Complainant

Respondent

Parties

Nicusor  Feraru

ESP Global Services  Ltd

Representatives

Self-Represented

Ms S Daly BL instructed by Ms        Aoife Hennessy , Solicitor of Sweeney McGann Solicitors

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-00062312-001

20/03/2024

The issue in contention was the alleged Constructive Dismissal of the Complainant, a Desktop Support Engineer, by the Respondent Organisation, an Outsourcing IT Support Company.

The Employment began as a fixed term temporary contract in April 2022 but was made permanent in January 2023. The Complainant resigned with effect from the 31st December 2023.

The rate of pay was stated by the Complainant to have been an Annual Salary of € 33,660 for 40-hour week. The

The Complainant gave an Oral testimony supported by copy e mails with the Old and New Contractors.

Initially in 2019 he was deployed by the Respondent, ESP Global Ltd, to work on the Coca Cola HBC Account. All went well, he felt, until early November 2023 when he was summarily placed, without any explanation or prior agreement, on a PIP programme for four weeks. The Respondent alleged that he had not been performing to the required standards. This was a false accusation as he had always performed to expectation. In late 2023 he had raised issues over some of the technical aspects of the job and had requested possible additional staff assistance. The PIP process had cast, he strongly felt, a major shadow over this future career prospects. This became particularly evident over events in December 2023.

The Respondent Company was unsuccessful in renewing the Support Contract and he with two other IT colleagues were informed in early December that they would transfer under TUPE to a new incoming Contractor - Qualcom.

Initially, he had no issues with this but on further exploration with the incoming Company he was very disappointed to learn that he would not get a Salary Increase and furthermore his long requested Annual Leave break of two days over the Christmas/New Year holiday was not going to be honoured. He felt that the new Contractor had a very negative attitude towards him – a fall out from the PIP earlier in 2023 he believed.

On this basis he declined to accept the TUPE transfer and requested the Respondent to redeploy him to another contract under their control. This was declined and he felt that he had been left with no option but to resign.

The Respondent was represented by Ms Daly BL supported by a number of Managers. A written submission was provided and supported by an extensive Oral Testimony from the Managers.

In essence, the Respondent accepted that that the basic facts/dates as stated of the case were not really in dispute. In the Autumn of 2023, the End Client Coca Cola HC had raised service issues, concerning the Complainant, with the Respondent which necessitated a PIP to be put in place. This was the subject of a proposed meeting on the 6th November 2023 which eventually took place on the 15th November. The Complainat had challenged the details of the PIP and its purpose. However, it was relatively low key and focused mainly on Work Organisation / Time Management issues. It concluded on the 3rd December 2023.

The transfer to Qualcom under TUPE was advised in a major Teams Call of the 7th December 2023.

The Complainant and his colleagues were advised that the Respondent, ESP Global, had no other work available for them at this time and if they decided not to go to Qualcom they would be out of work. It was initially believed that all three staff were happily transferring under TUPE.

However, the Qualcom Manager contacted ESP Global, in late December (the 27th) to inform them that the Complainant was not prepared to transfer. The Complainant submitted a letter of resignation to ESP on the 29th December 2023. 

The Respondent was unaware of what issues the Complainant had raised with Qualcom although he stated in an email of the 27th of December to an ESP Manager that

“Qualcom did not give me the security of the job and I consider that I won’t have a long-term collaboration with them therefore I do not want to continue with Qualcom”.

In Oral testimony and some cross examination, the alleged “Negative Cloud” from the PIP was discussed. It the view of the Respondents this was never an issue in the TUPE process and the PIP had been largely a matter of getting the Complainant to better organise his work processes.

The issue of other work within ESP Global was discussed. At the time, late 2023/early 2024, ESP did not have a requirement from any clients for IT Help Desk contractors. As such they could not offer him any other work at that time. This was the business model of ESP Global. Potential “Placements” were kept on file, not employed in any sense, until such time as a placement could be found for them.

The issues that now appear to have concerned the Complainat were proper to Qualcom viz the Salary Increase requested and the Annual Leave in the New Year.

It was important to note that the Complainant had never raised any formal complaints with either company regarding the TUPE or indeed any perceived Personal Grievances.

The Respondent cited considerable Legal Precedents regarding Constructive Dismissal and quoted extensively from Redmond on Dismissal Law (3rd Edition, Bloomsbury, D Ryan). The standard “tests” of Breach of Contract, Unreasonable Behaviours and Use of Procedures were cited. On all of these grounds the Complainant falls far short of any required standards of proof to sustain a case of Constructive Dismissal.

Ms Daly BL, for the Respondent, concluded that the complaint has no proper basis and must fail.

3:1     The Law

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “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,…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

 The reasonableness test assesses the conduct of the employer and whether it

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

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, notwithstanding the above Legal authorities, all cases must rest on their own facts and evidential context. This will be looked at next.

3:2          The evidence as presented – the use of the standard Constructive Dismissal tests as a guideline in examination of same.

Three Tests are generally accepted, Breach of Contract, Unreasonable Behaviours by ether side and more recently Use of Procedures prior to a Resignation.

3:2:1        Breach of Contract

In plain English this means that either side but generally the Employer acts in such a fundamental negative fashion as to completely “tear up the employment contract”. In this case there was no evidence of this type of behaviour by the Employer. The PIP was a normal managerial initiative and could not be seen as excessively negative. Wages were paid as normal, and all terms and conditions observed.  It could be argued that there was an implied “Duty” on the Respondent to provide work for the Complainant in periods between client contracts – colloquially referred to a “Bridging” work. This was never discussed at the Hearing and in any event would not be in keeping with Industry norms. It was clear at all times that if ESP Global had no client work them the Complainant would not be employed.

In summary in a Constructive Dismissal case such as this the Breach of Contract “Test” does not fall in the Complainant’s favour.

3:2:2       Unreasonable Behaviours.

As referenced at 3:1 above and citing the Supreme Court case Berber -v- Dunnes Stores [2009] E.L.R. 61: “unreasonable behaviours” has to be exactly that “Unreasonable” – so outrageously bad that no reasonable person could be expected to put up with it.

The evidence presented in this case did not appear to the Adjudicator to contain any major elements of Unreasonableness – the details of the PIP (which lasted only for four weeks) while not to the Complainant’s liking could not be seen as Unreasonable or outside of normal Management/Staff relationships. The issues with the new Employer, legally strictly outside the remit of this reference, were also not Unreasonable – declining a request for a Salary Increase and non-confirmation of two days leave – again could not be seen as Unreasonable Behaviours by the Employer. In plain English for an issue to be unreasonable such as to justify a Constructive Dismissal/Resignation it has to be very bad indeed.

Nothing of this nature was evident.

In the Complainant E mail (27th December 2023) to Mr P of the Respondent the Complainant indicates that his concerns are with Qualcom. He stated that, following discussions

“They, (Qualcom,) didn’t give me the security of the job, and I consider that I won’t’ have a long-term collaboration with them, therefore I do not want to continue with Qualcom.

These were issues outside of the Respondent’s control and it could be said was speculation as to how a future Work relationship might develop.

The Respondent Employer’s position has been made clear in the Staff briefing of the 7th December 2023. They had no positions available and if you declined to TUPE to Qualcom the Respondent had no work for the impacted staff.

The suggestion made Orally by the Complainant that Qualcom had been in some way “negatively briefed” against him based on the November PIP was refuted by the Respondent. Qualcom were quite prepared to TUPE the Complainant.

All things considered the Unreasonable Behaviours Test for a constructive Dismissal, considering the evidence presented and the Legal precedents quoted, has to be seem by the Adjudicator as not favouring the Complainant.

3:2:3         Use of Employment Procedures prior to a Resignation.

Use of procedures

The time scales involved in this case from the initial TUPE briefing on the 7th December 2023 to the Complainant’s exist on the 29th were extremely brief. His complaints leading to his resignation seemed to centre of the terms being offered in the TUPE transfer. It would appear that no formal procedures were invoked by the Complainant against either the original Employer, ESP or Qualcom, the second Employer. Discussions took place, it appeared, with the Qualcom representative which led to the mail of the 27th December referred to and quoted from above.

As a Constructive Dismissal “Test” the Procedures Use/Non-Use of argument does not support the Complainant’s case.  Formal Procedures were simply not used.

3:3         Adjudication Conclusion

Having reviewed, using the accepted “Tests” as a guideline and as set out above, the complaint for Constructive Dismissal is not upheld.

The Complaint fails.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The complaint of Unfair Dismissal is not sustained.

The complaint fails.

Unfair Dismissal, TUPE issues