ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019013
Mason Hayes & Curran
Holmes O’ Mahony Sexton
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: 15/08/2019
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
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 started his employment with the Respondent on 14th June 2016 and resigned from his position on 3rd December 2018. The Complainant claims that he had to leave his job due to the conduct of the Respondent.
Supplemental submissions were received from the parties on 22nd August, 29th August and 4th September 2019.
Summary of Complainant’s Case:
The Complainant submits as follows:
The Complainant had no alternative but to resign from his position before he was dismissed from his employment. This fact is obvious from both the statements made by the Respondent's most senior employee, NOC, prior to the commencement of any disciplinary procedure against the Complainant and in how the disciplinary process itself was handled. The Respondent attempted, somewhat retrospectively, to follow a disciplinary procedure which purported to be fair and reasonable but which contained a number of fundamental flaws and could not address the fact that NOC had expressed his desire to get rid of the Complainant.
The Complainant submits that, prior to 20 November 2018, the Complainant had never been disciplined or spoken to in relation to his performance.
On 20 November 2018, the Complainant was, without any prior notice, called to a meeting with the Respondent's CEO, NOC. NOC is founder of the Respondent and its most senior employee. The Respondent does not deny that the meeting occurred but states that ‘It is fair to say that the exchange became heated and that strong words were exchanged by both [NOC] and the Complainant'. However, somewhat surprisingly the Respondent makes no reference as to what was discussed. Given what transpired in the meeting this must be considered deliberate. Firstly, the Complainant notes that he did not exchange strong words with the Respondent; it was NOC who raised his voice. Secondly, NOC informed the Complainant of the following:
· That he no longer wanted the Complainant working for the Company;
· That the Complainant had done the "most despicable" thing that any employee had ever done to him in all his years in business by not changing a sign with an old telephone number;
· That he was not going down the line of written warnings, he said this "had to end now, it's nothing personal but it cannot go on, you can go and find another job, or you can stay here until Christmas and then go"; and
· That he did not want the Complainant to be a burden on his sons (the Co-Managing Directors — SOC and DOC).
Following this meeting, the Complainant spoke with his direct line manager, DOC and asked him if he was a burden on the Company. DOC stated he was not and that he, in fact ,relied and depended on the Complainant.
The Complainant submits that on 22 November 2018, NOC again approached the Complainant in the warehouse and advised him of the following:-
· This was his Company, that he had worked very hard to get it where it is today and that he will win that "l always win"; and
· That the Complainant was going to attend a meeting next week with NOC, SOC and DOC and that the Complainant was "going to get a serious warning”.
It is again noteworthy that the Respondent in its submission makes no reference whatsoever to this meeting. This is deliberate as NOC has totally undermined the Complainant right's to fair procedure and natural justice in that he had already disclosed the outcome of the disciplinary process before it had even commenced.
Thereafter the Respondent set in train the disciplinary procedure with a predetermined outcome as evidenced by a number of fatal procedural flaws.
The Complainant was invited to a disciplinary meeting on 3rd December 2018. The letter was signed by SOC. SOC states that "l have decided to hold a disciplinary hearing…” By virtue of this fact, it is clear that SOC is holding himself out as chairing this meeting. The letter enclosed a copy of the Company's Disciplinary Policy which the Complainant had never received before this. This in itself is a breach of Section 14 of the Unfair Dismissals Act 1977 where it states that "An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee".
The Disciplinary Policy states that "Issues will always be discussed before a decision concerning disciplinary action or dismissal is taken. The principles of natural justice and fair procedures will be upheld at all times". The policy also states that "Where relevant, where a sanction is applied short of dismissal, the employee shall be notified of the alleged shortcoming, what needs to be done by way of improvement, the period during which improvement is to be shown and the consequences of non-improvement". Given the fact that none of these issues were brought to the Complainant's attention before the commencement of this disciplinary meeting, it cannot be stated that the Respondent abided by its own policy.
The Disciplinary Policy states that the employee has "the right to an impartial hearing". Let it not be forgotten that SOC sent the disciplinary invite letter indicating that "l have decided to hold a disciplinary meeting…” Present at the meeting was NOC, SOC, DOC and RF (Office/ HR) as a notetaker. SOC did not chair the meeting, it was chaired by NOC, the exact same person who had informed the Complainant a few days earlier that he would be invited to a meeting with him, SOC and DOC and given a "serious warning".
As the outcome had been predetermined, NOC (during the disciplinary meeting itself and without taking any time whatsoever to consider level of sanction which he deemed appropriate) immediately gave the Complainant a "written warning, which was to stay in place for 12 months". Given NOC’s eagerness to issue his "serious warning" the Complainant has no idea whether he was being issued with a first written warning or final written warning. One assumes that it was NOC’s intention to issue a final written warning as the disciplinary policy provides for the fact that final written warnings will last for 12 months, however, first written warnings will last for 6 months. That said, the Respondent's submission to the WRC sheds no light on this fact as it states that “The Complainant was informed that he would be issued with a written warning which would stay on his file for 12 months”. To this day the Complainant is unaware of the level of warning that was issued to him. What makes this all the more stark is the fact that the Respondent, having informed him he would be called to a meeting with NOC, SOC and DOC and be issued with a serious warning, now states in its submission to the WRC that "While these issues were at the lower end of the disciplinary scale…”"In the Company's view the sanction of a warning was a reasonable and proportionate outcome".
The Complainant did resign from his employment later that afternoon. This was a reasonable decision to make as he had:
1. been informed by NOC that he no longer wanted him working for the Respondent;
2. been informed that he was going to be issued with a serious warning based on allegations which were unfounded, blown out of proportion, and some of which were not in his job description.
3. had received a written warning which was to last 12 months in a meeting chaired by NOC and attended by SOC and DOC (the three most senior people in the Company). Having brought this claim, in a somewhat of a damage limitation exercise, the Respondent is now stating that issues were at the lower end of the disciplinary scale and that the warning was "reasonable and proportionate outcome" yet it cannot inform the WRC of the level of warning that was issued.
It was for this reason that the Complainant was left with no choice but to resign as he could not continue working in an environment where he could be confronted in an irrational manner, told that the CEO wanted him out, threatened with disciplinary action and given predetermined and disproportionate sanctions.
The Complainant met with SOC and DOC on 6 December 2018 at their request and was asked to provide his letter of resignation. The Complainant was refused a copy of the warning he had been issued as SOC told him he was not legally entitled to it. At this meeting he was informed that he would also receive a good reference from DOC, but what he received from SOC was a statement of service. He was also informed that he would be paid his one-month contractual notice and his outstanding annual leave in his final pay the following week, however the Respondent has failed to do so. These issues form part of separate claims.
The fundamental question, as per the definition within the Act is if it was reasonable "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 employed'. Given the series of meetings between the Complainant and NOC where he made it clear what his position was on the Complainant's continuing employment and the flawed disciplinary procedure as a result of which a final written warning was issued for minor offences, it was only a matter of time until the Complainant was dismissed.
The Respondent has criticised the Complainant for not following the Respondent's grievance procedure prior to his resignation. However, there was no point in doing so where the central character in this case is, in fact, the Company owner and most senior employee, NOC.
Given the conduct on the Respondent, it must be objectively held that the Complainant had no option but to resign. In that regard, the Complainant relies on Harkin v Guinness Storehouse Ltd (UD 469/2015) and Berber —v- Dunnes Stores 2009 E.L.R.61.
Summary of Respondent’s Case:
The Respondent submits as follows:
The Respondent denies that there was a dismissal. The Complainant resigned his employment.
The Complainant began employment with the Respondent on 14th June 2016 in the role of Logistics and Engineering Assistant. He was employed with the Respondent until his resignation was received on Monday 3rd December 2018.
The Respondent submits that in November 2018 the Respondent had concerns regarding a number of issues with the Complainant's performance in his role. Some of these issues had been raised with him in an informal manner previously but he had not addressed them in the manner expected by the Respondent. The Respondent's CEO spoke to the Complainant regarding these issues on 20th November 2018. It is fair to say that the exchange became heated and that strong words were exchanged by both NOC and the Complainant.
It was decided to hold a formal disciplinary meeting with the Complainant to deal with concerns regarding a number of recent incidents at work and also with his attitude to important changes that had recently been introduced by the business.
The Respondent wrote to him on Wednesday 28th November 2018 informing him that a disciplinary hearing would take place on 3rd December and he was furnished with a copy of the disciplinary policy which the Respondent would use. The disciplinary policy sets out a reasonable and fair process and complies with the statutory code of practice. The letter also informed him of the issues that would be discussed at the hearing and in accordance with the procedures he was invited to bring a work colleague with him to the meeting, however, he was happy to attend the meeting by himself.
It is important to note that at no time was his employment at risk, the question of dismissal simply never arose as it was not believed that the issues were sufficiently serious to warrant dismissal. Three specific issues were raised with the Complainant during the meeting and he was provided with an opportunity to respond to each issue that was raised. In some cases, specifically an issue regarding the storage of absorbents, his explanations were accepted. At the end of the meeting the Complainant was asked whether he required any further training or any other assistance and was assured that the Respondent was happy to invest in training to assist him, but he informed the Respondent that he did not need any further help.
In his complaint form the Complainant states that the allegations were "unfounded, have been blown out of proportion". In the Respondent's view these were matters which were of concern to the Respondent and which, despite repeated requests, the Complainant had failed to address. While these issues were at the lower end of the disciplinary scale, the Respondent believed it was necessary to address them at a disciplinary hearing as he had been asked to address some of these issues previously but had failed or refused to do so. In the Respondent's view the sanction of a warning was a reasonable and proportionate outcome.
The Complainant was informed that he would be issued with a written warning which would stay on his file for 12 months and he indicated that, while he was not happy, he understood what had been discussed. However, in the afternoon before the Respondent had an opportunity to finalise the written warning, he approached DOC and informed him that he wanted to "slip away quietly" and resign with immediate effect. He was asked at that time whether he wanted to reconsider his decision, but he insisted that he did not and informed DOC that he would not be turning up for work the following day. He did not make a complaint, register a grievance or dispute the warning, he simply informed the Respondent that he was resigning with immediate effect.
There were discussions with the Complainant in the days that followed regarding his departure. He wanted to receive a copy of the warning letter, but as he had resigned with immediate effect it was not necessary to issue the letter, however he was told that it would have reflected the issues that were raised at the meeting. Ultimately the Respondent accepted his resignation as it was clear from subsequent emails from the Complainant that the relationship between the parties had broken down.
Constructive dismissal is defined 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 is or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract without giving prior notice of the termination to the employer".
The burden of proof rests with the Complainant in a complaint of constructive dismissal. In that regard the Respondent cites Western Excavating (ECC) v Sharp (1978), Berber -v- Dunnes Stores  E.L.R. 61
It is submitted in this case that there is nothing in the Respondent's conduct which was so unreasonable as to justify the Complainant terminating his employment in the manner that he did. Arising from concerns with the Complainant's performance he was asked to attend a disciplinary hearing. He was provided with a copy of the disciplinary procedure in advance of the meeting and was invited to bring a work colleague with him. He was informed in advance of the issues that would be discussed at the meeting and he was given an opportunity at that meeting to respond to each of the allegations. It is clear from the minutes of the meeting, which he acknowledged and signed, that the meeting was conducted in a fair manner. At no time was his dismissal considered. On the contrary he was offered additional training which he declined. While the Complainant may not have been happy with the outcome there is nothing in the minutes to justify his sudden resignation later that day. He was asked to reconsider but he confirmed his intention to resign.
The Complainant's contract of employment includes a brief Grievance Procedure set out below. The Complainant chose to ignore this process and simply resigned.
"Grievance Procedure: The Company is most anxious that legitimate grievances raised by an Employee are expeditiously and fairly resolved. Any member of staff who has a grievance relating to his/her employment should discuss it with The Company."
It is submitted that the Complainant’s actions were not reasonable or a proportionate response to the issuing of a written warning. He did not explore alternatives such as an appeal or raising a grievance. He did not even try to raise the matter informally in a conversation with management. His only response to the issuing of a warning was to resign.
In his claim form he says that he resigned because his basic rights were not afforded to him, however it is clear from all of the foregoing that the Company put a fair and proper process in place and acted in a reasonable manner throughout this process. The long held view of the various employment rights bodies is that an employee must exhaust all of the internal avenues available to them before resigning if a complaint of constructive dismissal is to be upheld. It is clear that the employee in this case does not meet that threshold.
Findings and Conclusions:
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.
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(1)(b) of the Act which defines “dismissal”, in relation to an employee,—
“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”
There was no dispute that the Complainant resigned from his position on 3rd December 2018.
The Labour Court in the case of Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, endorsed the legal test in respect of constructive dismissal as set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp  1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. The ‘contract test’ is set out 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 Limited  IESC 10, “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 to determine if it is such that the employee cannot be expected to put up with it.”
In constructive dismissal claim the burden of proof rests with the employee, who must prove that their decision to resign was both justified and reasonable. In effect, the employee must demonstrate that they had no option but to resign. The notion places a very high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures in an attempt to resolve his grievance with his employers.
The Labour Court has held in the case of Ranchin -v- Allianz Worldwide Care S.A. UDD1636 that: “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 Limited UDA474/1981”.
The Employment Appeals Tribunal held in the case of Travers v MBNA Ireland Ltd UD720/2006 that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.
Against the background of the above tests and in the context of the established case law in this regard, I carefully considered the evidence presented by the Complainant in support of his contention that he had no option but to resign from his employment. In this regard, I carefully reviewed the specific reasons presented by the Complainant in support of his claim for constructive dismissal.
It is regrettable that NOC, as the key person and decision maker in the within case did not attend the hearing. Given the evidence of the Complainant, which was not contested by the Respondent, NOC made it clear to the Complainant that he could “go and find another job” or he could “stay until Christmas and then go”. Moreover, NOC informed the Complainant, prior to the commencement of the disciplinary process that he was going to “get a serious warning”. Based on the uncontested evidence of the Complainant, I find that his behaviour towards the Complainant left much to be desired. It is clear that NOC had decided that the Complainant is to be severely reprimanded for what the Respondent’s submission calls issues “at the lower end of he disciplinary scale”. The behaviour of NOC indicates that he did want the Complainant out. Taking into consideration the position of NOC within the Respondent company it is not surprising that the Complainant felt that he either resigned or would be dismissed.
The circumstances leading to the Complainant’s submission of his resignation arose at a point in time when the Respondent had initiated the disciplinary process.
It is well established in case law that when conducting a disciplinary process, particularly where there is potential that a serious sanction might apply, there is a clear onus on an employer to demonstrate that fair process and procedures were applied when conducting the disciplinary process.
With regard to the case in hand, the Complainant, following two brief encounters with NOC when he was, in essence, informed that he is no longer wanted in the business, was invited by letter dated 28th November 2018 and signed by SOC to a disciplinary meeting. The letter outlined the details of four issues to be discussed, all related to performance of the Complainant. There was no evidence adduced of a proper investigation of the matters prior to inviting the Complainant to attend a disciplinary meeting.
The meeting was held on 3rd December 2018 and was chaired by NOC and attended by two Managing Directors DOC and SOC, and Office Manager / HR as a minutes-taker. The meeting lasted approximately 10 minutes and at the end NOC informed the Complainant that the Complainant would be issued with a written warning, which was to stay in place for 12 months. The warning was issued to the Complainant at the meeting and it appears that NOC, who conducted the disciplinary process, had predetermined the outcome. It is concerning that, given the Respondent’s assertion that “these issues were at the lower end of the disciplinary scale”, the Complainant was issued with what was confirmed by the Respondent to be a final written warning. This clearly shows that the Respondent did not adhere to its own disciplinary policy.
I note that the Respondent’s assertion that the Complainant did not appeal the outcome of the meeting. In that regard, I also note that, firstly, at no stage during the meeting was the Complainant informed of his right to appeal. Furthermore, the Complainant did not receive anything in writing to detail the warning and/ or the right to appeal it. The Respondent’s policy states that an appeal should be made in writing to SOC and would be conducted, where possible, by someone of appropriate seniority who has not been involved in the matter under appeal. Even if the Complainant was aware of his right to appeal as per the policy, given that three most senior persons within the Respondent, including SOC, attended the disciplinary meeting it is, again, not surprising that the Complainant felt that there is no one to refer the matter to. The evidence shows that the entire process was managed and conducted by the Respondent CEO, NOC. My concerns, in this regard, are further underpinned by the evidence presented by the Complainant, in relation to the manner and the context in which NOC dealt with the Complainant in the period leading to the disciplinary meeting.
At the hearing, the Respondent sought to rely on an unsigned letter dated 28th November 2018 (prior to the disciplinary hearing), which, essentially outlined the Respondent’s position in respect of the disciplinary process, the sanction issued and reasonableness of the Respondent’s actions. The Respondent asserted that the letter was issued to the Complainant together with his P45 and was sent by registered post. Post- hearing, the Respondent offered a different, signed copy of the letter dated 7th December 2018. The Respondent argued that the letter produced at the hearing was incorrectly dated 28th November 2018. The Respondent claimed that the letter was, in fact, sent by a courier and not registered post and in that regard the Respondent produced a copy of the proof of delivery of a piece of correspondence to the Complainant’s address on 11th December 2018. The Complainant accepted that he did receive a copy of his P45 but denied that the letter in question was enclosed.
Taking the inconsistency in the Respondent’s evidence in respect of the letter I find the Complainant’s evidence more compelling in that regard. In any event, the letter cannot serve as a remedy to the flaws of the process applied by the Respondent.
In such circumstances, I find that the process employed by the Respondent cannot be considered to have been balanced and objective.
Taking all of the above issues into consideration, I find there to be a distinct lack of objectivity and independence in the carrying out of the disciplinary processes which ultimately led to the Complainant tendering his resignation.
I note the Respondent’s assertion that the Complainant was required to demonstrate that he had exhausted all internal procedures, including the grievance procedures, before reaching the conclusion that he had no option but to resign from his employment. The Respondent suggested that the Complainant could have “said something to [RF]” (Office manager).
In considering this issue, I am satisfied that the Respondent has an established Grievance Procedure in place, albeit the Complainant claims that he had not had the benefit of viewing it prior to receiving the letter of 28th November 2018. In accordance with the established principles in constructive dismissal cases, there was an obligation on the Complainant to invoke all internal procedures before taking the step to resign from his employment. The Complainant in the herein case did not seek to fully exhaust or indeed invoke the internal grievance procedures decided to terminate his employment.
It is well established that there can be situations in which a failure to invoke the internal procedures in relation to a grievance will not be fatal in circumstances where it is established that an employee could not have faith in the employer’s ability to properly or effectively address his/her grievances (see Liz Allen -v- Independent Newspapers  13 ELR 84, Moy -v- Moog Ltd  13 ELR 261, and Monaghan -v- Sherry Bros  14 ELR 293and New Era Packaging -v- A Worker  ELR 122).
Given the circumstances and the involvement of NOC, DOC and SOC, three most senior persons within the company it is not unexpected for the Complainant to hold the view that, even if he raised a grievance it would lead to nowhere.
Having carefully considered the circumstance of this case, I find that the Respondent, on a number of levels, did not provide the Complainant with a fair procedure. The combined effect of the Complainant’s treatment by the Respondent and its CEO in particular, and the deficiencies of the disciplinary process would lead the Complainant to the belief that the Respondent would like to have been shut of him, and in effect, he was left with no alternative but to resign.
Therefore, I find that it was reasonable for the Complainant to terminate his contract and the Complainant’s claim of constructive dismissal is well founded.
In calculating the appropriate compensation due to the complainant, I am mindful of the EAT Decision of Coad v Eurobase (UD1138/2013) in relation to the complainant’s efforts to mitigate his losses. In that case the EAT found that the complainant’s efforts had not met the standard as set out in the case of Sheehan v Continental Administration Co. Ltd (UD858/1999) which stated:
“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…..the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”
In the instant case, the Complainant submitted that he had not secured new employment since his employment ceased. As no evidence was made available at the hearing in relation to the Complainant’s efforts to mitigate his loss, the Complainant was given an opportunity to furnish the Adjudication Officer with such evidence post-hearing. Subsequently, the Complainant forwarded copies of emails confirming him applying for some 24 positions in the period from 30th May 2019 to 3rd July 2019. No evidence was adduced in respect of the period between December 2018 and 30th May 2019, and 3rd July 2019 and the date of the hearing.
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.
Having considered the submissions of both parties and the evidence adduced at the hearings of this complaint, I declare this complaint to be well founded and I direct the Respondent to pay the Complainant the sum of €10,000 in compensation. In considering the level of compensation I have taken into consideration the Complainant’s inadequate effort to secure new employment.
Dated: 24th September 2019
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Constructive dismissal – inadequate effort to mitigate loss