EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Faisal Ahmed UD1221/2014
Abbot Ireland Vasular Division
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. Hurley
Members: Mr. J. Horan
Ms. S. Kelly
heard this appeal at Clonmel on 15th October 2014 and 20th January and 21st January 2015
Claimant: Mr. Kevin McCrane BL instructed by:
Arthur Denneny, Christopher Grogan & Co., Solicitors, Main Street, Clane,
Respondent: Mr. Michael Hayden SC instructed by:
Jill Pilkington, Matheson, 70, Sir John Rogerson’s Quay, Dublin 2
The claim before the Tribunal was one of constructive dismissal
The claimant gave evidence. He gave a detailed history of his educational background. He commenced his employment with the respondent in April 2007 as a Production Line Supervisor reporting to his Manager (PML) until March 2008. During this time a position as Engineering Group Leader arose and he discussed the matter with PML but was told that it was premature for him to apply for the position even though he was very keen to progress within the company.
PML approached him to move to another role for a period of time to work on two major roles:
To boost manufacturing productivity through re-organising manufacturing lines resulting in an increase in productivity of 25%.
Heading a cross functioning team to reduce order to shipment time of product from 3 months to 1 month.
He was successful on both projects but told the Tribunal that he did not receive any recognition for this by his then Manager (MC). This secondment ended and he returned to his Line Supervisor role in October 2008.
In this position he managed a busy line with a staff of 30 and he often worked long hours. The company had a work time directive in place and in order to keep in line with this it was often common practice not to swipe your time card at weekends when working overtime or to swipe out at regular times.
The claimant told the Tribunal that one member of staff took a number of breaks throughout the day, leaving for a half hour at a time. This in turn put pressure on other staff to achieve targets. He spoke to this staff member but this person then made a complaint concerning the claimant to MC. He spoke to MC regarding the matter but MC did not agree with the claimant’s actions towards this staff member. The claimant told the Tribunal that he felt he was in a “no win” situation. MC told him he could not restrict someone from going to the bathroom.
In 2009 there was a change of Manager for the claimant and EB took over. This was his third Manager in 2 years. By October staff numbers on the line had reduced to 22 and the task of achieving targets was difficult. The claimant told the Tribunal that he discussed this matter with EB on numerous occasions and EB told him he would have to “make do.” The claimant often asked staff from other lines to work in his section. A staff member spoke to their Line Manager and told them they were unhappy to work on the claimant’s line. EB told him of the complaint. Although no formal complaint was made the HR department did a review of the matter and he was interviewed. He told the Tribunal that he was heavily criticised for his leadership which had a terrible affect on his health. He felt humiliated and undermined.
In January 2010 EB conducted an appraisal on the claimant and he felt, he was heavily criticised receiving “partially achieved expectations” for his work and “not achieved expectations” for his leadership. The claimant was distressed at the outcome and appealed the appraisal. The appeal was dismissed which he felt was unfair as it was adjudicated by EB and MC. This caused further distress which affected his health.
In April 2010 a fourth Manager (CR) was appointed to the claimant. Another issue arose with a staff member on the claimant’s line who was refusing to work overtime. He had spoken to this person concerning the issue and had sought advice from HR as to whether weekend overtime was compulsory. Company policy was applied but the staff member would not work another Saturday as she had an appointment. The claimant requested a copy of the appointment letter. This staff member made a complaint about the claimant to CR. He investigated the matter. Other staff were interviewed and positive and negative feedback was given concerning the claimant. Again he said he was criticised for his leadership. There were other issues with the handover of the shift to the claimant. He raised the issue with CR who said that the claimant could not work with his peers.
In June 2010 he was given the opportunity to change lines. This change was a success and without incident. In August 2010 an opportunity arose to move to the engineering team. He spoke to CR who informed him he would have to interview for the position even though it was not a promotion. The claimant’s health was affected with all the stress he incurred at work and he attended his doctor. He felt CR was critical of his leadership skills and had told him he was very emotional.
In October 2010 the claimant moved to the new position and reported to a new Manager (AMN). While working in this area he worked long hours and accrued over 80 hours, he availed of 40. He spoke to AMN regarding these hours owed as time in lieu and compiled an email at AMN’s request. AMN called him to his office and accused him of “nickel and diming” him.
While now reporting to AMN, his appraisal for 2011 was carried out by CR in January 2011. Although the claimant was cleared of the complaint made against him he scored a “partially achieved” marking in his review for his people management. The claimant was not surprised by this as the feedback given by employees was damning and made it clear that the claimant was not suitable for the role of supervisor. The nature of and the manner in which the feedback was provided was devastating to him and there was not a shred of positivity. The criticism did not relate to his technical work, it related to him as an individual which was very personal. The claimant noted that in January 2008 he received an “exceeded expectations” rating for his interpersonal skills. The 2011 appraisal was meant to damn him and meant that he would never again hold a leadership position in the engineering department and his opportunity of progressing in the company was gone.
His manager AMN was aggressive in how he operated and the claimant outlined to the Tribunal an issue where the lead-in time on a project was altered from 8 weeks to 2 weeks. Despite this the claimant was still expected to maintain his work levels on other work.
The claimant stated that he was treated unfairly for no real reason that he could figure out. The claimant felt like a “punching bag”, was “walking on egg shells” and that “his cards were marked.” By the time of January 2011 the claimant was feeling increasingly stressed as the pressure was really increasing and there were two huge projects that he was working on. The two projects were time sensitive and he was working 90 hours per week. He was upset by what happened when he made the request for time in lieu. The claimant was on annual leave during February 2011 but during this leave he felt stressed, depressed and was struggling to cope. He was unable to relax while on annual leave as he was thinking of what awaited him on his return to work.
The claimant returned to work on 7 March 2011 but that night he felt that he could take any more. He attended with his doctor and was informed by the doctor that he was clinically depressed and suffering with stress and was provided with a medical certificate for two weeks.
The claimant informed his manager and the occupational health nurse that he was diagnosed with depression. The claimant was subsequently referred to a specialist on 22 March 2011 and the claimant’s return to work date was extended a number of times by this specialist. The claimant returned to work on reduced hours from 12 May 2011 however he was experiencing serious side effects to medication. Eventually he returned to full-time hours and his role within the engineering department.
He met with BD, a human resources representative on 1 June 2011 and he was offered the option of utilising the grievance process but decided not to. He wrote a letter stating that he was not going to utilise the grievance process due to ill health and he went through the points in this letter with BD and explained that in light of being ill he needed to weigh up the benefit of invoking the grievance policy. The claimant stated that on his return to the working environment in May 2011 he saw no real change. For this reason prior to meeting with AM, the Human Resources Director he submitted his notice to EB on 7 June 2011. When he subsequently met with the Human Resources Director he outlined to him what he considered to be bullying incidents. A specific example of this was when the time on a project was shortened from 8 weeks to 2 weeks. The Human Resources Director suggested parental leave to the claimant and this was later sanctioned.
Close to the time that the claimant was to return from parental leave he still did not feel well and felt that he could not return to work. He resigned with one month’s notice in August 2011 as he had a sense of dread about returning and feared for his health as he was just starting to feel better mid-August 2011. The claimant gave evidence of loss and efforts made to mitigate that loss.
During cross-examination the claimant accepted that he did not raise a complaint against EB but he discussed issues he had with EB with his peers. The claimant had an issue that he would be returning to work with EB as his manager in circumstances where he had appealed the outcome of an appraisal conducted by EB in January 2010.
In reply to questions from the Tribunal, the claimant stated that once full-time again the same company culture again was there and there were underlying issues that were not going to be addressed.
BD was one of four human resources representatives and he reported to the Human Resources Director (AM). When the claimant was due to return to work on reduced hours over a phased basis EB suggested meeting the claimant on 20 May 2011 to discuss the various issues but the claimant was not ready to meet at that time. BD subsequently met the claimant instead on 1 June 2011. The claimant raised his view of the company as a rural company with a corporate veneer and he also raised the issue of cronyism. BD’s role was to follow up with the relevant company procedure to resolve any issues. BD outlined that the informal process is to address matters to the supervisor but if the supervisor was the cause of the complaint than an employee could contact the human resources representative instead.
BD intended to escalate the issues raised by the claimant to the Human Resources Director and he informed the claimant of this. He did not hear until the Tribunal hearing that the claimant had a problem with EB.
BD was not present on 7 June 2011 when the Human Resources Director met with the claimant but he was updated by the Director. BD met with the claimant again on 22 June 2011 and the main point of discussion at this meeting related to the option of parental leave as offered to the claimant by the Human Resources Director. By the time of this meeting the claimant was considering withdrawing his resignation. BD discussed with the claimant the process available to him for raising a grievance and also discussed the conflict resolution process available to the claimant.
At the follow-up meeting on 24 June 2011 the claimant stated he was availing of the period of parental leave and that he did not wish to initiate the grievance process. BD mentioned the conflict resolution process to the claimant once again but the claimant stated he did not want to engage in it at that time. He also raised the possibility of the grievance process being invoked on the claimant’s return from parental leave.
The claimant later submitted letter dated 29 June 2011 but confirmed to BD that he considered the matters closed.
During cross-examination it was put to BD that there was a higher percentage of staff joining and leaving the DES section. BD replied that this was a new area and staff numbers were ramped up to get the section to full manufacturing levels and would have then balanced out. BD acknowledged that the claimant told him that his condition prevented him from raising a grievance but the claimant was certified medically fit for work. There were avenues available to the claimant had he wanted to address a skills issue but the onus was on the claimant to work on those skills.
The Human Resources Director gave evidence that he took up this position in May 2011. His first contact with the claimant was on 7 June 2011 having been briefed by BD. One hour before this meeting he was informed that the claimant had submitted his resignation. When he subsequently met the claimant he told him that his resignation changed the nature of the meeting. The claimant told the HR Director that he was struggling with work and had done from his first year with the company. MC was the claimant’s manager in 2009. The claimant raised the issue of cronyism in the context of the long one-to-one meetings that MC held with the employees who were his favourites whereas the claimant would not be brought into the office for a long period of time. The claimant outlined in depth his experiences since moving roles and he outlined that the project work was challenging. Requirements for the project work had changed but AMN had not passed on this change appropriately. The claimant also outlined to the HR Director that in the midst of the height of the pressure with the project work AMN had tutted at him over the telephone in relation to a matrix that the claimant had failed to complete. From this meeting with the claimant the HR Director felt that the claimant perhaps did not want to depart the company as the claimant spoke for some time about these issues and he still intended to attend the occupational health physician. The HR Director put it to the claimant that perhaps he did not want to leave the company and the claimant did not contradict him. The claimant stated that he saw the various options open to him at that time as “stress.”
The HR Director suggested to the claimant the option of parental leave and advised the claimant if he was interested that he would advocate for the usual waiting period to be waived. He did not recall the claimant stating any difficulty with EB at this meeting. The meeting ended on the understanding that the claimant was not proceeding with his notice but was availing of a period of parental leave. During cross-examination the HR Director stated that EB was temporarily the claimant’s manager and that JE was to take up this post permanently.
Dismissal in relation to an employee is defined in Section 1(b) of the Unfair Dismissals Act as:
“ 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.”
Having heard the evidence of both parties the Tribunal is unanimously of the view that the claimant failed to meet the requisite test for a claim of constructive dismissal. As set out in the case of Zaino-v- SAP (UD583/2011):
“It has been long held by the Tribunal that the test for constructive dismissal is a high one. It has also been long held that an employee with a grievance arising from his or her employment must, in the ordinary course and unless special circumstances arise, inform his or her employer of the nature of the grievance and afford the employer an opportunity to resolve the matter. Similarly, an employer that wishes to dismiss an employee for performance issues must address them with the employee and afford the employee a sufficient opportunity to address them.”
In applying the criteria in the case law opened to the Tribunal and detailed in the respondent’s submission the Tribunal can only come to conclude that the claimant did not activate the company’s grievance procedures, as suggested to him on several occasions by his superiors.
In the case of McCormack Core –v- Dunnes Stores (UD1421/2008) the Tribunal found in its decision:
“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable. The Tribunal is of the view by majority decision with Mr. Clarke dissenting, based on the evidence that the claimant did not meet the requisite threshold.”
In instance case the Tribunal finds it unnecessary to cite further relevant authorities as set out in the respondent’s booklet. In all the circumstances the Tribunal is of the view that the claim for constructive dismissal which imposes a burden on the claimant, must fail.
Sealed with the Seal of the