SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015
ALLIANZ WORLDWIDE CARE S.A.
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Marie
Worker Member: Ms Tanham
1. Appeal of Adjudication Officer's Decision No: ADJ-00000217
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 9(1) of the Unfair Dismissals Acts 1977 to 2015 on 21 June 2016. A Labour Court hearing took place on 23 November 2016. The following is the Determination of the Court:
This is an appeal by Mr Emmanuel Ranchin against the decision of an Adjudication Officer under the Unfair Dismissals Act 1977 – 2015 in a claim of constructive dismissal by his employer Allianz Worldwide Care S.A. The Adjudication Officer held against him and found that he had voluntarily resigned his employment on 25thJune 2015. Mr Ranchin appealed against that decision.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Emmanuel Ranchin will be referred to as “the Complainant” and Allianz Worldwide Care S.A will be referred to as “the Respondent”.
The Complainant was employed as a Project Manager from May 2012, he tendered his resignation on 25thJune 2015 and finished working on 31stJuly 2015. He had previously withdrawn his resignation which he tendered in February 2015. In an exit interview in July 2015 he informed management that the reason for his resignation was due to bullying by his manager. He referred his complaint to the Workplace Relations Commission on 15thOctober 2015.
Summary of The Complainant’s Case
The Complainant alleged that up until the end of 2014 his work was highly rated as “Exceeds Expectations” however, that year he was rated as “Fully Meets Expectations”, which was a lower level rating. He said that he tried to discuss this with his managers but was faced with a bullying nature from his direct line manager, who would not provide any constructive input, would not communicate vital information and treated him with passive aggressive contempt on a regular basis.
Later that year the Complainant said that after he had a one to one performance planning and review meeting with his direct line manager on 24thJune 2015, where he was subjected to further bullying he resigned the following day. At the exit interview when he mentioned that he had been the subject of bullying, Management supplied him with a copy of its anti-bullying policy and he was invited to submit a formal complaint, which would be investigated. He submitted a formal complaint under the Respondent's Anti-Bullying Policy on 18thAugust 2015. He received a report on the outcome of the investigation in December 2015, which had been conducted in September 2015. He said that at no stage was he notified or approached by the Company for a submission or for feedback during the course of the investigation.
He submitted that the Company’s attitude to suggestions, constructive engagement was always to talk down issues, brush them aside and ignore genuine concerns, treating them with promises that things would change, but these promises were not acted upon. Therefore he left his employment to focus on rebuilding his career.
Summary of The Respondent’s Case
The Respondent submitted that the Complainant voluntarily resigned from the Company. It submitted that the Complainant raised the issue of bullying for the first time within the written exit interview form after he tendered his resignation. He was invited to make a formal complaint, an investigator was appointed. The Complainant’s complaint was not upheld and the final investigation report was issued on 11thNovember 2015. It was not appealed.
The Respondent said that following the Complainant’s 2014 rating under the PMAD performance rating system he spoke to Ms L, his direct line manager’s superior, as he was unhappy with his rating. The rating did not change as a result of this discussion and the Complainant resigned on 24thFebruary 2015. He was invited to re-consider his position and to submit a grievance if he wished, which he did. This was investigated but was not upheld. He was invited to appeal but declined, accepting that the grievance was handled in a fair and professional manner.
The Respondent said that it made a number of attempts to reconcile issue with the Complainant, to no avail and he tendered his resignation on 25thJune 2015 and worked until 31stJuly 2015. In his resignation letter, he referred to his grievance complaint and said:-
“We all agreed on the 2014 rating itself and move on. All agreed also to keep engaging and talk through issues to promote a healthy working environment”.
Prior to his resignation the Complainant was involved in meetings with management to work towards the goal of a “healthy working environment”. However, the Respondent stated that this task was made difficult by his refusal to agree any performance targets for 2015. It submitted that even if the Complainant established that the Respondent had in some way acted unreasonably, the Complainant must still satisfy the second arm of the test for constructive dismissal and show that in tendering his resignation he also acted reasonably and that he exhausted the internal procedures available to him.
Section 1 of the Act defines 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”
Section 6(1) of the Act states
- 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Issues for the Court
As the Complainant is alleging constructive dismissal therefore the fact of dismissal is in dispute, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify him terminating his employment.
Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his position, often referred to as the “contract test”. This requires that an employer 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”as held in Western Excavating (ECC) Ltd v Sharp  IRL 332.
Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test.This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer,if so he is justified in leaving.
The question for the Court to decide is whether, 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.
In this case the Complainant resigned his position by letter dated 25thJune 2015. In his submission the Complainant stated that instead of giving his three months’ contractual notice, he gave four weeks’ notice:-“having been through a grievance process in March 2015, following disagreement over my 2014 year end appraisal and with the manner in which my manager was behaving …..I had no intention of giving the company more than 4 weeks”.
While the Complainant’s resignation letter dated 25thJune 2015 is long and detailed, he at no point stated that he was being bullied. Neither was bullying mentioned in a letter sent to the Respondent by his Solicitor dated 24thJuly 2015, prior to his departure from the Company. He made no complaint of bullying; he did not seek to invoke the Respondent’s Dignity at Work Policy. The Complainant's resignation letter outlined the difficulties he encountered at the one-to-one PMAD monthly meeting held the day before, when his direct line manager asked him“how do you think you are managing your projects”.He said that she followed this remark by informing him of complaints which had been raised about him. He found her demeanour passive aggressive and said that he felt incapable of doing his work properly and his self-confidence was gone. Consequently he was now calling a halt to all this. He said that he could go on but it was best for him“just give up”.
The Court notes that the letter of resignation discloses no allegation of bullying. Instead it conveys the Complainant’s dissatisfaction with (i) his performance rating at the end of 2014; (ii) the one-to-one performance meeting held with his line manager the day before and (iii) generally with his working conditions, whereby his project sponsor had not been replaced since April 2015, no decision making by management, weekly reports unread, formats and structure constantly changing.
Following the tendering of his resignation he informed the Respondent that the reason he resigned was due to the bullying he encountered by his line manager. At the conclusion of his exit interview he said“I can honestly say I am very sad that the bullying situation I found myself entangled with could not be addressed and that the only option left for me was to resign…… I will now be seeking legal advice regarding next steps.”
The Complainant in his evidence to the Court accepted that he did not invoke the Respondent’s Dignity at Work Policy prior to his resignation. He accepted that he was aware that such a policy existed and that he had been supplied with a copy of the policy at his induction. When he formally notified the Respondent of such an allegation having tendered his resignation, he was informed how to progress such a complaint through the policy, the Respondent followed up on his complaint, carried out an investigation and issued a report to him.
Findings of the Court
In reaching its conclusion the Court has taken account of the written submission of the parties and has had full regard to the evidence adduced in the course of the appeal. The net issues for consideration is whether the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1(1)(b) of the act.
The Court notes that having raised a formal grievance regarding his performance rating in February 2015 the matter was dealt with through the Respondent’s Grievance Procedures. At that time he received notification of his performance rating and as he was dissatisfied with the rating given to him, he tendered his resignation on 24thFebruary 2015. The Respondent then engaged in discussions with him in an effort to resolve matters. He then rescinded his resignation and raised a formal grievance which was investigated in accordance with the Respondent’s Grievance Procedure. He expressed satisfaction with the process stating that it was professional and fair, despite the fact that it did not result in an outcome in his favour and he revoked his resignation at that time. Furthermore, he agreed to move on and to engage in a process at the time to address his concerns, to move forward and to embark on the task of building a positive work environment. The Respondent told the Court that every effort was made to address the Complainant’s concerns however; this task was made more difficult by his refusal to agree any performance targets for 2015.
Evidence was given to the Court from the Head of Marketing and from the Head of HR. They both told the Court that meetings were held with the Complainant in an effort to address his work related concerns and he was invited to consider alternative roles if he was unhappy in his present role.
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. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign:Conway v Ulster Bank LimitedUDA474/1981.
The Complainant told the Court that he accepted that he did not raise a grievance with the Respondent prior to tendering his resignation in June 2015, he accepted that this was one last resort he could have invoked however, he decided not to as he said that he did not have faith in the Respondent dealing with his grievances or bullying allegations. Furthermore, if he reported it to the Respondent, he said that he felt that he could not continue to work alongside the person he was accusing of bullying while the matter was being investigated.
The Court finds it difficult to accept as valid that he had no faith in the Respondent’s ability to deal with his grievances and/or allegation of bullying as he had already invoked the Respondent’s Grievance Procedure only a few months earlier. He described that process as positive and professionally conducted and he was willing to try to move on in the aftermath of that process. The Court cannot accept that the Complainant’s grievances could not have been dealt with in a similar manner in June 2015. InBeatty v Bayside SupermarketsUD142/1987, in referring to the existence of grievance procedures in a company the Employment Appeals Tribunal held:-
- “The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.
On the other hand inAllen v Independent Newspapers (Ireland) Limited ELR 84 the Employment Appeals Tribunal held that it was not unreasonable in the circumstances for the complainant not to have faith in the employer’s ability to properly or effectively address her grievances. However, in the instant case, the Court is not satisfied that there were factors present which might excuse the Complainant’s failure to formally complain to the Respondent before resigning. The Respondent had a grievance procedure in place; the Complainant was aware of it and had used it only a few months earlier, and found it a fair process. As a result of that latter process every effort was being made by management with his cooperation to move forward and to embark on the task of building a positive work environment.
The Court is of the view that the Respondent cannot be deemed to have failed to take steps to remedy a situation where the Complainant raised no grievance and in such circumstances his work related concerns cannot be converted into the “conduct of the employer” such as to render it impossible for him to continue in employment and be used to ground a complaint of constructive dismissal within the meaning of the Act.
In all the circumstances, the Court cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating his employment by way of constructive dismissal nor was it such as to show that it no longer intended to be bound by one or more of the essential terms of his contract of employment.
The Court determines that the Complainant’s complaint is not well founded. The appeal is rejected. The decision of the Adjudication Officer is affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
1 December 2016______________________
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.