ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030750
McDermott Laboratories Ltd t/a Mylan
Mr. Terry Gorry, Solicitor of Terry Gorry & Co Solicitors
Ms. A Fynes BL instructed by Niamh Crotty, Solicitor of Lewis Silkin Ireland
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 Hearings: 13/09/2021 & 02/11/2021
Workplace Relations Commission Adjudication Officer: Michael McEntee
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC  IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury was explained to all parties.
Full cross examination of Witnesses was allowed.
Due to Covid 19 difficulties the publication of the Adjudication finding was delayed.
The Complainant was employed as a Scientific Technical Development Analyst. Her employment commenced on the 7th May 2019 and ended by an alleged Constructive Dismissal on the 31st of July 2020.
The rate of pay was €1,500 gross per fortnight for a 39-hour week.
1: Summary of Complainant’s Case:
The Complainant submitted a detailed written statement and gave extensive Oral evidence over two days of Hearings. She was cross examined, at length, by the Respondent Legal Representative.
In summary the Complainant’s case was that after having a successful first year in the employment confirmed in her Appraisal meeting (4th February 2020) (cited as a solid performer, role model) she was summoned to a meeting with her Managers on the 20th February 2020 where she was informed that she was going to be subject to a Performance Improvement Plan – a PIP for three months.
The Complainant reluctantly agreed to this PIP process but made numerous observations as to how it was being organised and a number of technical issues where she felt there was considerable unfairness towards her. Monthly review meetings were held with her. However, the Complainant felt throughout the process that there was a lack of support for her and that Management communications with her were poor.
The PIP concluded at the end of June 2020. The negative outcome was disappointing to the Complainant as she felt that she had not been treated fairly. A lengthy meeting took place with her Managers on the 30th of June where her concerns were raised.
Following this meeting the Complainant, on medical advice, felt it necessary to take a period (1st to 15th July) of Stress related sick leave. During this period, she was contacted by the Company Occupational Health Advisor who agreed that she had stress issues but that she was fit to engage in communications with the HR Department but not directly with her own Managers. A meeting took place with the HR Department on the 15th July 2020. At this meeting, classified as “informal” the HR Director suggested that a second PIP, over a shorted time frame of some six weeks, should be undertaken. This was a cause of considerable upset to the Complainant but nevertheless she returned to work on the 20th July 2020. On the 23rd July she was informed of the details and challenges she was expected to achieve/overcome during the second PIP.
On the question of representation for the Complainant at this meting Mr. F explained that as it was not a Disciplinary or indeed Grievance meeting he had decided that formal representation was not required. The Complainant had raised the issue of a “friend” attending but in the light of Mr. F’s views went ahead by herself.
The Complainant, in her oral evidence, felt that the Second PIP was being “set up to fail” and that the expectations of Management were unrealistic. A detailed e mail of the 17th July 2020 from the Complainant to HR set out her very comprehensive reservations. In the expression of her Representative the second PIP “was simply a long goodbye” designed to cover the Company’s Legal exposure
Again, in her oral evidence the Complainant felt, from her discussions with the Company Medical advisor on the 23rd July, that the Doctor was advising her to carefully, for the sake of her overall health, review her entire position, including to make a stay or go job decision and to definitively address all the stress factors in her situation.
After carefully considering her position the Complainant felt that she was left with no alternative but to resign which she did on the 31st July 2020.
In summary the Complainant, both from her written and especially her detailed Oral evidence, clearly stated that the employer had no truthful answer to her questions as to why a successful performer in 2019 was subjected to a PIP in 2020. The exercise was unfair to her and gave her considerable stress. This high level of stress, in a scientific laboratory where accuracy was paramount, caused her further negative performance issues. It was effectively a self-fulfilling prophecy by Management. Her Managers had been completely unsupportive. The offer of a second six-week PIP beginning in July was a negative Management exercise that she could never succeed in. She was being set up to fail. The e mail of the 17th July 2020 to Ms. M in HR gave a comprehensive review of the shortfalls, unfair practices and lack of supportive communications during the first PIP from the Complainant’s perspective. From a purely Scientific point of view the work routines/methodology in the Laboratory were open to question but the views of the Complainant were never taken on board or given due weight.
Accordingly, her Resignation was not in any way voluntary but was the result of being placed in an intolerable situation.
In Legal arguments the case law of Berber v Dunne Stores Ltd  20 ELR 61, Sharp v Western Excavating Ltd  ICR 221 and Lewis v Motorworld Garages Ltd  ICR 221 were cited in support of the arguments that the Employer had by a cumulative series of acts over a period from February to June 2020 broken the employment contract by destroying the necessary and legally required relationship of Mutual Trust and Confidence.
The Employer’s actions were in addition “unreasonable” such as to furthermore justify a Complainant Constructive Dismissal claim.
2: Summary of Respondent’s Case:
Extensive Written and Oral evidence was presented by the Respondent. Direct Oral evidence was given by a number of Managers who had direct involvement with Complainant. Her immediate Scientific / Laboratory Managers, Ms. R and Ms.H, detailed the entire PIP processes and the reasons for the Complainant being placed on the programme. Ms.M and Mr. F from the HR Department also gave supporting evidence.
The Respondent emphasised that it was important to note from the start that the Employer was in the Pharmaceutical industry and the highest Technical and Scientific standards had to be maintained. The Laboratory was open to regular Audit from Irish and International Regulatory Authorities.
The essence of the Respondent argument was that by the start of February 2020 the Laboratory Management (Ms.H and Ms. R) had noted performance issues of concern with the Complainant. In late December 2019 and again in early January the Complainant had made it known that she felt “Overwhelmed” by the volume of work she was being asked to do.
The issues of concern to the Managers were three-fold, Technical Errors (called PRS), Write Ups of Work and Time Management. They had decided to put the Complainant on a Performance Improvement Plan, a PIP, to enable her to “reformat” her performance and go back to the good standards displayed in 2019.
It was not in any way a negative issue or a disciplinary issue but a mechanism, already well used in the Company, to ensure that staff with any issues could be helped in a positive manner. The Complainant, while initially reluctant, agreed to participate in the PIP process. The PIP involved extensive extra training, work on non-live analysis and a reduction in the volumes of work tasked to the Complainant. Monthly review meetings were held with the Managers and the Complainant. Minutes of all these meetings were presented in evidence. Extensive interactions took place. However regrettably by the final Review meeting on the 30th June 2020 the concerns of the Managers remained. It was felt that despite all efforts on the Employers behalf the Complainant still had negative performance issues. The Oral evidence and Complainant Cross examination of Ms.H and Ms. R outlined in considerable detail all of the above matters.
At this stage in late June the Laboratory Managers sought the advice and assistance of the HR Department. The Complainant was on Sick Leave from the 1st July to effectively the 20th July 2020. An “informal” meeting between the Complainant and Mr. F the HR Manager, took place on the 15th July.
In his Oral evidence, Mr. F, explained that he had held the informal meeting from a “H R Solutions” point of view. It was his style to seek to try to resolve issues with staff rather than get into formal procedures from the start. The suggestion of a second, more tight time scale PIP, had been his idea and he also agreed/suggested to have a member of the HR Staff, Ms. M., actively assist/mentor the Complainant in any issues. She had been unrepresented to that stage and would he felt, have benefited with a colleague assisting in general matters of how the PIP was being managed. He recognised that the Complainant was having stress issues. Ms.M would attend in a supportive capacity he hoped, all meetings with the Complainant and the Laboratory Management. The process he envisaged was not in any way a Disciplinary exercise but rather a means to get the Complainant to reengage positively with the Laboratory Management and hopefully resolve all issues.
However, the Complainant was still very upset and anxious and resigned on the 31st July. In a post Resignation communication with Ms.M the Complainant confirmed that she had resigned for the good of her mental health. The first PIP had been extremely stressful for her and the prospect of a further exercise was too much for her. In her discussions with the Occupational Health Doctor she had been advised to take clear life decisions and her resignation was one such decision.
The Respondent submitted extensive Legal case law in support of their position. Emphasis was placed on Cedarglade Limited v Tina Hiban UDD 1843 from the Labour Court to establish the tests for a Constructive Dismissal.
In final summary the Respondent made it clear that they had acted at all times in the Complainant’s best interest. They had noted a deterioration in her performance and the PIP was a well-tried mechanism to address any shortcomings. The Respondent had never initiated any Disciplinary issues and were simply trying to help the Complainant with performance issues. Many staff had gone through this process before with very good outcomes and they hoped the Complainant would do likewise.
It was regrettable that issues had not resolved themselves and that the Complainant felt compelled to resign her employment.
3: Findings and Conclusions:
3:1 The Relevant Law.
The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.
In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.
For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:
“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,…”
As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was 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. 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 Irish Supreme Court in Berber -v- Dunnes Stores  E.L.R. 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.”
Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.
Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House,  E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):
“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”
However, Legal precedents notwithstanding, all cases rest on their own facts and contexts. In this case extensive Oral evidence was given by witnesses over two days and was supported by very detailed written submissions.
It is now necessary to examine this evidence and in doing so the Constructive Dismissal template of the two standard “tests” i.e. Breach of Contract and Unreasonable Behaviour will be used. The third “test” of use/non-use of Employment procedures will also be referred to.
3:2:1 Constructive Dismissal - first test - Breach of Employment contract by the Parties.
As set out above the Breach of Employment Contract has to be of the utmost seriousness such as to allow an employee to conclude that, following Western Excavating (ECC) Ltd -v- Sharp  1 All E.R. 713 the employer
“no longer intends to be bound by one or more of the essential terms of the contract.”.
In this case, nowhere in the extensive evidence presented was there any suggestion of a fundamental breach of basic contract. Breach of Contract would normally involve an unwarranted or unjustified cessation of salary, refusal to pay holidays or any other wholesale departure from the basic terms of the Employment Contract.
The Complainant in her written submissions and presentation from her Legal Representative, relied on Berber v Dunnes Stores Limited  20 ELR 61 and Lewis v Motorworld Garages Limited  ICR 157 and Justice Glidewell’scomments regarding “mutual rights and obligations implied in an employment contract.”
The argument advanced was the implied and required vital relationship of trust and confidence was broken by the Employer here by the use of the PIP, essentially in an unfair and prejudicial manner. In plain English the Respondent had set the rules of the PIP game in an unreasonable fashion and the Complainant was never going to be able to succeed. This was a fundamental beach of mutual employer/employee trust and good faith. A clear and unbiased reading of the extensive Review meeting minutes would provide clear evidence of this in the Complainant’s view.
Having read the written evidence, in particular minutes of PIP set up and regular review meetings and considered the Oral evidence of Ms. R and Ms.H, Laboratory Managers it was very difficult to arrive at the conclusion that the PIP exercise was inherently “Unfair or Prejudicial” such as to constitute a Breach of Contract or any Implied duty or obligations. The minutes were detailed and showed a high degree of Complainant input to all discussions.
The evidence being considered had been subject to subject to full cross examination and all parties were under Oath/Affirmation.
3:2:2 Summary conclusion on First Test – Breach of Contract.
The evidence did not support a case of breach of contract in a Constructive Dismissal context. The basic Contract was never in doubt and the question of a Breach of an Implied Contract by the manner/operation of the PIP programme was not supported by any good supporting evidence.
3:3:1 Constructive Dismissal - Second Test – Unreasonable Behaviours by Parties.
In Legal precedents the term/adjective used to describe the Unreasonable Behaviours is “egregious” or in plain English behaviour so bad, so awful, as to leave a “reasonable” employee with no option but to resign.
In this case extensive Oral evidence was given by Ms. R and Ms.H from the Laboratory. It was supported by detailed minutes and records of meetings. The emails from the Complainant were also presented. The Complainant e mail of the 21st February and latter the email of the 17th July (views and observations on the PIP at the start and the end of first PIP) was considered together with her interactions/comments at the regular PIP review meetings.
Taking the Oral evidence from Ms. R and Ms.H it was hard to find direct substance to support a case that their actions were “unreasonable” and designed to “do down” the Complainant in some form of malign manner. The reported comments from the Complainant during the numerous meetings did not give this impression either.
The PIP was largely based on detailed objective facts such as analysis errors made in a scientific laboratory. It also has to be remembered that the operating environment was a highly regulated, zero error, Pharmaceutical industry.
Ms. R and Ms. H emphasised that were motivated by a desire to help the Complainant with her three identified issues of concern. On Balance their evidence had to be seen as persuasive.
The latter involvement of the HR Department after the end of the first PIP was also interesting.
Mr. F, the HR Manager, in his oral evidence, emphasised that his style or modus operandi, was that of a problem solver. The second suggested PIP was an effort by him to see if the problems could be fixed amicably without recourse to other areas such as the Disciplinary procedures.
Assigning his office colleague, Ms.M, to assist and or support the Complainant, who was suffering from work related stress, in PIP phase two was not the action of an “Unreasonable” employer. Ms. M gave Oral evidence of her contacts with the Complainant in late July.
In his cross examination of Mr. F, the Complainant Legal Representative, put it to Mr. F, that what he had been orchestrating in PIP number two, was a “Long Goodbye” to exit the Complainant with minimal Legal /Unfair Dismissal consequences. In reviewing Mr. F’s Oral evidence together with his presentation and demeanour, this conclusion and or interpretation did not seem, on the balance of probability, to be supported by the evidence.
The medical reports from the Occupational Physician supported the Complainant’s contention that she was suffering from stress both before and as part of the PIP. In her own evidence the Complainant stated that she had felt “overwhelmed” by the work schedules even as far back as pre-Christmas 2019. In the final Occupational Health Report of the 23rd July 2020 the Physician states that she encouraged the Complainant to “take a day to think about what she feels is best for her in terms of the PIP”. In her Oral evidence the Complainant gave her understanding of this as the advice of the Doctor, for the sake of the Complainant’s mental health, to decide to stay or leave the employment. She decided to Resign and in a subsequent Medical report of the 20th August 2020 the Doctor notes that her “Stress symptoms have settled” post the resignation.
3:3:2 Final conclusion - Second Test – Unreasonable Behaviours by Parties
It appeared a clear conclusion that the Complainant had resigned of her own volition. The PIP process had not been pleasant for her but the evidence, oral and written, did not reach the high legal standard to allow the conclusion that it was a product of Unreasonable Employer behaviours so bad as to make resignation almost automatic.
In a Constructive Dismissal context, the Complainant has not satisfied this Test.
3:4:1 Constructive Dismissal - third question – Use of Internal Grievance and Disciplinary Procedures.
The Complainant and the Employer did not really get into his area. No formal Disciplinary proceedings were ever initiated. On the Grievance aspect the Complainant never lodged a formal grievance although her e mail of the 17th July 2020 and many of her observations during monthly review meetings might well pass as a Grievance issues. However, all the Complainants issues during the PIP were extensively examined and replied to by the Respondent.
On balance this formal area was not explored in the Constructive Dismissal context and did not seem to form part of either Parties approach.
3:5 Final Conclusion.
It is recognised that a Constructive Dismissal has a high legal bar.
In this case, having reviewed all the evidence both Written and Oral, the Adjudication conclusion has to be that the Complainant has not satisfied the standard Constructive Dismissal legal tests.
A Constructive Dismissal, as legally defined, did not take place.
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.
From the evidence it has not been proven that a Constructive Dismissal took place.
The Adjudication finding is that No Constructive Dismissal took place.
Workplace Relations Commission Adjudication Officer: Michael McEntee
Constructive Dismissal, Implied Duty of Care, Implied Terms of Employment Contract.