Complainant

Respondent

Parties

David  Regan

 Perenco Ltd [amended on consent at hearing]

Representatives

Self-Represented

Self-Represented

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-00066133-001

20/09/2024

This matter came before the Workplace Relations Commission dated 20/09/2024 as a complaint submitted under section 8 of the Unfair Dismissals Act, 1977 claiming constructive dismissal.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place 13/02/2025. 

The Complainant at all material times was employed as a sales representative by the Respondent.    The Complainant worked 49 hours per week for which he was paid €545.00 gross weekly.    The Complainant commenced employment with the Respondent on 04/09/2004 and his employment terminated on 28/06/2024 by reason of resignation. 

The submissions provided in advance of hearing consisted for the most part of email drops and responses back and forth between the parties filed at the WRC up to and including the day of hearing.   

It was explained to the Complainant at the commencement of hearing that in a claim alleging constructive dismissal there are two sets of circumstances in which a resignation may be considered a constructive dismissal namely the “contract” test and the “reasonableness” test.  The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign. 

It was explained that it is now generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee.  All other options including grievance procedures must be explored. 

It was explained that the reasonableness test requires that the employee must satisfactorily demonstrate that the employer behaved or acted in a manner, which was so unreasonable as to make it impossible for the employee to continue in the employment.  The employee must show that his behaviour/action in resigning was reasonable in all the circumstances. 

As the Complainant terminated the contract of employment, he bears the consequent burden of proof imposed by the legislation.  Having regard to same, the Complainant presented his evidence prior to the Respondent opening their case. 

CA-00066133-001

Written submission email September 2024

The Complainant submits he worked with Perenco Ltd from November 2004 until June 2024.

The Complainant submits that for 3 years prior to 2024 there was a retirement and a death of 2 sales reps that never were replaced and he often had his doubts the company intended on scaling back.

The Complainant submits in February 2024 he got an email to say that one of the reps that was with the company no more than 6 years was going to manage and mentor him with his clients / this was intimidation as this email was sent also to every person in the company.  The Complainant submits  he felt so belittled.   

The Complainant submits he wasn't happy and asked why would they think he needed mentoring.  The Complainant submits he was then called to Dublin for a meeting, this meeting took place in an office right beside the trade counter of the shop and he on full view of everyone.  The Complainant submits the two directors were there and a so-Called new manager that only paid the wages as far as he knew, but now the 3 of them were sitting in front of him, they were on about sales figure even though they knew full well he had exceeded every target month and grew his area. 

The Complainant submits he told them it was 3 against 1 bully tactics and to back off.

The Complainant submits in March they wanted him up again to Dublin, this time the meeting was in Croke Park hotel and after the meeting it was decided his car would be changed within the week.  The Complainant submits he was told that they wanted to get a trade price on his car and to leave it there and take the spare car they had.  The Complainant submits the week went by and no car was bought only his car sold on done deal and next thing he gets pulled up at a check point and the guard says , you have nothing on your windscreen , and surely to God there it was a bare windscreen no insurance disc nct disc and a tax disc out of date since September 23. 

The Complainant submits he lost the head and he said if that's how ye want to treat a man after 20 years he’s gone and he handed in his notice in with pure frustration and on a safety point of not driving a car without insurance tax or nct displayed.  The Complainant submits the car was in bad need of a service we he got it and it was not legal to have it on the road. 

The Complainant submits the company is owned by 2 men both 49 per cent shares yet only 1 accepted his resignation.  The Complainant submits the Respondent told him he accepted his resignation and wouldn'tlet him retract it.  The Complainant submits the other owner never accepted it and was very sorry to see him have to leave.  The Complainant submits he was intimidated (mentor manage him) he was bullied (3 against 1 meeting) he was pushed out of a company he loved even though this was only agreed by 1 49 per cent share holder. 

The Complainant submits the handling of this situation was completely wrong and he needs to get an apology more than anything.  The Complainant submits he had no salary all of July, all of August all of September and it will be all of October as well as he has to work one month in advance with his new company.   The Complainant submits these decisions has caused him several sleepless nights and headaches; he can't understand why he was pushed out – illegally in his view. 

The Complainant emailed his resignation on Friday 10 May as follows:  Info came back to me I'll be finishing Friday the 28th of June 2024 I'll inform all customers and staff [sic] to which the Respondent replied as follows:

“I have received your letter of resignation as below. Your resignation is accepted.  Please come to the office early next week and we can tidy up matters.  And I will speak to Imelda in relation to payment for you notice time. I thank you for your contribution over the years and it is sad to see you resign now. However, I wish you all the best in your future endeavours and career. Best regards” [sic]

The Complainant responded as follows:

“Let me know what day and goggle these two words Constructive dismissal” [sic]

Summary of direct evidence of Complainant on oath

The Complainant submits everything was grand for twenty years and he was dealing with [redacted].  The Complainant submits the Christmas bonus in 2024 was changed to a performance bonus and he submits there was no change to the contract he got in 2016.  The Complainant submits his car started giving trouble and they gave him a car with no tax and no insurance and what sort of a car was that to give to someone like him who had been with the company for twenty years.  The Complainant submits this was a health and safety issue.   

The Complainant submits he resigned over the car.  The Complainant submits they gave him a car that did not have the documents deliberately to agitate him.  The Complainant submits the man who was his boss won’t acknowledge he is the owner of the company.  The Complainant submits he resigned because of the car and the bonus. 

The Complainant submits the parties sitting across the table from him at hearing are not his employers.  It was explained to the Complainant that they are the representatives of the Respondent company.  The Complainant confirmed the Respondent company Perenco Ltd pays his wages. 

On inquiry the Complainant confirmed he worked through his notice period. 

Summary of cross-examination of Complainant

It is put to the Complainant the car wasn’t seriously defective, and he is asked to accept that he left in a hurry that day to which the Complainant responds they had pushed out a man that had worked there for twenty years and they were agitating him to make him leave.  The Complainant submits this isn’t about money he wants an apology. 

CA-00066133-001

Submission by way of letter to the WRC

The Respondent submits hours worked were 39.5 hours, not 49 hours. 

The Respondent submits that in the meeting in January the Complainant complained of a noise coming from his car and demanded that the car be replaced.  The Respondent submits that as a temporary measure he was given a Ford Mondeo, which he didn’t want to take, and he was told they would investigate a replacement car for him.

The Respondent submits that unfortunately, due to the hurried nature of the meeting and the Complainant’s insistence on “getting going” in the spare car, a Red Ford Mondeo, it went unnoticed the screen display needed updating.  The Respondent submits that they have fleet insurance, so the car was insured however due to human error the insurance disc was not in the car window display.   The Respondent submits that as soon as the Complainant made them aware of this it was sorted along with Tax and all necessary paperwork within days.  The Respondent submits the car was not a safety hazard and the tax disc and insurance disc were not displayed due to human error. 

The Respondent submits the Complainant then started to send links of a Volkswagen Passat which was 3 years old and demanded his car be replaced with the VW Passat.   The Respondent submits that as per company policy, they sold two older cars and were in the process of sorting a new one for the Complainant and he was asked to be patient until they found a car that was best suited to their company. 

The Respondent submits it is company policy to have all vehicles serviced & maintained and roadworthy for their employees and this has never been an issue.

The Respondent submits that after looking at various models it was decided to purchase a new Skoda Octavia, but this would not be available until September 2024 which the Complainant would then have use of and it would be automatic as the Complainant had complained of his knee. 

The Respondent submits the Complainant refused this car and said he would not drive it.  The Respondent submits the Complainant sent numerous emails to directors and staff, which were unpleasant to say the least.  The Respondent submits the Complainant proposed other cars from sites like done deal demanding a Passat and the Complainant named a competitor who had a Passat wating for him on his going to work there. 

The Respondent submits the Complainant had a meeting with both directors and apologised by email for his behaviour but soon went back to sending inappropriate emails to directors and staff.  The Respondent submits the Complainant refused to work with or to meet with the newly appointed sales manager. 

The Respondent submits the Complainant resigned his salesman position which was accepted.  The Respondent submits the Complainant demanded that all monies due to him be paid before he would return company property.

The Respondent submits the Complainant refused to work with or indeed meet with appointed sales manager. 

The Respondent submits the Complainant resigned his salesman position which was accepted. He was told he would be paid in lieu of notice for the final month and to take some time for himself.

The Respondent submits the one for all voucher was waiting for the Complainant in the office for him to collect. 

The Respondent acknowledged the Complainant’s resignation as follows:

“Perenco has granted you “Garden Leave “which is time off work, until your finish date 28th June. Perenco has also granted you the use of the company car for any appointments & personal use, until 28th June.  Regards your resignation received & accepted on 10th May 2024  Please note as per my email 6.6.2024 as below.  In effect, in your final 4 weeks off, is for personal time & you are not required to travel the normal journey.

Please also note as this is personal time off, you will not be eligible to claim any expenses. The company will continue to insure the car and within norms, you may use the company fuel card also until 28th.   

Your resignation has been accepted by the only capital equity shareholder Jim Stowe, and as Perenco’s managing director, Sales director is the position and title of Jim Murphy, as it has always been. 

The companies basic structure as previously explained, you have misinterpreted and /or been misinformed.

As suggested, is to use these 4 weeks for a personal nature with some R & R. 3 All your remuneration, including holidays, has been paid into your bank and paid up to 28th June, as you requested. Trusting all is now clear for your understanding and wishing you well in your new endeavours.”  [sic]

CA-00066133-001 complaint pursuant to section 8 of the Unfair Dismissals Act, 1997

In conducting my investigation, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.    I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

Having carefully considered at length all the evidence presented to me I find the within complaint is characterised by significant disparity in the perception of the parties as to the manner in which events unfolded during the latter end of the Complainant’s employment in the Respondent company.

Notwithstanding, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and   surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing.  Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities.  In my decision-making role I am constrained both by statute and by precedent. 

The Relevant Law:

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act, 1977.    However, it is a term commonly understood to refer to that part of the definition in section 1(b) of the Act which provides:

“dismissal,” in relation to an employee, means –

(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.”

I am satisfied the definition of constructive dismissal set out above is the appropriate backdrop against which I will base my conclusions.  Significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it has to satisfy either one or a combination of both of the following “tests”.

It is trite law that the conduct of an employer which would justify an employee terminating the contract of employment necessitates a breach of the contract of employment by the employer which goes to the root of the contract or circumstances where the employer’s unreasonable behaviour was such that the employee could not reasonably be expected to remain in the employment.

Accordingly, there are two sets of circumstances in which a resignation may be considered a constructive dismissal.  The law is well settled here, and these tests are known as the “contract” test and the “reasonableness” test.  The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign.  If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test. 

The reasonableness test requires that the employee must satisfactorily demonstrate that the employer behaved or acted in a manner, which was so unreasonable as to make it impossible for the employee to continue in the employment.  The employee must show that his behaviour/action in resigning was reasonable in all the circumstances. 

It is now generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee.  All other options including grievance procedures must be explored. 

In Berber v. Dunnes Stores [2009] 20 ELR, the Supreme Court held as follows:

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.  The term is implied by law and is incident to all contracts of employment unless expressly excluded.  The term imposes reciprocal duties on the employer and the employee.”

In the English case of Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 Denning J stated:

“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 of more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.”

In considering whether there has been a constructive dismissal I have to determine whether there has been a repudiatory breach of contract by the Respondent, or, if there has been no repudiatory breach, whether the Respondent engaged in conduct which made it reasonable for the Complainant to terminate his contract. 

It is well established and a generally accepted proposition that an employee is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal.  This is clearly set out in Reid v. Oracle EMEA Ltd[UD1350/2014] where the EAT stated:

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”

I have regard also to the seminal EAT case of Conway v. Ulster Bank Ltd. [UD474/1981] where it was held as follows:

“The Tribunal considers that the Appellant 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 Appellant did not use it.  It is not possible for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”

The Labour Court in Ranchin v. Allianz Care S.A. [UDD 1636] held as follows:

“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.” 

In the case of Debbie Kearns v Silverfern Properties Ltd. [UD2428/2010] the EAT held that: 

“In order to succeed in a claim of constructive dismissal a claimant must show, that either their contractual terms were altered in such a way, going to the root of the contract, as to justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal.”

The burden of proof in constructive dismissal cases is firmly on the Complainant. In Nicola Coffey v.Connect Family Resource Centre ltd. [UD 1126/2014)] it was held by the Employment Appeals Tribunal that “the bar for constructive dismissal is very high.”

The Contract Test

In considering this test I have to deliberate on whether a term of the Complainant’s contract was breached by the actions of the Respondent such as to make it reasonable for the Complainant to determine that the contract had been terminated.  My decision here is based around the Complainant’s argument that the Respondent gave him a car that had no documents displayed and the Respondent renamed the Christmas bonus as a performance bonus, both actions which allegedly constituted a repudiatory breach of the contract by the Respondent, so as to justify the claim of constructive dismissal, by reference to what is termed “the contract test”.

Having carefully considered the respective position of the parties in terms of the car provided to the Complainant I am satisfied the Complainant did complain there was a noise coming from his car on the day he came to Dublin as he did not deny this.  The Respondent submits the Complainant was in a rush to get on the road which was not denied by the Complainant all of which leads me to conclude everything was a bit rushed and the windscreen of the fleet replacement car was not checked – by either party. 

I am unable to find this oversight on the part of the Respondent constituted a repudiatory breach of the contract of employment.  I am satisfied the Complainant also bears some of the responsibility here as it would have been prudent for him, knowing it was a fleet car, to check the windscreen himself to ensure all necessary documentation was displayed.

Turning now to the Christmas bonus as the Complainant submits this is what it was.  I was unable to establish from the parties whether in fact this was a Christmas bonus by way of a gift or a performance bonus that happened to be paid at Christmas.  Whatever it was, the Complainant was aggrieved because he did not receive his in time for Christmas and when it was referred to in a text as a performance bonus the Complainant submits this was the second reason he resigned.  The aforesaid text provided as follows:

“The performance bonus’s were given pre-Christmas & just before we broke up for the holidays.  Unfortunately, you did not come up for the Christmas night out.  You were not left out and [redacted] has an envelope for you when you are next up to the office.” [sic]

Upon enquiry at hearing it was established this “bonus” is by way of a one for all voucher for staff as that is the most tax efficient way in which the Respondent may reward staff loyalty.  It was not established where the criteria for receipt of this bonus are set out i.e., employee handbook or employment contract. 

I find this was all a bit vague in the evidence provided by both parties but nothing turns on it for the purposes of this investigation as I am not satisfied that the renaming of the “Christmas bonus” to a performance related bonus would constitute a repudiatory breach of contract if indeed a renaming took place irrespective of the nature of the bonus. 

I would make the observation that it would be prudent for the employer to set out the bonus details including the eligibility criteria in the contracts of employment and in the Employee Handbook for the avoidance of any doubt on this matter in the future. 

The Reasonableness Test

The burden of proof here is on the Complainant to establish that the behaviour of the Respondent was so unreasonable that it was reasonable for the Complainant to terminate his contract of employment.  There is also a reciprocal duty on the Complainant to show that he acted reasonably. 

It would seem that the Complainant seeks to rely on the car issue and the bonus issue to satisfy the contract test and/or the reasonableness test and I have arrived at that conclusion in the absence of any other evidence having been presented to me. 

For completeness, I did observe the Complainant was very aggrieved that a sales manager had been hired.  However, I cannot find the hiring of a sales manager by the Respondent meets the standard of being “an arbitrary, capricious or abusive exercise of managerial power” as described in Gogay v. Hertfordshire County Council [2000]IRLR 7030, so that it made it reasonable for the Complainant to resign. 

Based on my careful consideration of the written and oral submissions, I find the Complainant has failed to discharge the burden of proof to support his claim that he was constructively dismissed for the following reasons.  There is no evidence to suggest that the Respondent no longer intended to be bound by any essential term of the contract of employment.  Having carefully reviewed all the facts as presented to me I cannot accept the proposition that the Respondent’s conduct was such that the Complainant could no longer be reasonably expected to put up with it so as to leave the Complainant with no option but to resign. 

It could be argued the Respondent took no action to de-escalate the situation when the Complainant resigned.  On the issue of “heat of the moment” resignations or where events could be construed that there was a resignation, but that circumstances when studied further might suggest otherwise, the Labour Court have given guidance. In Millet v Shinkwin 2004 [E.L.R. 319] the Labour Court held as follows:

“That where an employee makes a decision to resign which is not fully informed because he/she is not in a position to fully evaluate his/her options or he/she may act on a misinterpretation of something which is said or done and the situation is still retrievable, it would be unreasonable for an employer to deny an employee an opportunity to recant within a reasonable time once the true position becomes clear and such a denial may in the circumstances amount to a dismissal.”

The Court in Millet gave further authority, amongst other cases, for coming to its decision in the following account:

There is, however, a significant body of authority for the proposition that there are exceptions to this general rule and that there are occasions in which an apparently unconditional and unambiguous resignation may be vitiated by the circumstances in which it is proffered. In Kwik-Fit (GB) Ltd v Lineham [1992] I.R.L.R. 156, the following passage appears at paragraph 31:

“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment, personalities constitute an important consideration. Words may be spoken, or actions expressed in temper or in the heat of the moment or under extreme pressure (‘being jostled into a decision’) and indeed the intellectual makeup of the individual may be relevant (see Barclay [1983] I.R.L.R. 313). These we refer to as ‘special circumstances. Where ‘special circumstances’ arise, it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the ‘special circumstances’ the intention to resign was not the correct interpretation when the facts are judged objectively.”

The Labour Court in Millet above is clear authority that when ambiguous words are expressed in a heated environment, the employer cannot just assume that someone has resigned even though words and actions could well indicate that such an action was taken. Time must be allowed for the employee to calm down and essentially reconsider.

I am unable to find that the Complainant can rely on “special circumstances” in the within case as it would appear that the Complainant had flagged his intention to resign prior to actually resigning and when he did so the words used were plain and “unambiguous” and consisted of one line which was duly accepted by the Respondent.  I note the Complainant had flagged his eminent resignation when he notified the Respondent that he had a job with a competitor and a VW Passat waiting for him.  I am satisfied this can only be sensibly and reasonably construed as the Complainant indicating his intention to resign in advance.     

It is an inescapable fact in this case that the Complainant resigned without engaging in any attempt at raising a grievance even informally and this does undermine his case.  I am mindful of the Labour Court in the case of Mr O v. An Employer (no2) [2005] 16 ELR 132 where it was held as follows:

“The Court accepts that 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.” [emphasis added]

I accept the Complainant felt aggrieved about the car and the alleged renaming of the bonus and I am of the view he was more than capable of raising these matters judging by the amount of emails the Complainant is alleged to have sent to the Respondent. 

I note the Complainant, in one of his emails to the WRC, submits he did send a number of emails to the directors and to staff and he submits he did this from pure annoyance and torment and he submits his emails were not unpleasant they were “just telling it the way it was…”    

Finally, I find the fact the Complainant worked his notice is counter intuitive to the proposition that the Complainant’s position at work was so untenable that he had no option but to resign.  If the actions of the Respondent were so unreasonable that he had no option but to resign, it is implausible that the Complainant would work out his notice period.  The Complainant confirmed at hearing that he worked his notice period. 

I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that he had no option but to resign his position or that the conduct of the Respondent was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract. 

In the circumstances and on the basis of a reasonable and objective analysis and careful consideration of the facts of this case, I find that the Complainant resigned from his employment of his own volition and was not constructively dismissed within the meaning of section 1 of the Unfair Dismissals Act, 1977. 

The Complainant has not discharged the burden placed on him by the Act.  I am not persuaded by the Complainant that resignation was his only option. 

Accordingly, I find that he has failed to establish he was constructively dismissed, and his complaint cannot succeed.

CA-00066133-001 complaint pursuant to section 8 of the Unfair Dismissals Act, 1997

For the reasons set out above I have decided this complaint is not well-founded. 

Contract test; reasonableness test; managerial prerogative;