Complainant

Respondent

Parties

Caroline  McGarry

JTI (Ireland) Limited

Representatives

Cillian McGovern BL instructed by Crushell & Co

Arthur Cox LLP

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-00052576-001

05/09/2022

The complainant was employed with the respondent from 2008 until her resignation, effective 2 September 2022.

The complainant’s claim, referred to the Workplace Relations Commission on 5 September 2022, is that she was constructively dismissed in circumstances where the respondent failed to comply with its contractual obligation to provide a safe place of work and/or the respondent’s conduct was such that the complainant had no option but to resign.

The respondent fully disputed the claim against it; submitting that the complainant resigned without exhausting internal procedures, namely engaging with a performance improvement plan or invoking the respondent’s grievance procedures.  

The complainant worked with the respondent from 3 November 2008 to 2 September 2022.  The complainant held the role of Trade Activation Manager Digital at the time of her resignation.

From 2020, resources in the respondent decreased while demands and expectations increased.  The complainant regularly worked outside of her normal working hours. The complainant raised concerns with her managers about resourcing, a heavy workload and difficulties she was having meeting commitments.   The complainant’s health suffered because of work-related stress, culminating in the complainant being certified unfit for work by her doctor in 2021.  The complainant’s attendance with the respondent’s occupational health service provider resulted in further certified absence for the complainant.  In June 2021, occupational health expressed the view that the complainant was well enough to attempt to resume work with accommodations in the form of a phased return.  Occupational health also recommended engagement in meetings with HR to address the complainant’s work-related concerns and a review appointment with occupational health.

The complainant found reintegration in the workplace difficult but believed she was making progress.  The complainant had weekly catch ups with her line manager, during which the complainant was open and honest regarding her work and health.  There was a graduated return to work, with a return to full-time work in September 2021.  The complainant made repeated requests and proposals to assist with prioritisation of her workload, but these went unanswered. 

The complainant’s performance review for 2021 was finalised in January 2022 with an overall mark of “needs improvement”.  This resulted in the complainant’s move in position on the respondent’s talent matrix from “key player” to “inconsistent player”.  The complainant was surprised at the outcome of the performance review.  The complainant’s view was that the feedback was unsupportive and accusatory and that her absence from the business in 2021 had not been properly considered.  In March 2022, the complainant met with her line manager who assured her that she had the full trust and support of the business.  On 6 April 2022, the complainant was informed that she was to be placed on a performance improvement plan (“PIP”) for 6 months.  Following a PIP review meeting on 20 May 2022, the complainant suffered a panic attack; she was certified unfit for work by her doctor for 10 days and her medication was increased.  At this point the complainant had no other option but to resign to prioritise her health and wellbeing.  The complainant advised her line manager accordingly on 2 June 2022, giving the contractual 3 months’ notice. 

It was submitted the complainant had been constructively dismissed contrary to the Unfair Dismissals Acts 1977-2015 and that resigning without raising a grievance was reasonable in all the circumstances.  It was asserted that the respondent had failed to provide the complainant with a safe place of work as required by the Safety, Health and Welfare at Work Act 2005, and that the respondent was aware of the complainant’s health difficulties but did nothing to alleviate pressure exerted on her. Case-law, legislation and principles were referred to in support of the complainant’s claim.

Summary of complainant’s sworn evidence

The complainant commenced employment with the respondent in 2008 as a brand manager.  In October 2017, there was restructuring within the marketing department with various lead roles created.  The complainant took up the new role of Consumer and Trade Marketing Lead Digital, with responsibility for an e-commerce platform for logic vapes, JTI Engage.  This was a completely new role in the organisation, and it was a steep learning curve.  The complainant received consistently strong performance reviews in and around this time.  JTI Engage was a very important platform for the business.  There was no expectation that the complainant’s hours of work would increase with her new role however the hours did change under her direction; she was working overtime and into the night checking to make sure that orders on the online platform had loaded for processing overnight.  There was also weekend work on occasion to address any issues with the system.  The complainant’s daily overtime work was to try and get ahead and reduce the impact of a lack of resources. 

There was a global restructuring programme in the organisation in 2019 with every department losing head count.  After the departure of another lead manager, the complainant took on responsibility for a second trade platform, Connex.  She was supported by a contract graduate who was a shared resource with consumer digital and IT.  This resulted in a lot of additional time and work for the complainant. 

Over 2018/19, the complainant found work stressful on her physical and mental health.  She had always been busy and took the responsibility of the role very seriously.  She had trouble sleeping and experienced chest discomfort; what needed to be done in work began to take its toll.  The complainant raised with her line manager and more senior personnel the pressure of work but did not feel supported in response.  When the complainant raised an issue of low colleague morale with her line manager in or around September 2018, his response made the complainant feel that she couldn’t raise issues, that it was unhelpful and wasn’t the right thing to do and that she was only damaging her reputation.  This affected the complainant’s trust and confidence.

Following a performance review meeting in early 2021, the complainant felt she had to mask what she was experiencing.  

The complainant went to her doctor in February 2021.  She didn’t want to go out sick as she didn’t want to be unable to cope; she wanted to be steady and didn’t want to put pressure on the rest of the team.  The complainant didn’t feel like she could take time off work.  She knew that work would accumulate in her absence.

The complainant went to her doctor again in March 2021 as she had started having anxiety attacks and panic waking.   The complainant was certified by her doctor as unfit for work, she was prescribed medication and she commenced counselling. 

The complainant attended for assessment with the respondent’s occupational health provider on 4 May 2021 and discussed her symptoms, the cause of which the complainant attributed to work.  The complainant was deemed unfit by occupational health for 1 month pending review.  Following a review on 3 June 2021 and a recommendation to try to return to work, the complainant was contacted by Rebecca Crotty, her then line manager, who suggested meeting up for a walk-and-talk. 

During the complainant’s phased return to work, she had regular weekly catch-ups with Ms Crotty.  There was nothing said about the complainant’s performance on her return to work and nothing said about not hitting targets.  The complainant was open and transparent, she discussed with Ms Crotty what she was doing and how she was feeling.  There was discussion about the complainant’s workload, but the complainant’s objectives were never revisited and there were no flags raised with the complainant about not performing to the expected level.

On the complainant’s return to work full-time, Ms Crotty reassured the complainant that she should only do what she was able to.  While day to day matters had been taken care of during the complainant’s absence, there were matters outstanding that needed the complainant’s attention on her return.  The complainant asked Ms Crotty what she should prioritise.

A performance review meeting between Ms Crotty and the complainant in January 2022 did not go well.  Whilst Ms Crotty said that the performance review was only conducted on the time the complainant was in the business in 2021, the complainant maintained that the review did not take account of her absence or the nature of the health difficulties that had caused her absence.  The complainant continued to be prescribed medication and was seeing a counsellor on her return to work; to be held accountable for an entire year floored her.   The complainant suffered her first anxiety attack in 9 months after the January 2022 meeting.  The complainant sent Ms Crotty an email regarding the performance review which outlined the complainant’s perspective and how she felt when being asked about her performance and the feedback.

There was a further meeting between Ms Crotty and the complainant during which the complainant raised her concerns.  The complainant was reassured she had the full trust and confidence of the respondent.  The complainant added comments to the performance review document which reflected her position, the document went for final sign-off and the review concluded with the complainant assessed overall as “needs improvement”.  The complainant felt there had been complete indifference to how she had been in 2021, notwithstanding her having been clear with Ms Crotty before she returned to work.  The complainant had shared her concerns about her wellbeing with Ms Crotty and had believed it was received with understanding until January 2022.  This was why she was so shocked about the performance review.

Symptoms reoccurred for the complainant that she thought she had put behind her.  She felt she had to put her head down and keep going.  She felt like an inconvenience and that she didn’t fit the company narrative.

Subsequent to the performance review, the complainant was informed of her positioning on the talent matrix and advised that she would be placed on a PIP for the following 6 months with timings and deliverables.  The complainant expressed her shock that the PIP arose from a performance review, with which she disagreed, and that had not taken account of her absence from the workplace in 2021.

The complainant wrote to the respondent’s People & Culture Director to ensure that HR were aware of her concerns and experiences.  It was a letter asking for help because the complainant’s symptoms were reoccurring and she didn’t want to put herself, or anyone else, through that again. The complainant received a one-line response acknowledging receipt and noting the content which made her feel insignificant and shocked. 

The complainant tried to engage with the PIP but she found it difficult because it felt to her entirely unjust, unreasonable and punitive.  At her last PIP meeting, the complainant had a panic attack and took prescribed medication.  The complainant attended her doctor.  She did not want to medicate to do her job.  The complainant felt she had no other option but to resign, to protect herself and to avoid a relapse.  The complainant informed Ms Crotty of her resignation and provided her with a letter of resignation dated 2 June 2022, giving 3 months’ notice.  Ms Crotty said she was shocked at the complainant’s decision, but the complainant did not accept how this outcome could not have been considered by the respondent. 

The complainant applied to different companies for work following the termination of her employment with the respondent; by the first hearing date, she had made 55 job applications and attended 6/7 interviews.

Under cross-examination

The complainant agreed that she remained working with the respondent for a further 3 months after giving notice of her resignation.  The complainant had been absent from work due to illness the week before she informed Ms Crotty of her resignation on 2 June 2022.  The complainant could not recall any absence prior to that in 2022 and she did not dispute the respondent’s records that from her return to work in July 2021 until 23 May 2022, the complainant was not absent from work. 

The complainant did not report any issues in relation to the period prior to the 2019 restructuring and accepted that she did not raise a grievance under the respondent’s procedures during 2018, 2019 and 2020.  The complainant was aware that there were HR procedures but did not realise there was a grievance procedure for her concerns.

The complainant was responsible for putting in place an automated mechanism in 2019 to deal with emails outside of normal hours of work and having to log in at 8pm.  Overtime work changed under the complainant’s direction and the complainant accepted that generally after 2019, unless something went wrong, there was no need to log back on and check emails.  The overtime work the complainant had been doing and checking of emails was historical from when she took over the role in 2017.  She had been happy with the process put in place to avoid that responsibility falling on her.

The complainant was asked about the support and resources available to her in 2020 following the Transformation restructuring programme.    The complainant accepted that an employee was seconded from marketing to sales to support the complainant in her work.  The complainant’s main concern had been about keeping this resource as it was allocated on a temporary basis.  The complainant queried this in her meetings with Ms Crotty and raised concerns about resources.  The complainant agreed that in December 2021 it was confirmed that this employee’s secondment to sales would continue.  The complainant confirmed that in terms of resources and support she had the seconded employee, digital agency support and IT.

The complainant was asked about the visit to her doctor in February 2021 and why she didn’t raise it with the company at the time.  The complainant had taken a day’s leave to attend the doctor; she had not wanted to appear incapable. 

The complainant’s line manager changed from December 2020/January 2021 with Ms Crotty becoming the complainant’s line manager.

The complainant raised concerns with Ms Crotty about resources; the temporary nature of the seconded employee was a concern.  There was a full year of objectives with only a 6-month resource in place.  The complainant could not recall telling Ms Crotty that she was stressed because of work and accepted that Ms Crotty might not have realised in early 2021 that the complainant was suffering from stress.

Following the occupational health assessment in June 2021, the respondent began to engage with the complainant.  Ms Crotty met the complainant, and they had wide-ranging discussions, including about workload and agreeing a plan for the complainant to return to work on a phased basis. The complainant’s return to work was delayed for the purpose of ensuring that Ms Crotty had returned from annual leave for when the complainant returned.  The respondent facilitated a return-to-work plan proposed by the complainant.   Following the complainant’s return to work at the end of July 2021, the complainant and Ms Crotty had weekly catch-up meetings until at least December 2021.   The complainant accepted there was an opportunity for her at these meetings to raise with Ms Crotty any concerns, and that she did in fact raise a concern about the temporary nature of the seconded resource.  From 30 July 2021 to December 2021, there were no issues raised by the complainant about the level of the complainant’s workload or by Ms Crotty concerning the complainant’s performance during the weekly catch-ups.  The complainant agreed that Ms Crotty had asked her to raise any concerns during their weekly meetings.

The complainant was asked about a particular task relating to the ARCI framework, which the complainant was given in September 2021 and was not completed by December 2021, as the complainant had indicated it would be.  The complainant recalled providing drafts, on which she did not receive feedback.  The complainant was told by Ms Crotty to work within her capabilities.  The assertion that it was reasonable for Ms Crotty to expect the complainant to deliver on certain things requested of her from September to December 2021, did not correspond with the complainant’s recollection. 

The complainant felt she had successfully returned to work but that did not transpire to be the case.  She was doing what she was capable of; it was busy, but she was working within her capacity.  The complainant was comfortable with what she was doing. 

It was put to the complainant that her performance review for 2021 only concerned the time she was in the business in 2021 and that Ms Crotty’s comments in the review demonstrated that the complainant’s time out of the business had been taken into account.  The complainant outlined how her illness was not something that came on in March and turned off in July 2021; she had been increasingly symptomatic leading up to her time off in 2021 and was still under treatment when she returned to work at the end of July 2021.  The complainant had been focused on keeping everything going on her return to work within the capabilities she had.  The complainant had shared her vulnerabilities with Ms Crotty.  The complainant agreed that she had been given an opportunity, before the performance review was finalised, to provide examples in areas identified by Ms Crotty as not being to the standard expected of a manager at the complainant’s level and with the same experience.   However, the complainant considered the expectations expressed by Ms Crotty in the review around performance objectives and behaviours to demonstrate a lack of understanding of what 2021 had been like for the complainant and an indifference to what the complainant had shared in her weekly discussions with Ms Crotty leading up to the review.

The complainant agreed that her ratings in the 2021 performance review comprised of either “meets expectations” or “needs improvement”, and that she did not fail the performance review.  The complainant accepted there was no reference in her email of 19 January 2022 to Ms Crotty, after the performance review meeting, of the complainant having had a panic attack after the performance review meeting, or to the complainant having attended her doctor.   The complainant could not recall making Ms Crotty aware of the panic attack at the time.  The complainant accepted that the first time she made the respondent aware of this was in her letter dated 25 April 2022 to the respondent’s People & Culture Director.

The complainant accepted that Ms Crotty had an obligation, as a manager, to raise with the complainant any underperformance issues and that it was the employer’s responsibility to address performance issues.   It was the complainant’s perspective that a reasonable employer should have looked to see why there had been a dip in performance and sought to address that rather than putting on further pressure. The complainant found the PIP insulting and did not feel it was designed to help her, rather its effect was to put on pressure.

The complainant was not aware that her placement on the Talent Matrix would mean a documented improvement plan and process involving HR.  She had always been a key player and was still reeling from the appraisal of a period that had been very difficult for her and was becoming difficult again following the performance review meeting.   

The complainant disagreed that it was fair for the respondent to have assumed the PIP was fair and reasonable and that the complainant accepted same.  The complainant further disagreed that her email of 12 May 2022, in which she confirmed her understanding of the PIP timeframes, could have given the impression that she was happy and in agreement with the PIP.  The complainant hadn’t felt like she had any choice but to go along with it and disagreed that it was reasonable for the respondent to take her email as full acceptance of the PIP.  The complainant felt her attempts to address concerns had been rebuffed by the respondent by way of the comments in the 2021 performance review and a single line response from the Head of People & Culture to her letter raising concerns.

With regards Ms Crotty being shocked upon receipt of the complainant’s resignation, the complainant considered it unfathomable that Ms Crotty would believe that everything was going according to plan.

In response to questions about her efforts to mitigate her loss, the complainant said she started to apply for jobs, at or within her level of expertise, from September 2022.

The respondent makes and sells tobacco and cigarette brands all over the world.  The complainant was employed with the respondent from November 2008 until her resignation in September 2022.

The complainant did not escalate any concerns about the respondent’s company-wide restructuring in 2019, nor did she communicate to the respondent any information related to work-related stress in or around this time.

The respondent became aware that the complainant was suffering from stress when she submitted a medical certificate for a 2-week period on 2 April 2021 which cited stress as the reason for the complainant’s absence.  The complainant’s certified absence continued beyond the 2 weeks and in the circumstances the respondent scheduled an assessment with an independent occupational health physician to determine the nature of the complainant’s illness, and whether any adjustments were required to enable the complainant return to work.  It was following this assessment that the respondent became aware for the first time that the complainant was suffering from work-related stress.  The complainant attended for assessment again on 3 June 2021 and was certified fit to return with accommodations.  The respondent commenced engagement with the complainant at this stage to support her in her return to work. 

It was ultimately agreed that the complainant would commence a six-week phased return to work on 28 July 2021.  This was with the aim of reintegrating the complainant back into the business at a pace she was comfortable with, and that at the end of the six weeks she would fully resume her responsibilities.   Weekly catch-up meetings took place between the complainant and Ms Crotty during the six-week phased return period to support the complainant.   The complainant completed her phased return to work on 6 September 2021.  Regular catch-up meetings continued until December 2021 when it was agreed they were no longer necessary.  The respondent made every effort to ensure that the complainant would succeed over the course of her phased return to work and thereafter. 

The complainant received an overall rating of “needs improvement” in an appraisal of her performance during her time in the business in 2021.  There were meetings and communications in January 2022 between the complainant and Ms Crotty.  These provided the complainant with clarifications and opportunities to amend and update her performance review form to support an alternative appraisal rating. 

The complainant’s updated position on the respondent’s talent matrix was communicated to her on 11 March 2022.  On 7 April 2022, the complainant was informed that the was being placed on a six-month PIP.  The complainant raised concerns with HR in advance of a PIP meeting scheduled for 27 April 2022.  The respondent dealt with the concerns raised by the complainant as part of the PIP process.  The complainant engaged with PIP meetings and confirmed timelines in the first part of May 2022.  A PIP meeting ended on 20 May 2022 when the complainant became upset.  The complainant was absent on sick leave from 23 May 2022 until 2 June 2022.  On her return to work on 2 June, the complainant informed her line manager of her decision to resign. 

The respondent disputed the complainant’s characterisation of events and submitted that it did everything possible to support the complainant in her role.

The respondent relied on case-law in support of its position that the complainant did not satisfy the relevant tests for constructive dismissal, and that she failed to discharge the burden on her to succeed in her claim of constructive dismissal.  The respondent consistently acted reasonably and supported the complainant in achieving the required performance standard.  The complainant had alternatives to resignation, including engaging in the respondent’s PIP, raising any concerns regarding the process or utilising the respondent’s grievance procedure.  However, the complainant resigned suddenly and without giving the respondent an opportunity to address her concerns. 

The respondent put the complainant on full proof of the workplace issues referred to by the complainant in submissions on her behalf and in her evidence.  The complainant had not brought certain issues to the respondent’s attention in a timely manner.  When matters were raised, the respondent dealt with them in an appropriate manner and in accordance with its processes.      Without prejudice to the respondent’s position, the respondent submitted that the complainant substantially contributed to her dismissal and failed to mitigate her loss.

Summary of Ms Rebecca Crotty’s evidence

The witness has worked in various roles since joining the respondent in January 2009. 

She outlined a good relationship between herself and the complainant over the years.

The witness described generally the local impact arising from a global reorganisation in 2019, including the impact on the team the witness was managing at the time. 

The witness was promoted in January 2021 to the position of Activation Lead Manager, Consumer & Trade Marketing, and was responsible for managing a larger team, which included the complainant.  The complainant supported and congratulated the witness on her promotion.  At the time, the business was operating remotely, and team meetings took place bi-weekly online.  The witness requested team members schedule 1-1 meetings with her weekly or bi-weekly.  The first 1-1 meeting with the complainant took place in early March.   The witness was aware that the complainant had a medical condition but was unaware the complainant was suffering from stress and did not recall being aware of a visit by the complainant to her GP in February 2021.

The complainant submitted medical certificates for absence in March 2021.  The witness noted that stress was referred to, but she wasn’t certain what that meant.  The complainant’s referral to occupational health and the complainant’ occupational health appointments were arranged by the respondent’s People & Culture unit.  The witness was asked to pull together a phased return to work plan for the complainant.  The witness met with the complainant in person outside the workplace in June 2021 so that it would be more relaxed.  They did not discuss the business or work projects but rather the focus was on how the complainant was getting on and, with the complainant’s agreement, what a return to work might look like.  There was no substantive discussion at this meeting about what the complainant felt had caused her stress.   The witness met with the complainant for a walk on a second occasion and the witness wanted to cover two particular areas, namely workload and the 2019 reorganisation project and time thereafter.  During their meeting, the complainant’s logging on outside normal work hours came up along with resourcing concerns, and how the complainant had felt after her 2020 end of year performance review meeting with her line manager at the time.   There was also discussion around working from home arrangements, the complainant’s role in terms of whether she needed any upskilling support and whether there were any other roles within the business the complainant would like to consider.  The complainant confirmed that the working from home arrangement suited her, that there was no upskilling support required and the complainant did not express a strong interest in another area.  The complainant had not revisited the conversation from her 2020 performance review with the person concerned before she went on sick leave in March 2021.  The witness recalled asking the complainant whether she had reached out to the individual on her return to work but could not recall the complainant’s response or having discussed this particular issue with the complainant again.  The witness shared a phased return to work plan with the complainant after the meeting and the complainant made some changes to the plan in relation to work pattern.  A start date for the return-to-work plan was agreed.

The focus in the first weeks of the complainant’s return to work was on getting the complainant back up and running, reconnecting with colleague, with the complainant progressing to looking at trade plans for the next work cycles.  The complainant’s work became more project specific due to the absence of a colleague on sick leave.  In week 5 or 6 of the complainant’s return, there was discussion about the witness’ expectations of the complainant when she returned on a full-time basis.  The expectations involved the complainant taking full ownership and accountability for Engage and Connex, engaging with the annual planning process, keeping clear and open communications with the witness, and managing her time and herself.  The witness expected it to be business as usual.  The witness and the complainant spent a full meeting talking about this, including where there might be lack of clarity around the complainant’s job description. In terms of meeting expectations, the only request from the complainant concerned retention of the seconded employee resource.  This resource was mostly looking after Connex and, at that point, was confirmed in place for the complainant until the end of 2021.   The witness confirmed this with the complainant and advised that something more long-term was being worked on.  The witness was happy with how the complainant’s return to work had progressed; the complainant was not reporting any issues and she had confirmed that she was comfortable with the pace.

In the period September to December 2021, the weekly meetings continued.  The witness found it challenging to get information from the complainant in their project catch-up meetings.  The witness gave examples of areas for which the complainant had responsibility, but the witness was not satisfied with the complainant’s follow-through or performance, including the non-completion of the ARCI framework task and an issue with Engage after a site update.

The witness explained how the performance review process works in the respondent organisation and how the content of the performance review document is created and completed.  In relation to the 2021 performance review for the complainant, business goals and objectives and their weightings were agreed at the start of 2021.  Ordinarily there is a mid-year opportunity to check in and catch-up with an employee to see how they are doing in meeting their objectives.  This did not happen in the case of the complainant and her objectives were not revisited on her return to the workplace.  The objectives did not change, they were still within the complainant’s control.  On reviewing the complainant’s performance, the witness mainly looking at the period September to December 2021 when the complainant had returned to the business full-time.  The witness described the 2021 performance review meeting with the complainant, which took place on 14 January 2022.  The witness gave feedback on her review of the complainant’s performance and, over an hour into the call, the witness could see that the complainant was upset, and the call ended.  The witness gave examples of the feedback given to the complainant.  The complainant emailed the witness on 19 January 2022.  The witness disagreed with the content of the email which referred to an unsupportive review and accusatory feedback.  The witness suggested to the complainant that they proceed to complete the complainant’s performance review and dedicate separate time to discuss other matters raised in the complainant’s email of 19 January.  The witness also reminded the complainant of the opportunity to update her performance review in the system to support her proposed scoring and to capture any of the other points raised by the complainant in her email of 19 January.  The overall rating generated by the system, after the witness and the complainant put in their ratings, was “needs improvement”.  The witness was not surprised at the overall rating based on her feedback, but she felt the rating was on the cusp as there had been 9 objectives; 5 where the complainant met objectives and 4 needing improvement.  The witness was satisfied that the complainant was very capable, she was not missing technical skills, it was the behaviours that were missing.  The witness thought it necessary to address the issues in the 2021 performance review because otherwise 2022 would have been a challenging year.   The witness understood that the complainant fundamentally disagreed with the review. 

Once the performance review was finalised, the witness met with the complainant in February 2022 for a walk to discuss the complainant’s email of 19 January 2021 and the issues raised by the complainant concerning the tone of the performance review meeting, the feedback, and lack of clarity around priorities and expectations on the complainant’s return to the workplace in 2021.  The complainant’s opinion was that the review had not properly taken account of her time out of the business or her mental health and that she had found the second level manager’s comments in the review to be personal.  The witness asked the complainant about her assertion that she did not have clear priorities or expectations on her return.  The complainant’s response was largely focused on resourcing.   The witness disagreed with the complainant’s assertion and noted that the complainant hadn’t raised any issue in this regard.

In early February 2022, objective planning for performance in 2022 took place.  In early March 2022, the complainant was informed of her position, namely that of “inconsistent player”, on the respondent’s talent matrix.  The talent matrix placement is finalised after discussions between People & Culture and the directors. The placement is then communicated to line managers to convey to team members.  The witness’ role arising from the talent matrix placement was to support, along with People & Culture, the complainant.  The witness acknowledged how the complainant was disappointed with her placement on the talent matrix.  At a meeting on 9 March 2022, the witness discussed with the complainant the rationale for the placement, the focus going forward and how she would assist the complainant.  There was general discussion on improving performance.  This meeting was followed by an email from the witness to the complainant attaching a document referring to the complainant’s talent matrix position 2022. 

In early April 2022, the witness contacted the complainant to inform her of the initiation of a PIP for the complainant.  The witness could see that the complainant was surprised and had not been expecting this.   A meeting on 7 April 2022 to discuss next steps was attended by the complainant, the witness and a representative from People & Culture.   A PIP document was opened and discussed at the meeting and the complainant was advised she would have an opportunity to feedback and ask any questions.  The witness disagreed with the complainant’s description of the PIP as micro-management or punitive of the complainant.  The PIP specified the areas for improvement and broke down in a clear and tangible manner the improvements required.  The witness further disagreed that the PIP was a move towards exiting the complainant.

The next PIP meeting was scheduled for 27 April 2022.  Two days prior to that meeting, the complainant emailed the respondent’s Director of People & Culture and the witness attaching a letter outlining the complainant’s perspective and concerns.  The letter was extensive with a focus on a period before the witness was the complainant’s manager.  The witness did not reply to this letter as she felt she was copied on it as a courtesy and there were no clear demands on the witness. At the meeting on 27 April, the complainant advised that the PIP document was clear.  The complainant was upset.  The PIP document was finalised after this meeting.  A further PIP meeting took place on 3 May 2022; the plan was discussed and the complainant was asked to review timeframes and expectations and to revert.  The complainant became upset in a PIP meeting on 20 May 2022 and ended the call quite abruptly.  The witness didn’t know what to do as she did not want to aggravate the situation.  She sought advice and the recommendation was to allow space.  The People & Culture representative reached out to the complainant by email.   The complainant was absent from work for the following 2 weeks on certified leave.  On the complainant’s return to work on 2 June 2022, she booked a meeting with the witness.  It was at this meeting that the complainant informed the witness she was going to take time to focus on herself and was resigning.  The witness expressed shock and disappointment and how she had thought they were moving through things.  The complainant submitted a letter of resignation on 2 June 2022 which said a lot more than what had been said on the call that day. 

The witness was unaware that the complainant had had an anxiety attack at the 20 May meeting.  She was aware of a panic attack after the first performance review meeting because of the complainant’s letter dated 25 April 2022.  The witness did not accept that the PIP process was counterproductive indifference to the complainant’s circumstances or that the complainant was in a no-win situation.  If the complainant had engaged with the plan and completed the plan, there was a win. 

The complainant worked out her 3-month notice period and there was nothing particular arising during this period.  The PIP did not proceed after the complainant gave notice of resignation.

Under cross-examination

The witness accepted that she was not an expert in dealing with mental health issues.  She never felt that she had been tasked with managing mental health.

It was a matter for the People & Culture division to facilitate any further occupational health reviews for the complainant and to schedule the recommended 3rd review.  The witness was never asked by People & Culture to schedule a further occupational health review for the complainant.

The witness recalled telling her manager about the complainant ending the performance review call in January 2022 abruptly; she did not recall relaying this to People & Culture. 

The witness did not investigate comments attributed to the complainant’s former line manager and referred to by the complainant in a meeting with the witness in October 2021.  The witness did not share the comments with HR.  The witness took them as the complainant’s version of events.  The witness was focused on the present and getting the complainant back to the work.

The respondent does a performance review at the end of every year.  If someone is out of the business for 11 months, a review would not be done.  The witness was not aware of a cut-off point for whether a review would be done or not based on time in or out of the business.  Giving the complainant a pass on the performance review was not explored because she had been in the business for a good part of the year.  The complainant had raised no objection to completing the end of year review and there was no reason to contemplate not doing a performance review for the complainant.  The witness was not privy to any conversations People & Culture may have had about performance reviewing someone returning to work after mental health difficulties.  A review on the objectives set at the beginning of the year was justified as the complainant had been in the business for a substantial part of the year.  Based on the complainant’s feedback, there had been sufficient time for the complainant to reintegrate in the business.  There was no reason why the normal process would not have been followed for the 2021 performance review, including discussion with and sign-off by the second level manager.

The witness did not accept that the PIP could have been done by way of an informal improvement plan.   The PIP was supportive and addressed the parts of the role that were missing.  There was nothing extra on top of the role.   The PIP was not about micromanaging the complainant, it was about providing clarity.  Everything required was detailed in tangible and manageable segments.

Everyone is put on a talent matrix annually as part of performance management.

The witness did not think it reasonable for the complainant to resign after being put on a PIP.  It was the witness’ view that the complainant had not engaged with the PIP after it was agreed.

The witness was shocked and surprised at the complainant’s resignation.  She did not try to get the complainant to change her mind.

Re-examination

There had never been a situation in the experience of the witness where the PIP process had been deviated from for an informal or different plan.

There was no indication from the complainant that her former line manager’s comments were a blocker.  The witness suggested a conversation between the two, but she was not in a position to speak to that.

The witness clarified for me that it is not an automated decision that someone is placed on a PIP following an inconsistent player rating on the talent matrix.  The PIP is a People & Culture owned process.

This is a claim of constructive dismissal pursuant to the Unfair Dismissals Acts 1977-2015 (the “Acts”).

The Law

Constructive dismissal is included in the definition of “dismissal” at section 1(b) of the Acts, 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,”

There are therefore two situations envisaged in which a resignation may be considered a constructive dismissal; where the employer’s conduct amounts to breach of contract or repudiation of the contract (the “contract test”) or is such in relation to the employee that it was reasonable for the employee to resign (the “reasonableness test”).  The Contract Test

The accepted statement of this test is by Lord Denning MR in Western Excavating v Sharp [1978] ICR 221:-

“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 discharged from any further performance.  If he does so, then he terminates the contract by reason of the employer’s conduct.  … [T]he conduct must … be sufficiently serious to entitle him to leave at once …”

Reasonableness Test

Constructive dismissal may arise where the employer’s conduct was such that it was reasonable for the employee to terminate his or her employment.  Lord Denning MR addresses this concept in the same case:

“It is that the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving.”

It is well-established in this context that there is a reciprocal duty on an employee to act reasonably in terms of affording an employer the opportunity to address any issues.  In this regard, the Employment Appeals Tribunal in Conway v Ulster Bank Ltd (UD474/1981) held that a complainant had not acted reasonably in resigning “without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Both parties referred to the high burden of proof on an employee in a constructive dismissal claim to show that there was no option in the circumstances other than to terminate the employment.

Analysis of the Evidence

Workload, resourcing & health-related matters

The complainant took up a newly created lead role in 2017.  The complainant’s hours of work changed in or around this time, with the complainant working overtime evenings and at weekends.    The overtime and weekend work were not directed by or on behalf of the respondent but were done at the complainant’s initiative in an effort to get ahead or on top of the things.  

I accept the complainant’s evidence that she raised concerns about work pressure and low colleague morale with her line manager in 2018/19 and did not feel supported in response.

The complainant was responsible for putting in place an automated mechanism in 2019 to address the issue of emails outside of normal hours of work and having to log in at 8pm.  After 2019, unless something went wrong, there was no need to log back on and check emails.  The complainant had been happy that a process had been put in place to avoid that responsibility falling on her.

The respondent was impacted by a global restructuring in 2019; headcount was reduced.  The complainant took on responsibility for a second trade platform at this time.  An employee was seconded on a temporary basis to support the complainant in 2020.  The complainant’s main concern at the time was about retaining this resource.

Ms Crotty became the complainant’s line manager in December 2020/January 2021.  The complainant raised concerns with Ms Crotty in early 2021 about the temporary nature of the seconded resource.

The complainant began to experience health-related difficulties and symptoms from late 2019, which worsened in 2020 and early 2021.  It was common case that the respondent was not aware of the foregoing in 2019 and 2020 and I accept on the evidence before me that the complainant did not inform Ms Crotty, or anyone else in the respondent organisation, of her symptoms in early 2021 or that the complainant had attended her GP in February 2021.  

The complainant attended her GP on 18 March 2021 and was certified unfit for work due to stress.  The respondent referred the complainant to its occupational health service provider when the complainant’s absence continued longer than originally anticipated.  The occupational health medical assessment on 4 May 2021 made the respondent aware, for the first time, of the complainant’s anxiety and stress symptoms and that the complainant attributed her symptoms to a perceived increase in her workload.  The outcome of the 4 May assessment was that the complainant was temporarily unfit for duties, unfit to engage in any meeting with the respondent and a review appointment was recommended. 

The review appointment duly took place on 3 June 2021.  The recommendations on foot of the 3 June review included that the complainant was well enough to attempt to resume work with temporary accommodations in the form of a phased return to work over a seven-week period.

The complainant’s certified absence from work continued until 28 July 2021, and thereafter her phased return to work commenced. 

Complainant’s Return to Work from sick leave

On foot of the June 2021 occupational health review, Ms Crotty met with the complainant on two occasions in informal settings outside the workplace.  Various matters were discussed, including the complainant’s health and treatment, workload, resources and what a phased return to work would look like for the complainant.  A return-to-work pattern was agreed between the parties, which provided for a gradual increase in working time. 

The phased return-to-work took place over six weeks from 28 July to 6 September 2021.  During this period, the complainant met with Ms Crotty on a weekly basis.  There were open and transparent discussions between the complainant and Ms Crotty about the complainant’s workload, how the complainant was doing and feeling.  The focus during this period was on getting the complainant back up and running with a lead-in to more project specific work.  The complainant successfully returned to full-time work on 6 September 2021.

Weekly catch-up meetings between the complainant and Ms Crotty continued from September to December 2021.  These meetings provided an opportunity for the complainant to raise any concerns.  There were no issues raised by the complainant during this period about her workload and Ms Crotty did not raise with the complainant any concerns she had about the complainant’s performance.  The complainant did reiterate her concern about the temporary nature of the seconded resource, and it was confirmed to the complainant in December 2021 that this employee’s secondment to sales would continue.

The complainant felt that she had successfully returned to work during this period; she was doing what she was capable of and was working within her capacity.  The complainant was comfortable with what she was doing.

Performance Appraisal for 2021 & Personal Improvement Plan (“PIP”)

The complainant’s performance appraisal for 2021 was carried out by reference to business goal objectives set at the beginning of 2021.  It was common case that the business goals were not revisited or revised following the complainant’s absence from the business in 2021. Ms Crotty’s appraisal of the complainant’s performance was mainly by reference to the period from September to December 2021.  The complainant received an overall rating of “needs improvement” in the review of her performance for 2021. 

The complainant was disappointed with the performance feedback given by Ms Crotty in a meeting in January 2022.  The complainant subsequently emailed Ms Crotty outlining her perspective and how she had felt when being asked about her performance and the feedback.  This email to Ms Crotty did not refer to an anxiety attack the complainant said she experienced after the meeting. 

The difference between the parties on the 2021 performance appraisal and outcome stems in part from how the complainant’s ill-health and absence from work in 2021 was treated in the context of the performance appraisal, and from a mismatch between Ms Crotty and the complainant as to what was expected of the complainant performance-wise.  Whilst Ms Crotty maintained that her review of the complainant’s performance was based on the time the complainant was in the business, the complainant asserted that the nature of her health difficulties meant the impact was not confined to the time she was out of the business.   The complainant’s position was that the failure in the review to give appropriate consideration or weight to the nature of her illness demonstrated a lack of understanding and support on the part of the respondent.  Ms Crotty discussed with the complainant her expectations of the complainant on her return to full-time work in September 2021, and the complainant did not raise any issue with Ms Crotty regarding those expectations or her workload.    The complainant’s approach on her return to work was to manage herself and her responsibilities and to work within her capabilities from day-to-day.

The complainant disagreed with the performance appraisal outcome and Ms Crotty was aware of the complainant’s views in this regard.  

Arising from the performance appraisal, the complainant was marked as an “inconsistent player” on the respondent’s talent matrix which in turn resulted in the initiation a PIP for the complainant.  

My findings

On the evidence before me, I am satisfied that the respondent’s conduct in the period from 2017 to June/July 2021 insofar as it concerned the complainant’s workload, resourcing and its response to the complainant’s health difficulties and sick leave absence was reasonable, in line with the express and implied terms of the employment relationship and was not such as to justify the complainant’s termination of her employment.

I am also satisfied that Ms Crotty’s conduct in and around the complainant’s phased return to work and the reintegration process from the end of July 2021 until the beginning of September 2021 was responsive, reasonable and in line with the respondent’s duties and obligations.

The respondent’s performance appraisal processes, including the PIP, are provided for in the respondent’s employee handbook.  The respondent was entitled to set performance objectives and apply agreed process and procedure to assess whether standards were reached, and objectives met.  The complainant had returned to full-time work in September 2021 and the complainant engaged with the performance review process by inputting goal achievements and providing her rating on her performance.  

I find therefore that the evidence before me does not support the claim that the respondent failed to provide the complainant with a safe place of work such that the complainant was entitled to resign. 

However, I do find that it was reasonable for the complainant to terminate her employment because of the respondent’s conduct in and around its decision to place and retain the complainant on a PIP, on foot of the 2022 talent matrix placement and 2021 performance appraisal, for the following reasons.

The complainant was absent from work from mid-March 2021 for 4.5 months.  She then undertook a phased return to work for a 6-week period, the focus of which was to reintegrate the complainant in the business.  The complainant’s full-time attendance in the workplace in 2021 was for two separate periods of 2.5 months at the beginning of the year and 4 months in the latter part of the year.   The complainant’s performance was appraised largely by reference to the latter 4-month period. The complainant’s performance objectives for 2021 were not revisited on her return to the workplace.  There is ordinarily a mid-year performance review meeting, but this did not happen for the complainant.  There was no evidence before me of specific feedback to the complainant on her performance in the period from January to mid-March or from September to December 2021, and not on the issues outlined by Ms Crotty in her oral evidence in terms of how she found from she found it challenging to get information from the complainant in their catch-up meetings and how the complainant’s follow-through and performance on projects was a concern.    I note the employee handbook which provides for continuous informal employee performance review and feedback throughout the year.  I am not satisfied that there was clear and open informal discussion with the complainant in relation to concerns about the complainant’s performance in either the first or latter part of 2021.  In my opinion this was critical in the latter part of 2021 given the complainant’s time out of the business and the personal difficulties she had experienced.  It may also have served to inform and prepare the complainant for the “needs improvement” appraisal and “inconsistent player” talent matrix placement.  The respondent may have had legitimate concerns about the complainant’s performance during her time in the business in 2021, however I do not consider an appraisal of that performance by reference to business goals and objectives agreed at the beginning of a year and without informal feedback on performance concerns to have been appropriate in the circumstances.

I accept the respondent’s submission that when assessing the respondent’s conduct, the medical evidence at the time should be considered.  The medical evidence from the respondent’s occupational health in June 2021 was that the complainant remained symptomatic but was well enough to attempt to resume work with the recommended accommodations.  I note that the physician was uncertain as to whether the complainant’s health problem would likely recur or affect future attendance, referred to the complainant continuing her treatment regime and recommended a follow-up review with occupational health. The complainant’s email to Ms Crotty of 19 January 2022, following the first performance review meeting, is also relevant wherein she advised that she had been in receipt of counselling and was and would be for the foreseeable future taking medication. She referred to the medication by name and advised it had significant side effects.   

There was friction in the employment relationship from January 2022.  In my view, the application of the descriptor “inconsistent player” to the complainant, arising from an appraisal of her performance predominantly in the 4-month period from September to December 2021 and in the particular circumstances, was unfortunate and did not assist the situation.  

A letter addressed to the respondent’s People & Culture Director dated 25 April 2022, and copied to Ms Crotty, referred to historical issues and the complainant’s dissatisfaction with the 2021 performance review.  It also disclosed the complainant having had an anxiety attack after the performance review meeting with Ms Crotty on 14 January 2022, having been prescribed additional medication and the complainant’s anxiety symptoms having recurred since the PIP meeting on 6 April 2022.  Of further note is that in the same correspondence, the complainant referred to the recommended occupational health review not having taken place. 

The response the complainant received to her letter of 25 April 2022 was from the Director of People & Culture and consisted of a one-line acknowledgement of receipt.

It was submitted on behalf of the respondent that as the complainant’s letter of 25 April 2022 raised various concerns in advance of the PIP and there were already meetings in train concerning the matters raised, it was appropriate for the respondent to have dealt with the complainant’s concerns as part of that process.    It was further submitted that the complainant did not contest that approach.  I cannot accept the legitimacy of this submission in circumstances where any such approach was not communicated to the complainant and furthermore the evidence of Ms Crotty was that she considered it a matter of courtesy that she was copied on the correspondence of 25 April 2023.  There was no oral or documentary evidence before me of the respondent responding to or addressing the health-related concerns and other issues, and in particular those relating to the respondent’s decision to place her on the PIP, raised by the complainant in her letter of 25 April 2022, either as part of the PIP process or otherwise.  At this stage, the Director of People & Culture and the complainant’s line manager were on notice that the complainant was experiencing health difficulties.  The evidence before me is that the meetings and discussions after 25 April 2023 were solely concerned with communicating the respondent’s work expectations of the complainant, what the complainant needed to do to meet those expectations and fixing a timeframe within which to do so. 

I accept the complainant’s evidence that her letter of 25 April 2022 was a cry for help, and I note Ms Crotty’s evidence that the complainant was upset in the meeting on 27 April 2022.  It was also common case that the complainant was upset at the meeting on 20 May 2022.  Ms Crotty said that she didn’t think the complainant engaged in the PIP.  I am satisfied that the complainant’s letter of 25 April gives context as to why this was the case.  I also consider it striking that, notwithstanding the concerns expressed by the complainant in the letter of 25 April, her certified absence after the PIP meeting on 20 May 2022 and obvious upset at the meeting on 20 May 2022, there was no evidence of the respondent having considered a referral of the complainant back to its occupational health or addressing the issues raised by the complainant in the context of its grievance policy and procedure.   The complainant gave 3 months’ notice on 2 June 2022.  Her letter of resignation advised that she had little alternative in order to prioritise her health and wellbeing and referred to the pressure of the PIP process.  The respondent accepted the complainant’s resignation; the PIP process ceased, and the complainant worked out her notice. 

The respondent asserted that the complainant had failed to exhaust all internal procedures before resigning, including engaging with the PIP and/or initiating a grievance.  I accept that it is incumbent on an employee to afford its employer the opportunity to remedy any issues however I also consider it incumbent upon an employer once issues are raised to at least make enquires and revert to the complainant on same.  This is not a case where the respondent was not aware of issues and difficulties on the part of the complainant and didn’t have an opportunity to address same. The letter of 25 April 2022 clearly raised grievances, historical and current, on the part of the complainant.  I am satisfied that it was not necessary, either generally or having regard to the respondent’s policy, for the letter to expressly invoke the grievance policy.  I consider it significant that this letter was addressed to the respondent’s Director of People and Culture, with the complainant’s line manager copied.  The respondent’s People & Culture department have a role under the respondent’s grievance policy and there is a shared responsibility on the part of managers to address grievances raised.  I also note the complainant’s contract of employment which provides for raising a grievance in writing with the complainant’s immediate manager, unless the grievance concerns the manager, in which case it should be raised with the HR Director.  An expressly stated intention of the respondent’s policy is to safeguard sound employee-management relations through effective resolution of work-related issues.  The failure to provide some form of substantive response to the complainant’s letter of 25 April was not conducive to sound employee-management relations, and particularly so given the nature of the letter.  I am satisfied that grievances raised by the complainant in her letter of 25 April 2022 were not properly responded to or addressed.  I am further satisfied that the respondent was on notice from this time that the complainant was experiencing significant personal and health-related difficulties in the workplace and that same warranted an intervention by HR/People & Culture, beyond the PIP and the complainant’s line manager. 

In the circumstances, I find that the complainant meets the reasonableness test and has discharged the burden of proving that she was constructively dismissed by the respondent.

On the evidence before me, I find that the complainant was unfairly dismissed within the meaning of the Acts.  In terms of remedy, the complainant’s preferred redress was compensation, and this was the form of redress addressed by the parties at the hearing.   I am satisfied, having regard to all the circumstances, including those which resulted in the complainant terminating her employment, that this is the most appropriate form of redress.  The complainant has incurred financial loss attributable to the dismissal; she had not secured alternative employment in the period from September 2022 to March 2023.  I have had regard to section 7(2) of the Acts in calculating compensation.    By reason of my findings in relation to the complainant’s use of internal procedures and on the evidence before me, I do not find that the complainant contributed to her dismissal or financial loss.  In terms of measures adopted by the complainant to mitigate her loss, there was evidence of various job applications, and interviews attended by the complainant, from September 2022 to March 2023.  On my review of the documentation, I accept that the applications and interviews were in areas of the complainant’s expertise, notably marketing, brand and account management and communications, and further accept a reasonable level of activity on the part of the complainant in this regard.  I therefore consider it just and equitable in all the circumstances to award €40,000, which is equivalent to approximately six months remuneration, in compensation.

For the reasons set out above, I decide that the complainant was unfairly dismissed and direct the respondent to pay the complainant €40,000 in compensation. 

Constructive dismissal – absence from work - performance review and appraisal – performance improvement plan – grievances