ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018564
Senior Buying Manager
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 01/04/2019
Workplace Relations Commission Adjudication Officer: Marie Flynn
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was employed as a Senior Buying Manager with the Respondent from 1st July 2015 until 22nd June 2018. The Complainant has submitted a complaint of constructive dismissal against the Respondent.
Summary of Complainant’s Case:
The Complainant submits that:
His complaint centres on the unacceptable behaviour towards him by the Office Manager of the Respondent organisation. In particular her constant and consistent attempts to undermine his position by intimidation, bullying and threats to his career and future earning potential. This behaviour had gone on for a period of almost 2 years and despite many complaints to his line manager who was a Director of the Respondent organisation, no action was taken to curb her unacceptable conduct.
The Complainant commenced employment with the Respondent on 1st July 2015 as a Buyer and his line manager was a Company Director who is based in the UK.
Following the dismissal of the Financial Controller in early 2016, the Office Manager was initially engaged as Accounts Payable Supervisor and subsequently appointed to Office Manager and also assumed responsibility for HR matters.
In approximately October 2016, the Office Manager produced an organisation chart that showed the Complainant reporting directly to her. He questioned this with his line manager, the UK based Director, who reiterated that the Complainant reported directly to him and not the Office Manager. The Director issued a corrected organisational chart confirming that the Complainant reported directly to him (as Buying Manager) and emailed this to all the Department Managers including the Office Manager.
This corrected chart was never uploaded by the Office Manager to the company HR file and the Complainant reminded the Director of this on several occasions.
Form this point on, the Office Manager used every opportunity to undermine the Complainant in front of the other office staff and to denigrate his position where possible.
By January 2018 the situation had become unbearable. When the Complainant gave notice of an impending medical procedure that he was due to undergo at the end of the month, which would necessitate 2 days sick leave, the Office Manager’s response was to ask, “if indeed 2 days were necessary” and stated that “he could take a taxi into work on the day following the procedure if driving was not an option”.
The planned procedure did not take place, as on the evening of Wednesday 17th January 2018 whilst driving home from work, the Complainant was involved in a serious car accident and was taken by ambulance to hospital.
The following morning the Complainant’s partner phoned the Director and informed him of the situation. On Friday 19th January 2018, the Complainant phoned the Office Manager from hospital to inform her of the extent of his injuries. He explained that he would be absent for a yet to be determined period but would forward a medical cert as soon as possible.
The Office Manager’s response was to ask if the Complainant could return to work and that she would arrange for transport for him into the office. When he stated this was not an option as he was in severe pain with restricted mobility, she went on to inform him that she would take him off salary as of Tuesday 23rd January 2018.
She stated that by Tuesday 23rd January, the Complainant would have accumulated 5 days paid sick leave and that this was the max allowed.
The Complainant maintains that this was an arbitrary decision by her despite his contract not having specific details of paid sick leave, but in fact states that any paid sick leave "was at the discretion of the company". As the Office Manager had already made the decision, no discretion or discussion was had about his need for extended sick leave as a result of the accident. This resulted in a gross loss of earnings of €8,946.72.
The Complainant contends that the Director never contacted him during his period of sick leave and never contacted him about the deduction in salary.
During the period the Complainant was on unpaid sick leave, he continued to monitor emails from his phone and reply when necessary to ensure continuity of supply and attend to queries, etc. His line manager, the Director, had no problem with this.
The Complainant also offered to work remotely, and asked that the company arrange for a laptop and remote access to the company’s computer system.
However the Office Manager poured scorn this proposal and instructed him to refrain from answering emails as in her words: ”it was causing confusion within the office”.
The Complainant’s period of recovery extended to 20th March 2018 when he returned to work. His GP had certified him fit to resume work on the basis that he would return with caution, and that care should be taken not to overdo it. The Complainant explained this both verbally and in an email to the Director and asked that the company take this into consideration. The Complainant explained that he may need time off for follow-up visits to hospital, etc. and asked that any time off would be given as paid within reason.
The Complainant maintains that his line manager, the Director, was happy that he returned on this basis.
The Office Manager’s response, however, was to veto this and to state that it was company policy to only pay for hours worked despite the Complainant being a salaried employee as illustrated in the following email exchange:
Email of 16th March 2018 from the Office Manager to the Complainant, copied to the Director
“With regards to appointments and hours worked of course we can accommodate the time off necessary but wages we will have to take on a week by week basis as I’m sure you can appreciate that it is company policy to pay for hours worked even for what would normally be classed as salaried employees.”
Email of 16th March 2018 from Complainant to his Line Manager, the Director
“please give me a call on this”
Email of 19th March 2018 from Complainant to his Line Manager, the Director
“Before my return tomorrow can we please get this sorted.
I am not looking to abuse the company, but I do strongly feel that some consideration be made, after all whilst in hospital and in recovery I made every effort assist the company in maintaining standards until I was instructed to stop actioning emails, etc. Why is [the Office Manager] so intent on making life difficult? What is her motivation for this?
I consider myself a snr manager with the [Respondent Organisation] and not a supermarket shelf stacker. In all my years I have never been paid by the hour and have always ensured the task was completed before leaving for the day. I'm sure you don't want or appreciate a buying manager who can't be trusted to put in the hours when required and works only to the clock. [The Office Manager] is NOT my line manager you are.
In all my career to date I have always reported directly to Director level.
Whilst I acknowledge [the Office Manager’s] HR/Payroll role, I believe it is not her function to dictate or interpret policy without due respect to my position or contract nor without consultation with my line manager.
In advance of my return you and I should speak and clarify the status quo.”
The Complainant asserts that the Director did not respond to this email.
Upon his return to work, the Complainant found the Office Manager’s attitude towards him to be even more abrasive and she used every opportunity to put him down.
On the 19th April 2018, the Complainant spoke with the Director regarding the Office Manager’s continuing unacceptable behaviour and her constant carping, intimidation and bullying. The Complainant maintains that the Director said that he would monitor the situation and that he understood the Office Manager was “a very strange person” in her attitude but that he should continue to make every effort to appease her and “to keep the peace”. The Complainant told the Director that he just wanted to get on with his job and that he shouldn’t have to suffer this ever increasing toxic situation. The Director asked that the Complainant keep him informed of any difficulties within the office.
In early May 2018, the Office Manager approached the Complainant and informed him that the Director was to engage a PA based in their new offices/warehouse in the UK. This would result in one person from the Office Manager’s team, Ms M, no longer being responsible for some of the tasks directly required by the Director. The Complainant was over-stretched and had been looking for assistance for some time. In fact, the Director suggested in 2016/2017 that he be given an assistant but this never happened. The Office Manager asked that the Complainant consider passing some of his routine tasks over to Ms M. The Complainant agreed to list out the tasks that could be transferred to Ms M and revert in due course.
However, shortly after this Ms M announced that she was pregnant and would be seeking maternity leave to commence sometime in October of 2018. On the morning of 17th May 2018, the Office Manager spoke to Ms M within his earshot and stated that Ms M should now train him in on some of her tasks as the Office Manager had decided that no maternity cover would be engaged. The Office Manager had also decided that all Ms M’s tasks would be distributed to other staff, including the Complainant. This was sprung on the Complainant without consultation and he respectfully informed her that in this would not be the case.
The Complainant maintains that the Office Manager’s reaction was to threaten him in regards to his future salary increases and bonus payments. The Complainant submits that the Office Manager stated, within earshot of the other office staff: ”that it is she who determines what is awarded and that his attitude was not that of a team player”.
The Complainant found this to be very upsetting, stressful, bullying and a direct threat to his position and future earnings.
The Complainant immediately contacted the Director and informed him of the situation and asked that either the Complainant travel to the UK or the Director come to Dublin for a face-to-face meeting as the situation had now become intolerable. The Director replied and said that he would come to Dublin on Monday 21st May 2018 and he advised that the Complainant should have as little as possible to do with the Office Manager until he came over.
The Complainant informed him that he was now very uncomfortable being alone in the office with the Office Manager and that he would adjust his normal start time of 7:00am to a later time to allow for other staff members to be present.
The next day 18th May 2018, the Office Manager asked that the Complainant come to her office for a meeting. Following the Director’s instructions, he respectfully declined the meeting and stated that they should wait until the Director’s visit on Monday. Later that day the Office Manager sent the Complainant an email admonishing him for asking a staff member to organise postage of a parcel to the UK stating it was not the staff member’s job to arrange his post. The Complainant contends that this parcel was being sent to a supplier and was therefore company business and that the staff member in question routinely made trips to the post office with letters, etc.
The Director came to the Dublin office on Monday 21st May and met with the Office Manager for approximately an hour. He then met with the Complainant who explained that he was feeling very demoralised and stressed and that the situation with the Office Manager was intolerable. The Director said he had spoken with her about her approach and felt sure the situation would improve. Later the Director held a meeting in the Office Manager’s office and included the Complainant.
The Office Manager apologised and agreed to be less abrasive going forward. The Complainant stated that all he wanted was to be respected and to be allowed do his job without further threats. They all agreed to put the situation behind them and to move forward.
The next day 22nd May 2018, the Officer Manager totally blanked the Complainant and refused to speak to him and made it perfectly clear to the other staff that she did not wish to engage with him. The Complainant later spoke with the Director and informed him of this. The Director’s reaction was that of total disbelieve as he thought that everything had been sorted. The Complainant told him that he would once again come in at 7:00am in the morning and attempt to speak with the Office Manager.
On Wednesday 23rd May 2018, the Complainant arrived at 7:00am and greeted the Office Manager with a “Good Morning”. When she didn’t respond, he asked if there was a problem and she stated that “she didn’t want to deal with the Complainant as he had delusions of grandeur and that he hadn’t apologised to her”. The Complainant replied that he wasn’t aware of any reason why he needed to apologise, but if it would help matters he apologised and said that following Monday’s meeting they should put the situation behind them, move forward and work together. The rest of that day was uneventful.
The Complainant had arranged for 2 days leave on the 24th and 25th of May 2018 and returned to the office on Monday 28th May 2018. Upon his return, he found a note on his desk and an email from the Office Manager which related to a need to apply to the UK authorities for an import licence and that he should attend to this. The email also included JH of accounts payable as the query had come from their freight and customs clearance agent in UK which had been addressed to her.
Later that day after the Office Manager had left for the day, he asked JH about this and together they made the application online and passed the information to their freight and customs clearance agent. However, the following day the Office Manager took exception to the manner in which he had set up the account.
The Office Manager then proceeded to email the freight and customs clearance agent and informed them to “ignore the setup of the account, that [the Complainant] had made a mistake and he will have to start again”. The Complainant explained to the Office Manager that he had been given scant information and as JH had been involved, he had asked her about the set up and it was a joint decision on how to set up the account. Eventually the Office Manager emailed him to acknowledge the confusion caused by her original note and email, but not before all staff were aware of her attitude and rantings towards him.
By this stage, the Complainant was totally demoralised, stressed out and feeling extremely isolated within the Respondent organisation.
He emailed the Office Manager and cc’d the Director on Tuesday 29th May 2018 to make them aware of his feelings as follows:
“To be honest I am sick of this constant carping and niggling and [Director] it’s make or break time for me”.
The Complainant maintains that the Director did not respond to his email.
The Complainant was on leave from the 1st to 8th June 2018. During this break he spoke to his partner about the situation within the Respondent organisation and the detrimental effect it was having upon him. Previously, the Complainant had attended his GP who had diagnosed stress and depression and had prescribed anti-depressants. Whilst away, the Complainant decided that the only option open to him was to leave the Respondent organisation.
Upon returning to the office on Monday 11th June 2018, he tendered his resignation by email to the Director as follows:
“We have had many conversations and exchanged as many emails (especially of late) in regards to the ongoing problems with the structure within [the Respondent organisation] and in particular the Dublin office and most especially in regards to the [Office Manager's] aggressive, domineering and undermining attitude towards me and my position.
Any and all attempts to resolve the issues have failed and I find the situation to be both intolerable and unsustainable.
It is therefore with regret that I find I now have no choice but to leave the company and look for alternative employment.
It is therefore regretfully my intention to vacate my position with the Respondent organisation on Friday 22nd June 2018 as per the terms of minimum notice.
I will of course cooperate with you to ensure as smooth a hand over as possible.”
The Director responded that this was disappointing and that he would phone the Complainant later.
On 13th June 2018, the Complainant emailed the Director to explain and reaffirm his decision to terminate his employment with the Respondent organisation as follows:
“[The Office Manager] spoke to me yesterday in relation to my notice and asked that I might re-consider. Whilst I appreciate the gesture, I am still not confident that the structure and approach will change to any great extent and will very soon revert to an unacceptable situation.
My decision to leave was not taken lightly and is the result of many months of enduring an intolerable situation, with several conversations and emails, with you and to you concerning the unresolved issues.
I am therefore re-affirming that I will leave [the Respondent Organisation] on Friday 22nd as per my email of 11th June.”
The Complainant submits that, as far as he was aware, the Respondent did not have a grievance procedure and that the appropriate grievance procedure for him was to complain directly to his Line Manager, the Director.
The Complainant contends that, due to an accumulation of conduct over months, he was constructively dismissed from his position and that his career has been adversely affected. He maintains that all efforts to resolve the situation fell on deaf ears.
The Complainant submits that he found it difficult to obtain a position at a similar level including salary and bonus given his age (late 50s). The Complainant submits that he is currently working, but on a basic salary of €55,000 with no overtime or bonus, which compares unfavourably to his 2017 earnings which were in excess of €64,000. He submits that at the Respondent organisation his salary would have been reviewed in August/September 2018 and this would have pushed him over €65,000.
The Complainant asserts that it did not make sense to leave his position to take up position with lesser salary and only did so because he found his employment situation with the Respondent to be totally intolerable and he felt that he had no option but to leave. He submits that he made contact with his current employer on 12th or 13th June after he had tendered his resignation to the Respondent.
Summary of Respondent’s Case:
The Respondent submits that:
The Complainant was employed by the Respondent as Buying Manager between 1st July 2015 and 22nd June 2018. The Complainant had been a good worker.
In early October 2016 an organisation chart was sent out to staff whereby the Complainant was situated as reporting to the Office Manager. The Complainant queried this with the Respondent who altered the organisation chart to show the Complainant reporting directly to the Director.
On 17th January 2018 the Complainant was injured in a road traffic incident. As a result, the Complainant was absent from work for nine weeks.
From 23rd January 2018, the Office Manager was in contact with the Complainant throughout the course of his absence to enquire about his wellbeing, his return to work and also to inform him that while he was on sick leave he should not be doing work from home. The Complainant returned to work on 20th March 2018.
On 17th May 2018, the Officer Manager brought issues to the Director’s attention regarding the Complainant's refusal to take on some roles of another employee while she was on maternity leave but that all the other staff were happy to help out. She also spoke about the Complainant's rude behaviour towards her and the Complainant's manner towards her in general.
On 17th May 2018, the Complainant made a complaint to the Director regarding the Office Manager.
The Complainant requested that the Director travel from the UK to Dublin to deal with the issues at hand. The Director flew over from London on 21st May 2018 to speak with the Complainant and the Office Manager in an effort to resolve the issues between them. On that day, the Director spoke with the Complainant and subsequently spoke with the Office Manager.
Later that same day, the Director met with the Complainant and the Office Manager together. All parties agreed that the issues were resolved and that they would put it behind them.
The relationship between the Complainant and the Office Manager did not improve over the following days.
On 30th May 2018 the Complainant and the Office Manager met to discuss the issues between them. This discussion lead to them agreeing to draw a line under the issues and to work together in a respectful manner. The relationship between the Complainant and the Office Manager improved.
The Complainant took annual leave from 1st June 2018 to 8th June 2018.
The Complainant contacted the Director on 11th June 2018 to inform him of his decision to cease his employment with effect from 22nd June 2018.
On 12th June 2018, the Office Manager asked the Complainant to reconsider his decision. The Complainant stated that his working environment could “soon revert to an unacceptable situation”. The Complainant did not seek to utilise the grievance procedure set out in the Employee Handbook. The Complainant's employment ceased on 22nd June 2018.
The Complainant is alleging that he was constructively dismissed as he handed his resignation in on 11th June 2018 and finished his employment on 22nd June 2018. To the extent that the Clamant sought to raise the issues he alleges with the Respondent, these were adequately and reasonably addressed in an expeditious manner through an informal mechanism. It was incumbent on the Complainant to raise a formal grievance, thereby informing the Respondent that he did not consider matters to be adequately resolved. The Complainant failed completely to raise a formal grievance as provided for in the Respondent’s grievance procedure.
In this case, the Respondent did not behave in such a way which would deem it reasonable for the Complainant to terminate his employment. In particular, upon the Complainant raising issues with respect to his working relationships, the Director flew from another country to try to resolve matters.
In the Complainant’s email of 13th June 2018 he states “I am still not confident that the structure and approach will change to any great extent and will soon revert to an unacceptable situation”. The Complainant is stating that it is his concerns about what may come to pass in the future and not any situation affecting the Complainant's employment at the time which gave rise to the Complainant's resignation.
Evidence of Office Manager
The Office Manager confirmed that she was promoted to Office Manager in June 2016 with responsibility for HR. She stated that she had engaged with the Respondent’s external HR consultants to create a grievance policy for the organisation. She contended that, once the grievance policy was finalised, she placed it in a shared directory and informally made the staff aware of its existence. She said that since there was only four staff in the office, everything was very informal.
The Office Manager confirmed that she did not issue any formal notification, such as an email, to all staff informing them of the existence of the grievance procedure.
Mitigation of Loss
In light of the efforts made by the Respondent to address the Complainant's issues, the availability of grievance procedures which were not utilised, the Complainant's substantial contribution to the issues he experienced in the workplace and the Respondent's endeavours to address issues in a practical manner, the Complainant's losses should be fixed at a minimal level.
The Complainant began in new employment on or about 2nd July 2018. The date on which the Complainant received the offer of alternative employment is relevant to the fact of constructive dismissal.
The Respondent relies on the following precedents in support of their case: Nicola Coffey v Connect Family Resource Centre Ltd (UD1126/2014), Berber v Dunnes Stores  ELR 61 and Conwy v Ulster Bank UD474/81].
Findings and Conclusions:
As the Complainant is claiming constructive dismissal, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating his employment.
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 Section 1(b) of the Act which provides that:
““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.”
The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp. It comprises of two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “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 or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”
The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”
According to the Supreme Court in Berber -v- Dunnes Stores  ELR 61: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”
The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment. In order to answer this question, I will examine chronology of events leading to the Complainant’s decision to terminate his employment with the Respondent, with particular reference to the manner in which his grievance was address by the Respondent.
October 2016 - Organisation Chart
From the oral and written evidence adduced by both parties, it is clear that the relationship between the Complainant and the Office Manager was not a harmonious one. The disputed organisation chart which showed the Complainant reporting to the Office Manager seems to have been the genesis of all subsequent difficulties which arose within the relationship. Despite assurances from the Director that the Complainant reported to him, the organisation chart produced by the Office Manager, which showed the Complainant reporting to her, seems to have become the de facto organisation chart. In all future interactions between the Complainant and the Office Manager, the role of the Office Manager in relation to the Complainant seems to be that of line manger rather than peer. It appears to me that this situation was allowed to continue with the acquiescence of the Director who failed to step in at key moments of difficulty between the Complainant and the Line Manager, but instead allowed their relationship to fester.
January 2018 – Absence from work due to road traffic accident
Under the heading “Absence through Illness”, the Complainant’s contract stipulates that “payment for absence through illness is a privilege and [the Respondent] may, at its sole discretion, award sick pay in respect of any period of absence due to sickness or injury”.
The Office Manager informed the Complainant that he would be removed from salary with effect from 23rd January 2018.
I am aware that the Office Manager was responsible for HR within the Irish office. However, given that the Complainant was her peer and not a direct report, surely such a decision , if it was deemed appropriate, should have been made by the Director and communicated directly by him to the Complainant. After all, the decision had significant financial consequences for the Complainant.
I note the Complainant’s submission that the Director never contacted him during his sick leave and never contacted him about the deduction. The Complainant’s assertion is supported by a text dated 26th January 2018 from the Complainant to the Office Manager which was included in the Respondent’s written submission and which stated “when you [the Office Manager] next speak with [the Director] ask him to phone me please”.
I find that the manner in which the Complainant’s sick absence was handled by the Respondent organisation was entirely unreasonable as the Complainant was not afforded any input into the decision not to pay him which he was on sick leave, the decision was not made by his line manager and, inexplicably, his line manager did not contact him during his absence.
March 2018 – Return to work
I note that the Complainant made the Director, his line manager, aware that, after his return to work on 20th March 2018, he might need to take time off for further medical treatment and asked that this time off would be paid. The Complainant was of the view that this was acceptable to his line manager.
This view, however, does not seem to have been conveyed to the Office Manager who informed the Complainant that any time off would be unpaid. Given the length of time that the Complainant was removed from the payroll due to his illness, the response of the Office Manager frankly appears to be capricious and vindictive.
Understandably the Complainant appealed the Office Manager’s decision to the Director, his line manager, who again, inexplicably, failed to intervene. Surely, in his role as the Complainant’s line manager, the Director should at least have responded to him and, ideally, should have clarified the situation with the Office Manager. Instead, he appears to have ignored the issue.
Mid-May 2018 – Allocation of work
The next point of friction arose in early May 2018 when the Complainant contends that the Office Manager approached him and asked him to the consider passing some of his tasks to a colleague, Ms M who had spare capacity due to the recruitment of a new colleague in the UK. The approach was welcomed by the Complainant as he had been feeling over-stretched for some time.
However, shortly thereafter, Ms M made it known that she was pregnant and would be going on maternity leave in October. The Office Manager made the decision that Ms M would not be replaced and she informed the other staff that they would have to cover Ms M’s work while she was absent.
It is clear from the evidence of both the Respondent and the Complainant that the Complainant was very unhappy about this turn of events and indicated that he would not be taking on any of Ms M’s workload.
I note the Complainant’s submission that the Office Manager was not happy about his attitude and said that it could affect his future salary and bonuses. Frankly, I am at a loss to understand how the situation went from one where the Complainant was offered additional assistance to cope with his workload to one where he was reprimanded for not taking on additional duties.
Both the Complainant and the Respondent emailed the Director to complain about each other.
In evidence, the Respondent submitted a copy of the Office Manager’s email to the Director. In it she complained about the Complainant not being a team player. She also referred to herself as “HR Manager” and wrote “you will probably get an e-mail from [the Complainant], as I pointed out that I am HR Manager and that attitude, lack of participation and disregard for fellow employees will be noted at salary review and bonus time. Since last year when I had input on salary reviews and bonuses I have been taking notes on all employees for this year’s proposals”.
The Office Manager’s email is problematic on many fronts. Her assertion that she was HR Manager and had input into salary and bonus reviews undermines the Director’s assurances to the Complainant that he was his line manager. It is also very worrying that the Office Manager felt that it was acceptable behaviour to “take notes on all employees”. This is at complete variance with the accepted norms of performance management which should be guided by the principles of openness, transparency, collaboration, guidance and support.
It is no wonder that the Complainant found the exchange with the Office Manager to be “very upsetting, stressful, bullying and a direct threat to his position and future earnings”.
29th May 2018 – Complainant’s email to his line manager re “make or break time”
I note that the Director came to Dublin on 21st May 2019 and spoke to the Complainant and the Office Manager both separately and together. Both parties submit that in the joint meeting they agreed to draw a line under the issues which had arisen between them and to work together in a respectful manner.
Unfortunately, the relationship did not improve as a result of the Director’s visit.
On 29th May 2018, the Office Manager was unhappy about the manner in which the Complainant had set up an account with an external service provider. Instead of conveying her dissatisfaction directly to the Complainant, she wrote to the service provider and cc’d the Complainant. The tone of her email was, in my view, not an appropriate way to speak about a colleague to an outside organisation and had the effect of humiliating and belittling the Complainant.
I note the Complainant’s submission that he was “totally demoralised, stressed out and feeling extremely isolated with the Respondent organisation” and that he emailed the Director to say “To be honest I am sick of this constant carping and niggling and [Director] it’s make or break time for me”.
To me this was a clear indication that the Complainant was considering his future with the Respondent. The Director did not respond to the Complainant’s email.
I note the Respondent’s submission that the Complainant took leave from 1st June to 8th June 2018. I am of the view that the Director could have contacted the Complainant on 30th or 31st May 2018.
Even when the Complainant submitted his resignation on 11th June 2018, it was the Office Manager who asked him to reconsider his decision, even though it appears from his resignation letter that her behaviour was particularly problematic for him and was a significant factor in his decision to resign.
The basis of the Respondent’s defence appears to be that the Complainant’s claim should not succeed as he did not exhaust internal procedures. The Respondent maintains that whether or not they had any procedures in place was not determinative. I am of the view, however, that if the Respondent is relying on the non-recourse to the grievance procedures by the Complainant as their main defence, then it is incumbent on them to ensure that the Complainant was made aware of their existence and the provisions contained therein.
In the absence of any persuasive evidence to the contrary from the Respondent, I find that the Complainant was not made aware of the existence of the Respondent’s grievance and disciplinary procedures at any stage during the course of his employment with the Respondent and, therefore, the Respondent cannot rely on these procedures in their rebuttal of the Complainant’s claim.
In any event, I find that the Complainant made a sustained effort to make the Respondent aware of what was going on.
Notice of Resignation
When an employee gives notice of their intention to resign and, when they work out their notice, can the situation at work be considered to be so intolerable that a claim of unfair dismissal can be justified?
In cases involving bullying, health and safety or illegality, it might be reasonable for an employee to simply walk out. In such cases, the need to protect oneself from physical, emotional or reputational damage is paramount. However, where this Complainant is concerned, the intolerable aspect of his employment was the unreasonable behaviour of the Office Manager, the absence of support from the Director and the lack of clarity about the reporting structure. His efforts to ameliorate his situation had come to nothing. In his mind, this wasn’t a sudden or recent phenomenon; the problem started in October 2017 with the disputed organisation chart. There was no “tipping point” that pushed him over the edge. When he resigned, he was still conscious of his duty to his employer and offered to “cooperate with [the Director] to ensure as smooth a hand over as possible”.
I am of the view that the Complainant experienced ongoing problems due to the lack of clarity about the reporting structure within the Respondent organisation. Although he was assured that he was reporting to the UK based Director, his effective line manager was the Office Manager.
This might have been acceptable if the relationship between them was amicable and supportive. However, this was not the case. The Office Manager appeared to treat the Complainant with contempt and disdain and, even after the intervention of the Director on 21st May 2018, her attitude to him did not change for the better.
I find that it was reasonable for the Complainant to resign. I have to conclude that the reason he resigned was due to the conduct of the Office Manager and the lack of meaningful oversight by the Director, which was serious and significant to the extent that it was the cause of his resignation. I therefore find that he succeeds in his complaint of unfair dismissal.
Section of the Unfair Dismissals Act 1977 – 2015 stipulates that where a complaint succeeds, redress may be awarded up to a maximum of 104 weeks’ remuneration, based on the financial loss suffered following the termination of employment.
“ (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: …
… ( c ) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances.”
There is an onus on a Complainant to seek alternative employment. In this case, the Complainant secured work within one week of the termination of his employment with the Respondent albeit at a lower annual salary of €55,000. I accept that the Complainant sought the alternative employment after he had tendered his resignation with the Respondent.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that this complaint is well founded and I direct the Respondent to pay the Complainant €20,000. This is based on the Complainant’s loss of earnings of one week before he commenced alternative employment and the difference between the Complainant’s final annual salary with the Respondent and his starting annual salary with his new employer over a 103 week period.
Dated: 31st May, 2019
Workplace Relations Commission Adjudication Officer: Marie Flynn
Constructive unfair dismissal, conduct of the employer