FULL RECOMMENDATION
DIVISION :
SUBJECT:1.Appeal of Adjudication Officer Decision No(s) ADJ-00028438 CA-00036522-01. The Complainant commenced employment with the Respondent in January 2006 as a National Account Manager the Complainant performed well in the company. The Complainant submits that he was constructively dismissed on the 4thJune 2020. The Respondent denies that the Complainant was dismissed or that they were even aware that he had left the company until they received a copy of his complaint form to the WRC delivered by registered post on the 11thJune 2020. It is the Complainant’s case that he had no option but to resign. Mr Byrne BL on behalf of the Complainant submitted that the Complainant was a good worker. In 2015 he had been promoted to Head of Field Sales and in 2018 had won the Best-in-Class award for supply planning. In late 2018 the Complainant applied for an internal promotion, while he was not successful, he was offered the opportunity of a lateral transfer to work with some key clients. However, the area he transferred to had some legacy issues that needed to be resolved including a shortage of support staff. The Complainant in his evidence to the Court stated that from November 2018 to January 2019 he was more less double jobbing doing his old job and the new job due to staff shortages. There were legacy issues in the new area such as outstanding invoices and systems not fit for purpose. At the time there was a team of two people where previously there had been five, a turnover of Key Account Managers in the period was also an issue. From March 2019 to July 2019, he was provided with a temporary Data Entry person, but he did not have a Key Account Manager. The Complainant stated that he raised these issues with his manager who assured him that the situation was being looked at. In July 2019, the Complainant was informed by his line manager that there were issues with his performance, and he was placed on a Performance Improvement Plan (PIP). His understanding at that time was there were two issues that his manager felt he needed to address and that there would be weekly meetings to track progress. The Complainant submitted to the Court that he objected to being put on the PIP. There were further meetings, and he raised the issue of lack of resources, but his line manager stated that he still expected to see improvement. On the 15thAugust the Complainant was told by his line manager that there had been a lack of progress and that he was moving to a formal Performance Improvement Plan. The Complainant stated that he met Ms Catherine Phelan HR Director and told her he felt it was unfair that he was placed on a PIP and that he felt he was being scapegoated. The Complainant by email of 22ndSeptember 2019 raised a grievance about being placed on the PIP. The Complainant had a further meeting with his line manager on the 27thSeptember 2019. On the 1stOctober 2019 he emailed his manager to state that he disagreed with the PIP. The Complainant met with Mr John O Connor who was appointed to hear his grievance. The Complainant submitted that the procedure was a sham and that Mr O’ Connor failed to address his grievances. The Complainant stated that he received the decision in respect of his grievance on the 21stNovember 2019. The decision stated that the PIP was incorrectly managed but did not uphold his complaint that he should not have been placed on a PIP. Mr O’ Connor recommended that the timeframe within the PIP be extended by four weeks as the Complainant should have been given more time in the informal process. The Complainant stated that he was not satisfied with the outcome so lodged an appeal on the 26thNovember 2019 setting out his grounds of appeal. The appeal hearing took place by remote hearing on the 29thJanuary 2020. In the intervening period he had lodged a second grievance in respect of ongoing interactions with his line manager. The Complainant stated that the appeal was heard by Ms Justine Weston head of Operations and that Ms Dixey who was present at the earlier grievance hearing, was there as a note taker. The Complainant stated that he went through his grievance and towards the end of the meeting Ms Dixey asked him if he wished to drop his second grievance. The Complainant stated that he indicated that he would think about it. The Complainant stated that when he received the outcome letter of 20thFebruary 2020, he was very disappointed with the outcome. The Complainant confirmed that he was absent on sick leave from the 13thJanuary 2020 until his employment ended. The Complainant stated that he was in poor health from the stress of having to deal with this issue and he felt he was not wanted in the workplace. He believed he had been shabbily treated for the previous eleven months and had on going issues with his line manager. The Complainant stated that he felt if he returned to work the Respondent would continue with the PIP. The Complainant stated that he started looking for alternative employment in May 2020 and he started in his current job in July 2020. The Complainant confirmed that he is earning about €15,000 per annum less than he was earning with the Respondent. In response to questions under cross examination from Ms O’ Byrne on behalf of the Respondent the Complainant stated that he considered himself constructively dismissed from the 4thJune 2020. In response to a question about what had happened in and around that date that left him with no option but to leave, the Complainant stated he had a discussion with his wife and came to the realisation that if he went back to work, he would be put back on the PIP. The Complainant confirmed that at that time he had been out sick for six months. He also confirmed that the Respondent had invited him to a meeting to deal with his second grievance, but he could not attend. The Complainant went on to confirm that he attended Dr Gleeson on the 12thMarch 2020 at the request of his solicitor and that Dr Gleeson’s report stated that he was fit at that stage to engage with his employer. The Complainant accepted that he did not give that report to the Respondent. The Complainant also confirmed that a report from Occupational Health on the 2ndMarch 2020 recommended that he engage with the Respondent. In response to questions from Ms O’ Byrne the Complainant confirmed he had sent emails to the Respondent stating he was not fit to engage even though his doctor had certified him fit to engage with them. He accepted that Ms Weston had said they could provide Mediation and that Mr Fitzgerald offered the Ombudsman, but he had indicated that he did not consider those offers to be satisfactory. The Complainant accepted that he received correspondence from the Respondent during the period January 2020 to June 2020 and that he did not respond to same. The Complainant confirmed that he started looking for a new job in May 2020 and that he interviewed towards the end of May for the job he currently holds. He was formally offered the job on the 12thJune 2020 and he started on the 13thJuly 2020. The Complainant accepted that he submitted a medical certificate covering the month of June to his line manager by email of the 2ndJune 2020. The Complainant confirmed that he spoke to his solicitor on the 4thJune 2020 remotely and instructed him to lodge the complaint form with the WRC. The Complainant stated that the Company car was parked at his solicitor’s office on the 4thJune and that the Company laptop and phone were also left with his solicitor. The Complainant confirmed that he did not tell the Respondent that he was ending his employment. He believed it was sufficient for him to log a Complaint with the WRC as the Respondent would find out when he received a copy of the form. The Complainant accepted that if the form was delivered by registered post to the Respondent on the 11thJune 2020 then that would be the earliest that they could have become aware of the fact that he was claiming constructive dismissal and had terminated his employment. The Complainant offered no reasonable explanation as to why he did not return the Respondents property to the Respondent but instead left it at his solicitor’s office or why he did not instruct his solicitor to notify the Respondent where the property was. In response to a question from his representative Mr Byrne BL as to whether he received any contact from the Respondent in respect of the assets between 11thJune and the 25thJune. The Complainant confirmed he received a phone call and he told them where the car was, but he could not recall the date he received the phone call. Mr Byrne BL on behalf of the Complainant submitted that the Respondent had failed in their obligation to support the Complainant. He had raised issues that had not been properly addressed and the failure to address his concerns had led to him being absent on sick leave. The Complainant found himself in a position where he had no choice but to end his employment based on the conduct of the Respondent. Mr Byrne submitted that the Complainant was not under any obligation to notify the Respondent that he was ending his employment and completing and submitting the WRC form was sufficient to trigger the statutory provisions of the Act. The Complainant accepts that the earliest date that the Respondent could have become aware that he had terminated his employment was the 11thJune 2020 but this was clear notification that the Complainant had terminated his employment on the 4thof June as clearly indicated on that form. Mr Byrne drew the Courts attention to Section 1 of the Act which states, “whether prior notice of the termination was or was not given to the employer” and “to terminate the contract of employment without giving prior notice of the termination to the employer”It was his submission that it is clear from this section that the Complainant does not have to notify the Employer of his decision to terminate his employment. Mr Byrne BL submitted that he accepts that in general contract law you must tell the other party if you are repudiating the contract. However, he did not believe that applied in employment contracts. Mr Byrne BL submitted that the Complainant did not resign he brought his contract to an end by completing and submitting the WRC form. In support of his position Mr Byrne BL opened the cases ofBrady v EAT[2015] E.L.R 1 and Adjudication Officer decisionStock Control Manager v A Logistics CompanyADJ 00016579 which addresses the issue of a complaint being submitted to the WRC during the notice period prior to dismissal. In both cases it was held that in those circumstances a case was still in time as the Complainant was on notice of the dismissal. Mr Byrne BL submitted that the Complainant by handing over his laptop and phone and parking his car at his solicitor’s premises had ceased using the Respondent’s property. This he argued demonstrated that the Complainant no longer considered himself to be an employee of the Respondent and the Respondent could not rely on him having the property as proof of ongoing employment. Mr Byrne BL submitted that the Complainant had met the test set out in Western Excavation (ECC)Ltd v Sharp[1978] IRLR 332 which sets out “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 further performance.”It goes on to set out what describes as the reasonableness test. “Theemployer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving.” Mr Byrne BL submitted that in this case the employers conducted himself in such a manner that the Complainant had no choice but to terminate his employment and therefore his complaint of constructive dismissal must succeed. Summary of Respondent’s submission. The Respondent did not dismiss the Complainant. As far as the Respondent was aware the Complainant was on sick leave up until the end of June based on an email the Complainant had submitted on the 2ndJune 2020 and the Social Welfare medical certificate that he had submitted. The Complainant had been placed by his line manager on a PIP and was unhappy about that. He lodged a grievance which was processed in line with their procedure, and which found that there had been issues with the way the PIP was managed. The outcome report from his grievance set out a proposal to resolve the issues with the PIP. The Complainant was not satisfied as he wanted to be taken off the PIP. The Complainant lodged a second grievance but did not make himself available to engage with the Respondent in respect of same. The Complainant’s evidence was that he started looking for alternative employment in May 2020 while he was absent on sick leave. The Complainant accepts that he did not inform the Respondent directly that the employment had terminated. He did not return the Respondent property which is something that would normally happen when an employment comes to an end. In his own evidence he confirmed that he ignored correspondence from the Respondent. He did not instruct his solicitor who he stated he gave the property too, on the 4thJune 2020 to return the property to the Respondent, or to notify the Respondent that they had in their possession the property. The Complainant’s solicitor only advised the Respondent by letter of the 23rdJune 2020 that they had the Respondent’s property. The Respondent does not accept the interpretation of the Act being put forward that an employee can terminate their contract not by telling their employer but by lodging a complaint with an unrelated third party. The Respondent submitted that none of the facts submitted by the Complainant supports an entitlement on his part to terminate his contract or it being reasonable for him to do so because of the conduct of the Respondent. The Respondent submitted that in the case ofMcCormack v Dunnes Stores(UD 1421/2008) the tribunal stated “…places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable” Ms O’ Byrne submitted that in this case the Complainant had not exhausted all procedures and towards the latter end of his employment had refused to engage with the Respondent in respect of his grievances. Ms O’ Byrne also opened the case ofKaydee Cosmetics v Blake(UDD 1849) where the Court found “the Respondent reasonably refused sanction for an additional days leave. That decision fractured the relationship. What flowed from it was repeated efforts by the Respondent to put the relationship back on a proper footing. However, the Complainant saw these efforts to resolve the problem as further efforts to undermine her. In that regard she was mistaken.” The final case Ms O’ Byrne opened to the Court was the case ofBerber v Dunnes Stores Limited[2009] IESC 10 where the Supreme Court set out the test for assessing whether a contractual term was broken by an employer’s conduct and stated: “1. The test is objective2. the test requires that the conduct of both employer and employee be considered.3. The conduct of the parties as a whole and the accumulative effect must be looked at.4. 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 Respondent disputes that the Complainant was constructively dismissed or dismissed at all. In this Act “date of dismissal” means— (a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment [Acts 1973 to 2005], the date on which that notice expires, (b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment [Acts 1973 to 2005], the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—(i) the earliest date that would be in compliance with the provisions of the contract of employment,(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment [Acts 1973 to 2005]. (c…..“dismissal”, in relation to an employee, means—(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,(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, or(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited.
Dismissal as a fact is in dispute and therefore it is for the Complainant to establish in the first instance that a dismissal as defined by the Act occurred. It is not disputed that the Complainant did not directly inform the Respondent that he was terminating his employment. It is his submission that the Act specifically provides for not informing the employer in the definition of dismissal where it states, “whether prior notice of the termination was or was not given to the employer”.Mr O’ Byrne BL also submitted that notification to a third party, in this case the WRC of a complaint would meet any obligation that might exist on an employee to inform their employer, as a copy of such notification would be sent to the Respondent. The Court does not accept that the wording of the Act that “no prior notice of termination was or was not given” can be interpreted to read that no notice of termination is required at all. The word prior clearly indicates that no advance notice of termination is required and does not go beyond that. The Court finds that there is a requirement in order to sustain a complaint of constructive dismissal to inform the Respondent that the employment contract has been terminated. The Court finds there is nothing in the Act to suggest that notice of termination can be by proxy to an unrelated third party and no authorities were provided by the Complainant to support that contention. On the form he submitted to the WRC claiming constructive dismissal the Complainant indicated date of dismissal as being 4thJune 2020. It appears to the Court that the Complainant not only did not tell the Respondent that he was terminating his employment but went to great lengths to hide the fact that he was doing so. The Complainants own evidence was that he had submitted a Social Welfare medical certificate to his employer for the month of June two days before he decided to terminate his employment. No explanation was given to the Court as to why the Complainant having submitted a medical certificate for a month two days earlier did not inform the Respondent or instruct his solicitor who was acting on his behalf at that point in time to inform the Respondent that he considered himself constructively dismissed and or was terminating his employment with effect from the 4thJune 2022. The Complainant did not as would normally be expected in cases of this nature, return the Respondent’s property to the Respondent at that point in time. Instead for reasons that are still not clear to the Court he handed the Respondent’s property to his solicitor who only formally notified the Respondent that they had the property on the 23rdJune2020. The Court can only conclude that this was done in order to conceal the fact that Complainant terminated his employment on the 4thJune 2022 as no other logical reason was put forward to explain this unusual behaviour. In terms of tests to be met in a constructive dismissal claim the Court notes that the authorities set out that the Court must look at the reasonableness or otherwise of the conduct of both the Complainant and the Respondent. In this case the Respondent placed the Complainant on a PIP as provided for in his contract arising from concerns about his work performance. It was not disputed that there were issues with the earlier stages of that PIP and the Respondent sought to mend their hand by extending the time to allow for improvement. The Complainant submits having him on a PIP in what he believed to be circumstances outside of his control, to be unreasonable behaviour. The Court does not find this to be unreasonable behaviour on the part of the Respondent. The Court having considered the relevant legislation, the submissions of the parties, the evidence before it and the authorities opened to it finds that the Respondent s behaviour was not unreasonable, and no dismissal as defined by the Act occurred. The Court finds that no dismissal occurred. The Decision of the Adjudication officer is upheld The Court so Determines.
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |