Complainant

Respondent

Parties

 Mr   John  Nsubuga

GLOBOFORCE IRELAND LIMITED T/A WORKHUMAN

Representatives

Self-Represented

David McAuley McCann FitzGerald

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-00056434-001

02/05/2023

This matter came before the WRC dated 02/05/2023 as a complaint submitted under section 8 of the Unfair Dismissals Act, 1977.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 28/09/2023.

The Complainant’s role in the Respondent company was that of Senior Client Services Administrator at the material time.  The Complainant was employed by the Respondent from 22/02/2018 until he resigned his employment on 24/01/2023 with such resignation taking effect on 17/02/2023.    

CA-00056434-001

On the WRC complaint form, in respect of “Unfair Dismissal Type” the Complainant states “I had to leave my job due to the conduct of my employer or others at work (Constructive Dismissal). I have at least 12 months service.” The redress the Complainant seeks is compensation. 

The Complainant’s claim is denied by the Respondent.  The Respondent submits the claim of constructive dismissal is entirely unfounded. 

The Complainant relied mainly on the facts as set out in his WRC complaint form by way of a written submission and he filed supporting documentation with the WRC in respect of his complaint including a response to the Respondent’s submission prior to hearing.  The Respondent filed factual and legal submissions with supporting documentation on 13/09/2023. 

As the Complainant terminated the contract of employment, he bears the consequent burden of proof imposed by the legislation.  Having regard to same, the Complainant presented his evidence prior to the Respondent its case. 

I have carefully reviewed the Complainant’s complaint form from which I have extrapolated the core issues of his complaint and I summarise hereunder.

On the WRC complaint form the Complainant submits he terminated his employment with the company on 17/02/2023 and he cites the reason as due to an internal transfer to the newly formed Technical Team at the time.  The Complainant joined the company on 22/02/2018 as a Client Services Administrator and was later promoted to the position of Senior Client Services Administrator.

The Complainant submits a decision was made by management in late 2022 to split the team into two groups namely the technical team and the customer success team.  The team manager at that time, Michael Thompson (hereafter MT), met with individual team members to discuss which side of the team each member wanted to be on based on career plans and capabilities.  The Complainant submits he opted for the customer success side but was temporarily requested to oversee the technical team due to some problems the team had at that time.  The Complainant submits MT felt that since he (the Complainant) was poised to become a programme manager it did not make sense for two, Steen Jensen (hereafter SJ) and the Complainant, to be on the same side as programme managers.

The Complainant submits he was taken by surprise when he was told to move permanently to the technical team in December 2022 / January 2023.  The Complainant submits as most of his responsibilities were transferred to Rae (Rae Connor hereafter RC), it looked like a demotion.  The Complainant submits he contested the decision with both managers RC and MT.  The Complainant submits he felt at 58 years of age he had no such skills left in him to be forced to join a team he never wanted to be in after assessing his own capabilities.  The Complainant submits everyone else was posted to a team of their choice. 

The Complainant submits he knew the team would be negatively impacted by his inadequate contribution and a lot of stress on his side.  The Complainant submits he had no choice but to tender his resignation on 24/01/2023.  He submits he emailed his manager Rae on 26/01/2023 asking that he reach out to HX for the purposes of compensating him (severance pay package) for loss of earnings, for example his monthly salary, RSUs due to mature next year and other benefits.  On 01/02/2023 RC confirmed HR informed him that he could not be compensated unfortunately because they did not terminate his contract.  The Complainant submits he had no choice but to resign under the constructive dismissal clause (Unfair Dismissals Act 1977-2015). 

The Complainant felt that he had been treated unfairly and he made a decision to consult externally in order to educate himself more about how to get the matter resolved quickly.  The Complainant was advised to contact the Respondent first to see if they would reconsider their earlier decision not to compensate him and if that fails there were other remedial options to look at.  The Complainant emailed the Respondent on January 26 as follows: 

(i)               “By forcing me to do work other than that for which I was contractually employed to do, there seems to have been a breach of my employment contract.

(ii)              And by denying me the opportunity to join the team of my choice like it so happened with everyone else on the team, there is a reasonable belief that I was discriminated against.

(iii)            Even if I had accepted to take up the new position, there was no remuneration discussions that took place considering that the nature of the job had completely changed.

What I am looking for therefore, is being compensation for loss of earnings based on all the reasons mentioned in this email.  I look forward to hearing from you in due course”. 

The Complainant submits the Respondent reverted on Friday 17 March as follows:

“I am writing in response to your recent note which was passed to me by my HX colleague.  We have taken some time to look into the various matters raised by you, including reviewing records and speaking with the managers you worked with during your time at Workhuman.  We found no record of any grievance filed by you and following our review, we are declining your post resignation request for compensation.”

The Complainant submits he responded to the Respondent that from what he knows, just because one did not file a hard or soft copy grievance does not remove their right to a fair hearing.  The Complainant submits the gist of this matter is that a contract has been breached.  The Complainant submits grievances were lodged during telephone conversations with his managers and that the escalation to his manager’s manager is proof grievance was raised.

The Complainant submits further proof a grievance was raised was that he decided to resign but with a severance pay package.  The Complainant submits the Respondent decided to get rid of him without mentioning the word.  RC reached out to HR to see if that could be negotiated but the request was shot down.  The Complainant submits why would a manager contact HR to talk about a severance package if they had not received a grievance?  The Complainant submits we all know the reasons that attract a severance pay package. 

Summary of direct evidence of Complainant on oath:

The Complainant chronicled a brief history of his time with the company including his core responsibilities, his promotion and details of his role.  He referenced the new teams formed in December 2022 and submits the change to his contract was breaking the law.  He describes his move to the technical team as a temporary one until RC was appointed.  The Complainant states he was overseeing the work initially. 

The Complainant states he contested the transfer, he could not do the technical work, his contract had been breached and he alleges discrimination.  The Complainant states he wanted to be on the customer success side and in his view this move was a demotion for him.  The Complainant states RC was not fazed by his concern and he escalated it to MT.  The Complainant reassessed his situation and made a decision not to go to HR for two reasons.  He states three managers would be angry with him and refers to a grievance he invoked in 2018.  The Complainant states he decided to cut his losses and he needed a good reference / recommendation.  The Complainant states he was forced to do work he could not do by his employer and he could not perform properly in the team.  The Complainant states he has been looking for jobs since he left the company.

Summary of cross-examination of Complainant:

It was put to the Complainant that he had resigned as his lease was expiring and his request to work permanently in Denmark had not been granted.  The Complainant disputes this but agrees there were some problems in terms of housing and he had moved his children back to Denmark but the plans were to come back to Dublin. 

The Respondent representative refers to the email of resignation he sent to RC and the general email to the team wherein he sets out his plans for the future.  The Complainant states the only reason he wrote the email was that he knew he would need a good recommendation.  The Respondent representative asked if the Complainant had ever asked if he could revert to his original job and this question was not answered directly. 

When asked if he had been offered training the Complainant accepted that he had.  When it was put to the Complainant that he had not availed himself of the grievance process he replied that he would then have three angry managers previous and current.  It was put to the Complainant that due to the nature of the work everyone would pitch in as required but the Complainant asserts his was an entirely new role and he had been told by RC that this permanent.  When the Complainant was asked was it not obvious to him that everybody needed to pitch in after the departure of a team member as that is what managers do the Complainant replies that he wasn’t a manager.  The Respondent representative puts it to the Complainant that a manager was what he was aiming to be which did not elicit a response. 

It was put to the Complainant that he did not take up the offer of training and he responded that it was not within the scope of his role so no he did not take up the offer of training. 

The Respondent refers to the grievance raised by the Complainant in 2018 when he was on probation and states it is difficult to understand why he could not have utilised the grievance procedure in this instance given that he expressed satisfaction and gratitude with the outcome of his 2018 grievance.  The Complainant responds that the manager was a problem and alleges a revenge campaign against him in the aftermath.  The Respondent makes reference to the lack of evidence of this allegation and notes his subsequent career progression within the company. 

The Respondent representative (in terms of mitigation and loss) puts it to the Complainant that he has not cast the net very widely in terms of a job search and expresses dissatisfaction with the fact that the job log provided is in Danish as all the job applications were for jobs in Denmark and no details were provided of his job search in Ireland or South Africa.  The Respondent representative notes that all the jobs applied for appeared to be jobs in customer success from what can be understood from the Danish job log which does not elicit a direct response. 

The Respondent representative makes reference to the email sent enquiring about a severance package after chatting with a colleague and asked for further detail on the reasoning behind that email but this was not provided.  The Complainant provided detail instead that he wrote his emails a certain way and that anybody reading them would know something was not right. 

The Respondent representative put it to the Complainant that the impression he gets is the Complainant was unhappy with the nature of the work and he wanted to move for personal reasons to which the Complainant responds he is free to think like that.  The Complainant concludes by saying the company as a whole is not a bad company it is his situation that is bad. 

On re-examination the Respondent representative asks the Complainant why he had not accepted the offer of training.  The Complainant responds that his responsibilities only involved some technical work and he cannot do that type of work. 

Complainant closing submission:

The Complainant states the Respondent’s submission makes no to reference to the exit interview and there are inconsistencies in the Respondent’s submission.  The Complainant reiterates the reason why he did not raise a third level grievance as having three angry managers if he had gone to HR.  The Complainant states there are many pieces in the exit interview that can be interrogated and makes further reference to inconsistences in the Respondent submission.  The Complainant states he took all his email evidence with him when he left. 

The Complainant makes reference to his enquiries about a severance package to RC and questions why MT got involved in this matter and states it should have ended with RC. 

The Complainant states he never mentioned RC or a previous manager, SC, in his leaving email and he never honoured the leaving dinner invitation and all of these things show there was something wrong.

It is submitted on behalf of the Respondent that the Complainant’s claim of constructive dismissal is entirely unfounded, and the Respondent will produce evidence in support of same in these submissions together with oral evidence at the hearing of the claim.

The Complainant commenced employment with the Respondent Company on 21st February 2018 as a Client Services Administrator.  The Complainant was successful in this role and was promoted to the role of Senior Client Services Administrator in April 2021.  On the 22nd March 2022, the Complainant relocated to Denmark without giving advance notice to the Respondent.  At the time, the Respondent had been supporting some employees who had family members living abroad who wished to work remotely for a short period of time for the purposes of family unification where such employees had been impacted by pandemic related travel restrictions.  Shortly after, the Complainant submitted an initial request to work temporarily from Denmark which the Respondent supported without difficulty. 

Following receipt of his temporary permission to work from Denmark, the Complainant sought approval to work permanently from his new residence in Denmark.  The Respondent’s HR Team engaged and consulted with him in relation to this request and on the 11th May 2022 the Complainant was advised that the Respondent could not support his permanent relocation. However, understanding this was disappointing news for the Complainant, the Respondent granted the Complainant two extensions to his temporary remote working arrangements in May 2022 and August 2022 before he returned fully to Ireland in September 2022. 

In Spring 2022, following a company-wide restructuring (job architecture review), it was decided that the Complainant’s role of Senior Client Services Administrator was going to be assigned a new designation as a Support Level 4 (S4 role).  On 23 May 2022 the Complainant received written notification of the new designation of his role, together with details of his new salary whereby he received a pay increase of 4% and the granting of 50 additional Resting Stock Units (RSUs).

In addition, the Client Services Team of which the Complainant was a member, were categorised to support two areas, technical and customer service.  The Client Services Team was to be split into two groups, namely: the technical team and the customer success team.  Throughout the restructuring period, both company management and human resources engaged directly with the Complainant and his colleagues, and their views and inputs were considered.   MT the team manager at the time met with individual team members to discuss which side of the team each member wanted to be on.

Allocations to the technical team or customer service team were determined taking into account team member’s career aspirations, capabilities, strengths and performance to date together with the needs of the business.  As noted by the Complainant he was designated to lead the technical team. The Complainant’s designation as a team lead reflected his progression during his time with the Respondent and recognised his skills and experience as a Senior Client Services Administrator.

As part of his new role as leading the technical team, the Complainant was required to perform duties that included the processing of technical customer tickets in his support of team members on operational and customer success related initiatives.  On one occasion, the Complainant received a specific request to provide support on technical tickets from a member of management, MT, in November 2022 in circumstances whereby the number of team members were reduced. The Complainant was offered training and support to carry out the job as he had mentioned that he had not provided this particular technical support in a very long time.

The Complainant continued to perform his role as Senior Client Services Administrator until he tendered his resignation on 24th January 2023 by email stating:

“Hi Rae, I’m following up on our telephone conversation earlier today and WhatsApp text message of 19th/Jan/2023. This is to let you know that I’m resigning my position as Sr. Client Services Administrator effective today 24th/Jan/2023. As agreed, my notice period will end on the 17th/Feb/2023 a week earlier due to my lease agreement expiration on the 19th/Feb/2023. Thanks for all the support. With Gratitude, John Nsubuga”

The Adjudication Officer will note that he expressly references the conclusion of his residential lease in his resignation email.

During his notice period on 26th January 2023, the Complainant emailed management requesting a severance payment.  An excerpt of his email reads; “I was chatting to a colleague who has been around longer than me and she advised that I should try to seek for the severance pay package. Hopefully HX will be able to advise us on the matter.”

The Adjudication Officer will note that the Complainant was merely enquiring at this point, as he refers to advice received from a colleague. Of significance is the fact he does not express any grievance (ongoing or otherwise) with the Respondent, any specific rationale for his request or identify any financial loss he had experienced. The Respondent declined this request through management and the Complainant completed his notice period without further event.

On the 15th and 17th February 2023, the Complainant exchanged well wishes with colleagues and managers by email and shared updates on his future professional and personal plans following completion of his time with the Respondent.   An excerpt of his email reads;

“I’m sincerely grateful for every experience, every challenge, every lesson, every feedback, every opportunity and for all the support I’ve had here since the very beginning.  I would like to thank you all for making my time here at Workhuman so wonderful and unforgettable.  All of you played some role whether directly or indirectly.  A special thank you to you Mick, for all the support over the last three years, and still rank you the best manager I’ve ever had.  I’ve heard others whose whispers espouse the same view on the team.  Some of you have asked what my next mission is.  I have developed a passion for crypto assets the last four years, so tentatively, I’m going to keep myself busy trading crypto online.  I’ve been doing it for some time now and learning about trading the traditional stocks as well.  If all goes according to plan, I’ll then move to Uganda in July to join the oil and gas industry still incubating but expected to partially be up and running by then.”

On the 22ndFebruary 2023, the Complainant’s employment ended.

On the 7th March 2023, much to the Respondent’s surprise, the Complainant wrote to the Respondent claiming that he had been constructively dismissed from his role and he now sought a severance payment.  The Respondent commenced a review into the Complainant’s allegations, reviewing records and speaking with supervising managers of the Complainant during his time at the Company.  

However, on completion of the review, the Respondent could not find any evidence to support the Complainant’s allegations.  It also noted that no grievance was ever filed by the Complainant during his service to the company.  The Respondent shared its findings with the Complainant by email on 17th March 2023 and declined his request for a post termination payment. 

The Complainant disputed this finding and filed the present claim on 2nd May 2023.

Summary of direct evidence of Respondent witness Mr Rae Connor (hereafter RC):

RC provided a brief overview of his role within the Respondent company and described the work the team undertakes in servicing two categories or types of customers. He provided details of the reporting structure.  RC described the team as everybody does a bit of everything and it all depends on the flow of the work.  RC states everyone is required to do some technical work.  RC states technical work was part of the Complainant’s role and he had trained people on technical work. 

RC states he did not tell the Complainant his move was a permanent move.  He states the Complainant was consulted as much as everyone was and no one was asked for their preference. 

RC stated he was not surprised not to be mentioned by name in the Complainant’s leaving email to the team as he had only been his manager for a short period and would not have expected a mention.  RC stated that he did not see any evidence that coming into work was intolerable for the Complainant and he said he was leaving for family reasons as the family were in Denmark and he didn’t feel capable of doing the technical work at this stage and he felt he would be holding back the team.  RC states he had been offered support but he said he would learn bit by bit. 

When asked if the Complainant had said he would stay if he could go back to his previous job RC states that job no longer exists.  The Respondent representative puts it to the witness that the Complainant states he raised a grievance with him over the phone which RC rejects.  RC states that jobs in customer success would be a stretch for the Complainant. 

Summary of cross-examination of Respondent witness RC:

The Complainant puts it to RC that technical work was not the core of his responsibilities and when making reference to the reporting structure detailed by RC he puts it to RC that he was his manager.  RC responds that he is an associate manager and that MT is the manager [emphasis added].  Reference was made to the function of a customer success manager which was confirmed as looking after a group of managers and technical skills would be advantageous. 

Summary of direct evidence of Respondent witness Ms Rosana Velikajne (hereafter RV):

RV joined the Respondent company in 2005.  RV outlines the company grievance process and confirms it is a fair and impartial process with provision for an appeal.  There is a policy of zero tolerance for any retaliation or victimisation or penalisation arising from the invocation of the policy. RV is aware of the grievance taken by the Complainant in 2018 which she states was resolved to the satisfaction of all parties with parties expressing satisfaction with the outcome. 

RV confirms the Complainant next came to her notice when he was promoted. 

In March 2022 the Complainant had to move his family back to Denmark and he sought support to continue working remotely from Denmark which was facilitated until end August.  There was a further request to work from Denmark long term which the Respondent company was unable to facilitate. 

RV came to her attention again on receipt of the email 7 March seeking compensation.  She was aware this had previously been sought from RC but the request of 7 March was considered and in so doing she spoke to all the relevant managers and the request was declined.  When asked if there is a practice of termination payments in the company she replied only in terms of redundancy. 

Summary of cross-examination of Respondent witness RV:

The Complainant puts it to RV that she states the Respondent company does not pay but the reason he asked was he was trying to find out why she thought he was leaving and he asks the witness if she was aware of the existence of the exit interview and asks if she was aware he said he was leaving the company because he was forced out.  The witness states she was aware of his dissatisfaction about the restructuring.

Respondent closing submission:

The Respondent representative states the burden of proof has not been discharged on either test.  The Respondent was entitled to reorganise and the contractual provisions provide for this.  The Respondent representative submits the Complainant was treated well at all times in terms of promotion and requests for relocation.  The Respondent representative states there is a lack of evidence, no witnesses and no contemporaneous notes of what the Complainant alleges are crucial conversations.  The Complainant worked his notice.  The Respondent representative states it is fatal to any claim that he did not exhaust the internal remedies and he was familiar with that procedure and his experience of his previous grievance should have fortified him in utilising the procedure again. 

The following case law is cited by the Respondent in support of its case:

Nicola Coffey v. Connect Family Resource Centre [UD1126/2014]

Cedarglade Limited v. Tina Hliban [UDD 1843]

Berber v. Dunnes Stores [2009 ELR 61]

McCormack v. Dunnes Stores [UD1421/2008]

Terminal Four Solutions v. Rahman [UD898/2011]

In conducting my investigation, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.    I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters on a number of instances.   

The Complainant expressed the view that I was “not impartial” towards the end of hearing and it was apparent that he took exception to being probed on certain matters as I sought to establish the facts.   Notwithstanding, I am statutorily bound to make all relevant inquiries into this complaint or indeed any complaint and this may involve a certain amount of probing when I am faced with evidence that is not merely inconsistent but contradictory and anomalous.   

The Complainant at hearing sought to cross-examine the Respondent representative.  When it was explained to him that the Respondent representative is not a witness who could be cross-examined, he again expresses his dissatisfaction with the conduct of the hearing and states he is not being given an impartial hearing. 

The Complainant was critical of the fact that I did not ask as many questions of the Respondent witnesses seeking clarification.  There was very little requirement for me to do so as the oral evidence was presented concisely, it was consistent with and provided the necessary augmentation to that which I had reviewed in the written submission.  Therefore, I did not deem it necessary or indeed appropriate to engage in gratuitous questioning of the Respondent witnesses.      

CA-00056434-001 complaint pursuant to section 8 of the Unfair Dismissals Act, 1997

The Relevant Law:

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

“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.”

I am satisfied the definition of constructive dismissal set out above is the appropriate backdrop against which I will base my conclusions.  Significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it has to satisfy either one or a combination of both of the following “tests”.

There are two sets of circumstances in which a resignation may be considered a constructive dismissal.  The law is well settled here, and these tests are known as the “contract” test and the “reasonableness” test.  The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign.  It is now generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee.  All other options including grievance procedures must be explored. 

The reasonableness test requires that the employee must satisfactorily demonstrate that the employer behaved or acted in a manner, which was so unreasonable as to make it impossible for the employee to continue in the employment.  There is a reciprocal duty on an employee to demonstrate that they acted reasonably.  The reasonableness test can be relied upon either as an alternative or in combination with the contract test. 

In Berber v. Dunnes Stores [2009] 20 E.L.R. the Supreme Court held as follows:

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.  The term is implied by law and is incident to all contracts of employment unless expressly excluded.  The term imposes reciprocal duties on the employer and the employee.”

In the English case of Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 Denning J stated:

“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 of more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.”

In considering whether there has been a constructive dismissal I have to determine whether there has been a repudiatory breach of contract by the Respondent, or, if there has been no repudiatory breach, whether the Respondent engaged in conduct which made it reasonable for the Complainant to terminate his contract. 

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. 

In the case of Reid v. Oracle EMEA Ltd [UD1350/2014] the EAT stated:

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”

As set out in the seminal EAT case Conway v. Ulster Bank Ltd.  [UD474/1981] a complainant is required also to act reasonably by providing the employer with an opportunity to address whatever grievance they may have and the EAT held as follows:

“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.  An elaborate grievance procedure existed but the Appellant did not use it.  It is not possible for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”

The Labour Court in Ranchin v. Allianz Care S.A. [UDD 1636] held as follows:

“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.” 

There may be rare situations whereby failure to utilise or give prior formal notice of a grievance may be justified such as the case of Liz Allen v. Independent Newspapers [2002] 13 E.L.R. where it was found that she had lost faith in what was being offered by way of investigation by the respondent. 

There is an extensive line of case law which reflects the tests applicable in a claim for constructive dismissal and it has been acknowledged that a complainant faces a high bar in pursuing such claims Nicola Coffey v. Connect Family Resource Centre [UD/116 2014]. 

The Relevant Facts:

The question I must decide in the instant case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment.  The burden of proof rests with a complainant to set out the facts that show, because of the actions of his employer, he had no alternative but to resign.  I am obliged to draw my conclusions from the facts as presented to me and by taking into account all other relevant factors and surrounding circumstances.   

Having regard to the contradictions and anomalies in the evidence presented by the Complainant in support of his complaint as referenced above, for the sake of completeness, the following is the complete text of the email sent by the Complainant to the team on his resignation from the Respondent company.  Much was made of this email by both parties during hearing albeit from differing standpoints and I will address this matter at the outset.    

“Dear team,

As you already know, my time with Workhuman has come to an end. I still can't believe it, but it's been an absolute pleasure working with each of you these past five years. This is definitely bittersweet. Whereas I'm excited about what the future has in stock for me, I will greatly miss working with all of you.

Even though workplaces are in essence about coming and going, this should never stop us from pausing for a moment to recognize our stops along the way. So, thank you for all the advice, the help, lending me your ears, the jokes, the friendship, and for being the humans in Workhuman that have made my time here extraordinary.

I’m sincerely grateful for every experience, every challenge, every lesson, every feedback, every opportunity and for all the support I’ve had here since the very beginning. I would like to thank you all for making my time here at Workhuman so wonderful and unforgettable. All of you played some role whether directly or indirectly.

A special thank you to you Mick, for all the support over the last three years, and still rank you the best manager I’ve ever had. I’ve heard others whose whispers espouse the same view on the team.

Some of you have asked what my next mission is. I have developed a passion for crypto assets the last four years, so tentatively, I’m going to keep myself busy trading crypto online. I’ve been doing it for some time now and learning about trading the traditional stocks as well.

If all goes according to plan, I’ll then move to Uganda in July to join the oil and gas industry still incubating but expected to partially be up and running by then. By the way, the first oil wells were developed by an Irish company called Tallow Oil whose origins is in county Carlow. They later sold their interests to a Chinese company called CNOOK international and Total.

Lastly, thank you so much for the gift cards, that was very kind of all of you, what a nice send off! If you happen to be in Denmark one day, don’t think twice about getting in touch at: kizjonie@gmail.com / +4525332216 May God bless you all.

Until next time. John”

The Respondent interpreted this email as an exchange of well wishes with colleagues and shared updates on the Complainant’s future professional plans. 

The Complainant contends this email should have signalled to the Respondent that there was “something” as stated in his closing submission.  The Complainant contends the fact he never mentioned RC in this email should have indicated something.  The Complainant submits if one analyses the email one “will clearly see it is wanting for a person who had a fantastic five-year relationship with mangers and fellow employees”.  The Complainant submits the email was short and nowhere did he mention his two former managers and he submits he only mentioned MT in the email in order to send a message to his two former managers. 

I am satisfied than any employer reading an email such as the above from a departing employee would accept this email to be a genuine gesture to the team at the end of his employment with the company as he moved on to pastures new in his personal and professional life.  I find the position adopted by the Complainant that places some form of onus on the Respondent to analyse this email or any email for that matter in order to uncover hidden messages to be unreasonable.  I am satisfied there is no reason why any reasonable employer would attempt to read between the lines as the Complainant seems to suggest in order to unravel the perceived subliminal messages contained in communications from any employee and in particular contained in the email the complete text of which is set out above. 

The Contract Test:

Not every breach of contract will give rise to a justified repudiation.  It must be the breach of an essential terms that goes to the root of the contract.   The question I have to address is whether there was a breach of a fundamental term, expressed or implied in the Complainant’s contract, which indicated that the Respondent no longer intended to honour the contract. 

The Complainant submits the formation of two new teams with new responsibilities called for a renegotiation of his contact and he submits his move to the technical team is a breach of his contract. 

The Complainant’s contract of employment provides as follows:

2. Function and Duties

2.1  N/A

2.2  N/A

2.3 During the course of your employment, as the business of Globoforce Limited changes, it may be necessary to expand your duties within the general scope of your position or to change your function. Such a change may occur to suit market demands, manpower availability, increased competitiveness etc. and it is a condition of employment that you agree to be totally flexible with regards to your work.

2.4 In order to meet the requirements of Globoforce Limited business and its reasonable operational needs, you may be required to carry out any other duties in addition to or instead of those to which you have been assigned, however, you will not be required to carry out duties which you cannot reasonably perform.

I accept any respondent is within its rights to restructure and to reorganise in response to the requirements of the business and this was not in dispute between the parties.  In the within case a company-wide restructuring was undertaken in early 2022.  The Complainant’s role was assigned a new designation.  The Complainant received notification of the new designation of his role and details of salary increase of 4% and the granting of 50 additional Resting Stock Units.  I am satisfied there seems to have been no issue with this outcome of the restructuring or with the job description that was provided at that time.  The difficulty arose when the Client Services Team of which the Complainant was a member was split into two areas, namely technical team and customer success team.  I am satisfied consultation took place with all team members including the Complainant. 

I accept the Complainant expressed a preference to be on the customer success team and he was clearly disappointed when this did not happen.  Whilst I sympathise with the disappointment he felt I am unable to find this move to the technical team constituted a repudiatory breach of his contract.  I am satisfied there was full consultation and the Complainant clearly had no issue that is documented anywhere or raised during hearing with the new designation of his role or his salary increase or his job description.  I am satisfied support was offered to the Complainant after the move to the technical team and the initial period of overseeing the team, but he decided he would learn bit by bit as he himself submitted.  I am satisfied a clear and unambiguous offer of support was forthcoming from the Respondent noting the content of an email sent to the Complainant by MT on 24/11/2022 and I quote as follows:

“Hi John,

With S now gone from the team and some members on annual leave, we are going to need some support on tickets moving forward.  …..Rae mentioned you had concerns about the technical ones given you had not supported them in some time.  It might be something for the new year, but given you are an escalation point for team members, it would be worth doing an exercise to see where the knowledge gaps are for you and look to upskill on it.

We will support where required also. 

Thanks a mill.

M

The Complainant tendered his resignation by email as follows on 24/01/2023.  

Hi Rae,

I’m following up on our telephone conversation earlier today and WhatsApp text message of 19th/Jan/2023. This is to let you know that I’m resigning my position as Sr. Client Services Administrator effective today 24th/Jan/2023. As agreed, my notice period will end on the 17th/Feb/2023 a week earlier due to my lease agreement expiration on the 19th/Feb/2023. Thanks for all the support.

With Gratitude, John Nsubuga Sr. Client Services Administrator

I am satisfied the resignation email is not one which would flag any issues to any employer in its directness, its lack of ambiguity and the gratitude expressed for support received and the fact the Complainant sought and was granted the accommodation of an earlier exit date to coincide with the termination of his lease.  

The resignation email was followed two days later on 26/01/2023 by the following email from the Complainant to RC:

Hi Rae,

I was chatting to a colleague who has been around longer than me and she advised that I should try to seek for the severance pay package.  Hopefully HX will be able to advise us on the matter. [emphasis added].  I’ll also take 5 days annual leave for the last week to ensure that I clock my full five years with the company. Workday has been updated.

This is in light of the way the severance pay is calculated should the answer be positive but also for my CV, who knows what the future has in stock?

I also get to scoop my five year anniversary award to buy some shoes for the kids in Pennys. (smiley face emoji) There is no Pennys in Denmark.

Thanks in advance. John

RC responded immediately as follows:

Hi John,

In terms of a severance package I will have to come back to you about that.

For the getting up to the 5 YOS, that is different. You would obviously be better off with that. I’ll confirm with HX and Payroll about your end date.

Regards Rae

The Complainant’s position on this email exchange set out above is that it provides proof that he had lodged a grievance otherwise “why would a manager contact HR to talk about a severance package if he had not received his grievance?” I find this makes absolutely no sense as the Complainant himself acknowledges in his email to RC that the severance pay package question is one for HR. 

I am satisfied the email exchange above is a convivial email exchange between the Complainant and his manager in which the Complainant asks his manager a question to which he (the manager) simply does not have the answer and as is typical in most companies any such queries will be forwarded to HR.  In a general sense when a manager receives a query that is outside of his technical or operational expertise HR will always be the first port of call in search of an answer.  I am satisfied there is nothing untoward or nefarious here.  It is simply a matter of fact.  I cannot accept the Complainant’s assertion that the escalation of his severance pay package query to HR is proof he had raised a formal grievance.    

Nor can I accept the Complainant’s assertion that a phone call to RC provides evidence of a grievance being lodged when RC escalated the subject matter of said phone call to MT.  The Complainant submits he made it clear to RC that he had no desire to move to the technical team and he gave him his reasons.  The Complainant asserts that by escalating the matter to MT who is his boss this proves a grievance was raised.  I do not accept this to be the case.  It is apparent from the Complainant’s own submission “many phone calls” were had with RC.  I am satisfied it is reasonable to infer that as the Complainant did not seem to accept RCs word on the matter it would be reasonable for RC to refer the matter up the line.  I note RC in evidence states he is an associate manager but not the manager [emphasis added]. 

It is an inescapable fact there was no formal grievance raised by the Complainant despite his assertions to the contrary.  I fully accept there may be situations in which this can be justified but the facts of the within case do not constitute such a situation.  In the Liz Allencase, the EAT accepted the Claimant’s assertion that she could have no confidence that the respondent would address her grievances properly or effectively in circumstances where various other complaints she had raised had not been dealt with properly or effectively. 

I note the Complainant in the within case had previously utilised the Respondent grievance procedure and there is no doubt his grievance was properly and effectively dealt with.  The Complainant invoked the grievance procedure during his probation, a measure which for many employees in many organisations could have been problematic but that is not the case here.  Human nature being what it is I do not doubt there may have been consequential interpersonal differences arising out of the complaints he had made but what the Complainant alleges as a “revenge campaign” is not borne out by the evidence.   The Complainant went on to enjoy a successful career with the Company albeit he alleges the reason he did not invoke the grievance procedure was because he did not want three angry managers implying that he had two from the previous grievance.  I do not accept that as a reason for not invoking a grievance procedure that he had tried and tested and with which he was familiar.  The Complainant was happy with the meetings and the outcomes at that time as noted from the minutes of the meetings from the earlier grievance. 

I am mindful here of Travers v. MBNA Ireland Limited [UD720/2006] a case in which the Complainant’s role was found to have been changed by the employer in a manner which was “not in keeping with the contract of employment.”  While the Complainant in this case initiated the company’s internal grievance procedures, he resigned without lodging a final appeal.  In this instance the Tribunal found that:

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

And:

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

For the avoidance of doubt unlike in Travers v. MBNAI do not find the Complainant’s role was found to have been changed by the employer in a manner which was not in keeping with the contract of employment, but I am guided by the well-settled and long-established precedent here in terms of the consequences of the failure to exhaust internal procedures. 

The only expression of the Complainant’s dissatisfaction with his situation is to be found in the exit interview detail which was completed a few days before he left the Respondent company.  The Complainant states the technical services role was not what he was meant to be doing / what he wanted to do and he felt pushed out as this was completely different whilst at the same time scoring a satisfaction rate of 9 out of 10 and when asked if he would recommend a friend to work in the Respondent company he states yes.  I find it is regrettable the Complainant did not see fit to articulate his dissatisfaction as set out above by way of invoking the grievance procedure.  Notwithstanding, for completeness the fact that the Complainant did not invoke same is not determinative in the within case because I find there is also a failure to satisfy either one or a combination of both of the legal tests.      

Having regard to the totality of the evidence adduced and based on my careful consideration of the written and oral submissions I find the Complainant has failed to discharge the burden of proof to support his claim that he was constructively dismissed for the following reasons.

There is no evidence to suggest that the Respondent no longer intended to be bound by any essential term of the contract of employment.   I cannot find the Respondent acted in a manner which was so unreasonable as to make it impossible for the Complainant to continue in the employment.  I can find no evidence of unreasonable behaviour on the part of the Respondent during the tenure of the Complainant’s employment with the Respondent company.  I am of the view the Complainant was facilitated by the company in terms of any requests he made of them.  It is an inescapable fact there was no practice of paying employees a severance package on resignation after 5 years’ service.  I do not find the withholding of such a payment to be unreasonable behaviour when it is common case there would be no such entitlement in any company to such a severance package. 

I find the Complainant has failed to establish he was constructively dismissed particularly when regard is had to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” pursuant to the Unfair Dismissals Act.  I cannot find the Respondent acted in a manner which was so unreasonable as to make it impossible for the Complainant to continue in the employment. 

The “contract” test:

I find that the Complainant has not pointed to any action on the part of the Respondent that demonstrates that there was a significant, or for that matter, a minor breach of his contract.  I note the Respondent offered support and training to the Complainant which clearly indicates how invested they were in the Complainant and in his future with the company.  There is no evidence to suggest that there was an undermining of the relationship of trust and confidence between the parties.

 The “reasonableness” test:

I can find no evidence of any action on the part of the Respondent that the Complainant can identify that was so unfair and unreasonable that he had to resign.  Having carefully reviewed all the facts as presented to me I find the Complainant has failed to satisfy the burden of proof that the Respondent engaged in conduct that made it reasonable for the Complainant to terminate his contract of employment.  Reasonableness goes both ways, and it is well-established an employee is required to act reasonably by using the employer’s grievance procedure to try and resolve the issues that are threatening to lead to resignation before resigning. 

I find the fact the Complainant worked his notice is counter intuitive to the proposition that the Complainant’s position at work was so untenable that he had no option but to resign.  If the actions of the Respondent were so unreasonable that he had no option but to resign, it is implausible that the Complainant would work out his notice period. 

I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that he had no option but to resign his position or that the conduct of the Respondent was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract. 

In the circumstances the Complainant resigned from his employment of his own volition and was not constructively dismissed within the meaning of section 1 of the Unfair Dismissals Act, 1977.  The Complainant has not discharged the burden placed on him by the Act.  I am not persuaded by the Complainant that resignation was his only option. 

I find the Complainant resigned from his employment of his own volition and was not constructively dismissed within the meaning of the Acts.  Accordingly, I find that his complaint of constructive dismissal must fail. 

CA-00056434-001

For the reasons set out above, I have decided this complaint is not well-founded. 

Constructive dismissal;