UDD2317

1. Appeal Of Adjudication Officer Decision No(s) ADJ-00034404 CA-00045463-001

BACKGROUND:

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 20 September 2022 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 7 March 2023. The following is the Determination of the Court:-

DETERMINATION:

This matter comes before the Court as an appeal by TESCO Ireland Limited (the Respondent) against a decision of an Adjudication Officer in the complaint of Frank O’Dwyer (the Complainant) made under the Unfair Dismissals Act, 1977. The Adjudication Officer decided that the Complainant had been unfairly dismissed and awarded him the sum of €15,000 in compensation.

The decision of the Adjudication Officer was appealed by the Respondent.

Background

The Complainant was employed by the Respondent from 17^th September 2007 in the position of Customer Assistant. On 2^nd December 2014 he moved to the position of Customer Assistant carrying out team leader duties in a petrol station. In 2015 he moved from that post to the main store as a Customer Assistant and carried out team leader functions in the ‘front end’ department (checkouts).

The Complainant resigned his employment on 2^nd July 2021.

The fact of dismissal is in dispute.

Summary position of the Complainant

The Complainant submitted that he had been bullied by a manager of the Respondent between 2015 and 2019. He had, through his solicitor, written to the Respondent on 2^nd September 2019, alleging unacceptable behaviour by a manager and formally raising a grievance under the grievance and dignity at work policies of the Respondent.

The Respondent appointed Mr Lynch, an Area Manager, to investigate the complaint under the policies of the Respondent. He had however failed to conduct any, or any adequate, investigation of the Complainant’s grievance of workplace bullying and harassment between 2015 and 2019. This failure amounted to a breach of a statutorily implied term of the Complainant’s employment that the Respondent would manage and conduct its activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct of behaviour likely to put the safety, health or welfare at work of employees at risk.

In further breach of the said term, the Respondent’s Colleague Relations manager, Ms Barry, who was appointed to conduct the Complainant’s appeal, failed to conduct any, or any adequate, appeal from Mr Lynch’s said investigation and determination of the Complainant’s legitimate grievance of workplace bullying and harassment between 2015 and 2019.

By failing to uphold the Complainant’s bona fide grievance the Respondent fatally and irrevocably destroyed the employment relationship. In those circumstances, the Complainant had no option but to treat himself as having been dismissed in circumstances where the Respondent refused to be bound by the fundamental terms of the complainant’s contract of employment.

Then Respondent acted unreasonably in circumstances where allegations of bullying and harassment were brought to its attention in that it failed to respond in any adequate manner.

The Complainant submitted that he had acted reasonably throughout and engaged with the Respondent in the context of his concerns. It was clear however that following the dismissal of his grievance out of hand by the Respondent both at first instance and on appeal that further engagement in mediation which had been proposed in the outcome of the formal grievance procedure was futile.

The solicitor for the Complainant had, in a letter dated 2^nd September 2019, sought an independent investigation of his complaint but the Respondent instructed its own management team to conduct the investigation and appeal. The Complainant fully exhausted the grievance procedures of the Respondent and consequently has fully discharged his legal obligation to give the Respondent sufficient opportunity to deal with his concerns. He treated himself as dismissed only when it became abundantly clear that the Respondent would not address his substantive concerns at all.

Testimony on behalf of the Complainant

The Complainant told the Court that he sold his business in 2006. He felt it was too early to retire and he wanted to continue working with people. Having applied in response to an advertisement by the Respondent for staff to work at its filling station in Clonmel he was interviewed for the position of Customer Assistant. He was successful and took up the position in September 2007, working at the station which was adjacent to the Respondent’s main store on that site.

The Complainant said he remained in that position until 2012. He got on extremely well and had no issues. He had varied duties within a retail environment, including obtaining stock from the main store and duties in relation to the prices of goods and the monitoring of same. Around 2012 he took up the position of Team Leader in the filling station, having previously turned down the offer of a line manager role. His team leader duties included staffing, rostering, transfer of stock, computer operations and ensuring staff were adequately trained.

In 2015 the Complainant moved from the filling station to the main store, continuing in a team leader capacity. The Store manager had been Ms. COD, but she was replaced by Mr. MA.

The Complainant told the Court that he had difficulties with MA and put in a grievance in September 2019. Mr. CL, Area Manager, who was MA’s line manager, was appointed to hear the grievance. The Complainant stated that initially he had no issues with CL whatsoever. He attended an interview with CL as part of the grievance process and other staff members were also interviewed by CL.

The Complainant received the grievance outcome by letter dated 21^st August 2020 and was unhappy with the result. In response to a question as to whether CL had discussed with him the list of witnesses who would be interviewed, he said that, yes, he had nominated a list of people and CL was to interview those along with others who CL felt should be interviewed.

The Complainant’s allegations were found by CL not to have been substantiated and Mr CL found that there was no evidence of victimisation. The Complainant believed the line of questioning of witnesses by CL was flawed and their opinions were ignored by CL. Also, some of the Complainant’s nominated witnesses were not interviewed at all.

The Complainant appealed immediately and prepared a letter of appeal with the assistance of his Mandate trade union official, dated 2^nd September 2020, setting out the grounds of appeal.

In response to questions from his representative, the Complainant told the Court that he didn’t think that his grievance was investigated properly and he didn’t think that he was taken seriously by the employer.

The Complainant told the Court that he became a shop steward for the main store at the request of his colleagues there who had asked him to represent them. He said that any time that he successfully represented a colleague, MA would find a way to undermine him. He said his role as a shop steward contributed to MA undermining him and that MA ruled the store with an iron fist.

Ms DB was appointed to hear the grievance appeal and the Complainant was interviewed by her on 21^st September 2020. The appeal outcome, dated 27^th October 2020, essentially rejected the appeal. The Complainant believed that DB did not investigate the complaints thoroughly. She worked off CL’s notes from the initial stage, which the Complainant believed to be flawed. The Complainant stated that he believed that if DB utilised CL’s notes then the same outcome would emerge, which it did. The Complainant believed that DB should have interviewed the witnesses herself and, in particular, three named witnesses.

The Complainant stated that DB found his allegations to be unfounded, by and large. DB found in his favour in some areas but, overall, he was disappointed with the appeal outcome as he believed that DB should have interviewed other witnesses to get a balanced view.

Being unhappy with the outcome of the appeal, the Complainant sought to appeal further. He felt there should have been another step in the grievance process. He was offered mediation, to be carried out by Ms PK, People Partner for the Respondent. The Complainant felt that while mediation could work as between two colleagues or as between two managers, he felt that mediation between a store manager and a colleague would not work as there would be a power imbalance and the store manager would without question have the last say. It would be like going up against a stone wall to do mediation with the store manager and the Complainant didn’t believe that MA would change his ways.

In response to being asked by his representative as to what his overall impression of the grievance process was, the Complainant told the Court that he didn’t believe that he was taken seriously. He said that when he started in the employment, he thought that with all the policies in place that the employer was a great company. But it wasn’t what was stated on the tin. In the Complainant’s view, the employer would protect their managers before they would protect their colleagues.

In response to the question of why he resigned, the Complainant said that after months of being harassed by MA, on his final day of work MA had physically assaulted him. He said that MA had humiliated him over an issue to do with boxes and caught him by the arm and pushed him. He said that MA had gone too far when he pushed him.

The Complainant said that, to make matters worse, the employer tried to get him to step down from his team leader role. This was an attempted demotion. He said that three letters of complaints against him, the Complainant, by colleagues were put to him. These letters were used to encourage him to step down as a team leader.

When asked again by his representative, why he had resigned, the Complainant said it was because of the failure to uphold the grievance. He said he did not want to resign, even at pensionable age and that he’d still be there today if he was working under a different manager.

In cross-examination, the Complainant was asked whether he had raised an issue about the grievance process, to which he replied that he didn’t object to Mr CL. When asked did he object to Ms DB, he replied that he did not. He said that he did raise an issue regarding Ms DB not interviewing three witnesses.

When asked if he had discussed with his union the possible referral of his grievance to the WRC, the Complainant said that, yes, he had discussed it with his union official. In reply to a question, the Complainant confirmed that as a shop steward he attended at a WRC hearing in regard to another colleague.

The Complainant confirmed that he felt that the grievance outcome was biased in favour of management. He felt the grievance appeal handled by DB was flawed as she was tied to a flawed report. He said that he challenged DB on that point.

When asked what would have avoided his resignation, the Complainant stated that MA was a good manager, but not where people are concerned. He said that MA should have been transferred to another area. When asked to clarify what he meant, he said that MA should have gone to another store, and he (the Complainant) should have stayed where he was.

In relation to an alleged assault, the Complainant was asked whether he had gone to the Gardaí. He said that he wouldn’t do that. When asked whether he had filled out an incident report form in relation to the alleged assault, the Complainant said that it was his last day at work and that he did not do that.

Summary position of the Respondent

The Respondent disputes the claim in its entirety and submits that no dismissal within the meaning of the Acts took place.

The Respondent submits that the Complainant resigned from his employment in July 2021 following a period of sick leave commencing in September 2019. The Complainant alleged that he had been subjected to bullying, harassment and victimisation by his Store Manager. The allegations were the subject of a full investigation and were determined to be unfounded. A subsequent appeal by the Complainant upheld the findings of the investigation. The Grievance Policy in place in the Respondent was adhered to throughout.

The investigation was, in accordance with the procedures in place in the employment, conducted by an Area Manager. The Complainant raised no objection to that appointment or to the operation of the procedure. Three meetings took place with the Complainant, and he was represented by his full-time trade union official throughout. The process was exceptionally detailed, and the investigator interviewed fourteen witnesses. The outcome was issued to the Complainant by letter dated 21st August 2020. There was no evidence to support the Complainant’s allegations. Mediation was recommended as a means to resolve any issues between the Complainant and the Store Manager. The Complainant declined the opportunity to participate in mediation.

The Complainant lodged an appeal on 2nd September 2020. A Colleague Relations Partner from human resources was, in accordance with the procedures in place in the employment, appointed as appeals officer. The Complainant raised no objection to that appointment or to the operation of the procedure. The Complainant was again represented by his trade union official throughout the appeal. The process dealt with fourteen areas of appeal in detail and the appeals officer met with a number of witnesses. An appeal outcome was issued dated 27th October 2020. Two of the fourteen grounds of appeal were upheld but, overall, the allegations of bullying, harassment and victimisation of the Complainant by the Store Manager were not upheld. The appeals officer also recommended that any relationship issues between the Complainant and the Store Manager could be resolved through mediation.

As per the Respondent’s Grievance Policy, a mediator was appointed to facilitate a mediation process. On 10th November 2020, the appointed mediator held a call with the Complainant to explain the process. The Complainant confirmed that he was unwilling to engage in mediation as per the Grievance Policy but that he would attend a mediation with certain pre-conditions which were not part of the Respondent’s policy. Additionally, the Complainant advised that he would have to pursue a complaint to the Workplace Relations Commission. As he was unwilling to engage in mediation as per its policy, the Respondent confirmed that the internal process was now exhausted, but confirmed that the option of mediation as per the policy remained open to the Complainant.

In January 2021, the Complainant’s trade union official wrote to the Respondent and advised that the Complainant would enter a mediation process. In April 2021, the appointed mediator received correspondence from the Complainant seeking to clarify whether the mediation process was a further appeal from his previous appeal. In a subsequent meeting in May 2021 to clarify matters the mediator explained her role and the process to the Complainant. The Complainant sought this explanation in writing so that he could seek advice from a third party. By letter dated 14th May 2021, the mediator explained her role as per the request.

By letter dated 21st May 2021 the Complainant tendered his resignation as he believed that his grievances were not properly investigated. In a reply dated 24th May 2021, the Respondent asked him to re-consider mediation and to advise of his position by 7th June 2021, failing which his resignation would be accepted. Having not heard from the Complainant the Respondent wrote on 10th June 2021 confirming acceptance of the resignation and noting a termination date of 2nd July 2021. In that correspondence, the Complainant was given until 17th June 2021 if he wished to retract his resignation.

By letter dated 6th July 2021 the Complainant requested that the Respondent engage in a mediation process under a third-party mediator nominated by him. In a reply dated 13th July 2021 the Respondent confirmed that it had already accepted his resignation and noted that the Complainant had not taken up either of the two opportunities given to him to retract his resignation.

The Respondent submits that it dealt with the Complainant’s grievances in line with its procedures. It submits that the Complainant simply did not accept the outcome of the process. It further submits that the Complainant, in refusing to engage in mediation under its policy and seeking to step outside the company procedures, failed to fully utilise the internal processes available to him. The refusal of the Respondent to go outside of its policy in the manner sought by the Complainant was not a rational reason for the Complainant’s resignation.

The Respondent submits that it fulfilled its contractual obligations to the Complainant. The contract was in no manner repudiated. The Respondent relies on; Conway V Ulster Bank UDA474/1981 and Western Excavating Ltd (ECC) V Sharp [1978] IRLR 332.

The Respondent submits that it acted reasonably and fairly towards the Complainant at all times. It has a comprehensive grievance policy in place in the employment. The policy accords with best practice in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. 146 of 2000. The Respondent submits that the Complainant did not exhaust the available procedures. It relies on: Terminal Four Solutions Ltd V Rahman UD898/2011; Travers V MBNA Ireland Ltd UD720/2006 and Fitzsimons V Mount Carmel Hospital UD855/2007).

Testimony of Mr CL

The witness stated that he was, at the material time, the Area Manager for the Respondent for Southwest Ireland.He said that he had conducted the grievance investigation into the Complainant’s allegations.

When asked by the Respondent’s representative whether any concerns had been raised with him by the Complainant about the process during the process, the witness stated that no such concerns were raised during the process by the Complainant or his Trade Union representative.

When asked whether any evidence of assault had emerged during the process, the witness said that it had not. The witness confirmed his understanding of the Respondent’s grievance policy and confirmed that he had conducted an investigation at stage two of the process.

The witness confirmed that he had undertaken the Respondent’s own in-store investigation training on a number of occasions. He did that training generally every two years. The witness said that he couldn’t recall his evidence on this at the WRC but that such training is provided once every two years.

The witness confirmed that he was one of six area managers and that MA reported directly to him.

It was put to the witness that as MA was his direct report that it would have been more appropriate for another area manager to conduct the investigation. In reply, the witness stated that he was confident in his ability to carry out the investigation.

The witness confirmed that his investigation outcome was reported in his letter dated 21st August 2020. The witness was asked to confirm that he found no evidence of victimisation. He confirmed that this was correct. He further confirmed that he found no evidence of bullying.

The witness was referred to his interview of SC, a witness interviewed during the investigation. It was put to the witness that SC, in his interview had stated that someone, not MA, was encouraging staff members to make complaints about the Complainant. In response, the witness replied that he was only dealing with allegations against MA, not another person.

The witness was asked again whether any corroboration at all of the Complainant’s complaints had emerged from any of the fourteen people interviewed by him. The witness confirmed that there was no corroboration of the complaints. It was put to the witness that he had excluded what one of the interviewees, CW, had said. The witness confirmed that he had done so.

The witness was asked whether he had become aware of any other complaints against MA. He said he was not aware of any.

Testimony of Ms DB

The witness told the Court that she was a Colleague Relations Partner with the Respondent, having started in the employment in 2008. She was appointed as the appeals officer to hear the appeal by the Complainant of the outcome of the grievance investigation.

The witness outlined to the Court the training that she had received during her career which was relevant to her appointment to hear the appeal. She told the Court that she had undergone both internal and external training during her career. This included training provided by CIPD and by Ibec in handling disciplinary processes & grievances. The witness confirmed that she had nineteen years management experience. She had a degree in Business Studies and a Masters in Human Resource Management.

The witness outlined that she could not find any evidence of bullying or victimisation as alleged by the Complainant. She said that it was clear that the Complainant did not want to work with MA.

When asked whether any other evidence emerged of bullying and harassment in the store, the witness said that it had not.

It was put to the witness by the representative of the Respondent that she had overturned some of the findings of the grievance investigation. The witness agreed and said that one of the findings of the grievance investigation was an error, in that one of the meetings that the Complainant had attended was characterised as a performance review, when in fact it was not a performance review. In relation to the incident at the tills, the Complainant argued that he should not have been assigned to tills by MA and that it was more appropriate to assign another colleague. The witness found herself in agreement with the Complainant’s position on this and found that the Complainant should not have been assigned to tills over other colleagues as he was a team leader.

The witness was asked whether she had re-interviewed people during the appeal. She confirmed that she had done so. When asked why she didn’t interview certain colleagues the witness stated that she had made it clear to the Complainant that her role was not to re-interview everyone who had been interviewed during the grievance investigation. She said she had explained that she would do it if required.

In cross-examination, and referring to the letter of appeal submitted by the Complainant’s Trade Union, it was put to the witness that she chose not to interview three named colleagues. The witness agreed.

The law

Section 1 of the Act defines what is commonly termed ‘constructive dismissal’ as follows: -

• “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 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 within the meaning of the Act.

It is trite law that Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal which is unfair within the meaning of the Act. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment the employee would be entitled to regard himself or herself as having been dismissed and that the dismissal was unfair. In the UK Court of Appeal Lord Denning in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 held that

• “an employer must be “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 further performance”.

In addition, it is settled law that the Court, in considering a complaint of constructive dismissal in application of Section 1 of the Act, must consider whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee could not fairly have been expected to put up with it any longer such that he or she was justified in terminating their employment.

In this case the worker contends, including in evidence, that his dismissal arose solely from his dissatisfaction with the outcome of a grievance procedure which included an investigation of an appeal of a first instance decision. He, in effect, fundamentally disagrees with the outcome of the grievance procedure, including an appeal, albeit he and his Trade Union accepted at the time that the procedure was conducted in accordance with the procedure in place in the employment.

He does not contend that the grievance procedure of the employer is itself unfair and neither he nor his Trade Union raised an objection at the time as regards the individuals appointed to conduct the procedure.

He does contend however that the managers of the Respondent who carried out the procedure failed in their conduct of the procedure in that they dismissed his complaint ‘out of hand’. He stated in evidence that the reason he resigned his employment was the failure of the grievance process to uphold his complaint.

It is not for the Court to replicate the internal grievance procedure of the Respondent by acting as an investigator of the complaint or by purporting to conduct an appeal of the first instance decision. There is no contention between the parties that the procedure in itself is unfair notwithstanding the Complainant had initially, through his solicitor on 2^nd December 2019, sought to amend the procedure so as to have the Respondent

• “appoint a suitable firm of external human recourses (sic) consultants to conduct a proper and thorough investigation into this grievance and complaint”

The Court notes that the Respondent provided the Complainant with opportunities to engage in mediation following the conclusion of the investigation and appeal stages of the grievance procedure but that the Complainant did not take up that opportunity notwithstanding an engagement by the appointed mediator with him which was designed to ensure that he had an understanding of the process of mediation. He did ultimately, following his resignation, indicate that he would agree to participate in mediation with an independent mediator to be nominated by himself rather than by the Respondent.

The Court notes also that the Respondent, having received a letter of resignation from the Complainant did afford him two opportunities to withdraw his resignation which he declined.

In all of the circumstances outlined above, the Court concludes that the Respondent did not act in a manner which amounted to a repudiation of the contract of employment and did not act so unreasonably as to leave the Complainant with no option other than to resign his employment. The respondent had a comprehensive grievance procedure in place in the employment which was known to the Complainant and that procedure was operated to completion by the Respondent with the full participation of the Complainant to the point of completion of an appeals process to deal with his complaint.

The Complainant chose, as he was entitled to so do, not to avail of the option of mediation following completion of the appeal stage albeit he did offer, following the date of termination of employment, to participate in a mediation process outside the process provided for by the procedures in place in the employment.

In circumstances where the Court has been told in evidence by the Complainant that the operative reason for his dismissal was his non-acceptance of the outcome of a grievance process conducted fully in accord with the procedures in place in the employment and which have not been contended to be unfair in themselves, and noting all of the circumstances outlined earlier, the Court concludes that the Complainant was not constructively dismissed and that, consequently, the within appeal must succeed.

Decision

The Court decides that the resignation of the Complainant did not amount to ‘constructive dismissal’ amounting to unfair dismissal within the meaning of the Act and the within appeal succeeds.

The decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
DC	______________________
22 May 2023	Chairman