Complainant

Respondent

Parties

Margaret  Irving

NetSpeed Ltd

Representatives

  Self-Represented

 Managing Director, Mr C

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00051046-001

07/06/2022

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

CA-00051046-002

07/06/2022

The issue in contention concerned an Accounts Assistant and an IT Services Company. The Complainant claimed Constructive Dismissal due to the activities of her employer, principally hiring a Finance Manager to whom the Complainant would report. The Complainant was not informed in advance and had no chance to compete for this promotional position. The Complainant had carried out almost all Finance duties for over 12 years and felt completely undermined and intimidated. She felt that she had no choice but to resign and claim Constructive Dismissal.

A related complaint for Minimum Notice was also lodged.

The Employment began in September 2010 and ended on the 28th January 2022.

The rate of pay was, at the date of the compliant being lodged, Gross € 1,750.00 for a 19.5-hour week.

1:1         Unfair Dismissal CA-00051046-001

The Complainant gave an Oral Testimony supported by a written Submission. She had commenced in September 2010 in what was effectively a Stand-Alone Accounts role. During her time with the Company, she had carried out all Finance functions. She listed these in her submission. The external Accountant had always been very complimentary of the high standard of her work. In her Oral Testimony she referred to occasions where she had raised issues regarding new processes etc that she wished to make suggestion on. These had never been followed up on by the Respondents.

On the 9th December 2021 she had been phoned at 17:00 hrs to be informed by Mr C, the MD/CEO, that a Ms C.McL was going to be appointed as a new Finance Manager. The Complainant was very shocked at this news as she had never been informed in advance of any possible vacancy or given any chance to compete for the position. She immediately asked for Redundancy as she felt her position had been replaced and she had been made Redundant.

The Complainant phoned Mr C again the following day and requested a complete list of all her duties and responsibilities. Mr C requested her to “leave it with him”.

 A further meeting took place on the 14th December 2021 attended by Mr C and Mr McL, the recently appointed Chief Operations Manager. Mr McL raised the Redundancy question and said he would check out the figures. Later on, the 21st December he sent an e mail saying that Redundancy was not an option.

In frustration the Complainant gave in her notice on the 23rd December 2021. She stated that she could easily have been retrained/upskilled for the new Position, but this was never discussed with her. The appointment of a new Finance Manager had completely blindsided her. The new person had worked before with the new Chief Operations Manager and was allegedly bringing a new skillset to the business. The Complaint contested this and stated that here was nothing new she could not have been trained/upskilled for.  She was fully aware of the ambitious plans for the Company and would have been most eager to contribute.

She had been, simply ignored, in a very hurtful manner, after over 12 years exemplary service. A dignified resignation was her only option and she left after the end of her notice period. She had declined to extend her notice period, to allow the new person to settle in, as it was basically a further injury to an already hurtful situation.

1:2         CA-00051046-002 - Minimum Notice Complaint

The Complainant contended that as she had been Unfairly Dismissed, she was due her statutory minimum notice -in this case 8 weeks after 11 years’ service.

2:1  CA-00051046-001 – Unfair Dismissal Complaint.

The Complainant was represented by Mr C, the MD/CEO. He gave an Oral Testimony and submitted a written Submission. He was cross examined by the Complainant.

In opening he portrayed the Company as a rapidly developing IT company with many exciting new prospects. They had decided in 2021 to rebrand the business to prepare for further growth. Part of this process was the appointment of the new Chief Operations Officer, Mr McL. It was also felt that the Finance function had to move from a largely reporting /bookkeeping philosophy to a more dynamic Managerial outwardly focused approach. The appointment of the new Finance Manager was part of this transition.

In essence Mr C’s Testimony and supporting Documents made the position that the Respondent could have handled the appointment of Ms McL, the Finance Manager, better as regards the Complainant and how she had been communicated with.

However, and most importantly the Complainant had been a most valued employee that the Respondent had no desire to lose. Her work had always been excellent, and it had been their hope that by working closely with the new Finance Manager the Complainant would have been given a major development opportunity. The new Finance Manager came with a Financial Accounting   skill set more attuned to a developing Organisation while the Complainant, excellent though she was, had a more traditional Accounts approach.

The Respondent had made numerous efforts to persuade the Complainant to stay. After she had given in her notice on the 23rd December 2021 he had asked her to reconsider over the Christmas holidays. He had apologised to her for the unfortunate manner the appointment had taken place. In January, he had met her off site on the 11th of January and tried again to explain the situation and asked her to stay until the end of March 2020. This was to give the new situation/working arrangements a chance and if she still wanted to go at the end of March then so be it. Unfortunately, this was not her thinking and she left on the 25th January.

In summary Mr C repeated under cross examination by the Complainant that the Company had blundered, unintentionally and hurt the Complainant. However, it was always their view that the Complainant was a valued worker that they did not want to lose and had a view that she and the new Finance Manager, working as a team, would have made a very major contribution to the Company.  Redundancy for the Complainant had never been an option.

2:2         CA-00051046-002 - Minimum Notice Complaint

The Complainant had resigned. No Statutory Minimum Notice was due. She had worked out her contractual notice of four weeks.

3:1       Unfair Dismissal CA-00051046-001 - The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “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,”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ 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.”

 The reasonableness test assesses the conduct of the employer and whether it

“…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.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“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 employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, and as often stated all cases rest on their own facts and particular circumstances. These need to be examined now in the light of the Constructive Dismissal legal “tests” set out above.

3:2:1         First Constructive Dismissal Test – Breach of Contract

In general terms a Breach of Contract in a Constructive Dismissal case has to be very serious “going to the heart of the contract” as stated in numerous Superior Court cases. This usually means the stopping of pay or holidays to the employee or asking the person to carry out duties that are clearly outside of their duties -a senior professional to be repeatedly asked to do staff hygiene facility cleaning duties for example.

In the evidence presented in this case nothing of this nature ever arose. Pay was paid and duties were normal.

As a Test for Constructive Dismissal in cannot be in the Complainant’s favour

3:2:2         Second Test for Constructive Dismissal – Unreasonable behaviour by the Parties

Unreasonable Behaviour, it is Legally accepted, has to be very bad indeed -the word Egregious is often used. It has to be a situation where no reasonable person could be expected to accept what is happening and that the only reasonable option is a Constructive resignation.

From the evidence in this case and as largely admitted by the Respondent the handling of the appointment of the new Finance Manager v/v the Complainant was not handled at all well.

The Complainant was a long-standing Accounts Administrator who had largely carried the entire in-house Finance function for some 11 years. To be told via a mobile phone call from a car at 17:00 on the 9th December 2021 that a new Finance Manager (to whom she would now report) had just been appointed would win no prizes in any Human Resources or staff communications reviews.

The Manager involved and the main Respondent witness at the Hearing, Mr C, admitted making the call. When it became obvious that the Complainant had reacted very negatively, he made numerous steps to try and reassure her and persuade her not to resign. The Complainant made a number of attempts to secure a listing of her Job Duties & Responsibilities going forward. This was not answered. The Resignation took place on the 23rd of December 2021.

The Complainant argued in the Oral Hearing that the new Chief Operations Officer, Mr McL (appointed in March 2021) wanted his own Finance Manager (former colleague Ms McL). The Complainant did not meet his requirements and she was effectively side-lined despite being willing to undertake any training on new Finance skills. Mr McL was not present at the Hearing, but this contention was strongly denied by Mr C, the Chief Witness.

The key question for the Adjudicator is whether or not this saga qualifies as Unreasonable Behaviour so bad as to justify a resignation.

In a Recruitment context, if the claim was under the Employment Equality Act,1998 the issue would have to be under one of the nine listed grounds of possible discrimination for example Racial, Religious, Sexual Orientation, Family Status, Membership of the Travelling Community, Age, Physical Disability being the principal grounds. None of these grounds apply here. A bad recruitment process due to poor communications is very disappointing for a Worker/Complainant but in itself is not seen as inherently Discriminatory.

In this case the Complainant was very annoyed and disappointed but so are many candidates after a recruitment decision by a Management. She was not afforded the opportunity to apply which was a major issue for her.

To a reasonable observer the Complainant’s disappointment and hurt were very real but realistically did not justify what was virtually an immediate resignation. If this was a “Quick Heat of the Moment” decision it has to be seen against the Management offers to allow her to reconsider especially over the Christmas holidays, which proved unsuccessful.

On balance and after hearing all the oral Testimony from both Parties the Adjudication view has to be that while the Management made a hames of Staff Communication it was not so bad as to warrant a Resignation. It was repeatedly stated to the Complainant that her job was still there and worse case she could try the new arrangements for a few months to see how things would pan out.

As a strong basis for a Constructive Dismissal case, it is lacking.

3:2:3          Third Test for Constructive Dismissal -use of Employment Procedures

The third Test for a constructive Dismissal case is the use by, effectively the Employee, of Company Grievance and or Employment Complaints procedures. The  Complainant stated that she was unaware of any Grievance procedures and indeed in the Employment contract it is covered by a single sentence. The Complainant obviously felt that her meetings with Mr McL and Mr C in December and again in January were making her case. While not a formal lodging of a written grievance it probably passes the test of utilising procedures.

3:3    Adjudication Summary

Taking the Three Constructive Dismissal Tests as discussed above and especially Test two -Unreasonable Employer Behaviour – the Adjudication view has to be that a case for Constructive Dismissal has not been successfully made.

All legal Authorities and Case precedents argue that Constructive Dismissal has a “very high Bar of Proof” for a Complainant.  Unfortunately for the Complainant in this case the High Bar of Proof has not been reached.

The case has to be seen as unsuccessful.

3:4          CA-00051046-002 - Minimum Notice Complaint

As the Dismissal has not been proven as constructive no entitlement for Minimum Notice can apply. This complaint has to be deemed Unsuccessful.

Unfair Dismissal & Constructive Dismissal.