ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00048381

Parties:

	Complainant	Respondent
Parties	Andrew Gordon	Kbc Bank Ireland

Representatives

Rachel Barry of Arthur Cox

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act 1977	CA-00059593-001	24/10/2023

Date of Adjudication Hearing: 07/02/2024

Workplace Relations Commission Adjudication Officer: David James Murphy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Amending proceedings

The Complainant submitted a complaint form to the WRC on the 24th of October 2023. This form marked the terms of employment information act. The form narrative outlined the following information.

After the decision of KBC bank to sell the portfolio to another bank, my role in the bank was changed completely, from a specialist life insurance underwriting role to a pensions administration role. The nature of the work led me to the opinion that company were engaging in constructive dismissal in a bid to remove me prior to having to pay any redundancy payment. I performed an administrative role for 2 yrs despite my contract stating that I may have to perform other duties “from time to time”. The role that I had been hired to perform essentially became redundant in November 2021. I eventually left the company in April 2023. Notably, my colleagues were given redundancy notices on the day I left KBC bank (28 April 2023).

On the 28th of January 2024 the Complainant wrote to the WRC indicating that the reference to the terms of employment information act was an error and that he was seeking the case to be heard under the Unfair Dismissals Act.

The WRC complaint form is not a statutory form. I am of the view that the Supreme Court decision in Louth VEC v The Equality Tribunal 2016] IESC 40/1 is pertinent as it considers another non-statutory form. The EE1. This decision concerned whether other instances of alleged discrimination, within the context of an alleged continuum of behaviour, which did not appear on the initial complaint form were within the jurisdiction of the Equality Officer. As such it does not concern the exact same question as raised in this case. However the following excerpts would seem to be relevant.

At para 32 McKechnie J notes

I agree with the view that there is nothing sacrosanct about the use of an EE1 Form to activate the jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purpose; in fact the Tribunal itself has so held in A Female Employee v. A Building Products Company DEC-E2007-036. Indeed, it is arguable that even a verbalised complaint would be sufficient to this end.

At para 38 McKechnie J goes on to consider whether the scope of complaints can be altered after that have been submitted and the role of the decision maker in considering such requests.

Even in the absence of this statutory provision, however, I would be quite prepared to imply such a jurisdiction from the conferring provisions of the Act. Where, as in this case, a body is entrusted with the power to investigate and thereafter to adjudicate, it must in my view likewise have the authority to determine whether a claim is or is not within its jurisdiction. This must be taken as the situation unless the legislation stipulates otherwise: no such indication appears in this case.

In the circumstances it is clear that the Complainant referred a complaint of alleged constructive dismissal in the narrative of the complaint form. This was submitted within 6 months of the cessation of his employment. He has made a request that that substantive complaint be heard under the Unfair Dismissals Act instead of the Terms of Employment Information Act which was referred to on the form in error. I am satisfied that this request is within my jurisdiction to grant and that I should grant it.

Hearing of the 7th of February 2024.

The Respondent’s solicitor has made the entirely reasonable point that her client would be at risk of procedural unfairness if the Complainant was allowed proceed under the Unfair Dismissals Act without notice. I determined that the Complainant should be allowed give his evidence and that the Respondent’s solicitor could begin cross examination if she chose and that we would adjourn with cross examination still in progress so that she would not be prevented from submitting further evidence or identifying further witnesses.

When we reached the end of the time available for this matter I reminded the parties that as the burden of proof was on the Complainant and I would consider whether he, on the basis of his own evidence, had made out a case of constructive dismissal. If he had failed to do so I would issuing a decision noting that outcome rather than call the parties back for another day.

Background:

The Complainant joined the Respondent bank in October 2020. His role was as senior insurance underwriter and he was hired as part of a project the Respondent had to establish an insurance offering In Ireland. His background and expertise were in insurance.

In April 2021 the Respondent announced that it had secured a memorandum of understanding with Bank of Ireland and was proceeding to exit the Irish market.

The Complainant’s role radically altered, particularly from November 2021 where he began to be assigned to assist the windup and transfer of the pensions side of the business. This was not an area he had an expertise or career in.

In April 2023 he had secured an alternative job offer and resigned. At the time the Respondent had an enhanced redundancy package in place. The Complainant applied to receive this as he was due to be made redundant in late June

The Respondent refused this request.

Summary of Complainant’s Case:

The Complainant attended the hearing, gave evidence and made written submissions.

Where relevant I have referred to his evidence in the findings section of this decision.

Summary of Respondent’s Case:

The Respondent attended the hearing and had a number of witnesses prepared to give evidence. Their solicitor Ms Barry made written and oral submissions and began cross examination of the Complainant.

Findings and Conclusions:

The Unfair Dismissals Act provides that a dismissal can occur where an employee resigns.

Thiis is outlined in section 1 of the act which defines dismissal as to include:

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,

It is important to note that the above has been interpreted as putting the burden on the employee to establish not only was their decision to resign reasonable but that it was due to the unreasonable conduct of the employer.

Or as the UK Court of Appeal put it in the seminal case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221:

“is that the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving. He can go, with or without giving notice, and claim compensation for unfair dismissal”

The Complainant’s evidence was that the Respondent’s conduct, pre his resignation, was not particularly unreasonable.

In April 2021 the Complainant was put on notice that the project he had been hired to progress would not proceed. The over the next 6 months he assisted with brining that project to a point where it could be warehoused and potentially used to assist the Respondent in other markets.

In July 2021 the Complainant was offered a variable pay increase to retain him through the period of wind down, which he accepted. The Respondent’s submissions were that the Complainant was essentially moved to “project work” at this time. They further submit that many of projects he was involved with were important to both the commercial entities on the other side of the wind down transaction as well as to multiple regulators. They suggest that level of scrutiny meant that they needed managers of his calibre to oversee even quite minor tasks. The Complainant, not being prone to self-aggrandisement, was clear that this was not the case and that from November 2021 he was performing menial administrative work well below his grade and unrelated to his area of expertise.

The Complainant did not resign after his role was downgraded as he has a young family and had to prioritise financial security. He began looking for work in earnest but found that there were not many opportunities in the insurance market at his level.

When he was asked why he did not pursue a grievance at this point the Complainant suggested that it would be pointless. The Respondent had no option to keep him working in insurance as that part of the business was already gone. It seems that even on the Complainant’s own evidence there was no alternative course of action open to the Respondent, aside from making him redundant in November 2021, a course of action neither party wanted.

The Complainant carried on with this work until he found alternative employment in early 2023. He was approaching his likely date of termination in the Summer of 2023 and had to decide whether he should stay so he could receive a lump sum or leave with another job secured. Prioritising his family obligations, he chose to leave and take up his current job. When asked directly by me he confirmed the reason for his leaving was his pending redundancy. I do not believe his resignation was caused by the downgrading of his role but in any event I do not think that could be the basis of a constructive dismissal, on “the reasonableness test”, as it was necessary to avoid his termination at an earlier date.

The downgrading of an employee’s role could also be the basis of a “contract test” constructive dismissal. Referring again to Western Excavating (ECC) Ltd v Sharp where there is a sufficiently serious breach of their contract to justify termination the Complainant must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.

In this case, the Complainant, entirely prudently, opted to stay long after he considered his role to have been downgraded.

The Complainant believes the Respondent treated him extremely unfairly in not bringing his redundancy date forward so that he could receive the ex-gratia redundancy payment. The Complainant gave notice in February 2023 and his resignation date was the 28th of April. His indicative redundancy date was only about 8 weeks later at end of June 2023.

I understand why he would feel aggrieved in this situation however it is not something I can take into account in the context of a constructive dismissal complaint. Him not getting the redundancy payment was a result of his resignation not the cause of it. As such it can have no bearing.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.

I find that the complaint is not well founded.

Dated: 12th of February 2024

Workplace Relations Commission Adjudication Officer: David James Murphy

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