Complainant

Respondent

Parties

Kieran  Scullion

Corajio Unlimited Company trading as Mr Price Branded Bargains

Representatives

John Curran B.L. instructed by Hayden & Co Solicitors

 Collier Broderick

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-00045869-001

27/08/2021

This complaint centres around the complainant’s return to work with the respondent on or about the 17th December 2020, and his subsequent resignation which was conveyed to the respondent by the complainant’s solicitor on 4th March 2021. The complainant is claiming constructive unfair dismissal.

Both parties provided written submissions at the adjudication hearing and availed of the opportunity to provide supplemental submissions after the hearing had concluded. The final date of receipt of additional information in relation to the complaint was 18th January 2023.

Counsel for the complainant outlined a previous disciplinary process which had resulted in the demotion of the complainant within the organisation. A High Court injunction application made by the complainant in December 2020 resulted in undertakings given to him by the respondent and his return to his employment on 17th December 2020 at his substantive grade of General Manager.

Despite returning to work in good faith, counsel for the complainant stated that the respondent did not act in line with the commitment it gave in its undertakings and on his return to work, the complainant was side-lined, undermined, and ignored.

By letter dated 27th January 2021, the complainant’s solicitor submitted a grievance letter to the respondent outlining the complainant’s dissatisfaction with the respondent’s actions since his return to work. The respondent did not accept this as a valid grievance and instead suggested that the complainant should contact HR “with a view to agreeing whether an informal or formal process is appropriate”. The complainant’s solicitor subsequently wrote to the respondent confirming the complainant’s resignation on 4th March 2021.

Counsel for the complainant contends that the actions of the respondent were such that the complainant was left with no option but to resign from his employment.

Evidence

The complainant gave sworn evidence at the adjudication hearing. The complainant stated that he had commenced his employment with the respondent in 2015 as a Goods In receiver and was subsequently promoted to Facilities Manager.

The complainant stated that he was subject to a disciplinary process in 2020 which led to his demotion and subsequent High Court proceedings. The complainant stated that he himself was investigating a staff member previously who was the partner of the person who carried out the investigation into the complainant in 2020 which the complainant contends was inappropriate and should not have happened. The complainant stated that it was the bullying and harassment he experienced in 2107 by this individual that had led to his resignation and that he had said this at his exit interview at the time.

The complainant stated that he was approached in April 2019 and was offered a job with the respondent and took it on the basis that he was assured that other issues were “in the past.” The complainant stated that following his return there was several issues including the non-payment of a bonus as well as other difficulties with the appropriate reporting structures in the organisation and further interpersonal difficulties in how he was treated by his colleagues.

It was put to the complainant in cross examination that although the complainant had a fractious relationship with the HR department as a result of the issues in 2017, he returned to the organisation in 2019 and in respect of the issues that he was unhappy with, no formal grievances were lodged, and no complaints were conveyed to management by him. The complainant acknowledged that until the investigation in 2020 everything was going well and in respect of the issues that he was unhappy with, he felt there was no point in raising a grievance as his relationship with HR had deteriorated to such an extent that he felt he would not get a “fair shot”.

The respondent acknowledged that the complainant returned to its employment in December 2020 following undertakings it gave to the complainant in relation to a previous disciplinary process and the related disciplinary sanction. The respondent stated that following his return to work in December 2020, the complainant had significant levels of absence between January and February 2021 and was continually absent from work for a number of reasons from 9th February 2021 until the expiry of his notice period in April 2021.

Undertakings given on 8th December 2020

The respondent stated that, in correspondence to the complainant’s solicitor in advance of High Court proceedings scheduled to take place on 9th December 2020, it undertook to immediately reinstate the complainant to the role of General Manager with payment of the appropriate salary and to restore the responsibilities and reporting line of the complainant. The respondent further committed to providing the complainant’s HR file to him including the records of a previous exit meeting held in October 2017.

In its correspondence, the respondent outlines that it reserved the right to recommence a disciplinary process against the complainant and to apply whatever disciplinary sanction was deemed appropriate following the conclusion of that process.

The respondent also confirmed its agreement to pay the complainant’s legal costs in relation to the High Court proceedings.

The respondent further stated that in relation to the complainant’s return to work, it had complied with all the undertakings it gave.

In respect of the correspondence from the complainant’s solicitor on 27th January 2021, the respondent stated that its legal representative invited the complainant on numerous occasions to address his grievances by utilizing its grievance procedures. The respondent stated that the complainant did not formally raise a grievance with the HR department in respect of the issues he says he experienced on his return to work and despite certain allegations of bullying, did not raise a complaint in line with the Dignity at Work Policy. The respondent disagrees with the view that it did not accept the letter of 27th January 2021 as a formal grievance stating that that it repeatedly encouraged the complainant to address his concerns directly to HR through the appropriate procedures which he did not do.

Evidence

There were two witnesses who gave sworn evidence for the respondent. Ms L House from the HR Department gave evidence in relation to her role in the organisation. The witness stated that she was employed for approximately 10 years and had been a Store Manager, Area Manager, Regional Manager and was currently employed in the HR Department. Ms House stated in evidence that in respect of the complainant’s return to work, she was mainly involved in arranging a vehicle and keys etc for the complainant and that a meeting had taken place in January 2021 with the complainant in relation to absence reporting procedures with the complainant’s line manager.

Ms Ciara O’Kennedy, Solicitor also gave evidence at the adjudication hearing. The witness stated that the respondent agreed as part of the High Court proceedings to the undertakings sought by the complainant and that these undertakings were honoured in full. Notwithstanding the fact that the issues raised by the complainant in his affidavit were disputed, the witness confirmed that an agreement reached between the parties, meant that it was neither appropriate nor necessary to file a replying affidavit. The witness accepted that the undertakings given by the respondent formed part of the complainant’s terms and conditions of employment on his return to work in December2020.

The within complaint concerns the resignation of the complainant. The complainant had been the subject of a disciplinary procedure and sanction which has led to High Court proceedings in December 2020. Certain undertakings were given by the respondent and the complainant returned to his employment on 17th December 2020 at the grade of General Manager and in receipt of the same terms and conditions of employment that existed prior to the disciplinary process.

The complainant outlined that he was side-lined, undermined, and ignored on his return to work and despite the undertakings given by the employer, its actions were such that he resigned and considered himself to have been unfairly dismissed (constructive).

The respondent stated that a number of issues arose on the complainant’s return to work in December 2020 involving significant levels of absence as well as issues with reporting structures and other issues of dissatisfaction that led to the complainant’s resignation.

Undertakings

Having considered the submissions of the parties, I accept that the respondent acted in line with the undertakings given in advance of the High Court proceedings. From the evidence provided at the adjudication hearing, the complainant was reinstated at the grade and rate of pay of a General Manager and reported to the same member of management as he had previously done. It was also stated in evidence that the HR file had been given to the complainant and was included in the documentation submitted at the adjudication hearing. While the complainant contends that he had previously reported to another member of management, I am not satisfied that the complainant has established through his evidence that this was the case.

The Applicable Law

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 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 burden of proof rests with the Complainant in this case.

There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the “Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised as follows:

 “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 other performance.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

 “whether the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

The requirement to exhaust internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd (UD 474/1981) whereby the EAT said that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

In relation to availing of a grievance procedure, the Labour Court held as follows in Mr O v An Employer (no. 2) [2005] 16 E.L.R. 132:

“The Court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have”.

Loss of earnings

The complainant’s loss of earnings was calculated as follows:

Two months of unemployment at a loss of €3,416.66 per month from 4th March 2021 until 5th May 2021. Further ongoing losses in the complainant’s new employment which he commenced on 5th May 2021 of €1,078.56 per month for 13 months up until 31st March 2022. There were also further monthly losses of €977.37 per month for 8 months from 1st April 2022 until the date of the adjudication hearing on 30th November 2022. Losses that occurred post the 30th November 2022 until two years after the complainant’s resignation date (4th March 2023) were quantified at €977.37 per month for 3 months. The complainant’s total loss of earnings was quantified at €31,605.67.

Conclusions

In all of the circumstances of the complaint, I find that the respondent acted reasonably in its dealings with the complainant on his return to work in December 2020 and in my view, the complainant was reinstated in line with the undertakings given by the respondent.

The way the complainant says he was subsequently treated by the respondent and others on his return were issues that could have been addressed by utilizing the respondent’s grievance procedures. In my view, the complainant’s resignation was not reasonable in circumstances where management was not given the opportunity to address issues of dissatisfaction to the complainant such as late salary payments as well as other issues including his perception of how he was being side-lined, undermined, and ignored by other members of staff. Accordingly, having considered the circumstances surrounding the complainant’s resignation and the established legal tests concerning complaints of constructive unfair dismissal, I find that the respondent did not behave in such a manner that left the complainant with no other option but to resign from his employment.On that basis, the complaint fails.

Having considered the submissions and evidence of the parties and all of the case law cited, I find that the complaint of constructive unfair dismissal is not well founded, and I decide accordingly.

Constructive Unfair Dismissal

Case Law cited by complainant:

Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27

Allen v Independent Newspapers (Ireland) Ltd [2001] 2 JIEC 0501

Porter v Atlantic Homecare Ltd [2007] 5 JIEC 0202

O’Rourke v O’Rourke and Ulster Bank Ireland DAC 2022 IECA59

Fitzgibbon v Irish Nationwide Building Society 2007/8694/P (Counsel agreed note of Judgement)

Case Law cited by respondent:

Sheeran V Meehan [2001] 202 CA

Conway v Ulster Bank Ltd UD474/1981

Travers v MBNA Ireland Ltd UD720/2006

Reid v Oracle EMEA Limited [2016] 3 JIEC 0202

Beatty v Bayside Supermarket Ltd UD142/1987

Murray v Rockabill Shellfish Ltd [2012] 3 JIEC 2912

Grifffin v Sage ADJ-00034467

Allen v Independent Newspapers (Ireland) Ltd [2001] 2 JIEC 0501