Complainant

Respondent

Parties

Cormac  O'Neill

Eui Private Wealth Limited

Complainant

Respondent

Anonymised Parties

Representatives

Declan Harmon, B.L., instructed by Patrick McKee, Turner Solicitors

 John Corcoran, Managing Director

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-00058216-001

10/08/2023

The Complainant commenced employment with the Respondent on 01/12/2021.  His role was Head of Compliance and Risk.  His gross monthly pay was €9,166.66 and he worked 37.50 hours per week.  The Complainant submits that he was dismissed on 11/05/2023 at a meeting with the Respondent’s managing director.  The Respondent denies that he was dismissed at this meeting and submits that he tendered a letter of resignation on 02/06/2023. The Complainant submitted his complaint to the WRC on 10/08/2023.  The Complainant made a covert recording of the meeting on 11/05/2023 and the Respondent approved and requested that a copy of this recording would be made available to the Adjudication Officer at the hearing.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

It was submitted on behalf of the Complainant that he had a meeting with the Respondent’s managing director in a Cork office on 11/05/2023.  At this meeting the Complainant was told that the Board no longer had confidence in him.  This could only have been regarded that his employment was terminated.  He sent a letter of resignation to the Respondent on 02/06/2023 and this must be looked at as constructive dismissal.  The primary case on behalf of the Complainant is that this was a no notice dismissal and there was no process.

The Complainant gave evidence on oath.  He outlined his role with the Respondent as that of Head of Compliance and he reported directly to the Board.   This role is deemed to be a “Controlled Function” by the Central Bank of Ireland (C.B.I.).  The Complainant’s appointment to this role had to be approved by the Central Bank and this takes account of the minimum competency levels, and that the person is fit and proper to hold this independent office.  The Respondent is given a licence by the C.B.I. to operate and as part of this there must be a Head of Compliance role.   The Complainant confirmed that he had a contract of employment, and his annual salary was €110,000.  The Complainant gave evidence that his contract of employment had a termination clause and the circumstances giving rise to such a termination were outlined in the contract.  He commenced the role with the Respondent in December 2021.

The Complainant gave evidence that he sent an e-mail to the Respondent’s managing director on 05/01/2023 in which he outlined various matters of concern.  The Complainant gave evidence that his working relationship with the managing director deteriorated after this time, and this led to his dismissal at the meeting on 11/05/2023.  Since he sent the e-mail the Complainant felt that he was abused at board meetings, and he was hindered in the performance of his duties.  The Complainant stated that he was Dublin based and worked from home.  He received an e-mail from the managing director to attend the meeting in Cork and he was not provided with any details in relation to what the meeting was about. 

The Complainant confirmed that he drove to Cork on 11/05/2023 and met the managing director in an office.  The Complainant confirmed that he made a covert recording of this meeting as “I knew something was going to happen and I felt in danger, and I recorded the meeting to protect myself”.

The Complainant gave evidence that at the meeting he was told that the Board of Directors had lost confidence in him.  He understood that this meant he was dismissed as he cannot continue in that role if the Board had lost confidence in him.  The Complainant stated that he never previously received any negative feedback about his performance.  He stated that he was shocked at this development and taken unaware.  There was no appeal offered to him.  The Complainant stated that he was not given any information about why the Board had lost confidence in him and he believed that this was retaliation by the managing director following the e-mail he sent in January 2023.

The Complainant provided further evidence in relation to the meeting and said that they had “without prejudice” discussions. There was an error in a submission to the C.B.I. and the Complainant was told that the Respondent would rectify this if he resigned.  The Complainant felt that his reputation was at risk.  There was no opportunity to discuss the issues, no performance improvement plan and he received no correspondence from the managing director in relation to the outcome of the meeting.

The Complainant gave evidence that he understood from the meeting that he was fired, and the Board has lost confidence in him.  He stated that the managing director told him “I want you to move on” and he was fearful about his reputation if he did not move on.  The Complainant outlined that as a result of this meeting he went on sick leave.  The Complainant was asked about the e-mail he sent on 02/06/2023 and he gave evidence that he wrote this as he was concerned about what happened at the meeting in Cork.  He knew he was dismissed; he was given no reasons; no correspondence and he received no pay when on sick leave.  The impact of this on him was very stressful and he was fearful about going back into work as he did not trust the managing director.  The Complainant stated that because he did not receive anything in writing from the managing director, he did not want his standing with the C.B.I. to be compromised and in order to bring clarity to the situation he sent the e-mail with his resignation. 

The Complainant stated that he did not agree with the Respondent’s position that this was a resignation letter.  The Complainant stated that when he sent that e-mail it was not a resignation letter.  There was no engagement with him by the managing director and he could not stay on indefinitely and have no pay.

The Complainant gave evidence that he has lost a significant amount of money as a result of this dismissal.  He took up some temporary work for three months and was unemployed from August until December 2023.  He attended a number of interviews, but he did not secure employment.

The Complainant was cross examined on behalf of the Respondent.  It was put to the Complainant that he requested to work remotely.  He did not recall doing so and he was reminded that he took up this role during the COVID-19 pandemic.  The Complainant confirmed details of his role and remuneration.  The Complainant confirmed that he was responsible to the Board and the first he heard of any criticism was at the meeting in Cork.  There were no issues highlighted to him during probation and no issues during the subsequent year.  The Complainant also stated that there was no criticism of him at any Board meeting. 

The Complainant was asked why he was preparing his CV and he stated that this was for insurance within the business.  The Complainant was asked why he did not raise his concerns with the C.B.I. in January 2023, and he stated that the correct procedure was to raise these internally.

It was put to the Complainant that he knew when he submitted his e-mail on 02/06/2023 that he would be leaving the Respondent without these roles being in place.  He confirmed that was for the Respondent to deal with.  It was also put to the Complainant that while employed by the Respondent he was actually looking for alternative employment and he confirmed that he was.

The Complainant was asked when he was told that he was fired by the Respondent.  He stated that when he was told at the meeting in Cork that the Board had lost confidence in him and that he was told by the managing director that he wanted him to move on and that he can’t be meeting him again next year. The Complainant also stated that he clearly understood that his name could not be put forward to the C.B.I. unless he resigned from the Respondent.

In a closing submission on behalf of the Complainant Mr Harmon, B.L. stated that it was clear that at the meeting on 11/05/2023 that the Board had lost confidence and the only conclusion was the Complainant was dismissed or terminated.  There was no process, no details were provided, and the Complainant was not given any opportunity to improve.  In the absence of a dismissal the Complainant’s e-mail dated 02/06/2023 is evidence that the Complainant’s working conditions arising from the meeting on 11/05/2023 were such that he then had no option but to resign.  This was constructive dismissal and there were no fair grounds provided by the Respondent.

In relation to the available remedies the Act provides for reinstatement, reengagement and compensation.  It was submitted on behalf of the Complainant that the only appropriate remedy in this case was compensation.

The Respondent’s managing director, Mr John Corcoran, gave evidence on oath.  He outlined that they are a small company which is authorised and regulated by the C.B.I.  The Complainant’s role is independent of the executive and reports to the Board and C.B.I.  It was submitted by the Respondent that the Complainant was working remotely, and it was his job to tell the managing director it there were any issues in relation to compliance.  Mr Corcoran outlined that the Complainant had full access to the Board and to the Chair of the Board.

In its follow up submission, the Respondent noted that the Complainant’s e-mail of 05/01/2023 was allowed into evidence although it was not included in the Complainant’s book of papers.  It is the Respondent’s position that the e-mail of 05/01/2023 contained “unwarranted and unfounded statements” and was sent by the Complainant as “a defensive response to a telephone conversation between the CEO and the claimant in the month previous”.   This conversation was seeking assurances that the Complainant was working on a daily basis.

It was submitted on behalf of the Respondent that the contents of the e-mail were dealt with, and the concerns raised were addressed.  The Respondent believes that the Complainant made unfounded allegations and they had to retain the services of an external legal practice due to the fact that the Complainant did not put some of the measures in place.  The Respondent also refutes the Complainant’s proposition that he did not have access to board meetings. 

The Respondent also refutes the Complainant’s view that the Respondent did not make the proper returns to the C.B.I., and he was aware that the Respondent had acknowledged an error in a submission.

The Respondent also refutes that the Complainant had to work in an atmosphere of fear and intimidation.  It is the Respondent’s position that the Complainant “willingly resigned” from his role.

In response to a question from the Adjudication Officer, Mr Corcoran outlined that the purpose of the meeting with the Complainant on 11/05/2023 was to bring to his attention that the Board were not comfortable as they were not getting the information they required.  It was his intention that the meeting was arranged to get things right.  The Respondent confirmed that he did confirm to the Complainant that the board had lost confidence in him, and he wanted to get that sorted.

Mr Corcoran was cross examined on behalf of the Complainant.  He confirmed that at the meeting on 11/05/2023 he informed the Complainant that the Respondent’s board had lost confidence in him.  It was put to Mr Corcoran that when that statement is looked at in the context of the Complainant’s contract of employment the only reasonable conclusion that could be drawn was that he was dismissed.  The relevant section in the Complainant’s contract reads:  “We may terminate the Appointment with immediate effect without notice and with no liability to make any further payment to you (other than in respect of amounts accrued due at the date of termination) if you:

a)      […]

b)      […]

c)       are, in the reasonable opinion of the Board, negligent and incompetent in the performance of your duties”.

Mr Corcoran acknowledged that could be an interpretation.  Mr Corcoran was asked why, if the Board had a difficulty, it did not invoke the disciplinary provisions which were clearly outlined in the Complainant’s contract of employment.  Mr Corcoran stated that the purpose of the meeting with the Complainant on 11/05/23 was to find a way to get common ground and improve working relations.  Mr Corcoran stated that “there was no decision made at Board level to terminate the Complainant’s employment.”

It was put to Mr Corcoran that there was no Performance Improvement Plan (PIP) put in place to deal with any issues.  Mr Corcoran stated that they were a very small business, and they employ people to do their job.    It was put to Mr Corcoran that they skipped their process and went straight to dismissal.  Mr Corcoran denied that the Complainant was dismissed. 

The Respondent also submits that if there was a finding that the Complainant was dismissed this needs to be looked at in the context of the actions of the Complainant who voluntary resigned.

CA-00058216-001:  This is a complaint of unfair dismissal seeking adjudication by the WRC under Section 8 of the Unfair Dismissals Acts, 1977-2015.  The Act requires me to make a decision on whether or not the Complainant was unfairly dismissed in accordance with Section 6 of the Act. As this is a complaint of unfair dismissal there must be a dismissal within the definition of Section 1 of the Act.  This also encompasses such circumstances where the employer terminates the employment relationship or where the employee can validate that they were constructively dismissed.  The Complainant in this case is also claiming constructive dismissal.  The fundamental issue in this case is whether an actual dismissal, as defined by the Act, and as a matter of fact took place.

In conducting my investigation and in reaching my decision, I have reviewed all submissions and supporting documentation presented to me by the parties including the post hearing documentation.  In addition to this I have carefully considered the oral evidence which was adduced at the hearing on 10/01/2024.  I also made my own inquiries into the complaint during the hearing to establish and understand the facts and to seek clarification on certain matters.

The Relevant Law:

Section 1 (a) and (b) of the Unfair Dismissals Act defines ‘dismissal’ for the purposes of the Act in circumstances where:

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

“(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”.

Where there is a dispute in relation to the fact of dismissal the Labour Court in the case of Longford County Council v Joseph McManus [UDD 1753] held as follows:

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined”.

If a dismissal did occur, was it unfair in accordance with Section 6 of the Act?

Section 6(1) of the Act states:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

From the evidence adduced at the hearing it is absolutely refuted by the Respondent that the Complainant was dismissed by the Respondent at the meeting on 11/05/2023.  The Respondent submits that the Complainant willingly resigned from his employment on 02/06/2023.  The Complainant believes that he was dismissed at the meeting on 11/05/2023 and in any event the outcome of that meeting was that he then had no option but to resign.  This was constructive dismissal.

The question of dismissal in this case turns on the following facts.  The Complainant was advised on 11/05/2023 that the Board had lost confidence in him. The complainant submitted a resignation by e-mail on 02/06/2023.  The Complainant made a covert recording of that meeting and a copy of which was provided to the Adjudication Officer with the absolute consent of both parties.  It is only in such limited circumstances that a covert recording could considered.

What is clear from that recording is that the Complainant was that told he was informed that the Board has lost confidence in his ability as head of compliance.  Several examples of concern were provided.  After some robust discussion the meeting then went into “an off the record, without prejudice” phase and the Complainant and the managing director discussed various matters including how the Complainant’s employment might be brought to an end.  During the meeting the Complainant outlined his efforts to obtain alternative employment in the previous months and the Respondent noted that the Complainant had felt the need to move on himself.

What is also clear is the meeting ended with the Respondent stating that something needed to be sorted out and that some sort of plan needed to be developed.  The Respondent also noted that “we need to revisit this conversation” and emphasised that they would be fair to the Complainant and the managing director stated that he was not going to make life difficult for anyone.

It is clear that the Complainant could only be dismissed by virtue of a Board decision.  The managing director gave evidence at the hearing that no such decision was made.  There was no evidence from any Board meeting that this was considered. If the Complainant was dismissed there was no formal communication to confirm this and there was no engagement by or on behalf of the Complainant seeking this.  The evidence is that the Respondent had raised concerns about the Complainant’s performance and wished to find a way to resolve this.  That could have comprised of an exit strategy or some other plan that would be agreeable.   The Complainant did not engage further on this matter or raise any grievance with the Board in relation to his judgement about the meeting.   I have concluded that the Complainant was not dismissed at the meeting on 11/05/2023.

The Complainant is also seeking compensation of €50,464 arising from his constructive dismissal from his employment with the Respondent.

As the Adjudication Officer I am obliged to establish if Section 1(b) of the Act of 1977 operates to validate this complaint of constructive dismissal.  Section 1(b) states:

“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 his contract of employment without giving prior notice of the termination to the employer.”

Considering the statutory definition contained in Section 1 of the Act of 1977 as amended, and the authoritative principles adopted by the relevant fora and the Courts, the onus lies with the Complainant to demonstrate that his resignation was justified.

In supporting the decision to terminate his employment the Complainant will have to prove that the circumstances of his dismissal met the tests as set out by Lord Denning MR in Western Excavating (ECC) v Sharp (1978) IRL 332, and described as follows:

“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 entitles to treat himself discharged from any further performance.”

And the reasonableness test which was expressed in the following terms:

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be expected to put up with it any longer, the employee is justified in leaving.”

Both of these tests have been followed by various Irish authorities.

In relation to breach of the Complainant’s contract of employment it was submitted that the Respondent failed to utilise any of the relevant parts in relation to performance or dismissal.  It is the Complainant’s position that the Respondent’s Board had lost confidence in him, and this gave rise to an untenable position which could have serious implications for his professional reputation and his standing with the C.B.I.

Significantly, no formal grievance was raised by the Complainant.   It is expected that an employee will exhaust internal procedures prior to resigning.  This requirement featured in many Employment Appeals Tribunal decisions and subsequently in the WRC and Labour Court.  This was particularly well expressed in Conway v Ulster Bank (UD474/1981) where the Tribunal held that “the claimant 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 claimant did not use it.  It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible”. 

In another decision, Travers v MBNA Ireland Ltd (UD720/2006), the Tribunal emphasised the same point: “the claimant did not exhaust the grievance procedure made available to him by the Respondent and this proves fatal to the claimant’s case … In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be sown that the remedy or appeal process is unfair”.

In reviewing the “reasonableness test” the Supreme Court in Berber V Dunnes Stores [2009] E.L.R. 61 in considering the reasonableness test stated:

“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

There is no doubt that this was a difficult situation for the Complainant.  He had worked for the Respondent for almost two years, and he was finding it difficult to find alternative and comparable employment.

The Complainant stated in evidence that his resignation e-mail of 02/06/2023 must be viewed in the context of what happened at the meeting.  That e-mail must also be viewed in the context that the Complainant is an experienced compliance professional who holds legal and financial qualifications. The Complainant must have been acutely aware of the implications when he submitted his resignation to the Respondent on 02/06/2023.

Based on the evidence of the Complainant and the authorities cited, I find that the Complainant has failed to meet the tests set out in Western Excavating (ECC) v Sharp (1978) IRL 332. 

I do not find that the complaint of constructive dismissal taken under the Unfair Dismissals Act to be well founded.

I decide that the Complainant was not unfairly dismissed or constructively dismissed by the Respondent.  The complaint of unfair dismissal made pursuant to the Unfair Dismissals Acts is not well-founded.

Dismissal.  Constructive dismissal.