Complainant

Respondent

Parties

Thypower Bankole

Petrogas Group Limited

Representatives

Ashimedua Okonkwo, Cyril & Company, Solicitors

Owen Keany BL

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-00066974-001

25/10/2024

The complainant is a student and he worked as a shop assistant for 25 hours per week in the respondent’s Applegreen Service Station in Balbriggan, County Dublin.  He started in the job on July 9th 2021 and he resigned just over three years later on August 23rd 2024.  On the form he submitted to the WRC on October 25th 2024, he claims that he experienced bullying, mistreatment and intimidation since he took a legal case against his employer arising from an injury at work.  He claims that he was accused of theft which was unfounded and he resigned because he was afraid of further allegations or because he might be dismissed.

It is the respondent’s position that the complainant has failed to discharge the onus of proof that demonstrates that he was justified in his decision to resign.

Evidence of the Complainant

In response to questions from Ms Okonkwo, the complainant said that he got on well in his job until January 28th 2023.  He was working that evening and he was finishing up his shift.  He wasn’t aware that the entrance door to the service station had been changed.  He pushed the door open but it pushed back against him and cracked his front tooth.  He said that he got a shock and told his colleague, who advised him to tell the manager.  He said that he took a photo of his face showing his broken tooth and he sent it to the manager.  The manager replied and told him to take things easy.

The complainant went to his doctor and he got a medical certificate indicating that he was suffering from facial trauma and that he would be off work for two weeks.  When he returned to work, he said that he tried not to smile so that his injury wouldn’t show and this affected his confidence.

Around December 23rd 2023, one of the complainant’s colleagues asked him to cover his shift on December 30th.  He said that the site manager, Ms Tamuleviciee, called him into the office and asked him if he stole money.  He said that the camera over the cash register would have recorded this and he and Ms Tamuleviciee watched the footage.  He said that there was no sign that he took money from the register.  He said that he asked Ms Tamuleviciee why he was accused of stealing.  He said that he felt that he was forced to make a statement while he was in the office and he wasn’t comfortable about this.  He said that he went upstairs and wrote a statement and took a photo of it.

When he was coming back down the stairs, he said that he met Ms Tamuleviciee who told him that the accusation would be dropped and it was never mentioned again.  However, he said that the following year, there were changes to his hours of work and his roster.

During 2024, the complainant said that there was a “shift in interactions” with the managers in the service station.  He said that things were awkward between him and the manager who was on duty the day he was injured in January 2023.  He said that he had a good relationship with this manager, and he likes to think that he was regarded by him as hard-working.  He said that the manager was open to him learning how to run the shop more efficiently.  After the accident, the complainant said that their interactions were not the same.  He thinks that every time the manager saw his cracked tooth, it reminded him of the accident.

The complainant said that he asked about compensation for the injury, but there was no follow-up to his request.  He said also that he asked about CCTV footage of the accident, but he was told that it couldn’t be retrieved.

On April 2nd 2024, the complainant said that he had a meeting with Ms Tamuleviciee, but, at the hearing, he couldn’t remember what the meeting was about.  He said that he felt she was micro-managing him. 

Ms Okonkwo asked the complainant why he left his job.  He said that he was issued with incident forms and he thinks that the issues could have been resolved without the need for the forms.  He said that, compared to the number of incident forms issued to other employees, 10 forms is a bit suspicious.  He said that, before 2023, he didn’t get any incident forms.  Two of the forms were written by a person he described as “a decent guy” and he said that he was very surprised to get the forms from this manager.  Some of the forms were about something as simple as putting out the bins.  Once, when he was doing a job, he said that a supervisor asked for help and he told him he was already doing a job.

Another time, the complainant said that he was asked to help with the drinks shelving.  He said that he noticed that some were already displayed and that packages had been left in the container.  He said that he wasn’t asked if he had ever done the job before. 

With regard to some of the incidents, he was told that he never started or completed certain tasks.

Ms Okonkwo asked the complainant if there was a “last straw” incident that resulted in his decision to resign.  He replied that the problem was mainly about communication.  He said that you build a bond with people over time and, if there is an issue, it can be resolved.  He said that he felt that he couldn’t address things because he was being micro-managed and misunderstood.

The complainant said that he likes to be in work about 30 minutes before he is due to start.  Sometimes he is in his full uniform, and occasionally, he has half the uniform on.  He said that he was “called in” for not wearing his uniform and he thinks that this didn’t warrant an incident form. 

The complainant said that most of the incidents were single issues which were not repeated.

Ms Okonkwo referred to the letter that the complainant sent to the site manager, Mr McQuillan, on August 23rd 2024, in which he told Mr McQuillan that he had decided to resign.  He said that he felt that he wasn’t “on the same page” with others.  He felt that a colleague who made a complaint about him was deliberately mis-pronouncing his name to provoke him.  He felt that the site manager, Ms Tamuleviciee “made it clear consistently that she didn’t see me,” but he said that he had a bond with the customers.  He said that people remarked that he wasn’t his “normal, bubbly self” but he said that he couldn’t put on a front.

The complainant said that he felt that he wasn’t treated the same as others.  He was asked to do three jobs and he got into trouble because it seemed like he wasn’t doing enough.

He said that “managers are all different” and he had clashes with managers because they had different understandings. 

The complainant said that he sent an email to the HR manager about an issue, but he got no response and no “bounce back” to indicate that the email wasn’t received.  While he said that he couldn’t remember what he complained about, he said it was related to unfair treatment.

The complainant said that he had an issue with the site manager, Mr McQuillan over a delivery that Mr McQuillan asked him to help with.  The cases delivered by lorry had to be checked off as they were put into stock.  He said that he told his colleagues that he couldn’t finish the job because he was working on his own at the end of his shift. He said that Mr McQuillan told him that he should be mindful of the accuracy of the records.  In response, he said that he agreed that he would be more mindful.  The complainant said that he doesn’t think that this merited an incident form.  He said that his hours were reduced and he believes that others got more favourable treatment.

Ms Okonkwo asked the complainant about an email he sent to the head of HR, Ms Jean Martin, on April 19th 2024.  In his email, he told Ms Martin that “being bullied and harassed is not fair.”  He said that he got no reply.

On one occasion, the complainant said that he went on a break and he told his colleagues instead of informing Ms Tamuleviciee.  Ms Tamuleviciee then quoted the number of minutes he had been on his break.  Instead of writing an incident report, the complainant said that she could have spoken to him about this matter.

One of the causes of the complainant getting an incident report was related to the cash register.  He said that the cash register has a touch screen and if it malfunctions, the shop assistants can’t stop working.  He said that he was told to tell other colleagues if there was a problem with the register.  He said that the only way Ms Tamuleviciee could have known there was a problem was if his colleague reported it to her.

Ms Okonkwo referred to an email that the complainant sent to Mr McQuillan on Tuesday, August 13th at 14.32.  The email refers to concerns that the complainant had about how his colleagues were behaving at work on that day.  He claimed that one colleague took a long time to count the cash and another colleague was throwing boxes over his head as he was serving at the counter.

Concluding his direct evidence, the complainant said that there were no issues before January 2023 and that, regardless of the incident forms, the experience of working in the service station was useful.

Cross-examining of the Complainant

Commencing his cross-examining, Mr Keany referred to the employment agreement issued to the complainant on July 9th 2021.  At clause 10 of this document, under the heading, “Duties,” there is the following provision:

“You will carry out such duties in your position as per Job spec and as may be required of your by the Company.  You will report to the Site manager.”

The complainant agreed that people more senior to him could ask him to do certain tasks.

The complainant agreed that he had access to the employee handbook online and that he had a log-in to do training online.  Mr Keany referred to the disciplinary procedure which is at page 58 of the handbook and the option for counselling of an employee before the need to move into the formal stages of the procedure.

Mr Keany referred to the policy on the prevention of bullying and the process for making a complaint about bullying.

Mr Keany asked the complainant if the cause of his resignation was because he was concerned about the managers’ heavy-handed, micro-managing approach.   He referred to the complainant’s assertion that there was no need for the counselling meetings to be documented on incident forms.

The complainant said that he doesn’t believe that anyone should be in this situation.  He said that some of the incident forms weren’t warranted.  He said that “some I raised my hand about” and that he could work on his competencies.

Mr Keany referred to an incident form issued to the complainant in January 2024, which was one year after the accident with the door.  The subject of the incident form was the fact that the complainant was in work and not in his full uniform.  He did not reply when Mr Keany asked him if he accepted that not wearing a uniform is something that a manager can raise with an employee.

The next incident form raised by Mr Keany was about the failure to check in deliveries.  The complainant said that the problem on this occasion wasn’t that the job wasn’t done, but that he had to finish his shift before the job was completed.  He said that the check-off sheet was mislaid.

Mr Keany referred to the incident forms related to cash limits in the cash register and the complainant’s breaks.  He put it to the complainant that it was necessary for the manager to raise these issues with him.  The complainant replied that a lot of what was written doesn’t represent the day-to-day issues.  He said that he accepts that it’s okay for a manager to speak to him about concerns.

Mr Keany named four managers who raised concerns about how the complainant was doing his job.  He said that, although the complainant’s case is that the managers raised these concerns because he brought a personal injuries claim against the company, these four managers knew nothing about that litigation.  The complainant replied that “they knew what happened.”  He then accepted that there was a high possibility that they were not aware.

Mr Keany asked the complainant if he is suggesting that the four managers got together and made things up about him.  He replied that it’s interesting that a lot of things happened in the month of April 2024.  He said that the fact that his mistakes were highlighted in incident forms is interesting.

Mr Keany referred to the fact that the incident forms did not amount to disciplinary action and that the complainant wasn’t subjected to a disciplinary sanction.  The complainant replied that, with regard to some of the incidents, he gave his side of the story, but his thoughts were not taken into account.

The complainant agreed with Mr Keany that, more often than not, he refused to engage with the managers who were dealing with the various incidents.  He said that he didn’t feel comfortable in the environment.

Mr Keany referred to the letter sent to the complainant on May 28th 2024, which was about a fact-finding investigation into his “failure to follow reasonable instructions on numerous occasions.”  The investigation concluded that the occurrences “were not severe enough to warrant formal disciplinary action on this occasion.”  Mr Keany said that this letter was not vindictive and that it is clear from the contents that the company wasn’t taking disciplinary action with regard to the conduct the managers were concerned about.

The complainant said that he doesn’t think that the managers were “trying to get rid of me” but he thinks that he wasn’t treated fairly in comparison to others.  He said, “it was time for me to move on because of the work I did not being acknowledged.”  He said that there were other things, such as misunderstandings in communications, and adjusting to different styles of management.  He said that he wasn’t getting an opportunity to show his work ethic.

The complainant complained that his hours were cut and that his roster was inconsistent, but he couldn’t provide details about these issues.

Mr Keany referred to the complainant’s evidence that, in December 2023, he was accused of stealing.  Mr Keany said that Ms Tamuleviciee will say that there was no question of him ever being accused of theft.  The complainant said that he strongly disagreed with this statement.

Mr Keany said that Ms Tamuleviciee will say that a driver left the shop without paying for petrol and that she had a conversation with the complainant about this.  He said that Ms Tamuleviciee would have been clear that this was not about the complainant doing anything wrong, but about the driver.  The complainant said that he had no recollection of a driver leaving without paying for fuel.

Mr Keany said that “there is a world of difference between being accused of theft and being spoken to about a drive-off.”  No disciplinary action was taken with regard to this incident.

Mr Keany suggested to the complainant that the employee handbook indicates how to make a complaint about issues at work.  The complainant replied that he had a problem contacting people who were senior to his managers.  He said that he raised concerns with Mr McQuillan and Ms Tamuleviciee in the past.

Mr Keany referred to the “Applegreen Academy” and the list of people in various jobs in the company.  The complainant agreed that he sent an email to a senior manager but that he made a mistake in the email address, leaving out a “.”

In response to a question from me about why he didn’t contact someone to discuss his concerns, he said that he was advised to do so but he didn’t get around to it.

Mr Keany referred to the email that the complainant sent to Mr McQuillan on Tuesday, August 13th 2024.  In the email, he complained about his two colleagues.  He said that one member of staff took a long time counting the cash in the register and another was throwing boxes over his head while he was at the counter.  He concluded his email by saying that he didn’t want the manager to speak to the colleagues and he wanted the matter kept private.  The complainant agreed that he was asking his manager “not to go formal” about his complaints about his colleagues.  He said that he wasn’t making a complaint about bullying, but that he wanted to make his manager aware of the situation.  He agreed with Mr Keany that that he wanted to make sure that his complaints about his colleagues’ performance was communicated to the manager because his own performance had been criticised.

The complainant agreed that his two colleagues were not behaving this way because of his personal injuries claim.

Mr Keany asked the complainant why he never said, “I can’t take it anymore.”  He never made a complaint about how he was being treated.  The complainant replied that, with his “old managers,” he could have had a conversation, but that there was a different approach with the new managers.

Mr Keany asked the complainant why he resigned on August 23rd 2024, when he knew “there was a place you could go” to get matters resolved.  The complainant said that he wasn’t in a mindset to follow the protocol and he assumed that there was no one he could speak to.  He said, “If I was in a different place in my mind, I would have followed the approach you recommended.”

Mr Keany remarked that the company could not have known about the complainant’s mindset at the time of his resignation.

Considering the issue of mitigation, the complainant said that there weren’t many jobs available to him because he was in college.  Mr Keany suggested that, if he wasn’t available to work in Applegreen, perhaps he wasn’t available to do a different job.  Mr Keany suggested to the complainant that he made a conscious decision to focus on his studies.  The complainant did not reply.

In advance of the hearing, the respondent’s solicitors provided a comprehensive submission which I will summarise as follows:

The complainant joined the company as a shop assistant in Applegreen on the M1 in Balbriggan on July 9th 2021. 

Between January and July 2024, he was issued with 14 counselling incident forms in relation to his conduct in the workplace.  Copies of the incident forms were provided as an appendix to the respondent’s submission.

On April 24th 2024, the complainant attended a fact-finding meeting in relation to the incident forms issued up to that date. 

On May 6th 2024, he was invited to a second fact-finding meeting, to discuss his failure to follow reasonable instructions.  He didn’t respond to the invitation.  A meeting eventually took place on May 25th.  This was followed by a letter on May 28th in which the manager who chaired the meeting informed the complainant that any further instances of failure to follow reasonable instructions would result in disciplinary action.

On August 13th and 20th 2024, the complainant sent emails to the site manager, Mr McQuillan in which he set out his concerns about the recent meetings and the incident forms he had received.

On August 23rd, the complainant resigned.

Legal Precedents

As authority for the respondent’s position that the complainant’s resignation is not an unfair dismissal, the following legal precedents were submitted:

Byrne v Howarth Bastow Charleton Wealth Management Limited, UD/67/2014

The former Employment Appeals Tribunal (EAT) held that there was an onus on the claimant to show that her conditions of employment or the treatment of her employer were so intolerable that had no other reasonable option but to resign.

Conway v Ulster Bank, UD/474/1981

In this seminal decision regarding the concept of constructive dismissal, the EAT held that it was incumbent on the employee to exhaust her employer’s internal remedies before reaching a conclusion that she had to resign.

Harold v St Michael’s House, UD/1123/2004

The complainant in this case was issued with the relevant policies but failed or neglected to initiate the grievance process.

Barry-Ralph v HSE, UD/980/2014

The complainant submitted a complaint to the WRC without making any effort to resolve matters using the respondent’s grievance procedures.

McGrath v JD Wetherspoons, ADJ-00031597

The adjudication officer found no “last straw” incident that compelled the complainant to resign.  The respondent argued that, since the expression of concerns about the fact-finding meetings and the counselling incident forms, the complainant failed to offer suggestions about how to resolve his concerns.

Scholfield v Westwood Club Clontarf Limited, UD/1013/2013

The former Employment Appeals Tribunal held that the actions and behaviour of the respondent contributed to the decision of the claimant to resign.  The respondent argued that this can be distinguished from the complainant’s case because there is no evidence that the respondent’s treatment of the complainant was intolerable or that the complainant had to resign.

Conclusion

The respondent’s position is that the complainant has failed to discharge the onus of proof that demonstrates that he was justified in his decision to resign and that that decision was because of the conduct of his employer.  Mr Keany submitted that the respondent’s treatment of the complainant was fair and reasonable and does not warrant a complaint that he was constructively dismissed.

Constructive Dismissal

Mr Keany referred to the definition of dismissal at s.1 of the Unfair Dismissals Act 1977 (“the Act”) which includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

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 without giving prior notice of the termination to the employer…”

On 10 occasions between January and May 2024, the complainant was spoken to about his conduct and was issued with a note of the conversation on what is referred to as a “counselling incident form.”  A “fact finding investigation meeting” was held on May 23rd and, on May 28th, a letter was issued to the complainant with the title, “Outcome of Fact Finding Investigation (No Disciplinary Hearing).”  The conclusion of the investigation was that the complainant had not complied with reasonable management instructions, but that the incidents were not severe enough to warrant disciplinary action.  The letter ended by saying, “any future incidents of non-compliance with management will result in immediate disciplinary action.”

Despite this, between July 1st and 15th, the complainant failed to do his job as he was instructed and four incident forms were issued that month.  On August 13th, and a week later, on August 20th, he sent an email to the site manager, Mr McQuillan, in which he complained about two of his colleagues and about being issued with the latest incident report forms.  He resigned on August 23rd 2024.  Taking account of these facts, the question I must consider is, has the complainant shown that it was reasonable, or was he was entitled to terminate his employment and to claim that he was constructively dismissed?

The Burden of Proof in Constructive Dismissal Cases

An employee who claims that they have been constructively dismissed must satisfy two tests, known as the “contract test” and the “test of reasonableness.”  The third component of this burden of proof, as set out in Conway v Ulster Bank, is that an employee who decides to resign and who argues that their resignation was because of the conduct of their employer, is generally expected to use their employer’s grievance procedure to attempt to address their concerns. 

The complainant made no allegation regarding a breach of his contract by his former employer and therefore, the issues for consideration are,

1.      Was the conduct of his employer so unreasonable that the complainant had to resign?

2.      Did the complainant act reasonably by using his employer’s grievance procedures to address his concerns?

I note the remarks of the former EAT in Byrne v Howarth Bastow Charleton, where it was held that,

“The burden of proof in such cases is an onerous one, in that the Claimant must prove not only that the Respondent's behaviour was unreasonable but also that the Claimant's response in resigning was reasonable.”

Findings

At the start of his evidence, the complainant suggested that the managers in the service station treated him differently after he initiated a personal injuries claim arising from the accident that occurred in January 2023, when his front tooth was broken after a door pushed back on his face.  He produced no evidence to support his contention that the managers treated him differently to others, and I accept the position of the respondent that the managers were unaware of the claim. 

One year later, on January 18th 2024, the complainant received his first “counselling incident form” when, in the course of one shift, two customers left the forecourt without paying for fuel.  The incident forms were included in the respondent’s documents for the hearing and they show the following:

On February 25th 2024, a second incident report was issued when the complainant refused to participate in a performance review meeting, claiming that he didn’t feel comfortable speaking to the site manager.

Two weeks later, on March 12th 2024, the complainant refused to pack newspapers onto shelves, claiming he was busy serving customers.

One week later, on March 19th, the complainant arrived at work not wearing his uniform.  He claims that he didn’t know where it was.

A week later, on March 27th, the complainant didn’t complete the job of packing a drinks fridge.  He didn’t pick up the litter on the forecourt, as his manager asked him to.  On the same day, he demanded to be paid for working for eight hours, when he had worked for 6.5 hours.

The following day, the complainant went on his break without informing a manager.  He was on a break for 29 minutes instead of 15 minutes.  Also on that day, he refused to change the bins on the forecourt.

On March 31st, the complainant didn’t show up for his rostered shift and didn’t answer the phone when the manager called him.

On April 14th 2024, he complainant refused to carry out normal jobs in the store such as filling stock.   He went on his break at a time that suited him and without approval from the manager.  He refused to accept the word of a manager when she told him there was no bottled gas left.   He insisted on closing his cash register at 9.30pm instead of 9.45pm, because he said he had to catch his bus home.

On July 1st 2024, the complainant didn’t inform a manager that his register was short.  He didn’t complete his expected daily tasks.

On July 8th, he allowed the cash register to be over the cash limit of €250 and didn’t do a “cash drop” which is a security requirement.  Also on this day, he didn’t check off stock being delivered and the dockets were misplaced.

On July 15th, the complainant didn’t wear his full uniform.  He said that his shirt was lost in the wash.  He was given an extra shirt so that he could be sure that a full uniform was available and not in the wash.

The complainant is an intelligent person and he must have understood the implications of not following the reasonable instructions of his managers.  It seems to me that he didn’t want to remain working with the respondent, and I agree with Mr Keany that his focus was on his studies.  This is not an unreasonable choice for any young person, but it is not acceptable to contrive a situation that might lead an employer down the route of dismissal.  In the case of this employee, the respondent’s managers acted carefully and with some degree of patience; he wasn’t dismissed and no disciplinary action was taken.  In the end, he dismissed himself.

When he resigned on August 23rd 2024, the complainant wrote to the site manager and said that he had been subjected to unfair treatment, bullying and discrimination.  He presented no evidence to support this claim and I am satisfied that these serious charges have no basis in fact.  At the hearing, he told Mr Keany that he wasn’t in the right mindset to deal with the issues that were bothering him.  It’s clear however, from the emails he sent to the site manager on August 13th and 20th that he was able to express his claims that his colleagues were not doing their jobs properly and his disgruntlement with the contents of the incident forms issued to him in July.  He could have waited for Mr McQuillan to respond to his email, but, for reasons best known to himself, he decided to leave his job.

Conclusion

Having been employed for two and a half years with no problems, the complainant’s conduct at work began to deteriorate in January 2024.  His explanation is that he was mistreated by managers because he submitted a personal injuries claim arising from an accident a year previously.  There is no substance to this claim.  The complainant’s allegations that he was bullied and intimidated are also without merit.  Despite his claim that he was treated less favourably compared to others, he submitted no evidence to show that this was the case.

Why the complainant’s conduct changed in early 2024 has not been explained.  What is apparent is that, while he caused frustration and annoyance for his managers, no one suggested that he should be dismissed, and, despite his repeated failure to take direction, he was some distance from a disciplinary warning.

The complainant was perfectly entitled to resign if he wanted to remove himself from a situation that he had become tired of or fed up with.  To succeed in a complaint of unfair dismissal however, he must show that his employer inflicted a fundamental breach on his contract of employment or, that they acted so unreasonably, that he had no alternative but to resign.  This complainant has not shown that his employer was in breach of his contract, or, that they acted unreasonably in their treatment of him.  I find that he was treated with tolerance and patience and it is my view that other employees in similar circumstances would have been issued with a disciplinary sanction. 

By resigning, the complainant did not act reasonably.  If he had a grievance, which is not apparent, he didn’t give his employer a chance to deal with it.  He could have asked for his concerns to be investigated under the company’s grievance procedure, but he failed to do so. 

In conclusion therefore, I find that the complainant has not made out the standard of the burden of proof that demonstrates that the conduct of his employer was such that he had no alternative, but to leave his job.  His claim that he was constructively dismissed is without substance.

I have concluded that the complainant has not shown that his employer breached a fundamental term of his contract of employment, or behaved so unreasonably, that he had to resign.  As a result of this finding, I have decided that his complaint under the Unfair Dismissals Act is not well founded.

Constructive dismissal, burden of proof.