Complainant

Respondent

Parties

John  O'Brien

Yuno Energy Ltd t/a Pre-Pay Power.

Representatives

Self-Represented

Mark Comerford  of IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00057889-001

25/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00057889-002

25/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00057889-005

25/07/2023

The issues in contention were a Constructive Unfair Dismissal of the Complainant, (a Field Sales Representative for a Pre-Pay Power/Energy Company,) with allied Terms and Conditions of Information, Penalisation under Health, Safety and Welfare at Work Act, 2005 and two Section 13 Industrial Relations Act,1969 disputes.

The employment began on the 8th May 2018 and ended on the 27th March 2023. The rate of pay was stated to have been €538:00 Gross for a 40-hour week.

The Complainant was self-represented. He gave a lengthy Oral Testimony supported by a written submission, copy correspondence and an extensive Complaint form. There was extensive cross examination by both Parties.

1:1         Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-000057889-002

The essence of the Complainant’s case was that there was an escalating series of incidents/interactions involving Customers beginning in mid-2022. It was pointed out by the Complainant that he was completely an innocent party in these interactions with often very abusive and in some cases intoxicated individuals. In one case he had to intervene to save a colleague from a physical assault and in another case, he had been attacked/bitten by a dog. In another case he had been assaulted by a scooter driving teenager who had attempted to steal his Tablet computer. (It was agreed in cross examination that Door to Door selling of Electricity /Gas in the middle of a period of record energy price increases (Ukrainian War etc) was always going to be difficult).

The Complainant raised these customer issues with his Managers, Mr W and Mr O’C and received little or no satisfactory responses. On the 9th December 2022 the Complainant and some other colleagues were present at a Sales Meeting with the Managers and were informed of the need to increase Sales to at least two per day or they would be “let go”.  The Complainant felt completely “stressed out” and went on Sick leave until 3rd January 2023. A further meeting with Mr O’C and Mr W took place in Bewley’s Hotel at the Airport on the 3rd January 2023 They basically said to the complaint, he stated,  that “He was on his own in the field” and to stop ringing /”annoying” them with minor incidents.

The dog biting incident took place on the 27th January 2023. Mr O’C undertook to investigate but nothing came of it. A further incident involving the Company Tablet Computer/ took place on the 3rd March 2023 involving Manager Mr W. The Tablet had gone faulty. Mr W was delivering a replacement to the field site where the Complainant was working.  He, Mr W, was verbally very abusive to the Staff on this occasion alleged the Complainant.

At this stage, the Complainant felt that he had reached the end of his patience. After consideration he gave notice of his resignation. Ms R, for Respondent HR had called/telephoned him to ask him to reconsider and use the internal Grievance and Bullying procedures to address his issues.  However, at that stage he had lost all faith in the Company and was leaving for the sake of his mental health.

1:2       Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA- CA-000057889-001

The Complainant alleged that the Respondent (the MD, Mr G) in December 2022 added an extra hour to his working day without agreement -he went from 7 to 8 hours per day. This was in breach of his contact of Employment and the Custom and Practice since his recruitment in 2018.

The Respondent was represented by Mr Comerford from IBEC supported by a number of Company Managers, principally Ms R and Ms E from HR and Mr O’C from Sales. A detailed written submission was presented accompanied by substantial oral Testimony. Full cross examination of the Complainant took place.

2:1         Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-000057889-002

Mr Comerford for the Respondent pointed out that this was a case of Constructive Dismissal, and the initial burden of proof rested with the Complainant. The Standard Legal Constructive Dismissal “tests” had to apply. These were firstly, Grievous Breach of the basic Employment Contract, Secondly, Unreasonable Behaviours by either side so dramatically bad, so egregious, that a Constructive Dismissal case could be supported and finally the Use/Non-use of Employment Procedures.

2:1:1        On the first Grievous Breach of Contract Test/ground the basic facts did not exist. The Respondent paid all wages properly due; all standard Terms and conditions were observed albeit if some minor issues such as a Travel/Meal allowance were subject to some clarification/discussion. Legal precedent indicated that a Breach had to be Grievous -so bad that no normal person could put up with it. This was clearly not the case here.

2:1:2        The second Test - Unreasonable Behaviours ground was examined extensively and discussed /cross examined at length with the Complainant. There was no denying that a number of unfortunate interactions with difficult Customers and in one case an aggressive dog had taken place. All had been handled properly by the Respondent Managers, Mr O’C & Mr W.  Mr O’C gave Oral Testimony. Mr W was no longer available. Suffice to say that Door to Door Selling of Electricy/Gas in the energy market post the Ukrainian price hikes was not easy. However, the Managers had supported, as best as possible, the Field Sales staff in a difficult environment. Mr W may have on occasion been somewhat abrupt but not to such an extent as to justify a Constructive Dismissal.  The Sales Meetings referred to were normal Manager to Sales Staff meetings and never could have been interpreted as Warnings/Employment threatening issues.

2:1:3       The third Test - Use/non-use of Employment Procedures.

Ms R from HR gave Oral testimony on this point. She had contacted the Complainant after his resignation, had asked him to reconsider and to avail of all the extensive suite of Procedures that the Company, as a major employer, had. The Complainant had declined and proceeded with his resignation regardless. In addition, during his employment he had never raised via procedures any compliant of Bullying or Harassment.

Mr Comerford stated that these actions were completely against the Procedures Test as set down in all legal precedents and totally undermined the Constrictive Dismissal claim.

Significant case law was cited by the Respondent in all the above sections -Travers v MBNA, Conway v Ulster Bank, UD 474/1981 and McCormac v Dunnes Stores, UD 1421/2008 being the principal cited cases.

2:1:4       Summary Respondent case re Unfair Dismissal.

The Complainant failed to satisfy any of the Unfair Dismissal tests. The case has no proper Legal Founding and must fail.

2:2       Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA- CA-000057889-001

The Respondent provided in evidence copy contracts of Employment which clearly set out all Terms and Conditions especially Hours of Work required. No changes took place during the Employment.

As regards the €70 Fuel allowance this was a discretionary local arrangement with the Manager, outside of the main Terms and Conditions, to cover exceptional travel to distant sales Locations.

3:1     Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-000057889-002

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 [1978] 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 [2009] 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, [2008] 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, notwithstanding the above Legal positions, all cases rest of their own particular local contexts and specific evidence. This will be considered below.

3:2       Consideration of the Evidence, both Oral Testimony and Written Submissions.

The written submissions were comprehensive, but the Oral Testimony was most informative.

The Complainant, in his detailed Oral testimony, was quite persuasive. He was not a novice and was of mature Years with detailed Field Sales experience. There was a large element of “Principle” in his reasoning for making the complaint.

To best consider the evidence, both Oral testimony and Written submission it is useful to adopt the Legal template of the “Tests” referred to above in the Legal Section. These being Breach of Contract, Unreasonable Behaviour and Use/Non-Use of Employment Procedures.

3:2:1       Constructive Dismissal “test” number one – Breach of contract by either side.

The Legal precedents here indicate that a Breach of the Employment Contract has to be very serious – “going to the Heart of the contract” as stated in the UK Appeal case of Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. This would generally mean cutting off Salary, refusing Sick Pay or asking the Employee to undertake tasks completely outside of his normal duties. The example often quoted is asking a senior executive to “sweep the yard” with a “tooth bush”.

In this case there was no evidence of any actions of this contract breaching nature. It cannot be said to support a Constructive Dismissal.

3:2:2       Constructive Dismissal “test” number two – “Unreasonable Behaviours” by either side.

The Legal Precedents here are that the “Unreasonable Behaviours” have to be very serious indeed – “egregious” is the Legal phrase often used. It has to be so bad that no “Normal” person could put up with them , with Resignation as the only “reasonable” step. 

The incidents discussed, Lady’s Well in Blanchardstown, Huntswood in Finglas, the scooter assault in Neilstown and the drunken former customer in Coolock were unnerving. However, as Mr Comerford pointed out they were “part of the territory” for Field Door to Door staff. The reaction of the Managers, Mr O’C and Mr W was described by the Complainant as at best indifferent and at worst hostile. The Bewley’s Hotel meeting in January 2023 where the Complainant and his colleagues were told that “they were on their own” and to stop ringing in with “Annoying” calls was certainly not helpful. The Managerial feedback Testimony to the Hearing was unclear – Mr W was not present to give evidence and Mr O’C, in his generally helpful Oral testimony, was somewhat unclear on some pertinent details.

It was clear that Mr O’C and Mr W, as Sales Managers were under considerable pressure to deliver Sales. The Complainant, with much more direct Field Sales experience, was of the view that in the climate they were operating in (Ukrainian War /Energy Price Hikes) life on the Doorsteps was not so simple and more understanding needed to be shown to the Sales Workers.

In the view of the Adjudicator, the Complainant was a very experienced mature salesperson who, under Oath/Affirmation, would be unlikely to fabricate his version of events. The Adjudication view was that, on balance and general experience, he was an unlikely candidate to go out on Sick leave on “Stress Grounds” unless it was a severe situation. The absence of Mr W for the Respondent was not helpful to their case and the Oral testimony of Mr O’C, the Sales Manager, reflected that of a Sales Manager under pressure to deliver Sales. The Adjudicator felt he was probably likely to succumb to overly abrupt communication with the Sales Staff. A very seasoned Representative such as the Complainant was going to react negatively. The wide age and experience difference did not help.

The context was the Door to Door selling of the Respondent “Pre-Pay” Electricity and Gas plans against a background of record Energy Prices. Both Parties recognised that it was not a job for the faint hearted. However, it appeared to be work that the Complainant was happy with and would have been considered successful in the role.

 It was noted with interest that he was not unemployed for long after leaving the Respondent but secured almost immediately another Door-to-Door Sales job for a major Cable Television / Entertainment Company.

On balance and considering the balance of probability the Adjudication view has to be that the Test falls marginally in favour of the Complainant. He was subjected to unreasonable Managerial behaviour which led to his decision to move employers. This is not an uncommon situation in the Sales world. The immediate request to reconsider was indicative of the high regard, that the Organisation, held of the Complainant.

Objectively it was a bad situation but not so bad as to be considered a major supporting factor in a Constructive Dismissal case.

3:2:3       Constructive Dismissal “test” number three – “Use / non-use of Procedures” by either side.

This case was more clear cut- The Complainant declined to use the Employment procedures when aske to by Ms R for HR. He was gone to another employer and felt it would have been a wasteful exercise.

As a Constructive Dismissal Test it is not in the Complainant’s favour.

3:3        Adjudication Summary Conclusion.

Taking Legal precedents into account and acknowledging that the Legal “Bar is High” for  a successful Constructive Dismissal case the Adjudication finding has to be that the decision is very marginal. There was no Breach of Contract, and the Complainant did not utilise the agreed Procedures. None the less the “Unreasonable behaviours” were serious but could not be seen as so bad as to justify a Constructive resignation as opposed to a very speedy move to another employer in the same Door to Door Sales field.

Regrettably, for the Complainant the decision has to be that the complaint has not succeeded in achieving the required high Legal standard to sustain a Constructive Dismissal case.

3:4      Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-000057889-001

The evidence presented including the written contacts did indicate considerable confusion in the Legal basis of the Employment Contract between first recruitment and actual on the ground operations.

All things considered a Redress award is due to the Complainant here for breach of a statutory right.

Terms of Information, Constructive Dismissal, Safety Health and Welfare at Work.