ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027734
Parties:
| Complainant | Respondent |
Parties | Martin Mc Cabe | Breffni Insulation Limited |
Representatives | Gearóid O’Brádaigh B.L. instructed by Ronan O'Brien and Company, Solicitors | Tiernan Lowey B.L. instructed by CC Solicitors |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00035554-001 | 02/04/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00035554-002 | 02/04/2020 |
Date of Adjudication Hearing: 08/12/2022
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant’s employment was terminated following an internal disciplinary process, but this was overturned on appeal and reduced to a final written warning. The complainant resigned and claims he was constructively dismissed. |
Summary of Complainant’s Case:
Relations between the parties had deteriorated from 2017 onwards as a result of difficulties between them culminating in a change to the complainant’s Terms of Employment and the commission paid to him and, also the removal of certain duties and functions.
He was also the subject of a formal oral warning which he regarded as unwarranted and in breach of the respondent’s own procedures.
On May 3rd, 2019, the complainant was suspended pending an investigation into an alleged fire at the domestic dwelling of a customer of the Respondent on the 2nd of May 2019. The reason given for the suspension was that the complainant “did not take appropriate action when surveying a property which led to the client’s house catching fire”.
No investigation took place, and he was later called to a disciplinary hearing which lasted approximately eleven minutes and from which the complainant was summarily dismissed by reason of gross misconduct.
The disciplinaryhearingwasconductedbyCiaranShiels,GeneralManager,oneofthe main protagonists in the campaign against the complainant. (Anaudiorecordingandthetranscript of the disciplinary hearing were submitted in evidence).
Subsequently, there was an exchange of correspondence between the complainant’s solicitor, and the respondent in relation to the arrangements for an Appeal Hearing which raised the independence of the decision maker (who is the son-in-law of the company owner and not an employee of the company), the complainant’s right to be represented at the Appeal Hearing and the documentation to be provided in advance of the hearing and the conduct of the hearing itself.
In the course of the run-up to the Appeal Hearing, three matters of particular concern emerged for the complainant. The first related to the complainant’s contract of employment. The second, to the independence of the Appeal Officer and the third related to whether the complainant was qualified as a surveyor.
Immediately prior to the Appeal a HR officer, Jane Johnston responded to submissions which had been addressed to the Appeal Board. She responded to three specific points in the appeal submissions.
The first wastherequestfromthecomplainant thatMr.O’Reillywouldrecusehimselfas thedecisionmakeron the basis that he was biased. Ms. Johnston rejected these submissions and the Appeal decision maker remained. The second issue related to a request that in the event of the Appeal deciding that further investigations were necessary that the complainant would be returned to the payroll. This was also rejected.
Thirdly, she decided that the complainant’s barrister could only attend the appeal as an accompanying person.Thus, before the Appeal Hearing ever got off the ground, its independence had been compromised by the determination of matters which were within the jurisdiction of the appeal at that time.
ItwasagreedthattheAppealHearingwouldbebywayofaformalre-hearing.
The Appeal Officer, Padraig O’Reilly has a family connection to the owner of the company, which gave rise to the possibility of bias, and it was requested that he would recuse himself and be replaced by an independent person.
Four grounds of appeal were set out as follows.
The manner in which the initial and subsequently amended complaints were presented to Mr. McCabe by the respondent, containing errors, the lack of evidence to support the principal allegation against him, that the role and responsibility as a surveyor attributed to him rather than as a sales representative was incorrect and that the allegation against him was unsubstantiated by any evidence.
The company breached its own disciplinary procedures and failed to provide Mr. McCabe with adequate notice, details of the charges and allegations against him in any accurate way, amplified the charges against him without any just cause, failed to provide him with an opportunity to make his case, failed to provide adequate time for him to be properly represented by a competent person of his choice.
Noattemptwasmadetoconductaproperhearing. There was noevidencetosupportthecomplaintagainstMr.McCabeand the respondent could not provide a basis for the decision to summarily dismiss him.
Two reasons were offeredfor the finding that his conduct was unsatisfactory and amounted to gross misconduct.Noevidencewasadducedatthedisciplinaryhearingtosupportthis.
The Appeal Officer relied on the conclusion that Mr. McCabe’s Contract of Employment described him as a surveyor and that this is the precise amendment that was made to the documentation that was provided to Mr. McCabe following the receipt of the written submissions and the discovery of Ms. Johnston of additional documentation in a file somewhere in the offices of Breffni Insulation Limited.
The decision of the Appeal Officer issued on October 24th, 2019. There was delay of six weeks in issuing the decision despite a commitment to issue it within 3-4 weeks. The respondent was put on notice that unless he was in receipt of the written decision by the close of business on October 18th that the complainant intended to bring an ex parte applicationtotheHighCourt.
The Appeal Officer deals firstly with the preliminary issues of objective bias and the request for the restoration of the complainant to the payroll in the event of further investigation being required. His findings in relation to the preliminary matters were that these were internal matters for the company.
In fact, it is a matter for a decision maker to consider and decide whether it is appropriate to continue to act. The proper test to be applied in this matter is an objective one and the correct course of action for Mr. O’Reilly would have been to recuse himself from the Appeal Hearing.
There was an over-simplification and misstatement of the evidence presented at the Appeal Hearing. There is no explanation for the discrepancybetweenoneversionofthecomplainant’scontractandanotherandwhere alloftheevidence,whichisrelieduponforthepropositionthatthecomplainant isboth a Sales Representative and a Surveyor was found stuck in a file and not posted out to the complainant and his representatives until after the receipt of the written submissionsfromthecomplainant.
All of that evidence is contested remains entirely untested by the Appeals Officer.
Even if the disputed evidence was correct and accurate and the complainant’s “survey” of the property in question was flawed, the undisputed evidencebeforethedisciplinaryhearingandbeforetheAppealCommitteewasthatthe house in question did not catch fire, the cause of the smoke entering the dwelling was as a result of the flawed manner in which the range cooker had been installed and the installers of the cavity insulation had failed utterly to carry out the necessary checks andtestsatthetimeofinsulation.
That being so, there is no reasonable or proportionate sense in which a finding of gross misconduct could ever have been made against the complainant warranting either his dismissal and/or a final written warning.
The purported financial loss to the company was limited.
On receipt of this report, it was the view of the complainant that the baseless findings of the Appeal Officer were the final straw in a campaign of victimisation and abuse of him stretching back over a number of years.
Hehadmade every efforttoengagewiththe company, both prior to the incident in the house which gave rise to his suspension and eventualdismissal.
Witness evidence The complainant gave evidence on oath.
He outlined his recruitment to the company in 2013 and the terms of employment offered.
He said he received no training or induction and noted that the word surveyor had been added to his description of employment in 2018. He said that he was issued a verbal warning in 2018 but did not know what it was for. He gave evidence about the conduct of the investigation, and that he had not received some of the letters inviting him to attend.
In relation to the appeal decision, he objected to the failure to produce various documents and to inaccuracies in the report which did not seem right to him, and he said that he could not accept the written warning as it would be an offence to his dignity.
He was cross examined on the incident which gave rise to the customer complaint and confirmed that he had taken measurements and agreed with Counsel for the respondent that his actions could be described as those of a surveyor (in that he had conducted a survey).
Also, in response to a question regarding the setting aside of the termination it was put to him that he could have addressed any future issues on his return to work, but he said that he would not have felt confident in that any such process would be effective.
That concluded the complainant’s evidence.
Itiswellsettledthattheteststobeappliedtoconstructivedismissalmaybesummarised as the contract test and the reasonableness test.
As Denham M R stated in Western Excavating Limited v Sharpe 1978 ICR 121
“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”.
The reasonableness test arises in circumstances where the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, the employee is justified in leaving.
InalonglineofauthoritiesfromConwayvUlsterBankLimitedUD474/1981 down to the present day thatit is incumbent on the employee to utilise the internal procedurestoattempttoremedyhis/hercomplaints.Inthiscaseitissubmittedthatthe conduct of the employer strikes at the core of the relationship of trust and confidence withthecomplainant andeffectivelyamountstoarepudiationofhiscontract.
A review of the correspondence in this matter will reveal that on more than one occasion it was only on pain of legal action being brought against the company that the complainant was able to move the process along.
The final report of the Appeal Officer, which imposes a serious sanction for which there is no basis of any kind, and which flows from a process which was entirely devoid of any fair procedures, is proof positive that the Respondent no longer considered itself bound by the contract and, in fact, sought to rely on its own alteration to that contract to justify the imposition of its unwarranted sanction against the Complainant. This insult was compounded by the fact that notwithstanding the recommendation of the Appeal Officer that the complainant be contacted without undue delay for reinstatement, no effort of any kind to contact Mr. McCabe was made.
In all the circumstances the Adjudication Officer is urged to make a finding that the complainant was constructively dismissed and to compensate him accordingly.
The complainant was removed from the payroll on 14th June 2019 following his purported summary dismissal and stood constructively dismissed on 4th November 2019. The payment due and owing to him for this period is €61,358.00 and evidence of the computation was submitted. |
Summary of Respondent’s Case:
The complainant was employed as a Sales Representative/Surveyor from 15 July 2013 until he terminated his employment on November 20th, 2019.
The respondent is a limited company providing insulation, building and energy retrofit services and submits that the complainant unreasonably terminated his own employment following a disciplinary process which ultimately concluded with his being issued a final written warning. This sanction was imposed following a successful appeal by the complainant from an earlier decision to dismiss him.
The Payment of Wages Act 1991 is out of time. It relates to a contravention allegedly occurring on August 14th, 2018, with no further detail. The complaint form was lodged on April 2nd, 2020, therefore the cognisable period ran from October 3rd, 2019, to April 2nd, 2020.
Shortly after he started, the complainant participated in a series of training exercises. In addition to the complainant’s safety training, on or around July 15th, 2013, he was furnished with another document clearly describing his job title as “Sales Representative/Surveyor.”
This document, which was signed by the complainant confirms that in this capacity, he “is responsible for all surveyor duties, QA inspections and sales activities i.e., selling insulation products and services.” Amongst his principal duties and responsibilities in this role, it clearly provides that the complainant is required to “Conduct site surveys.”
The insulation materials used by the respondent are primarily sourced from a company called KOREFill and the complainant was required to undergo relevanttraining.
In 2016, the complainant was given a written contract of employment dated April 12th, 2016, setting out the main guiding terms and conditions of the parties’ employment relationship which both parties signed on April 29th, 2016.
He was also given a copy of the respondent’s Employee Handbook, explicit reference to which is made in his contract under ‘Organisation Policies and Procedures.’ Under that section, the contract provides that the Employee Handbook “forms part of your terms and conditions of employment, and you are requested to read it, and familiarise yourself with the policies and procedures held thein.
The contract draws the employee’s attention to the complainant’s disciplinary policy and grievance policy. The Employee Handbook formed part of the complainant’s contract of employment.
The respondent uses an expanded polystyrene material injected in bead form with a bonding agent into a cavity to form an insulating mass. The bead and bonding agent is injected through drill holes into the cavity of the property using specifically designed equipment at the correct material binder ratio through a flexible pipe fitted with a non-directional nozzle.
Detail was given on the complainant’s role as a Sales Representative / Surveyor, including, visiting prospective customer’s premises; carrying out a detailed survey of the relevant areas of property requiring insulation; filling out survey-related paperwork detailing customer and property specifications; conducting series of relevant safety checks; and conducting a final check list.
He was fully trained in relation to the above procedures. He was aware of and trained in the potential safety risks associated with failing to comply with the survey and other requirements of his role. This included the potential smoking/fire risk of failing, in advance of installation, to confirm whether a particular flue in a premises bridged a cavity as well as the risks associated with use of the product in single skin flues.
On May 2nd, 2019, the respondent received a complaint from a customer that after she lit her fire the whole house filled with smoke. The respondent immediately arranged for one of its technicians, to call to the customer’s home to fix the problem.
The complainant had previously visited the premises in question in his capacity as Sales Representative/Surveyor.
On May 3rd, 2019, the respondent’s General Manager, Ciaran Sheils, phoned the complainant to advise that the respondent had received the said complaint from the customer and by email the same day the complainant was given details of the matter and suspended on full pay pending an investigation.
The letter confirmed that paid suspension did not amount to a disciplinary action and was merely a holding measure pending the investigation. The complainant was advised that he should continue to cooperate as an employee of the respondent during his suspension and that he would be required to return to his duties as normal if the investigation showed that the allegations were without substance.
He was also advised that he might be the subject of a disciplinary hearing. Jane Johnston, office manager, was appointed to conduct the investigation. She interviewed a number of relevant witnesses.
During the course of the investigation, the respondent asked the complainant to meet for an interview on three separate occasions, May 13th, 14th, and 16th, 2019 but received no reply to the email until by email dated 13 May 2019 (09:54), the complainant’s solicitor wrote to Ms. Johnston to advise that he was “not in a position to attend the intended meeting.”
Ms. Johnston replied seeking reasons, reminding the complainant’s solicitor of the obligation to cooperate with the investigation and agreeing to adjourn the investigation meeting to the following day, May 14th, 2019. The complainant failed to attend the rescheduled meeting without explanation.
On May 14th, 2019, Ms. Johnston wrote to the complainant to advise him of another investigation meeting to take place on May 16th, 2019, and the matters to be investigated were clearly set out in the letter.
In addition to the original allegation contained in the letter of May 3rd, 2019, the complainant was also accused of failing to follow a reasonable management instruction and alleged misuse of company property. Again, he failed to turn up for the scheduled investigation meeting. During his disciplinary hearing, the complainant denied having seen these subsequent invitations by email to participate in the investigation.
On May 19th, 2019,theGeneralManager wroteto thecomplainant invitinghim toadisciplinaryhearingon May 22nd and set out the allegations he was to address at the disciplinary hearing and advised that the purpose of the hearing was to afford him an opportunitytoprovideanexplanationinrelationtotheallegations.
Enclosed with the letter, he was furnished the relevant witness statements plus a copy of the respondent’s disciplinary rules and procedures for reference purposes and advised of his right to be accompanied. He was informed that the allegations potentially amounted to gross misconduct and that summary termination of his employment was among the possible outcomes.
On May 22nd, 2019, the disciplinary hearing took place. Not five minutes after the disciplinary hearing ended, the complainant presented a preprepared letter dated May 22nd addressed to the respondent from the complainant’s solicitor running to three pages in length. No explanation was provided as to why this letter was presented to the respondent after the disciplinary hearing.
It appeared to have been drafted in anticipation of the disciplinary hearing (erroneously referred to in the letter as the ‘investigation meeting’) and criticised the lawfulness of the complainant’s suspension, which it incorrectly referred to as unpaid suspension, and sought to characterise the complainant’s disciplinary process as a calculated and orchestrated campaign.
In it, the complainant’s solicitor accused the respondent of predetermination and sought to apportion all blame for the subject of the investigation on the person who had originally installed the homeowner’s heating appliance, accusing that person of negligence.
The letter also, for the first time, alleged that the complainant’s role had been subject to dilution in varying degrees over a period of time and raised historic complaints that had never formed any part of a grievance pursued by the complainant during his employment.
The letter made a number of references to the complainant’s positive performance with the respondent and also asserted that the complainant had adhered to all company requests made of him and had fully engaged in any internal processes and referred to any missed meetings as a genuine oversight. It also purported to provide explanations to changes that had been made by the complainant to his mobile phone.
The complainant’s solicitor concluded by notifying the respondent that the complainant had suffered untold upset and distress and had to visit his GP as a result. It was also asserted that the complainant had been left open to “unwelcome and unpleasant commentary and ridicule” as a result of the respondent ’s investigation. The letter closed by seeking a series of undertakings from the respondent, including an immediate apology, his immediate reinstatement, and the abandonment of the ongoing disciplinary process, failing which High Court proceedings would issue within a period of two days.
On May 24th, 2019, Ms. Johnston wrote to the complainant referring to his solicitor’s letter of May 22nd, 2019, and seeking to clarify the nature of his paid suspension as a holding measure and not a sanction.
On June 14th, 2019, the respondent replied saying that it had concluded that the explanations provided by him at the disciplinary hearing in relation to the allegations were unsatisfactory and gave reasons. On the basis that this was seen as constitute gross misconduct, the complainant was summarily dismissed and advised of his right to appeal.
The complainant did not lodge an appeal within the timeframe provided. However, on June 26th, 2019, his solicitor wrote to the respondent to advise that the complainant would be formally appealing “the outcome of the disciplinary hearing.”
No grounds or reasons for the appeal were provided at this time. Notwithstanding the fact that the appeal was sought after the timeframe provided, the respondent agreed to conducting an appeal hearing and on July 30th, 2019, the complainant’s solicitor confirmed his willingness to appeals. The letter sought confirmation that the independent third party would have “unlimited and unfettered discretion with respect to their findings and recommendations after the Appeal process […].”
On August 8th the respondent wrote to the complainant’s solicitor acknowledgingtoadvisethattheCompanyhad engagedathirdpartytocarryouttheappealshearingandthatfulldetailswould follow.
Separately on that same say, the respondent wrote directly to the complainant referring to his solicitor’s correspondence and advising that the respondent had appointed an external party, Padraic O’Reilly, to hear and determine his appeal. and an external HR Consultant for the purposes of facilitating the appeals process.
The complainant was invited to attend at the formal appeals hearing scheduled for August 30th, 2019, and the letter made it clear that the appeal would be “a review of the original decision.” He was invited to submit written grounds of appeal by August 21st, 2019, and advised that if it seemed necessary, the parties hearing the appeal could carry out further investigations.
He was advised that he could be accompanied at the hearing by an employee of the respondent or by a trade union official. A copy of the respondent ’s disciplinary appeal procedure was enclosed.
By letter dated August 9th, 2019, the complainant’s solicitor wrote to the respondent apparently expressing satisfaction at the fact that the respondent had engaged the services of the aforementioned third parties but nevertheless reiterating its belief that the disciplinary process was flawed. The letter confirmed that the complainant would attend the appeal hearing but only subject to a satisfactory resolution of a number of matters referred to in the letter.
The letter referred to Mr. O’Reilly as “an entirely partisan person” identifying his links to another person in the Company and asserting a presumption of bias in those circumstances.
It criticised the intended “mere review of the original decision” as not acceptable and sought instead to assert their client’s entitlement to a “de novo appeal.” The letter also sought to assert their client’s entitlement to be accompanied at the appeal hearing by either the complainant’s solicitor or a barrister instructed by the complainant’s solicitor referring to such an entitlement in these circumstances as “well settled law.” Like previous correspondence, the letter closed by threatening the possibility of injunctive proceedings were these demands not met.
On August 10th, 2019, the respondent confirmed that in the event of his being reinstated following the appeal, the complainant’s pay would be backdated to the original date of dismissal which was June 14th, 2019. It rejected the allegation of Mr. O’Reilly’s any presumption of bias as unsubstantiated. The letter also confirmed that he had had no prior involvement in the case nor any personal or professional interest in the matter.
The respondent did agree to depart from its normal procedures and agreed to the complainant’s solicitors request in relation to legal representation at the appeals hearing. On August 21st, 2019, the complainant’s solicitor wrote to the respondent providing detailed written grounds of appeal. it was confirmed that the complainant would be accompanied at the appeal hearing by a barrister.
On 27 August 2019, the respondent the independence and professional integrity of Mr. O’Reilly and confirmed that the complainant would be entitled to outline and expand on his appeals grounds and provide any new information or perspective that he considered to be relevant. It was confirmed that the respondent did not intend to call any other witnesses for the purposes of the appeal hearing.
On 30 August 2019, an appeal hearing (lasting two hours) took place during which the complainant and his legal representative were permitted to make all necessary submissions and arguments in relation to the respondent ’s dismissal. At the end of the appeal hearing, the complainant was advised that it was hoped that a final decision would issue within three to four weeks.
By letter dated October 15th, 2019, the complainant’s solicitor wrote to the respondent criticising the fact that no final decision arising from the appeal had been made. The letter, once again, threatened High Court proceedings.
On October 17th, 2019, the respondent wrote to the complainant solicitor to advise that the final decision from the appeal would be provided by October 25th. The letter confirmed that the delay arose as a result of the extensive review that was being conducted of all of the information to hand in advance of the decision being confirmed. Furthermore, Mr. O’Reilly had been away on a business trip for a period of two weeks following the appeals hearing.
OnOctober 24th, 2019,theAppealsOfficer,issued his findings and confirmed that he had decided to overturn the decision of the respondent to summarily dismiss the complainant andtodowngradethesanctiontoafinalwrittenwarning.
The letter confirmed that Ms. Johnston would be in contact with the complainant to discuss his reinstatement in the respondent.
Just one week later, on November 4th, 2019, the complainant’s’ solicitor wrote to the respondent claiming that their client had been constructively dismissed. The letter criticised the alleged failure on the part of the respondent to contact the complainant to arrange his reinstatement.
The letter referred to the Appeal Officer’s report as “nothing more than a thinly veiled attempt by the Company to mend its hand.” The respondent will give evidence at the hearing that Ms. Johnston was on a period of annual leave from 28 October 2019 to 1 November 2019.
Notwithstanding the fact that the complainant had successfully challenged the decision to dismiss him, the complainant’s solicitor now purported to criticise both Mr. O’Reilly and Graphite HRM in the context of the appeals process and concluded now that there were no grounds for the final written warning and that in circumstances where the employment relationship was “sundered beyond redemption” the complainant now stood constructively dismissed by the Company.
The letter confirmed that the complainant “does not and cannot be considered reinstated in any reasonable and lawful meaning of that term.” The letter concluded by seeking two year’s salary as compensation in addition to a series of other compensatory demands, once again threatening court proceedings where liability was not admitted, and compensation not paid.
By emails dated November 5th, 11th, and 13th 2019, the respondent wrote to the complainant with a view to ensuring his speedy reinstatement. These emails went unanswered.
On November 14th, 2019, the complainant solicitor wrote to the respondent referring to these efforts as “ham-fisted” and reiterated the complainant’s position that he had been constructively dismissed by the respondent.
On November 21, 2019, the respondent’s solicitors wrote to the complainant’s solicitors rejecting, on behalf of its client, the assertion that the complainant was constructively dismissed and reminding it that the complainant had in fact been successful in his appeal overturning the decision to dismiss him.
The letter confirmed that the complainant’s salary and commission would be backdated for the relevant period and a calculation of same was provided. It was, therefore, confirmed that the complainant would be paid the sum of €20,777.42 (Gross) €10,093.60 (Net) by bank transfer on or before 21 November 2019. These monies were subsequently transferred into the complainant’s bank account, so the complainant is fully in receipt of all monies that were owing to him.
The letter referred to a conversation between the complainant and the respondent ’s Commercial Director, Steven Burns, on 13 November 2019 during which the complainant had informed Mr. Burns that he needed time to think about whether he would return to work or not. It was clear from this exchange that as of that time, the complainant did not, in fact, consider himself constructively dismissed and was still considering a return to work. Subsequently, the complainant’s solicitor described Mr. Burns as “a trojan horse” and accused him of attempting “to entrap” the Complainant.
Witness evidence Padraig O’Reilly, who acted as the appeal officer give evidence on oath.
He described his normal professional work as involving the provision of financial services at a high level and said he was son-in-law of the owner but that he also knew the complainant well.
He was assisted in the conduct of the hearing by a HR adviser, but the witness had sole decision-making responsibility.
He saw his role in the appeal us to look at the original decision, why it had been made and what investigation has been conducted. For the purposes of the appeal, he was provided with all relevant documentation including minutes of the disciplinary hearing, audio recordings, witness statements and all correspondence.
In relation to his independence, he stated that as a qualified accountant he had independent professional obligations to be fair and he looked at the matter professionally. He conducted a full re-hearing which lasted two hours.
In relation to the status of the complainant as a surveyor he did request some documents after the hearing but at all times the complainant knew that he was conducting a survey. There are specific references by the complainant to surveying in the documentation. In respect of the delay in producing his report he said that there was a delay in receiving minutes of the hearing from the stenographer and also some further information was requested by him. He also said that he was in Japan for business on two weeks.
He produced a ten-page outcome letter and said that he felt that he understood the survey role and issue fully. He felt that installers should have been answer answerable.
He did conclude that the complainant was advised of the investigation, and he found the evidence of Miss Johnson entirely reliable.
Making his decision he concluded that the disciplinary hearing could have been more robust and that there was a suspicion of pre-judgement.
Finally in relation to the sanction he felt that the complainant had been unfairly selected for termination as others who had involved were not subjected to the same sanction.
He also confirmed that there had been no attempt by the respondent to push back on his decision. He was cross examined on whether he had experience of workplace matters and he said that while he did not, he had other relevant experience of similar investigations.
He decided he was competent to proceed and was questioned as to why he did not provide the additional documentation to the complainant that he received after the hearing he said that both it and any witnesses interviewed after the hearing supported the complainant’s position.
Legal Submission
For a claim of constructive dismissal to be successful, an employee must demonstrate that there has been a fundamental breach of contract by the employer and/or that the employer’s conduct makes it reasonable for the employee to have resigned.
In Cedarglade Limited v Tina Hliban UDD 1843, the Labour Court stated that the “contract test” requires that an employer 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”.
In doing so, the Labour Court applied the principles set down in Western Excavating (ECC) Ltd v Sharp [1978] WLR 344.
The Labour Court also stated in Cedarglade that the ‘reasonableness 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, she is justified in leaving…. 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 LimitedUDA474/1981.”.
As set out in Cedarglade:
“The complainant must demonstrate that the respondent has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for her to remain in her employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective. Therefore, the Court must examine whether or not, by the application of a normal standard of reasonableness, an employee in the same circumstances as the complainant would be justified in resigning in response to the employer's conduct, whether or not that result was intended. In the Supreme Court case Berber v Dunnes Stores [2009] ELR. 61 Finnegan J. held: - “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 submits that in order to succeed in a constructive dismissal claim, the complainant must discharge a high burden of proof.
On the facts of this case, it is clear that the respondent acted at all times within the contract of employment. Indeed, in a number of instances the respondent afforded the complainant procedural entitlements that exceeded those provided by the disciplinary procedures, including a right of legal representation at the appeals hearing and the opportunity to introduce new evidence and submissions as opposed to a hearing confined to specific and delimited grounds and facts.
While the complainant raised a number of concerns during the disciplinary and appeals process, the evidence shows that these matters were at all times fairly and comprehensively addressed by the respondent.
While the primary test in constructive dismissal claims is to determine the reasonableness of the complainant’s decision to terminate their own employment, the respondent respectfully submits that it acted fairly and reasonably at all times.
It is a fundamental and unavoidable feature of this case that following the disciplinary process the respondent did not ultimately dismiss the complainant. In making out the reasonableness of its decision to issue a final written warning, the respondent seeks to rely on other cases addressing the imposition disciplinary sanctions albeit usually that of a dismissal. in her judgment in AIB v Purcell [2012] 23 E.L.R. 189, Linnane J set out the approach to be taken by Courts and tribunals when matters of this kind come before it stating as follows: “It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer's view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”
In the context of the instant case, the respondent respectfully seeks to substitute ‘final written warning’ for ‘dismissal’, the principles applied by the Court remaining equally applicable in both contexts. This case also demonstrates the high level of compliance required within employers from their employees and their adherence to policies and procedure. This has a clear applicability to this case, and it is submitted that a final written warning was a sanction reasonably open to it in all the circumstances. It is also consistent with the band of reasonableness test required of the Courts to determine whether dismissal (or here a final written warning) was within the band of reasonable responses and not whether it would have dismissed or issued such a warning to the Complainant. In Doyle v Asilo Commercial Limited, [2008] IEHC 445 the High Court (McGovern J) held that “it is not the function of the courts to substitute itself for the employer and to make its decision on the merits of the employer’s decision to dismiss”. In the instant case, it is submitted that the evidence demonstrates that the respondent sought to address the complainant’s misconduct fairly and comprehensively. Unusually, it ultimately reversed its decision to dismiss the Complainant.
Throughout, the respondent ensured that the complainant was treated fairly and provided every available means to assist him. Following its initial decision to dismiss the Complainant, he was afforded a right of appeal in conformity with its procedure. At all material times, the complainant was given clear warnings and could not have had any doubt as to the potential consequences of his conduct. The impartiality of the appeals officer is evidenced by his decision to set aside the respondent ’s dismissal of the Complainant.
In Hennessy v. Read & Write Shop Ltd UD 192/1978 the Employment Appeal Tribunal found that it was not its function to determine whether a claimant was innocent or guilty.
The respondent urges the Adjudication Officer to consider whether the employee was made aware of the allegations and complaints that formed the basis of any possible dismissal or other sanction, whether the employee had adequate opportunity to deny the allegations or explain the circumstances before any decision to sanction him was taken, whether the employer believed that the employee had conducted himself or herself as alleged, whether the employer had reasonable grounds to sustain that belief and, if so, whether the penalty was proportionate to the alleged misconduct.
If, which is denied, the facts indicate any procedural defects, it is submitted that any such matters do not render any resultant disciplinary sanction automatically unfair. See Byrne v Allied Transport Ltd UD11/1979
According to one leading text: “The legitimacy of the processes adopted by an employer may be subordinated to the substantive merits of a particular case. An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee.” See Ryan, Redmond on Dismissal Law, (Bloomsbury Professional, 2017) (3rd edition) at para [13.20]
The High Court in Loftus and Healy v An Bord Telecom Unreported, High Court (Barron J), 13th March 1987 provides the relevant test in a case in which a lack of fair procedures had been alleged to be fatal to the employer’s decision. According to Barron J, it was not a question of whether the ex-employees were deprived of procedures to which they were entitled but: “Whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish … [the basis of its dismissal] as the whole or the main reason for and justifying their dismissal.”
Without prejudice to the foregoing, it is submitted that the complainant substantially contributed to any financial loss. In any event, it is submitted that the complainant’s loss is minimal. The respondent requested details of the complainant’s loss and mitigation by way of letter to his solicitor dated 14 April 2021. The complainant’s solicitor chose not to respond to this letter.
The respondent respectfully submits that the complainant has failed to demonstrate an entitlement to redress under the Payment of Wages Act 1991 and the complaint should, on the preliminary point set out above, be dismissed for want of jurisdiction.
Further, the respondent submits that the facts described above, and the evidence adduced fail to disclose any fundamental breach of contract or level of unreasonable conduct warranting the complainant’s decision to terminate his employment. The respondent acted more than reasonably at all materials times and was entitled to take the necessary steps that were taken. Indeed, the complainant successfully appealed the respondent ’s original decision to dismiss him. The complainant has failed to meet the well-settled tests for constructive dismissal claims set down in Cedarglade, Conway v Ulster Bank Limited and other similar authorities. He has offered no reasonable basis for failing to have his grievances addressed locally. |
Findings and Conclusions:
Looking at the narrative of events set out in both submissions it is possible to discern three phases which are relevant, to a decision on the complaint of constructive dismissal to one degree or another.
The relevant law on constructive dismissal and the tests to be applied are well set out in both submissions, and I return to these below.
The first phase is the events giving rise to the disciplinary hearing in May and June 2019 and the decision to terminate the complainant’s employment.
The second relates to the conduct of the appeal and the various issues that arose in connection with that stage of the process.
Finally, there is the period after the publication of the appeal decision, which upheld the complainant’s appeal insofar as it overturned the decision to terminate his employment, but which was followed by his decision to resign from his employment.
Strictly speaking, this may be the most decisive element in the case, but it is helpful to review the preceding events also in forming a view of the complainant’s decision to resign from his employment. It needs to be borne in mind that the complaint is one of constructive unfair dismissal and the relevant criteria are those that apply to that, and not what might have been applicable to an unfair dismissal had the complainant opted to refer the matter at an earlier stage.
I turn to this latter phase first.
The appeal hearing took place on August 30th and while there had been a delay of almost two months in issuing his findings, the decision maker did so eventually on October 24th, 2019.
He decided to overturn the decision of the respondent to dismiss the complainant and to reduce the sanction to a final written warning. The letter accompanying the decision confirmed that the respondent would be in contact with the complainant to discuss his reinstatement.
Then, just under one week later, on November 4th, 2019, the complainant’s’ solicitor wrote to the respondent claiming that their client had been constructively dismissed. The letter criticised the alleged failure on the part of the respondent to contact the complainant to arrange his reinstatement.
A number of reasons were given for the decision to resign, and this is the key element of the matter. The central one appears to be that there was no basis even for a final written warning and that, (whether as a consequence or not is not clear) the employment relationship had now been “sundered beyond redemption’.
Other points were made including the rather curious suggestion that the successful appeal against termination was ‘nothing more than a thinly veiled attempt by the Company to mend its hand’.
While the phrase ‘to mend one’s hand’ has a pejorative connotation in certain legal contexts to mean attempting to undo something that cannot actually be corrected, to apply this phrase to a formal appeal is to give it a rather odd meaning in circumstances where the complainant and his legal team actively participated in the appeal process and has=d sone considerable success.
If the entire purpose of the appeal (from the appellant’s point of view anyway) was not to achieve a ‘mending of the hand’ in a general sense, it makes one wonder what else it might be.
Presumably the objective was to bring about a correction of an initial decision which he regarded as having been incorrectly made. Was this not the very reason the complainant and his legal team appealed, and ensured he had a high level of representation to bring it about?
And indeed, they secured a relatively, if not completely successful outcome in that the complainant was retained his employment.
The letter from the complainant’s solicitor communicating the resignation also asserted, without any supporting reasoning that the complainant “does not and cannot be considered reinstated in any reasonable and lawful meaning of that term.” It further sought two year’s salary as compensation and threatening court proceedings in the event of a failure to agree it.
Quite clearly on these facts the immediate and proximate trigger for the complainant’s resignation was the publication of the appeal decision.
Admittedly, until that decision issued his status was that his employment had been terminated.
Therefore, there is an unusual paradox represented by the fact that immediately on becoming employed again he quit his employment. The question is whether that action, and the manner in which it came about can be said to meet any of the tests for a constructive dismissal, either taken on its own (and strictly speaking it should be) or with the other phases of the narrative which preceded it.
Turning to the first phase of the narrative; the disciplinary proceedings in May and June 2019, can the actions of the respondent at that stage be regarded as so unreasonable that they made a contribution to the final decision of the complainant to resign?
I find that they cannot. Of course, the complainant takes issue with aspects of the process, but the respondent had reasonable grounds to undertake the investigation and disciplinary process, and in general the process was a fair one.
I was not convinced by the complainant’s assertion that he had not received invitations to the investigation meetings but in any event, he was provided with all necessary material before the disciplinary meeting itself.
His conduct in connection with the disciplinary hearing was odd, a submission being made only after the hearing concluded which should surely have been submitted during it. This hearing resulted in the termination of his employment on grounds of gross misconduct.
While there may a question in relation to the finding of gross misconduct or whether the sanction of termination fell within the range of reasonable responses, the complainant decided, belatedly to allow this to be dealt with by way of an internal workplace appeal.
In my opinion, his decision to appeal is an important consideration and greatly diminishes his criticism of the appeal as a ‘mending of the hand’ as he fully acquiesced and participated in the process, admittedly with misgivings but did so, nonetheless.
Turning to the second phase of the narrative, the complainant made much of the conduct of the appeal, and notably of the independence of the decision maker, who was a close family member (son in law) of the business owner but who also knew the complainant very well.
This criticism might carry more weight if there was any evidence of actual bias in the final decision.
In fact, the written appeal findings running to some ten pages are a reasoned decision of high quality; technically as good as any submitted to this adjudicator in the course of a hearing of many hundreds of similar cases.
The decision maker is an independent professional; a Chartered Accountant, and his direct evidence was credible and strongly indicative that he understood the requirements of an adjudicative role and discharged them professionally. The appeal hearing lasted two hours. There was no suggestion of any previous involvement in, or knowledge of the case, or possibility that he had an interest in the outcome.
This was particularly borne out by his explanation for overturning the original decision to terminate the complainant’s employment, viz that he considered that the disciplinary hearing could have been ‘more robust’ and that there was ‘a suspicion of pre-judgement’.
And the decisive fact in relation to any perceived bias, remains that he significantly upheld the complainant’s appeal and ordered his re-instatement. Thus, the bias argument raised before the appeal by the complainant’s legal team is diminished by this outcome, except of course that the complainant believed that he should not have been subject to any sanction.
His ambition in that regard is one thing, but the expectation that it will ground a complaint of constructive unfair dismissal is another.
Quite how the complainant’s solicitor, on these facts could assert that the complainant ‘does not and cannot be considered reinstated in any reasonable and lawful meaning of that term’ is incomprehensible and a simple denial of reality, even if there was a short delay in implementing it.
But more significantly, there is nothing within this narrative, or within the grounds asserted by his solicitor that justifies the complainant’s resignation by reference to the tests for a constructive dismissal.
The only explicit ground given by the complainant; his objection to the decision to impose a sanction of a final written warning, could only in extraordinary circumstances represent a basis to ground a complaint of constructive unfair dismissal.
In the complainant’s written submission above, the following appears.
‘On receipt of this report [the appeal decision], it was the view of the complainant that the baseless findings of the Appeal Officer were the final straw in a campaign of victimisation and abuse of him stretching back over a number of years.
But there was no evidence of the complainant ever having raised a grievance about this alleged ‘campaign of victimisation and abuse’ and this is pure hyperbole.
Counsel for the respondent noted with a degree of ironic understatement in his opening remarks that the idea that a decision to overturn a dismissal might ground a constructive unfair dismissal would be ’new jurisprudence’ and it is hard to disagree with this view.
The complainant further submits above that it was the imposition of a final written warning was
‘a serious sanction for which there is no basis of any kind, and which flows from a process which was entirely devoid of any fair procedures, is proof positive that the Respondent no longer considered itself bound by the contract and, in fact, sought to rely on its own alteration to that contract to justify the imposition of its unwarranted sanction against the Complainant. This insult was compounded by the fact that notwithstanding the recommendation of the Appeal Officer that the complainant be contacted without undue delay for reinstatement, no effort of any kind to contact Mr. McCabe was made.’
This will not withstand even cursory scrutiny.
There are three issues identified here. The first is that the respondent had no basis to take any action following the customer complaint issue and that the appeal officer had no basis to apply a sanction of any type.
There is a well-established deference to an employer’s judgement in respect of what is considered reasonable grounds to trigger disciplinary proceedings and there is nothing on these facts to suggest that the employer acted outside the boundaries of what was reasonable.
Secondly, while it was not perfect, to allege that the process was ’entirely devoid of any fair procedures’ is contradicted by the facts set out above, including the fact that the complainant was accompanied by a legal team at the appeal, and the robust manner in which the appeal officer considered the matter.
But finally, the idea that the initiation of disciplinary proceedings against an employee ’is proof positive that the respondent no longer considered itself bound by the contract’ is an extraordinary suggestion, the implications of which for workplace grievance processes will be obvious.
It is a ludicrous proposition and entirely devoid of merit.
While events taking place after the date of the resignation will not normally concern an adjudicator, the idea of a ‘cooling off’ period within which a person may be permitted to review a hasty decision is worth reviewing.
I note that the respondent wrote to the complainant on November 5th, 11th, and 13th 2019, ‘with a view to ensuring his speedy reinstatement’ but that these emails went unanswered. On November 14th, 2019, the complainant’s solicitor wrote describing these efforts as “ham-fisted” and reiterated the complainant’s position that he had been constructively dismissed by the respondent. A letter onNovember21st, 2019, to the complainant confirmed that his salary and commission would be backdated for the relevant period and details were given.
I have examined the background in some detail for the sake of completeness and can only conclude that the complainant’s resignation is attributable to the decision to impose the sanction of a final written warning, and the short delay of less than a week in contacting him about his re-instatement, neither of which is remotely sufficient to ground a complaint of constructive dismissal.
It may well be the case that the complainant could take no more after what he had been through and decided not to return to work, but successfully linking that adverse experience to the tests for a constructive dismissal is quite another matter and he has failed to do so.
In his submission, the complainant set out the test in Western Excavating Limited v Sharpe 1978 ICR 121, but he has not gone anywhere close to passing it on these facts and his complaint of constructive unfair dismissal fails.
The parties’ positions on the Payment of Wages Act complaint re set out above. There appears to be confusion between a claimed loss of wages under this Act and any compensation that might arise under the Unfair Dismissals’ Act.
As the respondent has noted, and according to the WRC Complaint Form the complaint relates to an alleged contravention on August 14th, 2018.
The complaint form was lodged on April 2nd, 2020, therefore the cognisable period ran from October 3rd, 2019, to April 2nd, 2020, and so this complaint has not been made within the statutory time limits and t is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
For the reasons set out above I find that neither of the complaints CA-00035554-001 and 002 are well-founded. |
Dated: 2nd March 2023
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Constructive Unfair Dismissal |