Complainant

Respondent

Parties

Robert  Arendt

Ravens Lodge Trading Limited

Representatives

Self-Represented

Ms. Sinead Flaherty, Peninsula Business Services (Ireland) Limited

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-00046518-001

04/10/2021

The Complainant commenced employment on 10th September 2018. The Complainant was a full-time, permanent member of staff, in receipt of an average weekly wage of €615.00. The Complainant resigned his contract of employment on 17th September 2021.

On 4th October 2021, the Complainant referred the present complaint to the Commission. Herein he alleged that he was forced to resign his employment due to the deteriorating conditions of work. He stated that during his notice period, the Respondent engaged in bullying behavior that necessitated his immediate withdrawal from the workplace. In denying this allegation, the Respondent stated that the Complainant’s working conditions were far from intolerable and that he resigned without engaging with the internal grievance procedures.

A hearing in relation to this matter was convened for, and finalised on, 30th September 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.

Both parties issued extensive submissions in advance of the hearing. These submissions were expanded upon and contested by the other side in the course of the hearing. The Complainant and a Manager for the Respondent gave evidence in support of their respective positions. Said evidence was given under affirmation and subjected to cross-examination.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

The Complainant was employed as an “after sales manager” for the Respondent. The Complainant stated that he initially enjoyed his role, however events over year prior to his resignation made the conditions of his employment untenable.

The Complainant gave evidence regarding the ongoing underperformance of one of his co-workers. As a result of the same, the Complainant was obliged to complete more work, rectify the mistakes of this other person and respond to unhappy customers. The Complainant raised these issues with management on numerous occasions, with the result that this colleague was placed on a performance improvement plan. Unfortunately, this plan was not properly implemented or monitored and the performance of this individual did not improve. The Complainant continued to raise issues regarding the impact this colleague’s under-performance was having on his role, however no material changes occurred.

In September 2021, one of his colleagues left the employment in difficult circumstances. As a result of the same, the Complainant had to take on many of this employee’s duties, causing him further stress.

In addition to the foregoing, the Complainant submitted that the Respondent sought to unilaterally amended his terms and conditions of employment. In particular, he submitted that the Respondent requested that he attend early to open the premises. The Complainant agreed to the same on the understand that he could leave correspondingly early, however this did not occur due to the ongoing issued experience by his department. As a further consequence of the same, the Complainant rarely got to take his scheduled breaks, with meetings often being scheduled during his lunch break. The Complainant’s bonus was reliant on the productivity of his team. Due to the issues described, this bonus was drastically reduced.

In circumstances whereby the conditions of his employment were placing a significant toll on his physical and mental health, the Complainant gave notice of his intention to resign his employment on 16th September 2021. This notice was accepted without any attempt on the part of the Respondent to address these issues. The following morning, the Complainant attended work with the intention of completing his notice as uneventfully as possible. That morning, whilst dealing with an irate customer, his manager requested that he complete another task. When he stated that he could not, the manager in question threatened to withhold any form for reference in the event that the task was not completed. The Complainant stated that this was delivered while the General Manager was standing over the Complainant and in an aggressive, threatening manner. By response, the Complainant stated that he was not prepared to endure such poor behaviour and left the premises.

By submission, the Complainant stated that the conditions of his employment had become so intolerable that he had no recourse but to terminate his employment and consider himself constructively dismissed. The Complainant stated that he gave his former employer every opportunity to rectify the situation, however no meaningful change ever occurred. Finally, he stated that the Respondent’s behaviour on 17th September was wholly inappropriate and represented the “last straw”. As a consequence of the foregoing, the Complainant submitted that he had met the criteria for a complaint of constructive dismissal and that his complaint should be deemed to be well-founded.

At the outset, the Respondent submitted that the Complainant had not met the high bar for a successful complaint of constructive dismissal. They further disputed many of the Complainant’s allegations on a factual basis.

The Respondent accepted that one of the Complainant’s employee left the business abruptly on 9th September 2021. This departure, while sudden, was not permanent and it was anticipated that this member of staff would return shortly thereafter.  Thereafter, on 13th September 2021, a meeting was arranged with the Complainant discuss normal operational issues. During the course of this meeting, it was explained that the Complainant’s colleague used to open the premises, in circumstances whereby the manager had childcare commitments in the morning, the Complainant was asked to open the premises on a temporary basis. The Complainant agreed to this on the understanding that he could leave earlier, this was agreed to and the matter was understood to be settled. During this meeting the Complainant raised some operational issues in respect of his department and it was agreed that these would be addressed in the coming weeks.

On the morning of 16th September, the Complainant was due to open the premises at 8.30 but did not attend until 9.03. The Complainant’s manager sought to discuss this issue in an informal manner. In the course of this conversation, the Complainant advised that he wished to resign his position, by response his manager asked whether he was sure regarding the same, to which the Complainant stated that he was. Later that day the Complainant issued a formal letter of resignation. This correspondence made no reference to the issues outlined by the Complainant in evidence and gave two weeks’ notice of his intention to resign his employment.

On the morning of 17th September 2021, the General Manager of the Respondent requested that the Complainant answer a call from a customer. By response, the Complainant stated that he was already engaged with a task. When the general manager stated that the call was important and the Complainant should answer it, the Complainant reacted angrily. In evidence the General Manager stated that he stated something to the effect that the Complaint did not want to leave on in difficult circumstances. By response, the Complainant stated that the had “had enough” and left the premises. In due course this was taken as the Complainant foregoing his notice and his employment was deemed to be terminated from that date.

By submission, the Respondent stated that the Complainant had not met the high bar required for a successful complaint of constructive dismissal. In particular, the Respondent stated that the Complainant signed a contract of employment at the outset of his employment. At no stage of his employment did the Complainant engage with the grievance procedure set out therein. In these circumstances, the Respondent submitted that the Complainant’s application should fail.

Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal 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”

In Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“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 Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘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. If he does so, then he terminates the contract by reason of the employer’s conduct.”

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an Adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.”

In the present case, the Complainant has alleged that his conditions of employment became so intolerable so as to make his continued employment untenable and, as a consequence of the same, he was entitled to resign his employment and consider himself constructively dismissed. The first issue raised by the Complainant in this regard, is the underperformance of one of his colleagues and the detrimental impact this had upon his working environment. In this regard, I note that this person was placed on a performance improvement plan by the Respondent in order to address the issue. In this regard, it is evident that the Respondent was, at least somewhat, proactive in seeking to resolve the issue raised by the Complainant. While the Complainant has stated that, in his view, this PIP did not have the desired effect, this is a matter for the colleague in question and management. While I accept the Complainant’s evidence that his role was made more difficult by a colleague’s underperformance, regard must be had to the rights of that particular individual in assessing the reasonableness of the Respondent’s position.

In addition to the foregoing the Complainant submitted that these matters were exacerbated by the sudden departure of another of his colleagues. From the Respondent’s evidence, it is apparent that this departure, while unexpected, was ultimately temporary, with the colleague back in work in a matter of weeks. Again, while I have no doubt that this event increased an already high workload for the Complainant, unfortunately employees can and will leave employment unexpectedly with consequences for the remaining staff. While this is unfortunate, it is not of sufficient significance so as to ground a complaint of constructive dismissal.

To succeed in a complaint of constructive dismissal, it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures. In the matter of Beatty v Bayside Supermarkets UD 142/1987 the Employment Appeals Tribunal held that,

“…it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”

In the matter of Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. While the Complainant in this matter initiated the company’s internal grievance procedures, he resigned without lodging a final appeal. In this instance the Tribunal found that,

“…the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”

And,

“…in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In respect of the same, the Complainant accepted that he signed and received a contract of employment. This contract referred to an employee handbook that set out extensive grievance and inter-personal procedures. In this regard, the Complainant stated that he raised numerous issues on a verbal basis with the Respondent. He stated that they were well aware of the issues he was experiencing and made no attempt to rectify the same. In this regard, a distinction can be drawn between raising operational difficulties, which undoubtedly occurred, and raising a grievance in accordance with a formal policy. In almost all employment relationships an employee will raise issues regarding the operational aspect of their role, likewise an employer will raise informal issues with an employee’s conduct or output. That is not to say that the same are automatically considered to be grievance or disciplinary matters, they are simply the normal back and forth of an employment relationship. This is not to minimise the Complainant’s subjective experience in the final weeks of his employment, however his failure to raise a formal grievance in relation to the same significantly undermines his complaint of constructive dismissal.

In addition to the foregoing, I note that while the Complainant gave verbal notice of resignation following a verbal dispute, he issued a written notification of the same some-time later, with the resignation due to take effect two weeks later. In such circumstances, this resignation cannot be to have been in the heat of the moment. I further note that the letter of resignation is silent as to the issues experienced by the Complainant.

Having regard to the totality of the foregoing points, I find that the Complainant’s application is not well-founded and he was not unfairly dismissed within the meaning of the Act.

I find that the Complainant was not unfairly dismissed with the meaning of the Act.

Constructive Dismissal, Notice, Grievance