Complainant

Respondent

Parties

Yvonne Quigley

United Drug

Representatives

Self-represented 

Peter Gilfedder, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act 1977.

CA-00061276-001

29/01/2024

In July 2015, the complainant commenced working for the respondent as a temporary sales representative.  She was then employed on two more temporary contracts and she was appointed to a permanent role in February 2018.

The complainant’s job involved selling the company’s products to pharmacies.  She was a member of a team of three and, until the end of 2022, she reported to the sales manager, “SM.”  In December that year, a new role of team leader was created and one of the complainant’s colleagues, “TL,” was promoted.  From then on, the complainant reported to TL.  The complainant claims that her relationship with TL deteriorated to such an extent that, a year later, she decided to resign.

It is the complainant’s case that she had to leave her job because SM failed to address how she was treated by TL.  The respondent’s position is that the complainant resigned without using the company’s grievance or bullying procedures to have her concerns investigated and, based on this, her decision to resign and to claim that her dismissal was constructive is unreasonable.

At the opening of the hearing, I explained to the complainant that, in complaints of constructive dismissal, the responsibility for proving that a dismissal is not unfair rests with the employee in the first instance. 

Evidence of the Complainant, Ms Yvonne Quigley

Two weeks before Christmas 2023, the complainant said that she asked SM to meet her to discuss her concerns about her team leader.  They arranged to meet in the Pavilions Shopping Centre in Swords on December 18th.  She said that SM arrived at the meeting without a notebook or pen and, from this, she concluded that he wasn’t treating her concerns seriously.  On December 22nd, when there was no follow-up, the complainant wrote to SM and submitted her resignation.

In the documents she submitted in preparation for the hearing, the complainant included a copy of her email to SM on Friday, December 22nd 2023:

“Hi…

Hope you’re keeping well and looking forward to the break. 

I just wanted to follow up on our meeting on Monday and some of the concerns which I discussed with you.

I feel that to be honest nothing is going to change going forward and that the toxic environment will remain.  This is affecting both my physical and mental health as the atmosphere is constantly negative.  There are only so many times you can get knocked down.  So based on this and it is with huge regret that I have decided to hand in my notice from today.  The last few months have really taken their toll on me and I know that this is the right decision for me now.

Thanks

Yvonne”

The complainant said that when there was no communication after the meeting she had with SM on Monday, January 18th, she decided that nothing would change.  She said, “I gave him a week to come back to me.”  She said that her resignation was accepted within an hour.  She also said that others also resigned because of how they were treated by TL.

The complainant said that she thought SM would follow up with her in January.  She said that she returned to work on January 2nd, and on January 4th, SM sent her an email as follows:

“Hi Yvonne,

As committed, I am writing to you following your resignation before Christmas and my subsequent acceptance of same.

I have now put in train the necessary actions needed to complete your employment with United Drug.  Human Resources will confirm your final salary dates and other matters.  Your employment with United Drug will formally finish on 22nd of January 2024.

One important point, I do not agree with your suggestion that your work environment was ‘toxic.’  I believe that we have always acted in a professional and positive manner with all staff including yourself, in respect of their performance and contribution.  I know this may have been a personal challenge, on occasion, to accept and understand, but we are no different to any commercial organisation in terms of our reasonable performance expectation of our colleagues at all levels.

I have made a decision…that there is no need for you to work your notice period and that you can treat today 4th of January 2024 as effectively your last date at work.  The company will instead pay you in lieu of remaining notice.  I will arrange a time to meet up and have all company property i.e. car, phone and laptop returned from you in early course.

Finally, I want to wish you all the best in the future and thank you for your service to United Drug.

Yours sincerely…”

Cross-examining of the Complainant

Mr Gilfedder asked the complainant about the meeting she had with SM on Monday, December 18th.  He asked her if she thought that it was fair to give the manager less than a week to address her concerns, before she resigned on December 22nd.  The complainant replied that SM “rocked up in casual gear” without a notebook or a pen and that it was apparent to her that he wasn’t taking her concerns seriously.  She agreed with Mr Gilfedder that, before the meeting, she didn’t tell SM what she wanted to speak to him about, but she said that she had met him frequently for meetings.

Mr Gilfedder asked the complainant if she gave any consideration to using the company’s grievance or bullying procedures to have her concerns investigated.  She said that no one told her that she could use these procedures.

The complainant was asked for examples of the behaviour of TL that she considered to be bullying.  She replied that TL talked about her and her colleagues in the office, claiming that they were awkward and different.  She said that TL “pulled faces” while she was on a Teams meeting with her and her colleagues.  She sat that TL sat far apart from her in the canteen and that she made up a story that she and her colleagues were on their phones during a meeting.  The complainant said that they were not using their phones at the meeting.  She said that TL was telling these stories to SM and to Mr Ruane, the head of consumer sales and marketing.

The complainant said that TL sent her an email one Monday and asked her to provide feedback in relation to a sales issue by Wednesday.  The complainant said that she thought it would be a more efficient use of her time if TL phoned her while she was driving, and she could give the feedback over the phone.

The complainant agreed that she was given a list of key performance indicators by TL, and that TL told her that she was available for her if she needed support.  She also said that TL told her that her work was starting to slide.  The complainant said that the reason for this was because of TL’s supervision of her.  She said that TL never celebrated “wins,” apart from once, at the end of 2023 and that her feedback was mostly negative.

The complainant said that she spoke to Mr Ruane about the issues she was having with TL and he advised her to speak directly to TL.  In March or April 2023, when she was due to attend a trade show for baby products one Sunday, she asked to work on the Saturday instead.  She said that more people attended the show on the Saturday.  When she was there, the complainant said that TL ignored her and she spoke to her about this afterwards.  She said that TL apologised to her and explained that she was annoyed because the complainant asked to be on duty on Saturday instead of Sunday.  The complainant said that she also spoke to TL in June 2023 when she didn’t get her full end of year bonus for 2022.

The complainant said that she and TL used to be “great buddies.”  She said that she doesn’t know what happened to make their relationship so negative.  Her view is that TL changed when she became the team leader. 

Mr Gilfedder asked the complainant about her communication with the head of employee relations, and business partnering, “ER,” who wrote to her on January 9th 2024, following an email she sent to the sales manager on January 8th.  In the January 8th email, which she copied to two members of the board of directors, the complainant set out her complaints about TL which can be summarised as follows:

1.       TL did not send on sales figures since August 2023, despite being asked on a few occasions.

2.       TL speaks to the complainant and her colleagues “as if we are children,” has no respect and talks about them in the office.

3.       TL accused the complainant and her colleagues of being on their phones at a meeting.  The complainant said that they were not on their phones.

4.       The complainant said that she feels that she has “no voice” and that there is a “toxic vibe” in the office.

5.       She said that TL doesn’t like the complainant and her colleagues, that she is “always pulling faces” and that “she can’t stand us.”

In her email of January 8th, the complainant also said that she expected to receive her end of year bonus for 2023 in her final salary.  In response, ER wrote to the complainant and said that he was happy to meet with her to discuss the concerns she had she raised.  He informed the complainant that it was a condition of the payment of the bonus that employees had to be in employment on the date that the bonus was paid out in June each year and, as she was leaving on January 22nd, she would not receive a bonus.

The complainant replied to ER saying that she tried to phone him but that her call went to his voicemail.  As her email was again copied to two board members, the HR director replied and said that she would ask ER to call her.  On January 11th, ER sent an email to the complainant and suggested a call at lunchtime.  It is apparent from the emails presented in evidence by the complainant that she had a conversation with ER that day, because he referred to this in an email at 18.50 on January 11th.  In this email, ER advised the complainant that she should not contact customers or colleagues and that her access to the company’s email would be discontinued.  In the documents she presented at the hearing, the complainant included her phone record of January 16th.  It is apparent from this that ER phoned her at 17.09 that day, and that she returned his call immediately.  The complainant said that she left a voicemail for ER, but that he did not reply.

The Complainant’s Written Submission

In a statement she submitted in advance of the hearing, the complainant said that ER phoned her on January 16th 2024 at 17.09.  She said that she phoned him back immediately, but he didn’t answer her call and he didn’t return her call after that.

The complainant said that her last day of employment was January 22nd 2024, and that she was contacted by the HR department on Friday, February 2nd to arrange to have her car, laptop and phone collected.  On January 4th, she said that SM told her not to come into the office.  She said that, unlike other employees who resigned, she got no flowers or a gift and there was no presentation to mark her departure from the company.

The complainant said that the manager that she claims was bullying her told her colleagues that she left because she was under pressure to meet her sales targets.  She said that this is not true because she hadn’t received her sales figures since August 2023, although she requested them several times.  She claims that other employees left because of the conduct of this manager.

Chronology Leading to the Complaint of Constructive Dismissal

The documents submitted by the respondent show that the complainant resigned on October 20th 2022, but retracted her resignation four weeks later, on November 17th.  In June 2023, she received 90% of her 2022 bonus, based on achieving 89% of her targets. 

In November 2023, TL met the complainant to discuss her key performance indicators (KPIs).  TL mentioned that the complainant’s sales targets were off track and she was concerned that her call rate was too low.  She remarked that store orders fell short and no meetings were arranged in line with targets.  TL noted that the complainant was partially on track for the strategic accounts support KPI, and that her territory management (new product) target fell below expectations and was significantly lower than her team colleagues.  At the meeting, TL offered help and support, but the complainant did not take up this offer.

On December 14th 2023, the complainant sent a text message to SM, asking him to meet her.  In her message, she simply asked SM if he would be free to meet her in the Pavilions Shopping Centre the next morning.  SM wasn’t free on the 15th of December, but he agreed to meet the following Monday, December 18th.  At the meeting, which took place in an open food court in the shopping centre, the complainant was angry about TL’s feedback about her being late for a meeting on December 12th and for being on her phone during the meeting.  She claimed that other colleagues were also angry at TL. 

On Friday, December 22nd, the complainant sent SM the email in which she confirmed her resignation.  On January 4th, SM wrote to the complainant and informed her that she was not required to work her notice and that she could finish up that day.

On January 8th, the complainant wrote to SM and said that she was concerned about how TL was “speaking to and treating the pharma team.”  She outlined interactions with her and the team and TL which she considered to be negative.  Referring to TL, she said, “her bullying behaviour over the last 11 months have really taken their toll on me both mentally and physically, we have never had anything positive said to us, everything is negative.  For United Drug to allow bullying to manifest within the company, is a major red flag.”  The complainant said that she felt unsupported and isolated and left with no option but to resign.  She said that the tone of SM’s email “suggests to me that I am the problem and that I cannot take criticism in relation to my work, which is absolutely not the case.  I have never had an issue with anyone commenting on my work and I always take constructive criticism on board.”  The complainant said that she expected to receive her bonus payment and she concluded her email by saying that she didn’t understand why SM didn’t contact her when she resigned on December 22nd.

We know from the evidence of the complainant, that, between January 9th and 11th 2024, she was in contact with the head of employee relations, but that nothing of consequence emerged from their discussions.  The complainant submitted this complaint to the WRC on January 29th 2024.

Response to the Claim of Constructive Dismissal

In a comprehensive submission provided in advance of the hearing, Mr Gilfedder argued that the complainant has failed to meet the two tests which demonstrate that she was entitled to terminate her employment.  She has not shown that the respondent repudiated her contract, and she provided no evidence to demonstrate that the respondent no longer intended to be bound by the contract.  Considering the second test, the reasonableness of the complainant’s decision to resign, Mr Gilfedder said that the respondent acted reasonably at all times and that the complainant’s team leader and sales manager tried to make the complainant more accountable and to highlight the performance issues that needed to be improved on.

Mr Gilfedder submitted that the complainant’s decision to resign was unreasonable, because she failed to use her employer’s grievance or bullying procedures to deal with the issues that she claims caused her to resign.  Mr Gilfedder referred to the decision of the former Employment Appeals Tribunal (EAT) in Conway v Ulster bank Limited[1] where the Tribunal concluded that the employee’s resignation was unreasonable in circumstances where she had not pursued her concerns about her job by using the Bank’s grievance procedure. 

The Relevant Law

It is the complainant’s case that she was constructively dismissed, meaning that she had to leave her job because of the conduct of her employer.  The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

[D]ismissal, in relation to an employee means -

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 without giving prior notice of the termination to the employer…

In her submission and, in her evidence at the hearing, the complainant presented several explanations for her decision to resign.  She said that her team leader talked about her and her colleagues in the office, suggesting that they were “different” and “awkward.”  She said that her team leader was negative and didn’t celebrate “wins.”  She said that she accused the complainant and her colleagues of being on their phones at a meeting, and, on meetings over MS Teams, she “pulled faces.”

The complainant said that she didn’t look for advice from anyone in the HR department regarding her concerns about her relationship with her manager.  She said that she spoke to SM on December 18th, and, on December 22nd, when he hadn’t done anything to resolve the situation, she decided to resign.  She said that no one told her that she could use the grievance procedure or the bullying procedure to have a complaint investigated.  She said that she didn’t look for advice before she submitted this complaint to the WRC.

The Burden of Proof in Constructive Dismissal Cases

As Mr Gilfedder wrote in his submission, an employee who claims that they have been constructively dismissed must satisfy two tests, known as the “contract test” and the “test of reasonableness.”  The complainant made no allegation regarding a breach of her contract by her former employer and the issue for consideration is, was it reasonable for the complainant to resign in the circumstances she described?

In the decision of the Court of Appeal in the United Kingdom, Western Excavating v Sharp[2], which was cited by Mr Gilfedder, the reasonableness of the employer’s conduct was examined to determine if,

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

The complainant’s decision to leave her job is grounded on her belief that the sales manager failed to do anything about what she perceived to be bullying by her line manager.  She said that she “gave him a week to come back to me” and that he took no action.  Apart from the fact that there were only four working days between the date of the meeting (December 18th) and the day on which the complainant resigned (December 18th), her resignation does not meet the test of reasonableness.  I have reached this conclusion for the following reasons:

The complainant’s relationship with her line manager changed when TL was promoted in December 2022.  It is reasonable to assume that, when TL became the team leader, the change in their relationship was a difficult transition for both.  The complainant produced no evidence that demonstrates that TL’s treatment of her was so unreasonable that she had to resign and the conflict between them seems to have been connected to TL’s efforts to address the complainant’s performance.

The complainant presented no evidence that TL tried to undermine her or to treat her in such a way that she felt that she couldn’t do her job.  If TL referred to the complainant and her colleagues as awkward and difficult to manage, this is not an example of bullying.  Pulling faces at a meeting or accusing colleagues of being on their phones at a meeting is not bullying, even if the accusation is wrong.  In her evidence, the complainant said that she confronted TL about what she perceived as unacceptable treatment and that TL apologised.  This is not the response of a bully. 

The behaviour of a bully is devious, manipulative, controlling and intended to undermine a person to such an extent that they begin to lose confidence in their abilities.  The complainant’s meeting with SM in a food court in a shopping centre does not indicate that she was serious about the problems she was having with TL or that TL’s treatment of her might lead her to resign.  Most people who feel that they are being bullied would put their concerns in writing in the first instance and, at the very least, would locate a copy of their employer’s procedures for dealing with bullying. 

It is my view that the complainant’s accusations about her manager are examples of a strained relationship affected by the change in the reporting structure and the failure of the complainant to meet her targets during 2023.  She pointed to no unreasonable behaviour on the part of her former employer that justified her decision to resign.  Many of her complaints relate to the period after she resigned, which are not relevant to the cause of her resignation.

The complainant is a professional person with many years of experience in the corporate world.  The respondent company has a HR department and policies and procedures to deal with grievances and bullying.  I find it difficult to believe that the complainant was unable to find any guidance or advice to deal with her concerns before she resigned.  Even if she was unaware of her employer’s policies and procedures, any reasonable person faced with conduct that might lead them to resign would do some research, even a simple internet search, to find out how to deal with the problem before resigning.

Conclusion

Having listened to the complainant’s evidence at the hearing, I find that she has not demonstrated that the conduct of her employer was so unreasonable that she had to resign.  For her part, I find that she acted unreasonably by not asking for assistance from the HR department and by not using her employer’s procedures to address her concerns about her relationship with her team leader.  I find therefore, that her decision to resign does not meet the test of reasonableness that is required to stand up a claim of constructive dismissal.

On this basis of the conclusions set out above, I decide that this complaint under the Unfair Dismissals Act is not well founded.

Constructive dismissal, grievance procedure, reasonableness