Complainant

Respondent

Parties

Ciara  Butler

Atercin Liffey Unlimited Company trading as Starbucks Ireland

Representatives

William Maher B.L. instructed by  Sheehy Manton Solicitors

Cait Lynch IBEC

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-00048288-001

24/01/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complaint concerns a constructive unfair dismissal where the complainant has at least 12 months service. 

The matter was heard over two days: 30 November 2022 and 16 February 2023.

The complainant and three witnesses undertook to give their evidence under affirmation and the other party was provided with the opportunity to cross examine witnesses.

The complainant outlined that this was a constructive dismissal where there was a breach of trust and confidence on the part of the respondent. In addition, there were failures in their duty of care and the employer was unreasonable. The complaint submitted a grievance in 2020 which was dealt with in objectionable circumstances and from then on, the relationship was difficult. She submitted that her treatment by the employer and their engagement with her left with her with no alternative but to resign. She submitted that there were no routes available to her other than the one she took. She noted that there was only ever an interest on the part of the respondent in getting her to leave.

The complainant is claiming constructive dismissal from her employment on 30 July 2021. She is seeking redress in the form of compensation.

The complainant began working with the respondent in its retail store in June 2017. It was submitted that from early on the manager, to whom she reported, adopted a difficult and hostile approach towards her. He sought to undermine her by making unsubstantiated complaints about her, by questioning her colleagues about her work performance, by giving her tasks which he did not expect her to be able to complete and acting in an unfair and unreasonable manner towards her.

The complainant submitted that in 2019 she required medical treatment from her GP regarding stress induced eczema and burnout resulting from her treatment in work. She notified her manager of her physical and emotional complaints however his response was to suggest that she “buy a cotton glove”, with the implication being that she was overly sensitive.

The complainant submitted that following a positive store review by her line manager she asked him if there were any career progression options available to her within the respondent. The complainant submitted that this was not well received by her line manager who said to her that she would have to wait her turn. She submitted that all attempts by her to advance her career where rebuffed by her line manager who repeatedly suggested that if she was unhappy or unsatisfied, she could just leave. The complainant submitted that this deliberately misconstrued her approaches to seeking advancement.

The complainant stated that in February 2020 she submitted a written grievance wherein she outlined how she was being denied the opportunity to progress at work. It was submitted that she agreed to meet the head of operations but the day before the meeting she was informed that her line manager would also be in attendance and that “she should be able to face him”.  The complainant submitted that this meeting was completely unsatisfactory and quickly descended into an attack on her and her work performance by both the line manager and the head of operations.

In May 2021 both her line manager and the head of operations attended the store. The complainant submitted that during a discussion she was unfairly challenged because her store did not have a representative participating in the upcoming barista championship competition. She stated that members of staff did not feel safe travelling on public transport to the city during the pandemic when the country had only emerged from lockdown just one week before. The head of operations dismissed this and said that the complainant was a disappointment and that she should go home and figure out what she wants to do with her life. She was told to take a piece of paper and write down her goals in life and that the respondent probably wouldn't figure in it. The complainant submitted that this attack focused on her purported feelings as a manager and not on her actual operational performance, which was positive. She offered to discuss the matter again with her team to which she was told “yes you need to or else”. The complainant submitted that the implication was that her job was in jeopardy if she failed to resolve the situation.

On 1 June 2021 the complainant advised her line manager that she felt she had no option but to resign her employment. She referenced her treatment over the past number of months as she had been undermined and diminished in her role. She set out, in detail using a PowerPoint presentation, various incidents of her adverse treatment despite the store's positive performance. She referenced how under her management, staff have positively progressed and how customer satisfaction was ranked higher than the average retail store run by the respondent in the region. The complainant submitted that she specifically referenced her treatment by her line manager and the head of operations despite having raised a grievance and sought their help to address a work environment that was adversely impacting on her help.

Her line manager initially suggested she speak with another district manager but when she pointed out that the head of operations was part of her complaint, he acknowledged that involving another district manager would not be appropriate and had nothing further to propose. Her line manager attended the store the following week and asked if she had changed her mind because he had not received her resignation notice, but she explained that she hoped he would first come back to her with the solution. He said he didn't have one and she made it clear that in those circumstances she had no alternative but to resign.

The complainant submitted that the respondent failed to properly investigate her claims or to deal with her grievance properly. She was denied her rights and natural justice and, owing to the failure of the respondent to afford her fair procedures, she felt she had no alternative but to resign.  She tendered her resignation on 10 June 2021 with a finish date of 30 July 2021.

The complainant submitted that she requested an exit interview to discuss the reasons for her departure and a manager from her related company met with her for a brief meeting. She submitted that she also wrote to her line manager repeating the reasons for her decision to terminate her employment. The complainant submitted that she believed that at all material times her line manager sought to force her from work.

The complainant submitted that Section 1 of the Unfair Dismissals Act 1977, as amended, defines dismissal as:

“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 complainant submitted that arising from the foregoing, she was entitled to terminate her contract given the respondent’s conduct which constitutes an express and/or implied breach of her contract of employment; and that was reasonable for her to terminate her contract having regard to all of the circumstances.

The complainant submitted that her treatment by the respondent constitutes a breach of the fundamental trust and confidence required between the parties, a provision inherent in her terms of employment. Furthermore, the respondent failed in their duty to provide a safe place of work and a safe system of work whereby her health and safety at work would not be placed at risk and where the respondent would guarantee a system which would robustly protect her rights and allow her to vindicate her rights, as required.

The complainant submitted that the Labour Court held in the case of Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] that:

“In constructive dismissal cases, the Court must examine the conduct of both parties. 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. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

Furthermore, in Smith v. RSA Insurance Limited UD1673/2013, the Employment Appeals Tribunal set out the test which must be applied where a complainant claims that they have been constructively dismissed. It stated that an employee will be constructively dismissed where: “The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

The complainant submitted that in Smith, the EAT found that the employee concerned had been unfairly dismissed as he had been forced to resign his employment owing to the conduct of his employer. In the same decision, the EAT discusses the obligation on an employee to bring the matters of concern to them, to their employer before resigning and in particular where management are concerned.

The complainant noted that in Bracebridge Engineering Ltd v Darby [1990] IRLR 3, the UK EAT found that an employee who had been badly mistreated by a fellow employee had been entitled to treat herself as being constructively dismissed where her employer failed in its duty to investigate or deal with the behaviour of the offending employee.

The complainant submitted in the instant case that the respondent’s treatment of her fell well short of behaviour which could be described as reasonable. She took every reasonable step to raise her concerns with management but rather than constructively engage with her, she was targeted with undue criticism designed to malign and encourage her departure rather than to constructively develop her in her role. This stands in contrast with her track record, her positive appraisal and her work performance reviews.

The complainant submitted that at all material times, the employer failed to afford her fair procedures and treated her inappropriately. Despite setting out her concerns at her treatment by her line manager, no meaningful action was taken to investigate his conduct or to positively remedy the situation he created. Instead, she was subjected to hostile treatment from her employer. When she eventually indicated that she felt forced to resign her employment, the respondent showed no interest in addressing matters which had arisen and made no attempt to prevent her leaving.

The complainant submitted that although she has secured alternative employment in the intervening period, she sustained losses as a result of her constructive dismissal. At all times her employers’ actions were not reasonable but it was reasonable for the complainant to consider employment meaningfully at an end.

Complainant testimony:

The complainant noted that she had a business degree and that she started her employment with the respondent in 2017.  She started initially training as a supervisor but was subsequently announced as the store manager reporting to a division manager, the divisional manager reported in turn to the director of operations. She noted that initially that the person she had a difficulty with was another store manager who was originally put in to be a support to her as the staff were not fully trained upon opening.

The complainant outlined how she made a complaint in February 2020.  However, the day before she was due to up the meeting, she was told that the person she was making a complaint about would be present. The complaint was about being dealt with an offhand and intimidating manner.

When the grievance meeting took place her complainant line manager was present, and the director of operations stated that her loyalty was to her district managers. No notes were taken during the meeting and no official follow up took place.

The complainant stated that instead of looking after her grievance the meeting turned towards her performance in her commitment to the respondent.  She stated that it was said to her that she was a “smart little girl, go home and figure out what you want to do with your life". She stated that it felt like a pre-planned attack and that her line manager had a smirk on his face throughout the meeting. The complainant stated that when she put it to him afterwards that it was an attack, he said “Yep, that could have gone better”.

The complainant stated that she needed to deal with somebody above the director of operations but that there was no one, she noted that the chief compliance officer was not mentioned as a possibility except in her exit interview. A short time later she went back to her line manager to see had he come up with any options, but he told her he had no options for her, so she handed in her notice giving four weeks’ notice to the respondent. She stated that she still had loyalty to her former employer and therefore she didn't walk out.

The complainant stated that she put together a PowerPoint presentation regarding her exit interview as she wanted her line manager to know why she left.  She noted that there is a lack of a HR function within the respondent that if you have an issue you have to go to your manager or their manager, there is no step after that.

The complainant stated that she didn't start looking for work until two weeks after she left, and she got work on 15 December 2021 working in a retail outlet. She stated that she downloaded a number of job apps and was applying online in her local area. She noted that she would have applied for anything but noted that contractually she was not entitled to apply for a coffee retail job for three years after leaving the respondent.

Under cross examination the witness stated that she was unhappy with her line manager visiting her store when she was not there but not visiting when she was there. She noted that she wanted constructive feedback and wanted him to do his job but that she felt he was visiting the store too much. She was seeking to have a valid working relationship with no bullying and no snide remarks and did not want to have an adversarial relationship with her line manager.

It was put to her that in some of her e-mail communication her line manager admitted that he handled it wrong and that is does not sound like and adversarial interaction.

The complainant noted that she had health issues but can't remember whether she raised the stress connection with her employer. She noted that she didn't discuss options of allergy to chemicals with her employer but noted that she wouldn't be able to stand at the register to people over their coffees.

In questioning it was put to her that her complaints regarding the presence of her manager were not contained in the grievance letter she submitted, and she agreed that this was correct.  Under cross examination the issue of a lack of development opportunities was brought up and she noted that she was not given opportunities to become a trainer or to undertake cheques at other stores. It was noted that this happened shortly before the pandemic.  It was put to her that the issues raised in her grievance brought about opportunities however these fell prior to the pandemic. The complainant can't remember comments regarding becoming a trainer or a facilitator.

As regards the meeting that took place the complainant couldn't remember if it was 20 or 21 February.  She confirmed that her line manager was surprised to be there and noted that he did not really say anything but nodded throughout.  The complainant noted that no agreement was reached at that time.  Informally there was an agreement to draw a line in the sand, but this came at a later date. The complainant noted that following the May 25 coffee tastings, she received negative feedback but was not particularly surprised to get that. She stated that she considered it as a personal attack and not a conversation.

The complainant stated that she spoke to her line manager after the meeting of May 25 and noted in the conversation that there was nobody she could speak to as she wanted to raise it with somebody who was higher than everybody, but she wasn't aware of anyone at a more senior level. She sought his advice as to where to go. When it was put to her that she had taken a grievance against her line manager she noted that at this stage her issues were with the director of operations but also with her line manager and accordingly she couldn't go to anybody. Furthermore, she stated that she was given no name as to who she might be able to go to.

The cross examination continued at the second hearing and the complainant was asked whether she usually communicated with staff in an inappropriate tone. She noted that if she got messages with that sort of language that she had used, she'd probably laugh at it. It was put to her that there was an opportunity for her to move to a bigger team, although not a promotion at that time, but she did not take it. She reiterated her unease with the way coffee tasting went in May of 2021. She felt she was unfairly challenged as to the participation of staff in the barista championships. She noted that none of her staff drove, and given the pandemic circumstances, none felt comfortable travelling by train to what was effectively an unpaid work event.

It was put to her that when her line manager and the head of operations were not that happy with how the coffee tastings went, it was right and proper to correct and to challenge her on the bad operation. She noted that she was on her own with nowhere to hide and that there was no one else to take over and that she was trying with her staff, but they were not at their best.

The complainant was asked again regarding her conversation about resignation and respondent that she had noted that she had nobody to go to.  Although it was suggested that she speak to another district manager she noted that this was not good enough as they all report to the operations manager who her difficulty was with.

In response to being asked why she did not take a grievance before resigning the complainant noted that her first grievance was not handled correctly so why would another one be dealt with properly.

Under redirect, the complainant noted that she was given between four to six weeks training by another manager, thereafter she had a folder of procedures available to her. She confirmed there was no dedicated HR function within the respondent for supporting managers dealing with staff.

The respondent submitted that the grievance was dealt with and that a facultative meeting was organised where agreement was reached. It was submitted that there was an avenue open to the complainant to raise a further grievance, but this was not pursued. The respondent noted that it supported its employee but that she received another job offer and chose to resign.

The respondent submitted that the complainant commenced employment with the respondent on 3 August 2017 as a Store Manager and worked 40 hours per week.  At the time her resignation she was paid €2,029 gross per month.

The respondent submitted that on 14 September 2017, the district manager, completed a store visit in Cashel. He carried out a comprehensive review and identified some areas for improvement within the operation of the store. He identified that the complainant may have been struggling and reassured her that he was there to support her in carrying out her role. Store visits continued throughout 2018 and 2019 with regular feedback given to the complainant regarding the operation of the store. This feedback was given in a constructive manner in order to ensure that the complainant felt supported in her role as Store Manager.

The respondent submitted that on 22 January, the complainant outlined that she was suffering from Eczema, and sent pictures of the issue to her line manager, outlining that the store had a plan in place to allow for accommodations while she recovered and that she would still be in attendance at work.   The complainant alleged that in January 2020, she had a conversation with her line manager regarding career progression. The complainant alleges that this was not well received, however at this time the complainant was carrying out regular training sessions, taking on the role of trainer, and was continually encouraged in this by the respondent.

The respondent submitted that on 15 February 2020 the complainant raised a Grievance with the head of operations. The complainant outlined how she felt that her line manager treated her “in an unfavourable and intimidating manner at work” and that she “was being denied the opportunity to progress at work as a result”. The head of operations organised to meet with the complainant and her line manager on 25 February 2020 in order to try to resolve the grievance informally in line with the respondents grievance policy.  This meeting took place as scheduled at an off-site location. Informal notes were taken.

The respondent submitted that the head of operations met with the complainant on her own initially and requested examples of the unfavourable treatment she had been subject to. The respondent submitted that the complainant struggled to give examples and agreed that she was a coffee master, and heavily involved in training and enjoyed this role and the opportunities to visit other stores that came with it.  The head of operation and the complainant discussed her claim that she was being denied opportunities to progress and agreed that there were no open opportunities at the time in the district. The respondent submitted that the complainant outlined that she could not consider relocating to take advantage of opportunities outside of the district.

The respondent submitted that the complainant outlined that she felt her line manager shouldn’t visit her store as frequently as he had done. The respondent submitted that the head of operations had reassured her that the store visits were normal process and should be viewed in a positive light.

The respondent submitted that the complainants line manager was then invited to join the meeting. The meeting progressed in a positive and productive manner, ending with an agreement that the complainant and her line manager would continue to work together and work on building on their existing working relationship. The respondent submitted that the complainant alleges in her claim form that “The meeting was completely unsatisfactory and quickly descended into an attack on the complainant and her work performance”. The respondent submitted that at no point did the complainant advise the head of operations, her line manager or anyone else within the management of the respondent that she found the grievance process and its agreed outcomes unsatisfactory.

The respondent submitted that on 2 March 2021 the complainant was asked to email representatives from her store to participate in the Barista Championships 2020. On the same day, the complainant responded stating that the Cashel store would not be sending a representative as “[The complainant was] very disappointed to say that it isn’t being taken seriously here in the store, and [The complainant was] not willing to have someone represent my store that does not take it as seriously as it should be”.

The respondent submitted that in July 2020 a role opened in a busier store where the complainant would have the opportunity to gain more experience and progress in her career. This role was based in Co. Limerick. The complainant’s line manager spoke to her verbally regarding the role, however the complainant advised that she would not be in a position to apply for the role due to personal considerations, as well as the stores longer opening hours.

The respondent submitted that on 13 April 2021, an employee of the Cashel store, brought some issues relating to the complainant’s management style to the attention of the complainant’s line manager who discussed these points with the employee and noted her use of wording such as “Mental Warfare, exhausting, and treated like children. The employee also sent on screen shots from a group WhatsApp used for communicating store information such as rostering etc. These messages contained examples of inappropriate language used by the complainant directed towards her staff.

The respondent submitted that on 20 April 2021 the complainant’s line manager forwarded his concerns around this conversation and subsequent information received to the head of operations.  The communication detailed that he was uncomfortable getting involved as he was concerned that the complainant would interpret the conversation as him being “out to get [her]”.

The respondent submitted that on 25 May 2021 the head of operations visited the Cashel store to complete a coffee tasting session. Coffee tastings are completed regularly in all stores. She noted concerns regarding her visit to the store outlining that the complainant was not prepared for the coffee tasting, and also that the complainant did not appear interested in the process. She voiced these concerns to the complainant and offered her the opportunity to respond and explain why the session had not gone well.  The complainant responded that the staff were not interested. The head of operations asked the complainant had she lost the passion for the role, and she confirmed she had. It was discussed as to how she might regain her passion. The head of operations requested that she send on a plan for how she might regain her own passion and motivate her team.

The respondent submitted that on 1 June 2021 the line manager had a conversation with the complainant.  She made her line manager aware that she would be handing in her notice. The complainant made him aware that she was very unhappy with the way the head of operations handled the grievance process. He outlined that it was handled in line with the grievance procedure in the handbook, and that if she had concerns, she needed to voice these.   He had a further conversation with the complainant on 3 June 2021 and informed her that if she needed time to think about submitting her resignation, or time to raise the issues she had mentioned in their last conversation that she should let him know. The complainant confirmed her mind was made up. During the course of the conversation the complainant confirmed that over the previous year there had been no issues with her line manager and that she was mainly concerned with how the head of operations had spoken to her the previous week.

The respondent submitted that the complainant issued her resignation in writing on 10 June 2021 and that on 30 July 2021 an exit interview was carried out by a district manager outside of the coffee arena.  The respondent submitted that at this meeting the complainant raised a number of issues, including her dissatisfaction at the lack of a HR department within the company.  She outlined that she was leaving as a result of communication issues between herself and her line manager and the head of operations. She alleged that her line manager lacked communication skills and she had been “left to do her job”.  

The respondent submitted that the complainant outlined at this interview that she felt that there was no follow up to her grievance. When probed as to why she did not raise these issues the complainant stated she had “heard stories that the head of operations would always back up regional managers. The complainant stated that she felt communication had lessened between herself and her line manager.

The respondent submitted that the complainant confirmed in this interview that she was leaving to take up another position directly. The complainant also confirmed that the new role would involve extensive travel.  When asked what the company could have done to keep her the only thing the complainant stated was “get a HR department”

The respondent submitted that 2.1 Section 1(b) of the Unfair Dismissals Acts, 1977 – 2015 (as amended) defines dismissal in relation to an employee as, inter alia: “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 respondent submitted that in light of this definition, and the established principles adopted by the Tribunal and the Courts, there exists a burden on the complainant to demonstrate that she is entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of her employer, or to demonstrate that her employer had acted so unreasonably as to make the continuation of the employment intolerable, and that it was reasonable for her to resign.

The respondent submitted that it is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. It was submitted that neither criterion has been met.   The respondent’s position is that it acted reasonably and fairly at all times, in accordance with its policies, best practice, and appropriate conduct.  They followed internal processes and worked with the complainant in order to ensure she was performing to an appropriate standard, and that she had the appropriate resources available to complete her role.

The respondent submitted that at all times where informal processes were undertaken these were done with the aim of ensuring that the complainant was clear as to the standards of work that were required by the respondent, and that at no time were these standards unreasonable. The processes undertaken were necessary and conducted in line with the principles of natural justice, and at all times, fair procedure was followed.  It was submitted that the respondent worked with the complainant to develop her career, and reached out when opportunities for growth were identified. She turned down these opportunities for personal reasons.

The respondent’s position is that at all times they acted in a fair and reasonable manner, allowing the complainant multiple opportunities to raise any issues he was having, in order to resolve them.

The respondent submitted that it has a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed. The complainant’s contract of employment also provides guidance in relation to the grievance procedure.

The respondent acknowledged that the complainant raised an informal grievance, however the outcome of this was that mediation was recommended. There was a facilitated meeting held between the complainant and her line manager, where outcomes, including a communication plan, were agreed and implemented.

The respondent submitted that it has demonstrated that it has always acted appropriately in addressing any concerns the complainant raised regarding her employment. On receipt of her written complaint, it initiated a meeting. It was submitted that the complainant did not give the respondent an opportunity to work with her to resolve any outstanding concerns as she resigned from her employment on 10 June 2021.

The respondent submitted that the complainant did not give any indication that she was unhappy with the resolution reached from this grievance process until she completed an exit interview on her final working day. It was noted that the complainant extended her notice period voluntarily, with no request from the company in order to ensure a smooth transition for the Cashel store.

The respondent submitted that the complainant did not act reasonably in resigning her employment as she had not previously “substantially utilised the grievance procedure to attempt to remedy her complaints” as outlined in Conway v Ulster Bank.  It submitted that the obligation to exhaust internal grievance procedures extends even in situations whereby there exists a purported breach of contract.  In 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”. The complainant initiated the company’s internal grievance procedures but did not exhaust them and resigned without lodging a final appeal. The Tribunal found “the complainant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the complainant’s case” and stated: “in constructive dismissal cases it is incumbent for a complainant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”. The Tribunal found in that case that the complainant was not constructively dismissed.

The respondent submitted that just as it is unacceptable in the case of a non-constructive dismissal for an employer to dismiss without recourse to fair and comprehensive procedures, it is insufficient for an employee to claim herself to have been constructively dismissed without utilising and exhausting grievance procedures. It is the respondent’s position that the complainant failed to establish the burden of proof that her actions were reasonable.

The respondent submitted that the complainant has not established the heavy burden required in constructive dismissal cases.

Witness Testimony:

Witness #1: District Manager

The witness stated that he currently manages eight stores as district manager.  He noted that he rose through the ranks developing the business but also developing the people along the way. He stated that he was not aware of any stress element related to the complainant's eczema.  He noted that he was responsible for coaching the complainant. When asked in his opinion was the earlier grievance handled properly, he said yes there was a satisfactory conclusion. Arising from that the complainant got the opportunity to move to another retail outlet but declined the move for personal reasons.

The witness stated that in relation to the grievance of February 2020 he was invited to attend a grievance meeting and was surprised at this because the complainant had not raised anything with him. He noted that they had follow on conversations and noted that the complainant only raised an issue with the procedures when she resigned.

The witness noted that the discussion of the coffee tasting was that it was disappointing, and this led on to a discussion of the barista championships decision. He didn't feel that the conversation was threatening as the complainant herself raised that she was disappointed with the coffee tasting. Although she raised the issue of resignation, he felt it was a personal decision. He noted that the handbook referenced the procedures to be followed in pursuing a complaint and she could have turned to another district manager or to the chief financial officer if she had a complaint. He noted that there was no official follow up with anybody and as far as he was concerned, no official resignation had been received. He said he received a PowerPoint presentation relating to her resignation and had suggested that she send it on to him. He noted that he did mention names that she could approach to further a grievance that she had. He stated that he thought things were good between himself and the complainant and was surprised to see her document at the end of June. He noted that in relation to anxiety, she never made him aware of it.

When asked for an overview of how the complainant was performing, he said up to 2020 there were no major issues but from January 2020 onwards there was a lack of detail in her reports. He noted that he is quite direct in his style and that store managers know what to expect but that they can always come to him.

Under cross examination he noted that he was aware of the complainant’s eczema. He confirmed he only ever completed one evaluation form for her and noted that an evaluation forms part of store manager training only. As regards meeting notes, he noted that they are usually kept from time to time. He didn't recall saying to the complainant that she was overqualified and if she had to go, she should go. In relation to promotion, he denied saying that there were others in line and that she would have to wait her turn.

In relation to the grievance meeting, he had no knowledge of the grievance in advance and noted that it was not discussed. He only recalled being asked to attend, but he wasn't provided with documentation at that time. He can't recall whether he was given notes or documentation, but he knew it was to be the complainant and the director of operations in attendance. He noted that the grievance would handled in an informal process that he was asked to intend on an informal basis but can't recall exactly the circumstances.

He was asked whether with the benefit of hindsight it would have been better to have sight for written complaint but noted that it did not matter either way, the complainant knew of his attendance, and indicated that she was happy to proceed. He noted that the conversation was not long. He noted that the grievance indicated that the complainant felt undermined by his presence in the store when she was absent but couldn't recall when he saw written documentation relating to it for the first time. He confirmed that he received the complaint in writing after that stage and gave his views on it subsequently.  It was put to him that the complainant felt very uncomfortable with the meeting however he noted that it didn't feel that way. He confirmed that he made notes but only wrote a single handwritten page at the time.

The witness noted that when the meeting took place, he was left waiting for 15 or 20 minutes before joining the meeting while the director of operations and the complainant had a discussion. He understood that the complainant was still training herself while training others but noted that she needed to delegate more.

The witness couldn't say whether anyone attended the store to assist in supporting the coffee master’s programme.  The witness couldn't recall making the “smart girl” comment about the complainant but did recall that she had lost her passion for her job. He noted that he never received the PowerPoint presentation on the store computer, noting that she went through it quite quickly and he doesn't recall any of the comments that he made on the presentation.

When the witness was asked if he could recall any of the reviews of the complainant, he noted that he couldn't recall any in particular or any of the specific comments that were made. He noted that he was not made aware of any other issues until the meeting that took place in June 2021. He noted that he received a copy of the presentation and when asked what he did with it he sent it upwards because he wasn't the right person to be given the allegations.

Witness #2: Director of Operations

The witness noted that she received a grievance letter in February 2020 and arranged to meet both parties. She noted it was an informal grievance and asked the complainants line manager to attend about an hour after the start time of the meeting to allow her to talk to the complainant alone.  The witness noted that she had no communication from the complainant to say that she was unhappy with the resolution of the grievance.

As regards the coffee tasting in May 2021, she noted that they normally take place in-store and that this one was planned in advance. She noted that the complainant's body language was not good from the outset but noted that covid could have had an impact. She noted that she had no further interactions with the complainant after the tasting.

The witness noted that the line manager mentioned the resignation and she mentioned that he should follow itup. She noted that she'd never received the resignation presentation. In relation to the grievance, it was dealt with informally and this was done throughout the company group.  The witness clarified that she was never led to believe that the complainant was unhappy with the process.

Under cross examination the witness confirmed that the matter was treated as an informal process.

It was put to her that the note of the meeting was made after the submission and was not a contemporaneous note of the meeting. When it was put to her as to why we should believe anything she had to say she gave no answer.

The witness noted that she didn't share the grievance with the line manager. She also stated that if she had thought it was not appropriate, she would not have had him there. When asked whether she said her loyalty is to her direct employees she confirmed this was the case because they are her team. When asked “what was the outcome of the meeting?” or “how was it communicated to the complainant?” the witness noted that she did not write to her but phoned her instead. She confirmed that she “should have followed up with her”.

It was put to the witness that she said that ‘you need to figure out what you want to do with your life’ to the complainant and effectively that this meant your future is not with us. She clarified that the comment was not meant that way.

In relation to the coffee tasting, the witness noted that the complainant didn't respond to an e-mail sent on the 19th of April.

The witness confirmed that there is no HR department within the group but did not accept that the complainant was driven out of her employment.

Under re-direction the witness noted the context of the service industry from February 2020 to the end of 2021 was very difficult.

Witness #3: Chief Compliance Officer

The witness noted that he was in an umbrella company rather than being employed in the same company in which the complainant was employed. He noted that he had a HR role along with a colleague but confirmed that there was no mention of his HR role on his letterhead.

The witness noted that he provided advice to the director of operations on the grievance in this case but confirmed that he did not meet with her to follow it up as he became too involved in managing the COVID pandemic from the respondent’s perspective.

The witness noted that when the complainant’s resignation came in, he was made aware that there was no written outcome of the grievance.  He noted that at that stage nothing could be remedied. He confirmed he had not been made aware of any hard evidence, and that he had never received any and he couldn't see what could be achieved given that the complainant had already left when this came to his attention.

In respect of the allegations in the grievance he noted that when a grievance was initiated it commenced as an informal process and would move on to a more formal process if there was no resolution. He noted that the respondent had followed a process and that it was his understanding that the matter was resolved. He did not accept that this was a failure of the system.

As the complainant is claiming constructive dismissal, the burden of proof rests with her to establish facts to prove that the actions of the respondent were such to justify terminating her employment.

The complainant was employed as a retail store manager in a coffee outlet.  Part of her duties was to induct and train staff.  Although the evidence submitted indicates that she was also a recent employee, she was well aware of the various policies and procedures of the respondent, given her role, notwithstanding that they have no dedicated HR function.

In fact, the complainant availed herself of the grievance procedure in early 2020, which resulted in a meeting between the parties (the complainant and her line manager) facilitated by the director of operations.  Although the complainant raised concerns regarding the outcome of that process during the hearing, she did not raise any such concerns with her employer and in fact was able to continue working with her line manager for more than a year afterwards.  She did not register her opposition to the matter being resolved in an informal fashion, nor did she register her disquiet with the manner in which the director of operations resolved matters.

Although, the term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

““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.”

The respondent argued that in light of the definitions contained in the Act, and the established principles adopted by the Tribunal and the Courts, a burden exists on a complainant to demonstrate that either she is entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of her employer, or she is entitled to terminate her contract when she has demonstrated that her employer had acted so unreasonably as to make the continuation of the employment intolerable.  It argued that then, and only then, is it was reasonable for a complainant to resign.

The respondent submitted that at all times it operated within the terms of the contract of employment between the parties and that no contractual violation occurred. The respondent noted the explanation of the contractual test for constructive dismissal as set out in Conway v Ulster Bank, (UD 474/1981) to confirm its position, in that it did not violate any term of the contract or organisation policies, express or otherwise. The respondent suggested that its actions were in no manner “a repudiation of the contract of employment” and, that the complainant has not demonstrated “that the respondent no longer intended to be bound by the contract”. The respondent contended that no change occurred in the contract to make it “so radically different from what was before”.  Having regard to the submissions and testimony of the complainant, I am satisfied that the complainant has not established facts from which the ‘contractual test’ may be relied to found her constructive dismissal upon.

In respect of the reasonableness test, the respondent outlined that from its perspective there exist two interwoven factors to be considered: (a) did the employer act unreasonably so as to render the relationship intolerable, and (b) did the employee act reasonably in resigning, particularly in respect of exercising internal grievance procedures.  To support this contention, the respondent cited the case of McCormack v Dunnes Stores, (UD 1421/2008), where the Tribunal stated that

“the notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The respondent suggested that it acted reasonably and fairly at all times, in accordance with its policies, best practice, and appropriate conduct.  It suggested that it has a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed. It suggested that the complainant’s contract of employment also provided guidance in relation to the grievance procedure.

The respondent noted that the complainant raised an informal grievance, however the outcome of this was that mediation was recommended. There was a facilitated meeting held between the complainant and her line manager, where outcomes, including a communication plan, were agreed and implemented. It noted that it always acted appropriately in addressing any concerns raised.

The respondent noted that the complainant did not give any indication that she was unhappy with the resolution reached from this grievance process until she completed an exit interview with the respondent on her final working day, 30 July 2021. She extended her notice period voluntarily, with no request from the company in order to ensure a smooth transition for the store.  The respondent submitted that the complainant did not act reasonably in resigning her employment as she had not previously “substantially utilised the grievance procedure to attempt to remedy her complaints” as per Conway v Ulster Bank.

The respondent noted that the obligation to exhaust internal grievance procedures extends even in situations whereby there exists a purported breach of contract.  The respondent suggested that it was insufficient for an employee to claim herself to have been constructively dismissed without utilising and exhausting grievance procedures.

The question which I must decide in the present case is whether, because of the conduct of the respondent, the complainant was entitled to terminate her contract of employment.

It is generally accepted that employees who claim that they have been constructively dismissed must show that they have substantially utilised the grievance procedure before resigning from their employment. Whilst there are exceptions to this, such exceptions are extremely rare.

The complainant herself cited Conway v Ulster Bank as follows: “they must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign”.  She did not make any effort to pursue a grievance in the year prior to submitting her rewisnation.

Desmond Ryan aptly describes the onus on employees in this respect in Redmond on Dismissal Law (2017) at paragraph 19.14:

“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 employee resignations.  Where grievance procedures exist they should be followed: Conway -v- Ulster Bank Ltd UD474/1981.  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.’”

The complainant took her claim that she was constructively dismissed from her employment when there was breach of trust and confidence arising from the actions of the respondent. She also submitted that there were failures in the duty of care to her and that the employer was unreasonable. She had submitted a grievance in 2020 which she claimed was dealt with in an objectionable manner and that thereafter circumstances were difficult. She submitted that her treatment by the employer and their engagement with her left her with no alternative but to resign.

In order for the complainant to succeed, she has to show that the grievance which she took with not dealt with appropriately or that she was unhappy with the outcome. Thereafter she needs to demonstrate that she was dealt with in a less than favourable manner and finally she needs to show that arising from their previous behaviour and from processes and procedures in place she had no alternative but to resign.

From the submissions of both parties, it is obvious that the grievance of 2020 was dealt with in an informal fashion. The director of operations appears to have called in both parties, perhaps without adequate preparation of those parties for a meeting. The complainant has never alleged that she notified her employer that she was unhappy with the outcome of that process. In fact, she outlined that her relationship with her manager seemed to be manageable afterwards and they worked together for over a year. She never pursued the matter further by way of a formal grievance or by asking for matters to be resolved in a different fashion.

I note that the complainant submitted that there is no HR function within the respondent, and this is not disputed by the respondent. I also note that the complainant submitted that she had a manual of procedures available for reference and I note that the grievance procedure indicates that an employee should go to their manager or in the alternative the ultimate port of call is to the director of operations.

The complainant submitted that she had difficulties primarily with the director of operations and therefore was not able to submit a grievance procedure under the grievance procedures in place. However, she did not even attempt to lodge a grievance and the suggestion by the respondent that the chief compliance officer could have dealt with matters was never put to the test. In essence the complainant decided that she couldn't submit a grievance to the director of operations because she was the highest rung available for consideration of a grievance.

When looking at what a reasonable employee would do, and how a reasonable employer might react I note that the complainant has not exhausted the avenue of taking a grievance prior to submitting her resignation. If she had submitted a grievance and the director of operations did not recuse herself from hearing that grievance, then perhaps she would be right in suggesting that she had no avenue to go down.  However, the complainant did not submit a grievance and accordingly she did not exhaust the options open to her. She was aware that a grievance procedure was in existence, as in her role as manager she would have been in a position to train and advise her staff on where to go if there was a difficulty.

It was open to the complainant to lodge a grievance; the onus would then have fallen upon the respondent to deal with matters in accordance with the principles of fairness and natural justice. The complainant did not complain about the outcome of her previous grievance, on the face of it the grievance was heard and dealt with in an informal fashion, and she had raised no objections to how the matter was resolved. Given this situation I find that it is not open to her to conclude that there was not a valid grievance system in place and that the grievance procedure was not available to her.

Accordingly, I find that the complainant has not established that she had no avenue available to her other than resignation. The complainant has not substantially utilised the grievance procedure available to her to attempt to remedy her complainant.  Arising from this fact, I find she was not unfairly dismissed.

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that the complainant was not unfairly dismissed.

Unfair Dismissals Act – constructive dismissal – conduct and reasonableness test – grievance procedure not exhausted – no unfair dismissal established.