EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Paul O'Connor – claimant UD2244/2011
Roisin Lyons T/A Lyons Financial Services – respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Browne
Mr J. Flavin
heard this claim at Waterford on 29th July and 22nd November 2013
and 25th March and 26th March 2014
Claimant: Neil J Breheny & Co, Solicitors, 4 Canada Street, Waterford
Respondent: Brian A. Rennick, Solicitors, Main Street, Dunboyne, Co Meath
The Determination of the Tribunal is as follows:
This case comes before the Tribunal by way of a claim for Constructive Dismissal by the Claimant. The burden on a Claimant is onerous when a claim of Constructive Dismissal is made.
The Claimant must either satisfy the Tribunal that the Employer has repudiated the Contract of Employment by acting in such a manner as amounts to a fundamental breach or, alternatively, that the acts of the employer are such that a reasonable employee would have been left with no option but to terminate his Contract. The lines between these two criteria can be blurred and, in claims of Constructive Dismissal, there can be elements of both in the allegation against the Employer.
It is recognised that an Employee must, generally, first exhaust internal grievance procedures, however, each case falls to be decided on its own merits in this regard. There may well be circumstances where an Employee could not reasonably be expected to avail of grievance procedures.
The question for the Tribunal is whether or not it was reasonable for the Claimant to leave his employment and whether the conduct complained of by him was the effective cause of his resignation.
The Tribunal is also entitled to consider the conduct of the Employer in accepting a resignation. Specifically, the Tribunal may consider whether the readiness to accept a resignation in itself is indicative of an undue haste to see an employee depart.
The Tribunal has heard a considerable amount of evidence in relation to this Claim and has had the benefit of Legal Submissions from both parties.
There was a significant evidential conflict between the parties in relation to a number of matters and the Tribunal had issues with the reliability of aspects of the evidence from both sides. The Tribunal was, however, impressed by the evidence of TM for the Claimant and KW for the Respondent.
The Tribunal was asked to make a Ruling in relation to the questioning of VL’s Professional Qualification and compliance with Statutory Requirements. The Tribunal Determined that the qualification of VL, or otherwise, was not a factor in the Claimant’s decision to resign from the Respondent’s Business. It was not an issue in respect of which he was aggrieved at the time of his resignation. What was relevant to the Tribunal in its deliberations was what was going on at the time of the Resignation and what was in the minds of the parties. The Tribunal further concluded that any exploration of VL’s qualifications would not be helpful to the Tribunal on the issue of creditability generally.
What is abundantly clear to the Tribunal is that the Claimant did feel from February/March of 2011 that there was something occurring in the Respondent’s Business which impacted on his role going forward that he was deeply unhappy with this. However, the Tribunal must consider whether it was reasonable for him to have this perception. The Claimant appears to have had the perception that RL “was making the bullets” (in the words of the Claimant’s witness, TM) but that others were ‘firing them’.
In this DETERMINATION, the Tribunal feels that it is useful to first consider the evidence of both, KW witness for the Respondent, and TM witness for the Claimant both of whom were very credible witnesses.
KW advised the Tribunal that, in or around the time of the CSPU and PSU Conferences in March 2011, the Claimant confided in him that his relationship with V and R, Principals in the Respondent’s Business, was “dwindling”. He advised KW that he felt pressurised and was losing control of the Sales Team though the witness did not perceive this to be the case.
The witness advised the Tribunal that in May 2011 he was approached by the Claimant who mooted the idea of moving the entire Sales Team to a named Competitor.
In June 2011 the Claimant told him that the “team was upset by what’s going on”. The witness was not otherwise aware of any dissatisfaction within the Sales Team. At this point the Claimant advised him that his plans to move the team were at an ‘advanced stage’.
When the witness received the e-mail of the 22nd of June announcing the Claimant’s new role of ‘Special Projects Manager’ he was delighted for the Claimant as he saw this as an opportunity for the Claimant to go back to using his ‘core strengths’. The e-mail denoted a re-organisation that saw others’ titles change also. The witness had been informed of these forthcoming changes in or about the 14th June. When he asked the Claimant if he was happy the latter replied that he was “thinking about it” and about whether he could work so closely with RL.
On the 8th of July 2011, the witness’ sense of loyalty to his Employer and colleagues on the Sales Team prompted him to go to CB and tell her of the possibility that moves were afoot for the Claimant and some of the Team to move to a Competitor. She was shocked.
The Tribunal believes from the evidence heard by it that there was what might best be described as a stylistic change when VL became Sales Manager. The previous formal Monthly Sales Meetings were replaced by less formal ‘get togethers’ and discussions. The witness informed the Tribunal that the Claimant continued to chair these Meetings.
As regards his own more expanded role with the VEC Project, the witness informed the Tribunal that, before the Claimant went on Annual Vacation, shortly prior to his departure from the business he, the witness, the Claimant and VL decided on the witness’ role while the Claimant was away. When he brought the Claimant up to speed on the latter’s return from vacation he felt that the Claimant was upset indicating to him that he would have to speak immediately with VL. The witness did not understand why the Claimant was upset.
The witness disputed the contention that he had ever told the Claimant that he was taking over or heading up the VEC Project. He did tell the Claimant that VL had promised him a ‘seat at the table’.
TM was called as witness by the Claimant. He described the meeting of the 4th of February with the Sales Team (to the exclusion of two members) as one where RL asked for support and to give the new idea of a targeted number of meetings rather than a financial target a go. RL had sought to enthuse them with what was “something new in the industry”. He agreed that both RL and VL were ‘looking for a solution’.
While the witness had the perception of a ‘mood change’ in the business and that the Claimant was ‘seen as a threat’, nothing was said or done by Management that led him to this conclusion. The witness, however, was based in Limerick in February, March and April and much of what he felt or perceived seemed to be gleaned from discussions with the Claimant.
The witness did recall a discussion with CB at a Social Gathering after the CSPU Conference in Athlone in March 2011 when he and CB shared the view that VL and RL wished to “push” the Claimant out of the Business. He attributed to CB the specific assertion that “they want Paul out!”
The witness confirmed that formal Sales Team Meetings ceased when VL took on the role ofSales Manager but the reduction in his contact with the Claimant was not significant. He advised the Tribunal that the Claimant was always the Sales Team’s “boss” and that Management never suggested otherwise.
He agreed that, while the Claimant had initially sought to keep the Sales Team together in LFS (particularly when the witness himself was contemplating leaving), the Claimant did approach him informally in late May on the issue of a possible move with him to a Competitor, though nothing ‘concrete’ was discussed. In early June the Claimant gave him to believe that he was actively looking to make the move.
Such was his perception of the Claimant’s unease and unhappiness that the witness thought that, if anything, the e-mail of the 22nd of June would be announcing his resignation or departure from the Company. He agreed in evidence that he did not consider the e-mail, when received, to be indicative of a move to get the Claimant out of the Business.
While the witness himself had been fearful of the changes he felt reassured by discussions with VL and remained with the Business.
The Tribunal’s sense of the Claimant’s evidence led it to the conclusion that the main thrust of his concerns related to his belief that his Contract of Employment had been fundamentally breached in his removal from his role as Sales Manager. Considerable evidence was given on this issue. The Claimant also presented other issues to the Tribunal as follows:-
- Evidence pertaining to an incident involving VL and TM.
- Evidence that a false and misleading Organisational Chart was presented to Dublin City Council.
- Evidence to the effect that the attitude of RL and VL changed towards him immediately following the Sales Team Meeting on the 4th of February where Sales targets were ultimately replaced by targeted meetings.
- That he was marginalised or his role diminished at the CPSU and PSU Conferences in March.
The Claimant advised the Tribunal that a fundamental change in his Contract of Employment occurred in May/June 2011 which culminated in his removal from the role of Sales Manager and in the sending by RL of the e-mail of the 22nd of June. It was on the receipt of this e-mail that he first learned of the new role of “Special Projects Manager”. He was completely undermined with the Sales Team. There was considerable discussion at the Tribunal around the interpretation of the Claimant’s Contract of Employment which will be returned to later in this Determination.
The Claimant believed that he had been demoted and removed from a Managerial role. On re-examination he informed the Tribunal that, from March, VL wanted him ‘back on the road selling’ and that the focus moved completely to his Sales Figures. He did accept that VL suggested to him that he, VL, could do the Sales Manager’s role. He disputed that there had been any meaningful level of discussion on the issue and advised that the change had been presented to him as a ‘fait accompli’ on the 14th of June 2011.
He had not been aware prior to the receipt of the e-mail of the 22nd of June that two further Appointments had been made the Sales Team. These appointments had been made without consultation with him though he subsequently accepted that at least one of the Appointees had been previously mooted as a candidate in discussions with VL.
The Claimant informed the Tribunal that on the 14th of June he was unhappy with the proposed change to his role but was told by VL that he was dissatisfied with the Claimant and wanted him “selling and working with the VECs”. It was not put to VL on cross-examination that he expressed dissatisfaction with the Claimant. The Claimant advised the Tribunal that VL would not debate the issue with him nor engage with him in reference.
The Claimant advised that he sought written confirmation of the changes and what they entailed on at least four specific occasions but this was not forthcoming.
The Claimant did acknowledge that he continued to meet with the members of the Sales Team individually after 22nd June 2011.
The Claimant advised the Tribunal that he had been asked not to contact CB and that this removed from him an important line of communication and information.
At the meeting with VL on the 22nd July 2007 he advised VL that he was “shattered”, felt undermined and was considering his position. VL told him to go on his holidays and to relax. On arriving back on the 15th August he learned from KW that he was appointed to the VEC Project.
Having taken legal advice he prepared his Letter of Resignation which he tendered.
The Claimant advised the Tribunal that VL readily accepted his resignation and told him that he, the Claimant , was ‘doing the right thing’.
When asked why he had not invoked the Grievance Procedure, the Claimant advised that VL knew of his issues. VL had been the Claimant’s immediate Supervisor/Line Manager since 25th February.
The Claimant advised the Tribunal that his clear perception was that he was being moved towards a Sales Consultancy role similar to other Sales Team Members and away from his managerial role as Sales Manager.
The Claimant advised the Tribunal that he had not sought to move the Sales Team to a Competitor. When asked by VL in July if anyone had approached him to move to a Competitor he denied that there had been any such approach. The Claimant disputed the evidence of KW on the issue of a possible move to a Competitor. In his evidence the Claimant appeared to distinguish between possible discussions with a Competitor and ‘concrete’ proposals from that Competitor.
In her evidence RL denied that there was any deterioration in relations after 4th February. She informed the Tribunal that the Claimant had described the meeting as a positive “watershed” to her and had assured her that the Sales Team was ‘on board’.
The witness agreed that the Claimant had questioned her referable to the Organisational Chart presented to Dublin City Council asking, “What’s this?”
The witness denied that her attitude towards the Claimant changed and she found him to be “up beat” as usual.
The witness described a July meeting with Dun Laoghaire VEC which she attended with the Claimant and advised the Tribunal that they had coffee together and a pleasant chat in advance of the meeting.
The witness denied that the Claimant was demoted in any way. She says the new ‘focus’ in the Claimant’s role was playing to his strengths. He was to focus on the VECs on the run up to the latters’ Annual Conference in September as the Respondent was hoping to get the VECs on board for an “Affinity Scheme”. She advised the Tribunal that the main reason the Claimant was hired was to go after Groups for such schemes.
VL gave evidence for the Respondent Business. He advised that the Claimant was the only one with the role of developing the Group Schemes. The changes in June 2011 were no more than a refocusing of the Claimant’s role. This refocus started as far back as January 2011 when the prospect of opening the door to the VECs as a Group actually appeared to be a possibility. The witness was insistent that the Claimant was aware from January of the refocusing. The purpose of the witness taking over the Sales Manager’s role was to remove administration burdens from the Claimant so that he could focus on his primary role.
From February onwards, when CB had to reduce her involvement due to significant personal challenges and VL had to become the Claimant’s “Line Manager”, VL had far more contact with the Claimant in what he felt to be a dynamic and positive relationship.
The witness advised that the e-mail of the 22nd of June was sent at the Claimant’s request as he was concerned to ensure that his replacement as Sales Manager by VL would not be misinterpreted as a demotion or something negative by the Sales Team.
On the 15th of July he asked the Claimant if he had been approached by a Competitor to move; the Claimant indicated that he had not been. On the 22nd of July he met the Claimant at the Riverside Hotel in Enniscorthy. The Claimant advised that he was stressed as a result of “everything” that had happened and was contemplating resignation.
On the Claimant’s return from vacation they again met on the 15th August when the Claimant advised that he was leaving as he’d “had enough”. The witness advised the Tribunal that the Claimant refused to talk about the matter further. He tried to ring the claimant over the following days and subsequently received a Letter of Resignation in the post.
The witness was adamant that the business had not taken away the Claimant’s contractually defined ability to earn the commission associated with sales through the Sales Team. The bonus structure as documented in his Contract of Employment remained unaffected.
The final witness before the Tribunal was CB who explained the background as to why VL took over from her as the Claimant’s “Line Manager” in February 2011. She had asked that there be a reduction in calls from all Team Members while she was dealing with difficulty personal issues. Notwithstanding this, the witness was able to give detailed evidence by reference to phone records to show the level of telephone contact which she and the Claimant had from March to July which was significant.
The witness insisted, as had VL, that the Claimant was directly involved in the preparation of the Organisational Chart for the Presentation to Dublin City VEC. This contradicted the Claimant’s evidence and, further, was irreconcilable with the evidence of RL on this issue.
The witness denied that she had advised TM after the CSPU Conference in Athlone in March that RL and VL “want Paul out!”
The Claimant raised no issues or grievances with her. The witness was adamant that the ‘refocusing’ of the Claimant’s role did not impact in any way on his bonus earning capacity. If Group Affinity Schemes could be captured, then the additional bonus would be “icing on the cake” for the Claimant.
The witness gave detailed and emotional evidence of her meeting with KW on the 8th of July 2011 when she was informed that the Claimant was looking at the possibility of moving the Sales Team to a Competitor. She was devastated and felt betrayed.
The Tribunal considered the evidence before it at length, the documentation provided and Legal Submissions presented before arriving at a conclusion as to whether the Claimant had established his case for a finding of Constructive Dismissal.
The Tribunal first proposes to deal with:
(1) The incident between TM and VL.
(2) The Organisational Chart presented to Dublin City Council.
(3) Whether the Respondent’s attitude towards the Claimant changed after the Sales Meeting of the 4th February 2011.
(4) Whether the Claimant was marginalised and found his role significantly reduced in the March CPSU and PSU Conferences.
(5) Whether, when VL was introduced as his “Line Manager”, his contact with CB was effectively stopped to prevent him from liaising with her about issues with RL and VL etc.
The Tribunal makes the following findings on these issues:-
(1) The incident between VL and TM was no more than a ‘storm in a teacup’ and nothing unusual in the context of a Business facing new challenges. This matter was not a factor in the Claimant’s decision to resign.
(2) It is not for the Tribunal to comment on the business ethics surrounding the preparation and presentation of this Organisational Chart. However, the Tribunal does not believe that the Claimant had a hand in preparing this Chart. If he had there would simply have been no basis for him asking RL the question: “What’s this?” That said the Tribunal does not believe that this was a factor in the Claimant’s decision to resign.
(3) There is little or no concrete evidence to support the contention that VL’s and in particular RL’s attitudes changed negatively towards him after the Sales Meeting of the 4th of February. What seems clear is that the Claimant believed that there had been a change. There can be an intangibility about shifts in attitude so that the Tribunal cannot definitively resolve the conflict of evidence on this issue.
(4) The Tribunal finds that there is no basis whatsoever for the Claimant’s contention that the Respondent bore responsibility for his reduced role at the CPSU and PSU March Conferences and that this was evidence of his marginalisation.
(5) The Claimant has not satisfied the Tribunal that there was an ulterior motive on the part of the Respondent in reducing his telephone contact with CB after February 2011. The Tribunal feels that the Claimant has been somewhat disingenuous on this issue.
The Tribunal must now consider the main thrust of the Claimant’s case to the effect that his Contract was fundamentally changed without his Agreement so that his Employer had effectively rescinded the Contract leaving him with no alternative but to resign.
If the Tribunal holds there to have been a fundamental breach, then it must address the question as to whether the Claimant exhausted the Grievance Procedure available to him, whether it was reasonable of him to resign and if it was the alleged breach that caused him to resign.
The Tribunal has considered the Claimant’s Contract document at length. It could be suggested that the document lacks clarity. On the one hand the Claimant is said to be Sales Manager while also stating that ‘in the main you will be responsible for promoting the Affinity Schemes’. While on its face, a very minor matter, both VL and RL gave uncontested evidence that the Claimant refused to have the title ‘Sales Manager’ embossed on his Business Card. This suggests to the Tribunal that the Claimant saw his principal role as over and above that of a normal ‘Sales Manager’. The Tribunal is satisfied that the Claimant’s principal role was to promote the Respondent’s Affinity Schemes. It is the Tribunal’s view, that, when the Respondent had got a ‘foot in the door’ with the VECs at Managerial Level, the Respondent sought to refocus the Claimant’s activities on this role and sought to alleviate certain administrative distractions inherent in the role of Sales Manager from him. The Tribunal does not consider there to have been a fundamental breach of the Claimant’s Contract.
It seems to the Tribunal that there were avenues open to the Claimant if he felt that his Contract was being breached, however, there was no evidence before the Tribunal to indicate that he sought to engage with his Employer in reference. The Tribunal does believe that the Claimant had concerns that were very real to him, however, they do not stand up to objective analysis. While VL was the Claimant’s “Line Manager”, the Tribunal does not consider the discussions with VL in July/August as either an effort to raise a grievance nor to engage meaningfully.
The Tribunal has also considered the readiness with which the Respondent accepted the Claimant’s resignation. The Tribunal accepts that the Claimant had been in discussions with a Competitor. In those circumstances, it is completely understandable that his resignation would have been readily acceptable and, indeed, may well have come as a relief to the Respondent.
The Tribunal’s finding is that the Claimant has failed to establish that he was constructively dismissed and, accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal