 June 2022 corresponds with the informal resolution stage of the grievance procedure. 

In terms of the two complaints in respect of which I have identified a failure or shortcoming on the part of the respondent, I do not find that these issues amount to a repudiation of the contract of employment by the employer such that the complainant was entitled to terminate her employment within the meaning of an unlawful constructive dismissal for the following reasons.  The driving complaint was raised by the complainant after she had given notice of termination of employment.  It follows that the respondent’s conduct in response to this complaint cannot ground the complainant’s claim for constructive dismissal.  I find similarly with respect to the issue raised regarding the communications on the work chat group as this was in or around the time the complainant was applying for work with another employer. 

The respondent’s grievance policy, of which the complainant was aware, is clear that informal resolution of concerns or issues is promoted in the first instance.  The grievance policy also provides for a formal process where concerns have not been resolved informally within a specified timeframe, or where the matter is too serious to be dealt with informally.  The procedure states that to raise a formal grievance it must be in writing and provided to the employee’s manager, or people manager, or another manager, and prescribes the form for so doing.  I note the complainant’s evidence that she kept a record of the issues and the dates she reported them to management.  I am satisfied that she did not provide this written record to the respondent, and that it was not seen by the respondent until the complainant’s submission the day before the Workplace Relations Commission hearing.  It was open to the complainant to raise a formal grievance regarding the work chat group, driving complaint or any of the other issues but she did not do so. 

Given that the respondent had a mechanism for employees to raise formal grievances in particular situations, including where an employee’s concerns were not resolved informally within a specified period, I cannot find that the respondent’s conduct was such that either the complainant was entitled or that it was reasonable for her to treat herself as constructively dismissed.  I also consider relevant the uncontroverted evidence that the complainant emailed the respondent on 5 August 2022 expressing an interest in doing voluntary work as a driver for the respondent, and that she applied for vacancies in the respondent’s store after the termination of her employment.  It is difficult to reconcile these facts with the complainant’s submission that the respondent’s conduct was such that she had no option but to resign.  In my view, these features are incompatible with the claim of constructive dismissal.

A prominent feature of this case was whether the complainant’s resignation was voluntary in circumstances where she had received another job offer.  It was common case that the complainant’s last day in work with the respondent was 8 July 2022 and that she commenced a new job with another employer on 11 July 2022.  The complainant remains in that job and is paid more than what she was paid by the respondent.   There were two different resignation letters produced by each party in their written submissions.  The respondent’s position was that it had not seen the resignation letter relied upon by the complainant until her submission to the Workplace Relations Commission the day before the hearing.  The complainant maintained that she did not recognise the resignation letter attached to the respondent’s submission and that she did not provide the respondent with resignation letter until her last day of employment.  She produced evidence of so doing in the form of a text message to her team leader.  This is a perplexing issue and one that I am unable to resolve based on the information and evidence before me.    

What I have been able to establish is that the complainant gave notice of termination of employment and that she did so after she had been offered the job with another company.  I have carefully reviewed the record of the exit interview completed by the complainant, in which she marked the main reason for leaving employment with the respondent as being “another job”, and the content of the communications from the complainant to the respondent’s payroll/HR in mid-July 2022.  Having regard to the foregoing, it is my view that the offer of alternative employment was a significant factor in the complainant terminating her employment with the respondent. 

For the reasons set out above, I do not find that the complainant was constructively dismissed within the meaning of section 1(b) of the Acts.

Section 8 of the Unfair Dismissals Acts 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of those Acts.

For the reasons set out above, I find that the complainant was not unfairly dismissed, and I decide accordingly.

Constructive dismissal – Conduct of employer – Workplace issues– Resignation