UDD2440

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00019622 (CA-00025996-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 01 October 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 16 July 2024.

The following is the Decision of the Court:

DECISION:

This is an appeal by Mr Declan Duffy (hereafter the Complainant) against an Adjudication Officer’s Decision ADJ-00019622- CA-00025996-001 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that he was constructively dismissed by his former employer, Forte Healthcare Ltd (hereafter the Respondent).  The Adjudication Officer held that the complaint was not well founded.

Background

The Complainant commenced employment with the Respondent in June 2016 as a territory Manager in the northwest of Ireland selling animal healthcare products. The Complainant tendered his resignation on the 30th November 2018 giving a months’ notice which expired on 31st December 2018. The Complainant submitted that due to the actions of the Respondent he had no option but to resign, The Respondent disputes this and submits that the Complainant was afforded an opportunity to withdraw his resignation but did not do so.

 Summary of the Complainant’s submission and evidence. 

Mr Shearer BL submitted on behalf of the Complainant that he was subjected to unfair and oppressive behaviour by the Respondent from spring 2018 until December 2018 when his employment ended. It is the Complainant’s case that he was left with no alternative but to resign.  His position in the employment was wholly undermined by the conduct of his employer and his efforts at engaging with the Respondent were disregarded. The Complainant has sought to mitigate his loss and secured employment albeit at a lower rate of pay in May 2019, but it was August 2021 before he found a permanent position.

The Complainant in his evidence to the Court gave his employment history with the Respondent. He stated that in 2017 he received a bonus payment which he understood was calculated on profit margins. In 2018 he understood there was to be a bonus of €6,000 paid over four quarters and that he received the full €1,500 for quarter 1. It was his understanding that this was based on his performance and that he had overachieved in that quarter. It was his evidence that to the best of his knowledge not all staff received a bonus in quarter 1 of 2018.

The Complainant stated that as part of his terms of employment he was provided with a company car a Skoda Octavia. The car had to be returned to the garage three times due to the car suddenly losing power when driving.  It was the Complainants evidence that he lost all confidence in the car and did not feel safe driving it.  He communicated his concern to the Respondent but did not believe they were taking his concerns seriously. While the car was assessed he was never contacted about the assessment despite being asked by the GM to have his phone on while he was on leave so the assessor could contact him.

The Complainant stated that he believed he was placed on a Personal Improvement Plan (PIP) In July 2018 to apply additional pressure to him because he was raising concerns about driving the car. and that he was looking for external advice in respect of the legality or otherwise of the Respondent implementing a PIP. The National Sales Manager informed him he was being placed on a PIP for eight weeks, which he felt this was a very short time frame if there were issues that needed to be improved.  He confirmed that he did not meet the June 2018 sales targets. He felt the targets were excessive and not achievable. He stated that he was also asked to change focus on to small animal products and this was the first time he had been asked to do that work. He attended a lunch and learn presentation on the small animal range with a veterinary surgeon in July 2018. It was his evidence that he does not accept there were gaps in his knowledge. Learning about the small animal products was a work in progress. His strong points were big animals and equine.

The Complainant informed the Court that he was excluded from attending a sales conference in September 2018. He had originally been requested to put the date in his diary and only found out that he was not going when he went looking for his tickets for the flights. He was never given a clear explanation as to why he was not to attend and as far as he knows he was the only salesperson not attending. He was only told on the 3rd September 2018 when he returned from parental and annual leave, that he was not attending the conference. Prior to that he had been included in emails and received documents relating to the conference.

The Complainant stated that he went out sick on the 3rd September 2018, and asked the Company to complete the forms for social welfare on that date. He was paid for the first two weeks but then was not paid. Social welfare continued to pay his entitlement to the employer for some time, and it took him three weeks to get the social welfare payments back from the Respondent.

He was requested, to attend the company doctor in November 2018 which he did. The Doctor certified him unfit for work but fit to engage with the Respondent in respect of the issues he had. The Complainant stated that he felt he was getting nowhere with the Respondent who wanted him to process his issues through the internal process whereas he wanted to use the mediation services of the WRC.  He submitted his letter of resignation on the 30th November 2018, and on the same date he wrote to the Respondent to advise that he would be returning to work on the 3rd December 2018.   The Employer wrote to him on the 3rd December 2018, asking him to reconsider his resignation and noting that they had not had an opportunity to engage with him despite several efforts by them to arrange a meeting. The letter indicated that they had not accepted his resignation and would afford him seven days until the 10th December 2018 to reconsider his decision to resign.   The Complainant wrote back on the 4th December stating that the dates previously identified were not suitable for him and setting out his concerns with the car, the proposed PIP and the exclusion of him from the September conference.

It was his evidence that he went back to work the first week in December using his own car but was told he had to provide a certificate from his doctor confirming he was fit to go back to work and was unable to get same until the 10th December 2018. The Respondent invited him to a meeting to discuss his issues. However, he wanted to go to mediation in the WRC as he understood the WRC would represent him at the mediation. The Employer was not agreeable to go to the WRC.

The Complainant submitted that in respect of the conference, he had been asked earlier in the year to rebook holidays and push them back to May 2018, so he could attend the conference, however he had not included the emails in his submission to the Court. He also confirmed that as far as he knew only one other person was not allowed attend, but they were leaving the company at the time.

Under cross examination by the Employers representative Adare HR, the Complainant accepted that he had signed a contract and that paragraph 10 of same referred to the grievance procedure. He accepted he was made aware of the companies’ policies and that they formed part of his contract of employment. In response to a question as to what it was that made him decide to leave without using the policies, the Complainant stated that it was a combination of the issues arising with the car which he believed was not fit for purpose, the implementation of the PIP, and not being invited to the conference.

It was his evidence that on the 3rd September 2018 in a discussion with Ms Coss he invoked the grievance procedure in accordance with his terms of employment, but he felt his concerns were being ignored. The Complainant accepted that the car was returned to the garage each time it broke down. However, he stated that he had no confidence in the garage and did not want to drive the car.  He accepted that the Respondent facilitated an independent assessment of the car but from his perspective the report did not explain the loss of power. It was his evidence in response to a question from the Respondent’s representative that the turbo was replaced on two occasions and that there was a hazard assessment carried out on foot of his complaint to the HSA. He confirmed that the HSA did not pursue the issue after that. He was asked to make himself available while on leave to engage with the consultant carrying out the hazard assessment which he did, but he was never contacted.

The Complainant stated that his work was horrendously impacted by the car issues.  He accepted that he had not set that out in writing to the Respondent but felt that they should have known this from his emails.  In respect of the issues identified by Ms Cross for the PIP he did not believe there was any shortfall in his admin work. He used the CRM vison system, but the data only uploaded when you were in an area with WIFI which was problematic in the region he was covering. In respect of the letter of 6th July 2018 identifying the issues and indicating support would be provided, he did not accept that this was a reasonable approach, and he was looking for more clarification about the process. It was his evidence that prior to the 6th July letter he had a brilliant relationship with Ms Coss.

The Complainant accepted that he was accompanied on a field visit on 19/20 July 2018 the details of which were recorded in a field visit logbook. However, he did not accept that he had shortcomings in his work. The Complainant accepted that the Respondent could decide who would attend a conference, but he was not told until the last minute that he was not attending, and he was never told why. In respect of the September sales events, he accepts that diary markers could be sent out by the employer and that was a practise that existed. However, he does not accept that not everyone who got the diary marker attended the conference. He was aware of only one other person who did not attend, and she was leaving in and around that time.

He accepted that he was referred to Occupational health on 1st November 2018 which certified him fit to engage with the Respondent but not to return to work. He accepted that the Respondent sought to engage with him following that medical report.  He submitted his resignation on the 30th November 2018 and on the same day submitted an email stating he would return to work on 3rd December 2018.  He was contacted by the Respondent and advised that he had to submit a fitness to return to work medical certificate. He was unable to get an appointment with his doctor until the 10th December 2018 and which time he was certified fit to resume work.

He accepted that following his resignation letter of the 30th November 2018 the Respondent had engaged in correspondence with him on the 4th December, 12th December and finally on 17th December, advising that his resignation was now being accepted. He did not dispute that he had not withdrawn his resignation within the timeframe afforded to him by the Respondent or at any stage. The Complainant clarified that he was on parental leave and annual leave in August 2018 returning to work on the 3rd September 2018 and then going out sick until December 2018. He also confirmed that he was informed the car was ready to be picked up from the garage at the end of August 2018, but he never collected same as he had no confidence in driving same.

Mr Shearer BL submitted that there were issues with the evidence the Respondent was seeking to rely on before the Court. There were claims in respect of the Complainant’s work but the only correspondence with him was the letter advising him he was being placed on a PIP in July 2018. Evidence was given that the Respondent had concerns since May 2018. It is the Complainant belief that his face no longer fitted and that was why he was not allowed attend the conference in September 2018. The Respondent’s primary defence appears to be that no grievance was raised but the Complainant articulated his issues on more than one occasion and ultimately in his letter of 12th December 2018. The Complainant at the time he sent the letter of resignation felt he was not being listened to and that he had no other option.

Summary of the Respondent’s submission and evidence. 

The Respondent refutes the allegation that the Complainant was dismissed. He tendered his resignation giving a months’ notice on 30th November 2018. The Respondent wrote to him on the 4th December asking him to reconsider his position and giving him until the 10th December to withdraw his resignation. The Respondent sought to engage with the Complainant at every opportunity. On the 17th December 2018, following numerous unsuccessful attempts to engage with the Complainant, the Respondent reluctantly accepted his resignation. A full week after the original deadline of 10th December 2018.

 While the Complainant asserts, he reached his targets and was paid a bonus for quarter 1 of 2018, it is the Respondents position that at that point a bonus was paid to all sales staff as an incentive.  The Respondent implemented a new CMS vision scheme which was to assist with the expansion of the business and the Complainant appeared to struggle with uploading information on to this. The CMS indicated that the Complainant was not achieving the same return on calls as some of his colleagues and this was one of the issues that needed to be addressed. Concerns had also been raised from a training event in May 2018, that the Complainant was having difficulty with some of the smaller animal products in terms of knowing the key ingredients.

The issue in respect of his social welfare illness benefit arose because he indicated on the form it should be paid to the Employer. Once this was realised the issue was sorted and the money was paid to the Complainant.

The first witness for the Respondent was Mr Richard Young Managing Director who informed the Court that he had been working in the veterinary industry since 2005. In 2016/2017 he started making his own products. In 2018 a number of corporates were buying up single veterinary practises, so the nature of their client base changed. He decided to employ a new Sales Manager, Head of Technical and Marketing and a key account Manager to deal with corporate clients particularly in the UK. When the Complainant joined the company in 2016, they only employed three territory Managers in Ireland and 5 in the UK.  Until 2017 they operated a manual system in terms of recording clients’ details and orders. In 2018 they introduced the CMS system which could be populated from the iPad the sales team had and could help identify sales, trends, appointments and what was discussed during the appointments. The system was an important part of the Respondent’s strategy for gathering and retaining data. The Complainant was trained in on the system and nobody every raised any issues about the functionality of it. Once the information was inputted to the iPad, it uploaded to the cloud when the iPad was in a WIFI area.

The area they work in is a highly regulated area, so the sales team need to be knowledgeable about the products and not give out incorrect information.   Mr Young confirmed that he was present at a 2-day training seminar in May 2018 which the Complainant attended. He also had regular meetings with his management team which included the Complainants Manager. It was his evidence that he felt there were concerns over the ability of the Complainant to understand technical information and relay same to clients, he was also having difficulty with the CMS system. He was aware of the proposal to put the Complainant on a PIP in respect of his use of the CMS system and his technical knowledge.

Mr Young disputed that the Complainant had overperformed in the first quarter of 2018 and that he had been paid a bonus related to that. It was his evidence that prior to the introduction of the CMS they did not have clarity in respect of turnover in each of the territories, but they did pay a general bonus to staff.  He was briefed on what was happening with the car as they had a lease arrangement with the garage. He insisted the car was brought back to the main dealer he relies on the expertise of the garage. On the third occasion that the car went back he spoke to the Service manager who told him the car was safe and the issue resolved. He asked the Service Manager to take the car for a week and drive it, which he did. The Complainant was given an alternative car when his car was in the garage.  The Complainant looked for an independent assessment of the car and he agreed to same. An Independent mechanical risk assessment was carried out in August which cleared the car as safe, and the Complainant was given a copy of the results. It was his understanding that the Complainant was also engaging directly with the garage. The garage cleared the car as safe on the 31st August 2018 but the Complainant never collected the car, and it sat in the garage until the end of the year.

 Mr Young stated that normally for parental leave employees are expected to apply six weeks in advance. However, the Complainant had looked for parental leave at short notice due to a family emergency and he had facilitated same in August 2018.

Under cross examination Mr Young confirmed that the Complainant was paid for two weeks sick leave in September which is the normal practise. When they became aware that there was an issue with his social welfare payment, they sorted it as quick as they could.  Mr Young was unable to confirm whether three named UK sales representatives had received the first quarter bonus payment in 2018. In response to a question under cross examination he stated that from May 2018 onwards a decision was made to move the Complainant to non-medical products. However, he accepted that the Complainant was not told that he was planning on moving him to non-medical products. It was his evidence that the conference in September was pre cursor to the London Veterinary show and not a Sales conference. There was no need for the Complainant to attend as he would not be attending the London Veterinary show. It was also his evidence that other staff in the past had been placed on PIPs.

The next witness for the Respondent was Ms Chadwick Veterinary Surgeon who joined the business in January 2018 as Head of Technical services and Marketing. Two vets reported into her and some marketing staff. At the beginning of the year potential dates for diary markers for conferences were identified and were sent to everyone in order to ensure that anyone who is needed is available at the relevant time. Generally, it would be decided nearer the time who actually needed to go to the meeting/conference.

Ms Chadwick stated that she was aware that the Complainant was to be placed on a PIP as she was involved with the sales managers and providing training and technical support.  She provided training in March and May 2018 and was in a group with the Complainant at that training session. She had some concerns arising from those sessions in that he had struggled to identify an active ingredient and key competitor for one of their products.  She spoke to his line manager and identified the need for support. It was agreed that a vet would accompany him for two days and keep a logbook as part of the PIP which he had access to.

Ms Chadwick stated that in July she had sent out an email about the conference but that it should not have gone to the Complainant or one other person who was not attending the conference. The September conference was preparation for the London Veterinary show, and they were only bringing staff who were completely on their game as they wanted the strongest panel of employees attending.

Under cross examination Ms Chadwick stated that she was not sure when the decision was made that he would not attend, she confirmed that she did not tell him. She stated that she formed the view in May that he was having difficulties. It was her evidence that she was part of the decision that he was not going but it was not her job to tell him.

Adare HR on behalf of the Respondent stated that the Complainant had identified three issues he was having, and the Respondent has sought to engage with him in respect of each of those issues.

1) The issues with the car. The Respondent had discharged its duty to the Complainant in respect of the car and was entitled to rely on the advice it received from both the garage and the independent assessor.

2) The Performance Improvement Plan. This was an appropriate response to the issues they identified, they also engaged with him on the PIP as can be seen from the correspondence opened to the Court

3) Sales Meeting in September. There was a rational to the selection of who attended and the Complainant in his evidence accepted that the Respondent is entitled to decide who attends the various conferences.

The Respondent had tried to engage with the Complainant about his resignation but despite multiple attempts to process his complaints thought the internal procedures the Complainant would not engage with the internal processes. The Complainant did not at any stage withdraw his resignation, and the Respondent having waited two weeks was entitled to act on it. The Complainant has not discharged the burden of proof that lies with him. 

The applicable law

Section 1 of the Act defines constructive dismissal in the following manner 

“ 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,”

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”.

Issues for the Court

As 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 by the Act.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed.  This ground was not argued before the Court on this occasion.

Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so he is justified in leaving.  This is the ground that this Complainant is seeking to rely on.

Discussion

The question that arises for decision in this case is whether, it was reasonable for the Complainant to terminate his employment because of the Respondent’s conduct.

The Complainant in seeking to rely on the Respondent’s conduct identified three main issues.

 1) issues with the car. The Complainant accepts that the Respondent on each occasion returned the car to the main dealer and received a clean bill of health from the garage when the car was returned to use. The Complainant himself was allowed engage directly with the garage and the Respondent also had an independent examination of the car carried out, the results of which were provided to the Complainant. In respect of this issue the Court finds that the Complainant has not identified any conduct by the Respondent that could be considered unreasonable. The Respondent was entitled to rely on the professional advice he received from the Main car dealer and the independent assessor.

 2) The imposition of a Performance Improvement Plan. The Complainant had a meeting with his manager on the 5th July 2018, where he was informed that there were four areas where his work was unsatisfactory. When he was invited to that meeting, he had no knowledge that there were concerns about his work. On the 6th July 2018 he received a letter setting out the objectives for an eight week performance improvement plan. The Complainant by text message on the 6th looked for time to consider the PIP which was agreed. On the 10th July 2018 he received further correspondence from his line manager advising they would need to meet when she returned from leave to proceed with the PIP on the 19th July 2018. On the 20th July he received a reminder from his line manager that he was to revert to her about the PIP. The Complainant was accompanied on two-day field trip on 19th and 20th July as part of the PIP. As the Complainant went on parental leave and then annual leave followed immediately on his return by sick leave no further action was taken on the PIP which was never fully implemented or concluded.  The mere decision by the Respondent to place the Complainant on a PIP cannot be considered unreasonable behaviour such as to justify resignation. In this case because of other circumstances a s set out above the PIP was never fully implemented. The Complainant has failed to identify any conduct by the Respondent that could be considered unreasonable in respect of this element of his complaint.

 3) Excluding the Complainant from the September conference. It was the Complainants evidence that he was excluded from the September conference and never informed why. He stated he only became aware of same when he went looking for his flight details. It was not disputed that the Complainant was on approved leave for the month of August and that when he returned to work on the 3rd of September 2018, he went out sick the same day and was on certified sick leave until the 10th December 2018. This was post his letter of resignation. It was not disputed that in November 2018 the Respondent had sought to meet with the Complainant who had been certified as fit to engage with the Respondent and that the Complainant had not been available on any of the suggested dates. It is the Court’s understanding that the conference was on the 18th to 20th September 2018 at which time the Complainant was on certified sick leave and therefore would have been unable to attend the conference even if he had been selected.

While the communication which issued in July would certainly suggest that the Complainant was to attend the conference, the issue is moot when regardless of the actions of the Respondent the Complainant could not have attended as he was on certified sick leave. In respect of the issue relating to the Complainant not being told why he was not attending the conference, he was on authorised leave for the month of August 2018, attended work on the 3rd September 2018 and was then absent on sick leave until 10th December 2018 which post-dated his letter of resignation. The Respondent did try to meet with him in November to discuss all his issues, but the meetings did not go ahead due to the unavailability of the Complainant.

For the Complainant to find out he was not attending a conference when he queried his flight ticket is certainly not compliant with good HR practises in terms of employee communication. However, it is not conduct that could be considered so unreasonable as to justify an employee leaving his employment.    

The net issue for consideration is whether the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1 of the Act.  In reaching its conclusion on that question the Court has carefully evaluated the evidence adduced in the course of the appeal and it has taken full account of the written submission made by the parties.

In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a Complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (see Conway v Ulster Bank Limited UDA474/1981).

In Beatty v Bayside Supermarkets UD142/1987, in referring to the need to utilise grievance procedures, Employment Appeals Tribunal held:-

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981.  In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

On the facts of this case the Court cannot see how it could realistically be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle him to terminate her employment without having sought to ventilate and resolve whatever grievance that he had through the internal procedures. Particularly, in circumstances where the Respondent had sought to engage with him and afforded him an opportunity to reconsider his resignation.

Determination

In all the circumstances, the Court cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating his employment by way of constructive dismissal. Accordingly, the Court must hold that the Complainant’s employment did not come to an end by dismissal.

The Court determines that the Complainant’s complaint is not well founded. The appeal is rejected. The decision of the Adjudication Officer is affirmed.

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
5th November 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.