Complainant

Respondent

Parties

Jimmy O'Neill

McCormack Chemicals Ltd T/A Autosmart Leinster

Representatives

Michael Butler Michael F Butler & Co.

Sean Dunne IRCS Limited

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-00044267-001

21/05/2021

The case involves an allegation of constructive dismissal, pertaining to the late/nonpayment of remuneration, and bullying and harassment.

The Respondent denies all claims and further submits that the Complainant has not exhausted all internal remedies and that therefore, his claim for constructive dismissal must fail.

The Complainant made a written submission as part of his complaint form, and gave oral evidence on his own behalf. He represented himself at the hearing.

Summary of his written submissions, as per the WRC complaint form filed:

The Complainant submits that he worked for Mr. Clive McCormack of the Respondent company, since 2004; that the previous company was liquidated in December 2013; that he had been working for him under Autosmart Leinster since 2014. The business involves selling cleaning chemicals to customers around the country. The Complainant submits that it was a job he thoroughly enjoyed and that he remained loyal to Mr. McCormack for 17 years. He submits that he helped build up the turnover of the business in his area, by a factor of between 3.5 and 4-fold. He submits that he also had great relationships with former colleagues and customers.

However, he submits that around 2015, things started to change, staff morale was poor with a high turnover of leavers. He submits that he started to feel that Mr. McCormack’s attitude and behaviour towards him was different, that conversations and actions occurred which made him feel undervalued, unappreciated, nervous and left him not wanting to go to work. He submits that he is a very loyal and diligent person and put up with this until Christmas 2019 when he decided that he wanted things to change.

The Complainant cites the following instances as examples of the Respondent company’s behaviour.

In January 2020, the Complainant submits that he was ordered by management to take two (separate) days off work due to his truck not being repaired, in circumstances where the normal protocol if a truck is out of action is to either drive another truck if one is available or to travel in a truck with another staff member to help them on their run. He submits that he was informed that he would be required to use two days’ annual leave to cover those days, despite the normal protocol and despite being willing and able to work.

He further alleges that he was questioned/accused about diesel that was apparently missing out of the tank in the yard and was told that he must measure the diesel level before and after anytime he filled the truck thereafter. The Complainant submits that this was a clear insinuation of wrongdoing.

The Complainant submits that he was being over-scrutinised, micromanaged and undermined, subject to undue criticism, isolated and subject to bullying and intimidation.

Examples of this included being told by a storeman that Mr. McCormack asked him to specifically check the back of the Complainant’s truck every evening to make sure it was tidy and that there was no stock missing. He submits that he was singled out in this regard, as compared with his colleagues.

Monday 27/01/20

The Complainant submits that Mr. McCormack accosted him first thing that morning raising his voice saying he was ‘stupid’ and ‘couldn’t do his job properly’. He submits that he asked him to stop bullying and intimidating him. He submits that he told Mr. McCormack that it was having a serious effect on his health. He submits that he was in Tallaght hospital the previous November with chest pain brought on by stress, and he was having trouble sleeping. He submits Mr. McCormack responded by laughing at him. He submits that he was then informed that his run was going to be split which would affect his earnings and that he would eventually be working the new areas. The Complainant submits that this was deeply upsetting to him as he had spent 17 years building up his run, increasing sales and building personal relationships with so many customers. He submits that he won an award for some of the highest sales in Autosmart the previous year.  

The Complainant submits that he was subject to intimidation and aggression.

The Complainant submits that his commission cheques were frequently paid late, that there was endless wrangling over his gym membership which he submits was agreed as part of his wages and which was in default for several months and which he raised repeatedly, and that at one stage Mr. McCormack opined that he was not going to pay it due to the cost of truck repairs.

The Complainant submits that he felt that he was being intimidated; that he was subject to unwarranted criticism and undermining – he gave an example of being asked to take a photo of a customer to whom a prize was being presented, and then being criticised for how he had done it.

The Complainant submits that Mr. McCormack of the Respondent company behaved unreasonably in a number of ways which unduly impacted on his family life, including calling him late or at short notice and requiring things which were unreasonable or subjecting him to criticism and undermining. He gave examples of being required to travel a distance to drop and then collect a truck being repaired with no way provided of making the second leg of the journey, necessitating the Complainant to have to rely on his spouse twice in the space of a fortnight for a lift in order to complete the task; of being telephoned after hours while attending his son’s football match and being criticised and having his sales figures disputed (which is relevant in terms of commission).  

Monday 17/02/20

The Complainant submits that upon his arrival to work, he was immediately told off for staying up too late at an Autosmart function the previous Thursday night, despite the fact that he was one of the first people down for breakfast in the hotel the following morning and to attend the meeting while many others were late to appear. He also submits that he was subject to isolation at the event, to such an extent that another franchisee commented on it.

Tuesday 18/02/20

The Complainant submits that he was called in for a meeting with no prior notice with his manager and Mr. McCormack. He submits that, at that meeting, he was asked about his health for the first time and whether the workload was causing him stress. It was suggested to him at that meeting, by Mr. McCormack, that he could take some of the work off the Complainant (which would have had the effect of reducing his earnings). The Complainant submits that he stated, not for the first time, that it was the intimidating environment that caused him stress and health issues. He also submits that he stated, at the meeting, that it was clear that he was being singled out and that Mr. McCormack was constantly trying to find fault with his work and undermine him in front of other staff members. The Complainant submits that the upshot of the meeting was that Mr. McCormack did not like how it had gone and said that he was now not going to pay for the Complainant’s gym membership.

The Complainant submits that it was after this meeting that he sent a formal letter to Mr. McCormack about how he was being treated unfairly and believed he was behaving in a manner not in accordance with Mr. McCormack’s own antibullying policy. Mr. Clive McCormack responded to the Complainant’s letter and Mr. Sean Dunne (outsourced HR) was contacted to begin mediation.

Friday 21/02/20

At 6pm, Mr. McCormack informed the Complainant that he would have to complete a work task the following day, on Saturday, which was his day off. The Complainant contrasted this with the treatment another employee received whereby he was not expected to complete the same/similar task on his day off. The Complainant’s perception was that the rules and guidelines were constantly changing and seem to differ for different members of staff which he perceived to be ‘highly irregular.’

Wednesday 26/02/20

The Complainant submits that he was wrongly accused of changing a price on the Atlas system used for invoices/payment by Mr. McCormack. He said that Mr. McCormack alleged he discovered this as his margin was "way out". The Complainant submits that he told him that under no circumstances did he change a price and Mr. McCormack argued once again that he must have. The Complainant submits that he asked Mr. McCormack to have a look at his tablet if he wanted, which he did. On doing so, Mr. McCormack discovered that the system had done an automatic price update and that the Complainant had not in fact changed the price. He submits that he received no apology for what he submits was a blatant attack on his character and integrity. Subsequently, it turned out that there was only €1 in the price difference - the Complainant submits that Mr. McCormack was looking for small things to seize upon in order to trigger confrontations.

June 2020

Monday 01/06/20

The Complainant submits that he had not been paid his commission for the previous two months. This was during Covid-19/lockdowns – he submits that he never stopped working during the lockdown. He submits that he was threatened with retaliation if he pursued the matter.

He submits that a major refurbishment being carried out in the yard and office building, that coded locks were fitted on the offices and storeroom, and that he had never been given the codes even though other staff members had been given codes, including someone who had recently started employment. The Complainant submits that he perceived this to constitute the casting of aspersions on his character – he perceived it as a suggestion that he could not be trusted - and that he particularly objects to this in light of his 17 years of loyal service.

July 2020

Monday 13/07/20

The Complainant submits that he was accused again of changing prices for Ix51t hand sanitiser. He went through the list with Mr. McCormack and had to point out to him that he had misread the list and was looking at a different product.

Tuesday 14/07/20

The Complainant submits that he was once again accused of changing a price on a product, which is something that can now only be done from the office. He submits that he did not do and could not have done it. He submits that he has demonstrated time and again that he never changed prices unless instructed to do so.

The Complainant submits that a few days later, he requested a second meeting with Mr. Sean Dunne HR to further discuss unresolved issues such as above-mentioned non-payment of commission and various accusations and also what Mr. McCormack had said to him when he tried to raise these issues.

This meeting happened on July 20th, 2020.

The Complainant submits that Mr. Dunne suggested a sit-down between the three of them, which took place on August 10th, 2020. He submits that the sit-down meeting achieved nothing. He submits that he then had to accept that he was not getting paid his commission for April/ May but he made the point to Mr. McCormack that he did not believe that it was fair or just, but for the sake of trying to improve relations, he left it at that. He submits that Mr. Dunne told Mr. McCormack that it was not acceptable that the Complainant had to constantly ask every month for his commission to be paid and that Mr. McCormack needed to make improvements on his end.

October 2020

The Complainant tested positive for Covid-19, along with another colleague. He submits that Mr. McCormack rang him and verbally abused him. He also submits that the other colleague was paid her full wages, while out of work, whereas he was instructed to apply for the government-assisted covid-related payment. He submits that it was clear to him that he was being discriminated against.

November 2020

The Complainant submits that on:

·       Thursday 05/11/20 - his commission cheque was late again.

·       Friday 13/11/20 – he was owed a week's wages for the week after isolation, but he was not paid on the Friday.

·       Friday 20/11/20 – he received a week’s wages two weeks later.

January 2021

Monday 04/01/21

There was a meeting. The Complainant submits that, at the meeting, he was told not to talk to any other Autosmart franchisee especially in relation to how he was treated re: Covid-19, and that he was threatened that doing so was a sackable offence. He submits he received abuse about having Covid, even though he did all the right things and followed all the guidelines (according to HSE) including naming close contacts. He submits that he was subject to criticism and verbal abuse for this.

Thursday 04/02/21

The Complainant submits that Mr. McCormack rang him and shouted at him as he was at the mechanic getting work done on his truck longer than expected, due to a safety issue with a damaged airbag which came to light and needed to be repaired on this spot.

The Complainant’s perception of what Mr. McCormack said to him during that conversation was that it contradicted what Mr. McCormack had previously said to him – his perception was that the rules were changing all the time.

Thursday 11/02/21

The Complainant submits that Mr. McCormack started an argument with him about the walking stick breaking on his truck after it fell over. The Complainant believes it was brittle due to the frosty weather. He submits Mr. McCormack said it was a very expensive piece of equipment (whereas in fact it is a plastic pipe) and that he never had to replace one but the Complainant submits that he is aware of 2-3 that had to be replaced within his time.

He further submits that later in the day, he was falsely accused of lying in relation to checking the oil levels in his truck, then directed to address a problem which did not exist in a way which wasted two hours of his run – his perception was that he was be punished for arguing his case about checking the oil.

Later that evening, the Complainant was presented with a contract and given a deadline of Friday 19/02/2021 to sign it.

Monday 22/02/21

The Complainant submits that two employees were told to spy on him by Mr. McCormack of the business. One of those two employees resigned that day.

Tuesday 23/02/2021

The Complainant submits that he was called in for an impromtu meeting by Mr. McCormack, with the Complainant’s manager also in attendance. He submits that Mr. McCormack told him it was his "negative attitude" that caused that employee to leave. He informed the Complainant that he had checked his phone records and demanded to know what his conversations with the employee who had resigned were about – the Complainant submits that these conversations were work related.

The Complainant points out that the meeting was 2-1, that he was not offered any notetaker or companion to support, and that he felt intimidated.

Wednesday 24/02/2021

The Complainant submits that when the employee who had resigned dropped by her uniform after resigning, the Complainant’s manager asked her if another staff member contributed to her leaving and she said absolutely not and actually the reason for her leaving was Mr. McCormack himself.

Monday 01/03/2021

The Complainant concluded that he could not take this “constant harassment” anymore and called his doctor who met him and immediately signed him off with work related stress. He submits that he  sent his cert to Mr. McCormack via email at 6pm, and within 10 minutes Mr. McCormack called to his house with no notice looking for his work phone and bombarding me with questions about work. He submits that Mr. McCormack did not ask me how he was. Again, he submits this behaviour left him feeling very intimidated.

Thursday, 4th March 2021

The Complainant submits that he received a Facebook message, followed by a phone call from a customer [name redacted] and that he told him that his manager had called to his yard and actually tried to undermine his work and questioned this customer as to how he had been doing his job and if he had tried to sell him new products each time he called. The Complainant submits that the customer told him because he felt he had a right to know.

The Complainant further alleges that a complete breach of GDPR had taken place also, in respect of things said to the customer, with regard to the Complainant’s health/medical information.

The Complainant submits that the idea that he was still being undermined while out on sick leave further added to his stress.

The Complainant submits that he remained on sick leave until 29th March, having had time to think. He submits that for the first time in years, he really felt he could not go back to work as he was so low mentally and physically that it was having a detrimental effect on his family. He emailed his letter of notice on 31.03.21 and did not get a response from Mr. McCormack until 08.04.21.

The Complainant submits that the manner his resignation was handled was also unfair/unlawful. He submits that there was more than a two-week delay in the Respondent terminating his employment beyond the date he had requestd, and a further nine (9) day delay after that until his statutory pay/holiday pay due was transferred. He highlights having been made to wait that long considering the loss of earnings due to being on sick leave for two months.

The Complainant gave evidence on this own behalf at the hearing.

He said that he left his job because of the treatment he received, that he was subject to bullying and intimidation, which caused him to feel unwell. He said that he went to Sean Dunne [HR] about it on a couple of occasions and “tried to get it sorted out.” He outlined that he had been undermined, that “everything I did was questioned”, that “every avenue you tried to sort it out – nothing changed.” He described the position as “untenable.” He said that as a result he “left the job I loved and was well paid for.”

He said that he had been “laughed” at, that his commission was “never on time.” He complained of how he was treated compared to others. He said that he “felt like a second-class citizen.”

He said that he was falsely “accused of stealing – stuff missing from the van a couple of times” and the Complainant “then proved that the stuff was there.”

He said that he was told he “wasn’t allowed to talk to other Autosmart Franchisees.”

He said that he was “not allowed to use the toilet”, that he was “not allowed into the warehouse.”

He said that there was a delay in him being provided with work boots, that “everyone got theirs straight away but I had to wait for months for mine.” (He said that the excuse given was that he wanted the ones that did not cover his ankles).

He outlined that “everything kept changing”, that he was expected to do things one way and then another.

He said that he was subject to bullying, that the business owner Mr. Clive McCormack laughed at him.

He said that he “literally couldn’t function”, that he “went to see [his] doctor” and that she told him to “take a break, of a least a month (or two).”

He said that he had submitted his letter of resignation along with medical certs. from his doctor.

He said that he was the subject of bullying and intimidation by Mr. Clive McCormack.

He said that there was “nothing wrong in the job”, that he was “outperforming” other staff.

He said that in February 2020, he raised a grievance. He said that he “half broke down talking to him – so, he knew something was wrong.” He said that Mr. McCormack was arguing in relation to sales and other matters. He said that things “improved for about a week for so…and then back to the same story again.”

He said that in July 2020, “things hadn’t changed.” He said there were still issues with the outstanding payment of monies due to him, that he was being treated differently to other employees and that Mr. McCormack had told “the store guy” (DD) to “keep an eye on Jimmy’s truck”, something the Complainant perceived to be targeting in nature.

The Complainant outlined how he got Covid-19 in approximately October 2020 and how he following HSE guidelines, listed people who were close contacts. He said that he was subject to criticism for this by Mr. McCormack, that he had “no right to do that”, that Mr. McCormack had a “business to run.” He said that he did the right thing, what he was required to do, in accordance with the HSE guidelines, and governmental guidelines. He said that he was “constantly criticised” and undermined.

He outlined that a truck broke down in 2019 and that Mr. McCormack blamed him and would not pay. He said that he “nearly wouldn’t speak to me over it.”

The Adjudication Officer enquired at the hearing as to whether there had been a precipitating event, given there had been a long employment relationship. The Complainant could not identify an incident or event which precipitated the deterioration of the employment relationship.

He outlined an incident from 2014 in response. The Adjudication Officer at the hearing clarified for the Complainant (who was unrepresented) that that he had resigned his employment in 2021.

The Complainant said that he felt that he had “no choice” but to resign. He said that he felt he “was getting nowhere”, that is doctor advised him that he “had to get out.” [For clarity, this last comment is hearsay].

He outlined that he “couldn’t cope”, that he “couldn’t deal with it.”

He re-iterated his grievance with not being allowed to access the storeroom (and the toilet) in 2020.

The Complainant said there were two rounds of it, and he had had to “take time out”, that he had needed to take a break, that he had ended up in Tallaght hospital with palpitations and stress, that he had thought he was on the verge of a heart attack, that he “just can’t understand why I would be treated like this.”

He said that he “tried twice with Sean” [Dunne, HR], and “also went to Clive” [McCormack], and that he just “couldn’t take it anymore.”

He outlined that the company had been happy with him, that he had previously won a competition.

On cross-examination:

It was put to the Complainant that he had been working for Mr. Clive McCormack since 2004 and that he had said there were problems in 2019, but the Complainant had been involved in a competition in 2019, that the company had supported and encouraged him in that, that the Complainant had received a holiday and 1,500 euro spending money.

The issue of witnesses was put to the Complainant. He had identified witnesses in his complaint form, but had not tendered them, at the hearing. The Complainant (who was unrepresented) said that he was unaware he needed to produce them, that he thought “once it was in the written bit”, that was sufficient.

It was put to the Complainant that he had received a contract in 2016, and that there were policies and procedures set out in the contract at pages 6 and pages 15; and it was put to him that he had received a new contract in 2021, that bullying and harassment, sexual harassment and grievance procedures were all set out. The Complainant said he was not aware of the policies.

It was put to him that he had received the policies twice, and he was asked whether he was aware of the policies. The Complainant said that he had not accepted the contract (not signed it) and that he had written that in his complaint form to the WRC.

It was put to the Complainant that he had referred to the bullying and harassment policy in his complaint form but he was now saying he was not aware of it. The Complainant said: “I don’t know.”

The issue of the toilet was addressed and it was put to the Complainant that his allegation will be denied, that the company will say that the reason locks were put on the stores was that they were “refurbished” and then there were locks put on to “protect the stock.” The Complainant disagreed with the timeline and re-iterated that he had been singled out in respect of access.

It was put to the Complainant that the company had procedures, that he had not utilised the procedures, that the company had appointed an external HR person, Mr. Dunne to address the matters that the Complainant had raised. The Complainant said that he went to Mr. Dunne twice and that “nothing changed.” It was put to the Complainant that the next step was a formal complaint, and that there was an email to him setting that out, and that he did not pursue that.  

It was put to the Complainant that his allegations of bullying and harassment, and the alleged impact, will be denied by the company, that the company will say that sales increased during that period. The Complainant said that he increased his sales every month. It was put to him that the allegations he was making, which were denied “had not affected [his] performance.”

The Adjudication Officer, at the hearing, enquired as to the economic impact of the Complainant leaving his job.

He said that he was “earning more then”, that he was out of work until May 4th 2021 (approximately five (5) weeks ). He said he then took up work for a company, driving; that it was a construction/engineering company in Athlone. He said that it was ‘great’, that it “brought back [his] faith in humanity”, that it made him “realise now how badly I was being treated.” That job ran until approximately September. He then took a week’s holidays, and then he took another job. At both jobs, he earned approximately 200 euros less per week than in his previous employment.

He said that he thought part of the problem was that he only ever had two jobs – he worked with his father doing a milk round, and then worked with Mr. Clive McCormack. He said that he “didn’t realise how badly I was being treated”, that he “thought this is how people were treated.”

He said he was seeking compensation as a remedy (not re-instatement, not re-engagement).

Written submissions were made on behalf of the Respondent.

At the hearing, the Respondent was represented and called four witnesses to give evidence.

As per the Respondent’s submission:

RESPONDENT SUBMISSION

BACKGROUND

1.       The Respondent Company is McCormack Chemicals Limited trading as Autosmart Leinster (Franchisor) and uses mobile showrooms (large vans) driven by sales persons to sell Autosmart products to businesses involved in the motor trade, motor parts, commercial transport and other sectors.

2.       The Claimant was employed by the Company on 14th January 2014 as a Van Sales Operative and had an unblemished record and viewed as a good and competent employee by the Company.

3.       The Claimant was issued Terms and Conditions of Employment 7th November 2016 but refused to sign same. He was issued updated Terms and Conditions of Employment on 1st February 2021 and refused to sign these also. Both documents are signed and dated as issued by the Company in line with the Terms of Employment (Information) Act 1994. [Appendix 1a 2016 and Appendix 1b 2021 Contracts of Employment]

4.       The Respondent held discussions with the sales staff and Autosmart between 2018 and 2021 regarding expansion and how this would happen.

5.       These plans were postponed in 2019 to allow and assist Jimmy O’Neill enter a competition in Autosmart for Salesman of 2018-2019 UK and Ireland in his category. The Claimant won the competition, received a foreign holiday from Autosmart and one thousand five hundred euro spending money as an incentive from the employer.

6.       The Claimant made a complaint in writing to the Company on 17th February 2020 [Appendix 2a letter, 2b sick certs and 2c response from the Company].

7.       Sean Dunne HR Advisor to the Company, met with the Claimant on 28th February 2020 to discuss issues as raised. [Appendix 3 HR Engagement notes].

8.       Sean Dunne also met with Clive Mc Cormack Respondent General Manager on 2nd March 2020 [Appendix 4].

9.       Following this meeting, Mr Dunne met with the Claimant and Respondent General Manager jointly on 10th March 2020 to discuss issues raised. [Appendix 5].

10.   The outcome of this meeting was a strategy of solutions and an agreement to work together respectfully and professionally going forward.

11.   On 20th July 2020 the Claimant met with Sean Dunne HR to discuss further issues.  During the course of that meeting Mr Dunne explained the grievance process to the Claimant and suggested that either he would facilitate another meeting with the General Manager and the Claimant to deal with matters informally or in the alternative the Claimant could submit a formal complaint and the Company would appoint an independent investigator. 

12.   A follow up meeting was held between Mr Dunne and the Claimant on the 10th August 2020 to further discuss the issues. (Appendix 6: email of 24th July and 6th August 2020 and meeting notes of 10th August 2020). Issues were again resolved and both parties agreed to work together respectfully and professionally.

13.   The Respondent recommenced discussions regarding the expansion with the Sales Staff.  Meetings took place in 2020 to 2021.  These discussions were headed by the Respondent General Manager and Gary Salters Regional Business Manager of Autosmart. An email from the General Manager to attendees at a meeting  on 2nd February 2021 outlines the content of this meeting. [Appendix 7] (Gary Salters former employee of Autosmart who was involved from the outset on the expansion and salesman competitions is available to give evidence at the hearing).

14.   It is disputed that the Claimant was treated in any way differently to any other member of staff or that he was singled out.  Controls and general management of the business was discussed with him during the course of his employment and these took place in the presence of witnesses including Michael O’Connor former salesman employed from 2016 to 2019 and Edmund McIntyre, Sales Manager.

15.   The Claimant never lodged a complaint of bullying formally with the company, he didn’t ever raise a grievance formally with the company or invoke the grievance procedure.

16.   Despite the Claimant’s allegations in his complaint form, the Claimant never lodged a payment of wages claim.

17.   The Claimant resigned his position on the 29th March 2021. This letter was replied to and the Claimant was paid all monies due and owing on his voluntary termination of his employment. [Appendix 8 Letter of resignation and response]

FACT OF THE DISMISSAL

18.    It is denied that the Claimant was dismissed, either directly or indirectly via constructive actions. The Claimant voluntarily resigned his position and his resignation was accepted.

19.   The Claimant has failed to produce evidence of his dismissal.  It is respectfully submitted that in fact the evidence points entirely to the contrary, that the Claimant voluntarily resigned.

LAW

20.   The Unfair Dismissals Act 1977, section 1 provides the definition of Dismissal as

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

 (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

21.   There are two tests contained in this statutory definition.  The first is the contract test and the second the reasonableness test.

22.   In Paris Bakery & Pastry Limited v Mrzljak  DWT 68/2014 the two limbs of paragraph (b) as set out above were summarised by the Labour Court.  The first limb applies where “an employer behaves in a way that amounts to a repudiation of the contract of employment”.  The Court noted that not every breach of contract will give rise to “repudiation”.  The second limb applies where “the employer conducts his or her affairs, in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer”.  Accordingly, an employer’s conduct may not amount to a breach of contract, but may nonetheless be capable of being regarded “as so unreasonable as to justify the employee leaving there and then”.

23.   The breach of contract being alleged must be either a significant breach going to the root of the contract or one which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. In Higgins v Donnelly Mirrors Ltd UD 104/1979 it was argued that a contract of service includes an implied obligation of mutual respect which might be broken by abusive or unreasonable treatment by the employer.  However, the EAT rejected the employees claim of constructive dismissal, showing the heavy onus of proof she bore.  The EAT said she had ‘painted a harrowing picture’ of various meetings. On the other hand her employer had denied the meetings were as she described.  The EAT’s view ‘she was unduly sensitive and she over-reacted’. 

24.   It is respectfully submitted that nothing in the actions of the Respondent could constitute a breach of contract.  The Claimant was at the heart of all decisions and incorporated into all future plans.  When an issue arose in the Claimant’s view on two occasions, informal meetings were held to immediately deal with the issues to the Claimant’s satisfaction. The contract of employment contains a grievance mechanism that the Claimant did not follow, and in fact it is the Claimant, if anything, that is in breach of the contract by claiming a dismissal in circumstances where he failed to exhaust the internal grievance mechanism.  Nothing in his express or inferred treatment could be interpreted to be a breach of contract or even an anticipatory breach on the part of the employer.

25.   The second test is that of the reasonableness test.  There is something of a mirror image between ordinary dismissal and constructive dismissal.  Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance.  The duty is an imperative almost always in employees resignations.  Where grievance procedures exist they should be followed: Conway v Ulster Bank Ltd UD 474/1981.  In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.  Where there are no formal procedures, advice should be taken as to the most appropriate way of presenting a complaint within the employment.  At the very least an employee should communicate his grievance before resigning.  In Conway, the employee was unhappy at what she regarded as an unilaterally imposed transfer about which she had not been consulted, made for reasons she could not accept as reasonable or necessary, and which she regarded as effectively making it impossible or unacceptably difficult for her to continue working for the employer.  The EAT took the view that the right to transfer in the bank employee’s contract gave no absolute power of transfer.  It said ‘any concept of absolute power is an illusion and such power as exists cannot be exercised outside the law of this land which compels the recognition of personal fundamental rights”.  The EAT declined to find for the employee.  She failed both on the contract test as well as on the reasonableness test, with the EAT finding that the employee did not act reasonably in resigning without having first substantially utilised the grievance procedure to try to remedy her complaints.

26.   It is respectfully submitted that on each occasion that the employee raised a complaint informally the Respondent dealt with the matter in a fair and transparent manner, resolving the matter.  It is submitted that the Claimant had no reason to bypass the grievance procedures in advance of his resignation and claim.

27.   In the Claimant’s contract of employment his attention is drawn to the Grievance and Disciplinary procedures provided by the Respondent.  These procedures are appended to the Contract of Employment and signed by the Respondent.  The Claimant was provided with the grievance procedures on at least two occasions, as well as being reminded of them in the course of his employment. 

28.   The Claimant has failed to put forward any evidence of his formal invoking of the grievance procedure.

29.   It is well established law that while it is the obligation of an employer to follow disciplinary procedures in advance of the decision to dismiss an employee, the corollary of that obligation is the obligation of an employee to equally exhaust the internal procedures in advance of any decision to resign and claim constructive dismissal. The Claimant fails to advance any evidence of following the procedures as set out in the grievance policy. 

30.   The Claimant did not exhaust all avenues open to him prior to the making of the claim. 

31.   It is respectfully submitted that on this ground alone, the claim should be dismissed.

SUMMARY

32.   In summary, the Claimant has not made out a sufficient claim with the requisite limb of proving:

32.1.                     That he was dismissed

32.2.                     That he exhausted all internal avenues

32.3.                     That the behaviour of the employer was such that internal avenues could be set aside

33.   The Claimant has not provided evidence such that demonstrates that his resignation was anything other than voluntary.

34.   It is respectfully submitted therefore that the Claimant’s claim should be denied and deemed unfounded.

At the hearing, witnesses gave oral evidence on behalf of the Respondent company.

Mr. Sean Dunne – witness no . 1 – outsourced HR Advisory Service for the Respondent Company.

Mr. Dunne gave evidence that he had facilitated a meeting between the Complainant and his boss (Mr. Clive McCormack), in March 2020, which both parties attended, and different issues were addressed by them. It was agreed that going forward, they would follow the procedures, and that they would trust each other – that trust would be afforded. The issue of Annual Leave was addressed too. The notes were agreed. The procedures were outlined to both – informal; grievance; disciplinary; Both were asked if they understood and they both confirmed they did.

On August 6th , 2020, the witness spoke to the Complainant on his own. He asked him “where things were” and “what he wanted to do?” There are no notes of that meeting. On August 10th, the witness had a meeting with Mr. Clive McCormack.

The witness gave evidence that he explained to the Complainant that sometimes people cannot get “settlement” or get things to run smoothly and that the next step in those circumstances is the formal procedure.

The witness said that he left it expecting a formal complaint to come back from the Complainant but instead the Complainant wanted to have another meeting. He wanted to try to resolve things locally. A second meeting occurred. The issue of bonuses was discussed; It was agreed that any fundamental change would take place in writing in the future. How both men addressed each other was discussed. It was the Complainant’s perception that Mr. McCormack was not listening to him; Mr. McCormack was asked to take account of how he spoke to the Complainant.

On cross-examination:

The Complainant put to the witness that on 18/02/2020, that he had written a letter, which set out how he was being paid late, and the inappropriate and hostile manner in which he was being treated. [This preceded the meeting in March.]

Mr Dunne outlined how the first time the parties met the Complainant was upset, “no question”, but said it was a “joint meeting” and “both sides agreed” as to how to proceed, that it had been a “long working relationship” and that the issue of holidays was raised and “sorted out.”

The Complainant put to the witness that it was a “small company” and he “didn’t want to be going legal” and that it “should have been possible to sort it out there.”

Witness No. 2 for the Respondent – Mr. Gary Salters

He outlined that his role was that, since September 2018, he had worked for the parent company Autosmart International, supporting franchises.

He outlined that in 2018, the vision for the Respondent company and the team was to grow AutoSmart Leinster, to grow the business and to have additional turnover, and that the Complainant was very much a part of that vision. He outlined that they were present and fully engaged, that there was so much opportunity.

Witness No. 3 – Mr. Michael O’Connor, former Sales rep for the Respondent company.

This witness gave evidence that he did the same job as the Complainant, just in a different area, between 2016 and 2019.

The issue of access to the toilet was put to him.

His evidence was that he “never looked to use it” and he was “never told that I couldn’t use it.”

Witness No. 4 for the Respondent – Mr. Clive McCormack – Chairman of the Respondent company.

Mr. McCormack gave evidence that the Complainant worked with him since 2004. He said that he received a letter on February 18th, 2020, from the Complainant, and that on receipt of that letter, he contacted Sean Dunne (outsourced HR services) and asked him to resolve the issue. He gave evidence of the joint meeting which Mr. Dunne had spoken of. He said that it was a joint meeting, that his understanding was that the issues that were raised were addressed fully at that meeting. He said that he was surprised for the request for a second meeting in July, that he thought after the first meeting that the Complainant was happy and wanted to move forward. He said that the Complainant’s allegations consisted of bullying, that he was spoken to in ways which were unacceptable, allegations of special treatment and that he felt he had no option but to leave the job; and the allegation that the Complainant was locked out of the warehouse (prevented from accessing the toilet). On direct examination, the witness simply denied and rejected the allegations in relation to bullying and harassment, simpliciter.

The Adjudication Officer, at the hearing, asked Mr. McCormack whether he wished to comment in response to the allegations – that he was not required to, but was entitled to an opportunity to do so.  [The burden of proof is on the Complainant in a constructive dismissal case]. He said that he was very easy-going and very reasonable, that he tried to treat people reasonably. He gave evidence that he had a business to run, that he had to make decisions and try to stand over them.

On cross-examination:

The Complainant put to him: “If everything was okay, why would I leave?”

The witness said: “I was shocked when you left. I was sorry to see you go.”

The Complainant put to the witness that he had set out in his letter the issues he was having and asked: “Did you not read the letter?” The Complainant put it to the witness that “twice I stated…” the issues he was having.

The Complainant raised the issue of his health and having to attend a doctor. The witness said to the Complainant in relation to the health incident where the Complainant had attended at a hospital, that it was the witness who had “insisted you go to hospital and not to work.”

Final Comments on behalf of the Respondent:

Mr. Kenny, on behalf of the Respondent relied upon his submissions; and in particular highlighted that the Complainant had received terms and conditions of employment twice (on 07/11/2016 and updated terms of conditions on 01/02/2021, which he refused to sign). He also pointed to the evidence of Mr. Gary Salters and the plans for development and expansion for the business, and that the Complainant was very much included in that plan. The idea that the Complainant was dismissed, constructively or at all, was denied. Mr. Kenny submitted that the Complainant had failed to make out a case for constructive dismissal.

Constructive dismissal – burden of proof

The definition of ‘dismissal’ in section 1 of the Unfair Dismissals Act sets out that dismissal includes ‘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.’

This definition sets out two circumstances in which an employee might consider themselves to have been dismissed by the ‘conduct’ of the employer, i.e., where they were ‘entitled’ to terminate their contract or where it was ‘reasonable’ for them to do so.

An employee is ‘entitled’ to consider themselves to have been dismissed when the employer has repudiated the contract of employment. It is ‘reasonable’ for the employee to consider that they have been dismissed when they can no longer be expected to put up with the ‘conduct’ in question.

Berber v Dunnes Stores

In a claim of (constructive) wrongful dismissal, the Supreme Court in Berber v Dunnes Stores (12th February 2009) held: ‘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.’

Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence:

‘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.’

In Berber, the Supreme Court held that the employer had committed a repudiatory breach that went to the root of the contract of employment through ‘oppressive conduct’ in the light of the employee’s precarious physical and psychological health.

The Complainant’s evidence in this case that elements of his remuneration, in particular his commission, were consistently late, and on occasion unpaid was uncontested. There were issues in respect of commission, gym membership, annual leave entitlement – annual leave entitlement was subsequently resolved locally. Pay is a fundamental term of any employment contract and the conduct of the employer in this regard constitutes a fundamental breach of the employment contract, in and of itself. Failure to pay an employee in line with the terms of their employment constitutes a repudiation of the employment contract and it would have been entirely reasonable for the Complainant to resign his employment on this ground alone, especially in light of the fact that he made more than one attempt to have the matter resolved at local level by the company before doing so. The Respondent’s response, at paragraph 16 of its submission, in this regard, is without merit. The WRC complaint form is not a statutory form, and the Complainant clearly set out in the narrative in his complaint form and in his oral evidence his difficulty obtaining his commission cheques on time or at all.

Separately, I am satisfied that the behaviour of the Respondent company was such that trust and confidence had broken down completely, in particular in light of the fact that the conflictual relationship was between Mr. McCormack of the Respondent company (franchisee owner) and the Complainant, and given that the Complainant had made concerted attempts to have the issues resolved. In February 2020, the Complainant very candidly set out for Mr. McCormack, in writing, the identified issues, along with his doctor’s medical assessment clearly identifying health issues occurring on foot of work-related stress. It was the Complainant’s evidence that he made three attempts to find resolution – two with outsourced HR and one with Mr. McCormack. I find that there was no reality to the pursuit of further grievance procedures, in circumstances where the behaviours complained of emanated from the most senior person in the Respondent company, who was on written notice of the identified issues and of the impact on the Complainant’s health, for a year prior to his resignation. The Complainant ultimately resigned his employment just over a year later, having set out his complaints and the impact on his health in writing, and having actively engaged with Mr. McCormack and with HR (twice). I find that it was reasonable in the circumstances for the Complainant to resign his employment.

I am required to make an award which is just and equitable in all the circumstances. I have considered the full remuneration package which the Complainant had in this employment. The maximum jurisdiction under the Unfair Dismissals Act 1977 is two years’ remuneration and it is a monetary and not a temporal amount.

In terms of mitigation, the Complainant outlined that he was initially out of work for five weeks. He then obtained temporary work immediately, and then approximately six months later, he obtained another employment.

The Complainant outlined a differential in pay and ongoing economic loss of €200 per week gross approximately.

Re-instatement and re-engagement were not sought. Compensation was the remedy sought, and I am required to award a sum which is ‘just and equitable’ in all the circumstances, which has regard to the conduct of the employer, mitigation undertaken by the Complainant, and economic loss including future loss.

I find for the Complainant.

For the reasons set out above, I find that he was constructively dismissed by his employer, the Respondent company.

Having considered the evidence and the components of ‘financial loss’ in section 7 (actual loss, prospective loss and ‘the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts’), I direct the Respondent to pay the Complainant €12,500 within 42 days of the date of this decision.

Constructive dismissal; repudiation; fundamental breach; unpaid remuneration; bullying and harassment; exhaustion of internal remedies;