ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020317
A warehouse picker
A multinational retail operator
Aaron Shearer BL instructed by
Dorothy Walsh and Company Solicitors
Killian O’ Reilly Solicitor
Complaint/Dispute 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: 03/10/2019
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
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 commenced employment around August 2013. His claim is that of constructive dismissal. He submitted that over a very extended period he was subjected to harassing and unfair behaviour from the Respondent. His contention was that he was left with no alternative but to resign from his employment in December 2018. The Complainant accepted a significantly reduced level of pay to leave his employment with the Respondent.
Summary of Complainant’s Case:
The Complainant gave evidence of the history of his employment. He explained how he was placed under significant pressure at all times in respect of his work output which is known in the business as pick rates.
The Complainant set out how he had sustained injuries during employment and because of which he was penalised and disciplined. Every time he tried to air grievances he was under pressure from a communication point of view or else presented with further disciplinary action. He struggled from expressing himself. He submitted that the Respondent knew this from working with him for so long.
He explained that he was not supported in his grievances. The pick rates he was given were unsustainable. He was relentlessly complained to by the Respondent in relation to what they described as his poor performance. He was never offered assistance training or support to help him make any improvements. Any improvements were impossible given the unrealistic targets the Respondent set.
He submitted that the Respondent was aware of the stresses and upset at the way he was treated in the work place. He submitted that HR was aware of his problems and he was complaining for years and they did nothing to manage his problems.
In July 2018 he was sent home from work after just two hours of work. He was told by a manager that there was no more work, no more hours. He had been rostered for a full day which was eight hours. Colleagues of his asked why was he going home. They felt they were so busy and there was overtime available. The Complainant felt very bad about this. He was stressed afterwards. In fact, he forgot to clock out that day. He received a verbal warning for a disciplinary matter.
The Complainant received a disciplinary sanction for underperformance of duties on the 17th of September 2018. He appealed same on the 27th of September 2018.
On the 24th of September 2018 one of the senior managers approached the Complainant. The manager said that if he didn’t make a correct decision (implying about his productivity and work rate) that management would make the decision for him. He felt threatened. He felt he was under unreasonable pressure and the pick rates were unreasonable generally. The Complainant emailed his employee relations manager on the 25th of September 2018 regarding this incident. She replied on the same day asking him to fill in an attached form and either to hand deliver it to her or to email.
On the 8th of October 2018 the Complainant went on sick leave.
In August and September 2018, he felt like he was in hell. The approach by the senior manager was the last straw for him. He was stressed and worried about what was happening. He felt that this constant barrage was never going to end.
His certified sick leave was for work related depression. He was on anti-depressive medication for same.
In October 2018 the Complainant’s solicitor wrote to the Respondent and advised that her client was being victimised, intimidated and harassed in his workplace. She advised of his vulnerability and the grievances that he had tried to raise in the past.
The Complainant’s solicitor also wrote to the employee relations manager. In this correspondence she advised that it was quite difficult to keep up with the number of personas writing to the Complainant and the number of complaints against him and again set out that bullying, stress, harassment, intimidation and victimisation had taken place in the workplace.
The Complainant explained that whilst on sick leave he was offered part time work with the prospect of a full-time position in the future. Although this was on a lesser salary than the Respondent paid, the Complainant felt resignation was his only option and he accepted the less well-paid work. He left employment as he felt he had no option but to do so.
He resigned on the 2nd December 2018. He started this alternative employment on the 3rd of December 2018.
The Complainant submitted that the Respondent should have done something more than simply accept his resignation.
Under cross examination the Complainant agreed that while he did have issues about payment of his wages in the past, these were resolved.
Summary of Respondent’s Case:
The Respondent submitted there was a high bar for employees in relation to discuss constructive dismissal cases. It further submitted that there was abundant case law on the need to exhaust internal processes before taking the final step of resignation. The Respondent relied on several case law in this. It submitted to ground a constructive dismissal claim the employer’s behaviour should be so intolerable that it justifies the Complainant’s resignation and constitutes something that represents a repudiation of the contract of employment. The Respondent submitted that the test applied is that of an objective test.
The Respondent also submitted that the Complainant had failed to mitigate his loss. He obtained new employment before he left the Respondent’s employment. It submitted that leaving was his choice.
The Respondent set out the history between the parties. It set out how in November 2015 he was invited to an investigation meeting but following same no disciplinary action was taken. In March 2016 he was invited to an investigation meeting to discuss his performance. No disciplinary action was taken against him. In December 2017 he raised a grievance against a colleague. The grievance was fully investigated. The grievance was not upheld. Through his solicitor the Complainant appealed that finding. The appeal was not upheld.
In July 2018 the Complainant was invited to an investigation meeting to discuss his performance. His performance had been below the team average on sixty-one (61) out of sixty-four (64) days reviewed. A disciplinary meeting took place on the 6th of September 2018. The Complainant was provided with all the benefits and protections of fair procedures. He was accompanied to the meeting by a colleague. A translator was also in attendance. He had the opportunity to make any points he wished in relation to his defence.
On the 17th of September 2018 the Complainant received a verbal warning in relation to his performance. That was the lowest form of reprimand that was available. It was the first sanction that the Complainant had ever received in respect of his performance. No sanction was applied in respect of an allegation of insubordination.
In September 2018 the Complainant advised of his intention to appeal against the verbal warning. The Complainant was invited to an appeal hearing on the 3rd of October 2018. He did not attend and requested more time. The appeal hearing was rescheduled for the 11th of October 2018. This meeting did not proceed. The Complainant again sought more time.
Dealing with the Complainants grievance of the 24th September 2018, the Respondent’s Employee Relations Manager gave evidence. She explained the interaction between herself and the Complainant around this time and before.
I was provided with the form sent to the Complainant on the 25th September 2018. The purpose of this document as explained on its face is “to assist colleagues to reflect upon their situation, determine what they have experienced and if/how it may fall into a category of a grievance as set out in the grievance policy contained in the employee handbook. It asks eight questions. I was advised the Complainant didn’t fill out this form.
I was furnished with an email from Complainant to his employee relations manager dated 27th of November 2018 when he advised her that he wanted to leave work. He asked could she explain what the procedure for it was.
His employee relations manager replied on the 28th of November 2018. She informed him that there were other options available to him rather than resignation which “we could discuss when we meet”.
The Complainant responded on the same day thanking her for her email and advising that unfortunately there was nothing to discuss about. He set out that there “was plenty of time to discuss all the issues while I was working but no one was interested in it. I just need to know what I have to do to leave work. “
The employee relations manager replied on the 30th of November confirming that if he changed his mind there was other options available other than resignation. She advised him that he needed to address a letter to his line manager informing him of this intent to resign and the date on which he wished his contract to end. She gave him an opportunity to email her this letter and she would forward it onto his line manager and payroll. She again set out that the offer remains open if he wished to discuss this and any other queries.
On the 2nd of December 2018 the Complainant replied to the employee relations manager enclosing his resignation letter. The letter stated “this letter is to inform you that I will be resigning my position from warehouse operative immediately from the 03/12/2018 due to stress. Over the past several months, I have felt my health decline rapidly and I have looked out for a medical opinion. After much careful thought, I have decided to resign; the stress of the work is having a negative on me and my family.
The employee relations manager wrote to the Complainant on the 6th of December 2018. She advised that it was with regret that she received his resignation email of the 3rd of December 2018. She said she would have preferred to meet with him to discuss the reasons for his resignation and inform him of all the options available other than resignation. The employee relations manager set out that she would like to take this opportunity to wish him every success in his future career. She also set out that “should he wish to return to the Respondent in the future, his application would be looked upon favourably.”
The Respondent’s submission was that the Complainant had failed to discharge the burden of proof. The Complainant was not dismissed. The Complainant had not exhausted or even utilised the internal complaint procedures prior to resigning. These procedures were well known to him. The Respondent pointed out that he had raised a grievance in 2017 and this was investigated.
It also submitted that the Complainant could have availed of the employee assistance programme (EAP) which is an independent and confidential service available to all employees.
Findings and Conclusions:
My role is to decide on whether the Complainant has reached the threshold to claim constructive dismissal.
Section 1 of the Unfair Dismissal Act 1977 (as amended) 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
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.
Dismissal as a fact is in dispute and therefore it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act and that such dismissal was unfair within the meaning of the Act. Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct was of such a nature as to entitle the employee to terminate his employment. This is often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp  IRL 332 it was held that to meet the “contract test” an employer must be “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”. Secondly, the Act at Section 1 addresses the issue of reasonableness. 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 and, if so, he is justified in leaving.
In considering a complaint of constructive dismissal, I must consider this either test as an alternative to the other or in a combination.
It is clear from the files that the parties had an interactive history. I have reviewed the correspondence between the Complainant’s solicitor and the Respondent dating back to the 22nd of January 2016. An employee relations manager engaged with the Complainant and his solicitor and the Complainant was provided with an appointment with an occupational health practitioner. In December and January 2018 there was further engagement between the Complainant’s solicitor and the Respondent. I reviewed the chain of emails that was submitted to me.
I note the particular issue raised by the Complainant as “the final straw” was his interaction with a senior manager in the Respondent on the 24th of September 2018.
Direct evidence was given by the Complainant and two witnesses on behalf of the Respondent. I found the witnesses on behalf of the Respondent to be more credible than the Complainant.
The Complainant’s line manager confirmed that when he was appointed into the role he increased the Complainant’s work hours to thirty (30) hours per week. This took place in April 2018. The witness agreed that it was a physical environment, but they have a lot of happy employees. He was only responsible for the area from April/May 2018.
The employee relations manager gave evidence. Her role was an independent support role to the Complainant and his fellow colleagues. She confirmed she had met him a couple of times. She felt she had a good relationship with the Complainant and whenever he had issues she would resolve to act upon them. I found her to be a credible witness. She confirmed that the Complainant did reach out to her on issues about his pay, his holiday pay, issues regarding being sent home early from his shift and the issues raised in September 2018. She confirmed that she had always reverted to him and they had resolved the earlier issues. Once the Complainant went out on sick leave she didn’t hear from him until he resigned. She informed him of other options, these would be mediation and investigation.
The net issue 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 of the Acts. In reaching its conclusion on that question I have carefully evaluated the written and oral submissions and oral evidence made by the parties during the hearing.
The bar for constructive dismissal claims is high and the behaviour of the Respondent needs to be such that the Complainant is not expected to put up with it any longer.
In Beatty v Bayside Supermarkets UD 142/1987, in referring to the need to utilise grievance procedures, 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 UD 474/1981. 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”.
At the time of his resignation the Complainant was not attending his workplace and was supported by his solicitor who had advocated on his part for many years.
I was not presented with any evidence of penalisation or the relentless complaints that he made to the Respondent on pick rates.
I found the Complainant to be very competent in English and he gave evidence without requesting the assistance of an interpreter. His emails to the Respondent gave no indication of his alleged poor communication ability.
I note that he filed a grievance on the 25th of September 2018. The employee relations manager replied on the same day requiring him to complete a form. The form was not unduly onerous. The Complainant did not complete the form. He went on sick leave on the 8th of October 2018. He didn’t engage any further with the Respondent until the 27th of November 2018 when he emailed the employee relations manager advising her that he wanted to leave work. She asked to meet with him and set out that there were other options available to him rather than resignation. She invited him to a meeting on the 3rd December 2018. The Complainant replied that there was nothing to discuss, that nobody was interested when he was in work.
Overall I find that while the Complainant had an eventful employment history with the Respondent, the level of interactions over a four and a half year period were not such as to be oppressive. By the Complainant’s own records his first disciplinary action for not meeting his pick rate was in August 2018.
On the facts of this case I cannot see how it can be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle him to terminate his employment without having sought to progress the grievance he had through the internal grievance procedure. The Complainant was aware of the process from his earlier complaints. He had received a disciplinary sanction and was in the process of appealing that. The appeal hadn’t progressed due to
his request for more time. The Complainant resigned while on sick leave.
I find that the Complainant has not proved his claim of constructive dismissal.
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 the complaint not well founded.
Dated: 28th November 2019
Workplace Relations Commission Adjudication Officer: Marguerite Buckley