Complainant

Respondent

Parties

Dermot  Kernan

Spirit Motor Group

Representatives

  self

Jean Barden Spirit Motor Group Ltd

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-00064138-001

18/06/2024

The Complainant brings a complaint where he alleges that his employer arising from their unreasonable conduct left him with no alternative but to leave his employment.

The Complainant had worked previously for the Respondent and was approached to come back. He successfully passed his 6-month probation period. His employment continued from January 2023 until 25th of May 2024. Dismissal is in dispute.

The conduct complained about relates to work allegedly not completed properly, where it led to a customer bringing back a car or where an independent assessment of quality standards was compromised allegedly by his poor work.

The Complainant takes issue with how he was spoken to and describes that conduct as aggressive and undermining. The Respondent denies this. He alleges that the Company did not take his complaint about aggressive conduct seriously and because of that suffered anxiety and mental distress.

The Respondent denies that it ever wanted to terminate the Complainant’s contract. There were issues that needed to be addressed. The Company denies that the conduct crossed a line where an independent person would describe that conduct as oppressive. There were differences between the employee and his manager. The Respondent views the response to poor work as unacceptable and the employee’s failure to accept that he had responsibility for that work.

In early 2023 the Complainant was off work on certified leave. He states that the service manager spoke to him about an emerging pattern of absence from work. He alleges that the service’s manager conduct became aggressive from this point.

In Midsummer a vehicle was returned for an oil leak, and he was approached by two managers about his work on this service and to explain why he had missed the leak. In January 2024 an unfinished car was released to a customer, and he believes he was blamed for this.

In February 2024 an audit took place, and the auditor took note of an error that the Complainant had made. He alleges that he was aggressively spoken to by his manager about this error and it was suggested that he did it deliberately.

Arising from ongoing issues HR arranged an informal meeting between him and his managers and then at short notice this was cancelled.

The Complainant stated he suffered from panic attacks.

In March 2024 a vehicle broke down and was towed to another garage and again the Complainant was blamed for this.

Arising from a breakdown in his relationship with his manager he left his employment.

The Respondent denies that its conduct reached a threshold where it could be described as intolerable and so unreasonable that the Complainant had no choice but to leave his employment.

Each issue that has been raised was linked to the Complainant’s work. Each interaction arose when a serious mistake had been made. There was no malevolent intent to berate the Complainant. However, the Complainant did not take the feedback as intended. Rather he viewed the feedback as personal criticism about him and not about tasks that needed improvement.

The Complainant resigned from his position.

In a constructive dismissal complaint, the burden of proof rests with the Complainant to show that due to the unreasonable conduct of his employer and/or the breach of a core term of his contract the contract had been repudiated and in effect he was constructively dismissed. It is generally accepted that it is a high bar to achieve. It calls for the Complainant to show that the conduct complained of crossed a threshold, that an objective bystander would see such conduct as egregious as a single act or continuum of acts that cumulatively are judged to be so. It also arises when a fundamental term of the contract is breached such as the failure to schedule and pay for holidays as required under law or where an employee is put into an unsafe working environment.

Murdoch and Hunt’s Encyclopaedia of Irish Law (2016 edition) defines Constructive Dismissal as follows:

A dismissal which is inferred where it is reasonable for the employee to terminate the contract of employment because of the employer’s conduct: Unfair Dismissals Act 1977 s.1. The Employment Appeals Tribunal has recognised two forms of constructive dismissal: (1) where the employee is entitled to terminate the contract of employment and does so; this entitlement is not conferred by the 1977 Act, but rather recognised by it; and (2) where it is reasonable for the employee to terminate the contract of employment and he does so: Fitzgerald v Pat the Baker [1999 EAT] ELR 227.

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

The resignation of a manager whose position has been undermined may amount to a constructive dismissal: O’Beirne v Carmine Contractors [1990] ELR 232. A constructive dismissal may arise where an employee leaves because the employer (a) fails to relieve a bad atmosphere in the workplace: Smith v Tobin [1992 EAT] ELR 253; (b) fails to comply with a requirement of the Health & Safety Authority: Burke & Ors v Victor Collins Enterprises Ltd [1993 EAT] ELR 37; or (c) deals inadequately with complaints of bullying and harassment: Allen v Independent Newspapers [2002 EAT] ELR 84; Monaghan v Sherry Brothers Ltd [2003 EAT] ELR 293.

The Unfair Dismissals Act 1977 as amended at section 1 defines Constructive Dismissal as:

(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,

This statutory definition in turn has been elaborated upon to include two tests:

Redmond on Dismissal Law (Bloomsbury Professional 3rd Ed. 19.04):

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. The analysis of contractual entitlement in Chapter 21 is relevant here. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment, but its conduct may be nonetheless unreasonable.

In law there is a contract test and a reasonableness test.

In a wrongful dismissal action Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.

In Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee when assessing if constructive dismissal has in fact occurred; and the following 4 principles are also relevant in this case:

1.       The test is objective

2.       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 factual matrix of this case relates to what is accepted to be a series of customer failures and from the perspective of a customer poor workmanship. The Complainant while accepting that those mistakes did occur; does not accept responsibility for them other than to acknowledge that they occurred. He attributes the mistakes to either giving him work that he was unfamiliar with; a car released by someone else who didn’t check that all tasks had been done or to minor faults blown out of proportion.

The Complainant also takes issue with how he was tackled about such issues. He does not see the interactions as constructive feedback rather aggressive attacks by management. It is this alleged aggressive conduct that he complains about. He sees that this was a pattern of aggressive conduct that breached a threshold that no one would put up with.

He also finds fault with HR and their failure to proactively engage with him and turning a blind eye to his managers’ aggressive conduct.

He suffered panic attacks and lost his confidence to work as a mechanic and no longer wishes to work in the trade.

At a personal level one must have sympathy for the impact on the Complainant’s mental health. However, the test to be applied is not a subjective one but rather an objective test which requires that both the conduct of the Complainant and Respondent must be looked at in the round and based on what’s called the factual matrix or context of that difficult interpersonal relationship, was the conduct of the Respondent egregious or so unreasonable that it was intolerable. The fourth test in Berber is:

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.

I cannot find that the conduct complained about was unreasonable having regard to the number of quality issues that did arise and where he failed to adequately accept his part in not completing tasks to the correct standard.

The facts show a litany of serious mistakes in a relatively short time.

The Complainant is a trained service mechanic and is expected to be able to carry out his work to a good standard.

A working environment cannot be free of conflict and difficult conversations. Those conversations are not always calm and measured. Allowing for the standards that must be applied to everyday interactions and in the context of what occurred in this garage, has the Complainant met the burden of proof to show that the conduct of his manager and HR fell way short and that in effect it left him with no choice but to leave? He carries the burden of proof and on the facts, he has not met that test.

That does not mean that the conversations were not heated or that HR could have been more proactive; what it does mean is that the omissions and conduct complained about have not been proven to be so bad and aggressive that he had to leave. The reality is that his work was not at times up to standard and that did cause his manager to be unhappy about his standard of work arising from customer dissatisfaction and safety concerns. That is the backdrop to these difficult conversations and how the Complainant perceived that criticism as having primarily very little to do with him also contributed to his manager’s frustration. The Complainant has high expectations regarding how he wishes to be treated and a low acceptance of his contribution to the numerous customer service failures that he was responsible for.

I find that the Complainant was not unfairly dismissed, and I determine that the complaint is not well founded.

The Complainant is a trained service mechanic and is expected to be able to carry out his work to a good standard.

A working environment cannot be free of conflict and difficult conversations. Those conversations are not always calm and measured. Allowing for the standards that must be applied to everyday interactions and in the context of what occurred in this garage, has the Complainant met the burden of proof to show that the conduct of his manager and HR fell way short that in effect left him with no choice but to leave. He carries the burden of proof and on the facts, he has not met that test.

That does not mean that the conversations were not heated or that HR could have been more proactive; what it does mean is that the omissions and conduct complained about have not been proven to be so bad and aggressive that he had to leave. The reality is that his work was not at times up to a standard and that did cause his manager to be unhappy about his standard of work and did cause customer dissatisfaction. That is the backdrop to these difficult conversations and how the Complainant perceived that criticism as primarily having very little to do with him also contributed to his manager’s frustration.

I find that the Complainant was not unfairly dismissed, and I determine that the complaint is not well founded. The employment ended by reason of resignation.

Constructive Dismissal.