Complainant

Respondent

Parties

Christopher  Madden

FedEx Express Ireland Limited

Complainant

Respondent

Representatives

A. Shearer BL instructed by Thomas Rowley , Solicitor of Rowley Law Solicitors

L. Tennyson BL instructed by Emma Quinn , Solicitor of Eversheds Sutherland

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-00062584-001

04/04/2024

The issue in contention was the alleged Constructive Dismissal of the Complainant, an Administrator/Dispatcher, from FedEx Express Irl, Ltd. The employment began on the 20th October 2007 and ended on the 16th October 2023.

The rate of pay was stated by the Respondent to have been € 3,357 per month for a 39-hour week.

The Complainant was Represented by Mr A Shearer BL and gave a lengthy Oral Testimony supported by a substantial Written Submission. He had been employed for some 16 plus years. It was important to note that he had been fully working “from Home” for a lengthy period - March 2020 to end 2022.

In essence the Complainant’s case, as presented by Mr Shearer BL, was that he had been “managed” out of the Company by a number of Managers, Mr L & Mr B covertly directed by Senior Manager, Mr O’N. The issues began when the Complainant lodged, in Feb 2022, a Grievance regarding a Recruitment competition. The Grievance was directed at the MD, Mr R and Senior Manager Mr O’Neill. This Grievance was investigated and largely found in the Complainant’s favour. The MD, Mr R, assured him that “lessons had been learnt”, procedures in recruitment would be followed properly and that there were “No hard feelings”. However, the Complainant felt that from this time the Managerial Agenda was against him.

In July 2022 a historic Split Shift payment he had been receiving for 10 years was removed from him. He had carried this payment as almost a Legacy issue. No proper explanation was ever forthcoming for the removal and no financial compensation was ever offered.

In mid-Summer 2022 the Organisation, a large multi nation with branches all over Europe, initiated a Return-to-Work Policy.  The Complainant’s function was deemed to be a full time Office based role and his full time return to the Office was requested.  The Complainant felt that he had very substantial personal/ family issues with a full time return and sought to amend the proposals. He also felt that the local Irish management were taking a very inflexible attitude especially in their interpretation of Head Office HR circulars on Return to Work. Multiple exchanges, followed with Managers, particularly with Mr L, from September 2022 to January 2023. All reasonable suggestions from the Complainant were ignored and rejected. He had support from a close colleague, Mr A, in suggestions to re organise work patters to facilitate the Organisation and his unique personal Family situations.

He had requested the assistance of a non-Company HR advisor, but this was not agreed to. He felt that his child’s situation was being used against him.

The Complainant felt that during this period the HR Department had proven not to be impartial and were biased against him. He refused to have any further dealings with the Irish HR Department. The UK HR Department, nominally overseeing the Irish HR Office, were equally remiss.

In January 2023 the Complainant became unwell and was absent on long term Sick Leave until the 16th October 2023. As regards lodging a further Grievance in January 2023, he maintained that the Grievance Process was not impartial, and it would be a waste of his time. He had lost faith in Fed Ex management.

On early Legal advice, he had lodged an Employment Equality claim but on later Legal advice had withdrawn it. However, the Respondent had submitted a formal submission in this case. This Submission, he had found to be very hurtful and inaccurate. It confirmed his views that the local Management were extremely negative towards him.  Accordingly, he felt that he had no future with the Organisation and had very reluctantly submitted his resignation. He later lodged a WRC complaint for a Constructive Dismissal.

The Complainant was extensively cross examined by Ms Tennyson BL for the Respondent.

Supportive Oral Testimony was given by colleague Mr A, the Complainants effective work opposite number/office work partner.

The Respondent was represented by Ms L Tennyson BL supported by a number of Managers. Oral Testimony was given by these Managers. A comprehensive written submission was supplied.

In essence, Ms Tennyson BL argued that the case was one of a Constructive Dismissal. The normal rules of Proof and the accepted “Tests” of Egregious Unreasonable Behaviour, Fundamental Breach of the Employment Contract and Use of Recognised Procedures prior to a resignation must apply.

It was argued that the Grievances of early 2022 had been handled most professionally, including an Appeal stage, and a proper outcome had been delivered. There could be no fault on the Respondent here. Allegations of a covert negative agenda against the Complainant were completely unfounded and purely speculative. Managerial witness, Mr L & Mr B, testified to this effect.

The real basis of the Complainant’s complaint it appeared was the terms of the Return-to-Work Policy (RTW) of the Respondent. The Respondent is a multi-national company and the RTW Policy was decided centrally. All positions were evaluated, and it was not unreasonable for the Complainant’s position/function, Dispatcher, to be deemed a “Full Time” in office role.

A lengthy circular Letter from HR had issued on June 28th, 2022, explaining the situation for all employees. It was followed by an Operational Note from HR to guide Managers in any difficult situations likely to arise after two years of Home Working. The question of unique personal circumstances to be considered and possibly forming the basis of special local arrangements was mentioned. Engagement with HR and Local Management was a requirement.

The Complainant had at this stage a period in excess of two years of home/remote work and had adjusted his particular domestic circumstances (care for a child with additional needs) accordingly.

Numerous efforts were made by Manager, Mr L, to see what arrangements could be put in place to facilitate the Complainant. Meetings in September, November and December were cited as well as numerous e mail exchanges. None of these efforts proved successful. A return date of the 9th of January 2023 was eventually proposed. This proved unsuccessful and the Complaint was on sick leave from the 9th of January to the resignation date of the 13th October 2023.

Ms Tennyson BL cross examined the Complainant on the efforts made by Mangers, Mr B and Mr L, in the period from September 2022 to January 2023 to work out a suitable arrangement. The Complainant felt, in response, that both Managers had simply been “box ticking” with no real desire to help him.  

It had to be noted with importance that the Complainant had been advised in an email /letter of the 4th of January 2023 that he could lodge an Appeal/Formally raise a Grievance against the new working Arrangements. The Respondent noted that the Complainant had never opted for this option.

It was clear that he was particularly aggrieved by the Management Submission to his withdrawn Equality Act complaint.  He had stated in his Resignation letter.

“However, the Company furnished submission to my WRC claim, and it is the content of those submissions which convinced me that there is no future for me within the business”.

In Legal submission the Respondent quoted the standard Constructive Dismissal case law to ground the Tests of Unreasonable Behaviours, Breach of Contract and Use/Non-Use of Procedures. Berber v Dunnes Stores [2009] 20 ELR 61, Conway v Ulster Bank Ltd UD474 / 1981 and Murray v Rockabill Shellfish Ltd [2012] 23 ELR 331 were among the principal cases cited.

In summary, Ms Tennyson argued that none of the legal Tests had been in any way been satisfied, in particular no Grievance had been raised in the lengthy period between January 2023 and October 2023. The Complainant was well versed in the Grievance procedures and his complaints about a lack of faith in HR and Management could not be seen as a realistic position for any employee to adopt to excuse the non-lodgement of a Grievance.

The key issue, triggering the Resignation, appeared to have been his severe personal upset at the WRC Equality Act submission.

In no possible way could this form the grounds for a resignation particularly for an employee of some 16 years unblemished service.

The constructive Dismissal claim is completely lacking in a Legal foundation and has to fail.

The Respondent witnesses were extensively cross examined by Mr Shearer BL for the Complainant.

 3:1        The Relevant 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, a certain degree of Legal caution is required here.

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

 She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

 “the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.

In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a constructive Dismissal.

Nonetheless and Legal precedents noted, all cases rest on their own evidence and unique factual background. This will be considered next.

3:2        Consideration of Evidence presented – both Oral Testimony and Written Submissions.

As an aid to considering the evidence it is useful in a Constructive dismissal context to use the template of the Three Legal Tests as a guideline -these being (a) Breach of Contract (b) Unreasonable Behaviours by either side (c) Use/Non-Use of Employment Procedures.

3:2:1      Breach of the Employment Contract.

As set out in the Legal reference above a Breach of the Employment Contract has to be “fundamental” and going to the very core of the Employment Relationship. Normally this would involve issues such as unilaterally and for no reason ceasing to pay an employee or requesting that the Employee carry out duties for which his contract clearly does not provide for – an example is asking a professional Accountant to “Sweep the yard”. It has to be Fundamental.

In this case there was no evidence, either Written or Oral Testimony of fundamental breaches of the Employment Contract by either side.  As a Constructive Dismissal “Test” it does not favour the Complainant.

3:2:2         Unreasonable Behaviours by either side.

The evidence, initially, referred to the Recruitment competition in early 2022. The Grievance Outcome (3rd May 2022) & Appeal (15th June 2022) basically accepted that the Respondent could have handled the issues better. However, the Outcome from the Respondent also expressed the wish for an improved relationship between the Parties. All things considered it was not the Respondent’s “best day” but taking a general HR/IR Industry viewpoint, the Adjudicator found it hard to see how it could be sufficient grounds for a Complainant Resignation.

The Return to Work (RTW) situation occupied much more Hearing time. The Circular Letter from Company HQ, Ms Symons of HR June 28Th 2022, is clear cut in that it directed all Employees in the transnational area of its remit to return to office work with three possible models being proposed Hybrid, Remote and full time Office based. In the case of the Despatchers, it was decided that No 3, full time Office attendance, was the model being chosen.

Jobs and Roles were evaluated across Europe and the Despatcher position was identified as a Full-Time Office role.

However, it was also clear that a high degree of flexibility would be required and in effect an Employee could appeal a decision of the Company and plead special circumstances regarding his model of work.

Ms Symons from HR also sent in late June/early July a follow up Operational Guidance e mail to all Managers in the UK & Ireland where she stated

“We expect most team members to welcome our future way of working as an exciting new benefit. However, we recognise that after two years of working remotely this is a big change for all of us. Please be sensitive to personal situations and remain flexible to allow everyone to adjust in their own way”.

The interpretation of this Circular and Operational e mail to Managers became the main bone of contention between the Parties in late 2022.  The Complainant had a difficult childcare issue that the Covid Remote working had, he maintained, made significantly easier for him. Reading the extensive e mail exchanges up to January 2023, submitted in evidence and the brief handwritten records of a meeting on the 19th September 2022 it was clear that a fairly extensive effort was made by the Management and the Complainant to reach an acceptable compromise. The childcare issue for the Complainant’s daughter was clearly a consideration for all Parties.

Unfortunately, in the final analysis, the Respondent was insisting of a Full-Time Office role which the Complainant could not accept. Nonetheless, the Manager, Mr L, in the final paragraph of his e mail/letter of the 4th January 2023 stated

If you are not happy with these arrangements, then you can formally raise a grievance. I hope that we can come to a solution by communication and working together. I look forward to seeing you on Monday 9th January 2023.

In a situation of this nature, the role of the WRC Adjudicator is not to oversee the day-to-day management of a business rather to see whether fair and reasonable procedures, in keeping with general industry norms, were employed.

It is also worth noting that the reference to the Respondent Employment Equality Act case submissions was not really relevant to this case. The Complainant took exception to the Submission, but the reality was that the Equality case was withdrawn.  The Equality Act Submission was not in evidence, and it would be very unusual to base a resignation as a reaction to a Management submission prepared for a likely contested hearing.

Likewise, the contact difficulties with HR in Ireland over the December period while not desirable were not such as to normally contribute to a resignation decision.

In summary, in a Constructive Dismissal case, the Test is to give a view on whether or not Unreasonable Behaviours, so bad as to be unacceptable to an average person, were in evidence such as to as to justify a Resignation.

In this case the view has to be that the behaviour of the Management of the Respondent was not so Unreasonable as to warrant a Resignation.

As a Constructive Dismissal “Test” this Unreasonable Behaviours aspect Is not supportive of the Complainant.

3:2:3          Use of procedures prior to a Resignation.

The Complainant was not a stranger to the Grievance procedures of the Respondent. His Grievance and Appeal in early 2022 demonstrated that.

The Complainant went on Sick leave from the 9th January 2023 to his resignation of the 13th of October 2023.

It is accepted that he was on Sick leave for this period, and this was confirmed by Medmark for the Respondent on the 28th April 2023. Medmark did not give a view as to whether or not the Complainant was fit to engage in Company procedures. An accurate view of a Return Date was not possible for the Medmark doctor.  None the less the Complainant was during this period actively involved in his Employment Equality claim. The view would have to be that lodging a Grievance, even while out sick was not an impossibility. However, when, bearing in mind the sick leave, this Grievance could have been progressed is impossible to say.

On balance from a constructive Dismissal viewpoint this “Test” is probably not of great benefit to either side in this case.

3:3       Final Summary / Adjudicator view.

In a Constructive Dismissal case the Legal Precedent from numerous Labour Court & Adjudication/EAT decisions has always been that the “Bar is High” for a Complainant.

In this case the three accepted Tests of Breach of Contract, Unreasonable Behaviours and Use/non-Use of Procedures do not fall in the Complainants’ favour. This is discussed at length above.

Accordingly, the Adjudication finding has to be that that no case for Constructive Dismissal was established here.

The Complaint fails.

Unfair Dismissal, Constructive Dismissal.