UDD1829

The fact of dismissal is in dispute.

The case

The Appellant was employed by a predecessor company in January 1999 until the termination of her employment by letter of resignation from her to the Respondent dated 3^rdMarch 2017. The Appellant contends that her resignation amounted to constructive dismissal arising from the unreasonable conduct of the Respondent. The Respondent submits that no actions by it could be regarded as unreasonable and that the termination of the employment was not a constructive dismissal.

Summary position of the Appellant

The Appellant submitted that from 2011 she was employed in a role with a title of National Account Executive. In 2013 her job title was changed to that of Sales Executive and she regarded that as a demotion. She received no contract for her new role. In September 2013 she had been authorised to read a colleague’s e-mails and was shocked to see a mail from the Sales Director to her direct report which referred to her very negatively and referred to the possibility of the Appellant leaving her position.

In April 2015, following a re-structure of the business, the Appellant’s title was changed to that of ‘Customer Business Manager’ in a new team. The Appellant was advised of this change via a general e-mail from the Sales Director. She received no contract for this new role.

In May 2016 the Appellant realised that other members of the commercial team, who were doing the same work as her, were receiving benefits that she was not. The appellant was on the point of taking parental leave and had two meetings with her line manager. At those meetings she was informed that there was to be another re-structure of the business but that her job title would not change, her salary and benefits would stay the same and that her new role would be a developmental one. She raised the issue of the differential between her benefits and those of others performing the same role. Her line manager indicated that they would discuss everything upon her return from parental leave.

Shortly before the date upon which she was due to return from parental leave she received an e-mail from the Respondent which outlined that her new job title was Junior Business Manager and advising her that she would be joining the snacking division. She would be supporting a new staff member on a smaller account than she had been managing previously. She was consulted about the new position but not about the change in job title or the fact that she would be supporting a new staff member.

The Appellant felt stressed and anxious and considered that she had been demoted and that this was a means for the Respondent to force her from her job. She did not return to work and was absent on ‘work related sick leave’ from September 2016.

The Appellant engaged the services of an independent representative who wrote to the Respondent in September 2016 raising a grievance. The Appellant made clear that she was willing to engage with the Respondent. However, the Respondent restricted the representation which she could have at meetings or engagements in processing her grievance. In addition, the Respondent persisted in communicating with the Appellant directly notwithstanding that she had specifically asked the Respondent to route communications through her representative. The Respondent restricted her representation to a fellow employee or an Trade Union Representative. This was not acceptable to the Appellant and no meetings or engagements took place as regards her grievance.

This added to the stress of the Appellant and she reluctantly was forced to resign from her position in March 2017.

Summary of testimony on behalf of the Appellant

The Appellant gave evidence which can be summarised as follows:

She took up employment in a predecessor company in 1999. She occupied various roles in the company until a merger when she took up a role as sales executive which was an administrative role supporting account managers. There was re-structuring in the company every year. She did, in 2013 or 2014, apply for a role as junior account manager but her application did not result in her appointment. She was subsequently appointed to a role with the title of Customer Business Manager.

She remained in that role until she went on parental leave in mid-2016.

She said that she had been given access to a colleague’s e-mail by the respondent’s IT department in 2013. She subsequently saw an e-mail from the sales director to her colleague which was very negative to her and caused her great upset.

The Respondent’s culture was ‘not right’. She never raised a grievance about any concern she had with the Respondent. Anybody who did raise a grievance in the Respondent company using the published grievance procedure ‘never came back’.

She did meet her line manager prior to her parental leave on two occasions. She raised a request for a ‘toll tag’ with her line manager. He did not concede a ‘toll tag’ to her and advised her that if she wished to achieve greater salary and benefits she should go to another job. He confirmed to her that her role would change while she was absent but that her job title, salary and benefits would remain unchanged.

She received an e-mail on 31^stAugust 2016 which advised that her job title had changed to that of Junior Customer Business Manager and that her role had changed to one of supporting a Customer Business Manager which was a role she had previously held. She consulted her doctor and was certified unfit for work.

She also at that time consulted a professional to become her representative. That representative wrote to the Respondent on 8^thSeptember 2016 raising a grievance on her behalf. She did not utilise the trade union of which she was a member or a fellow employee to represent her in the matter because anybody who had raised a grievance previously did not come back.

Under cross examination she agreed that she had been promoted in 2015. She also agreed that she had never raised a grievance with the Respondent as regards any matter of concern to her prior to the issuance of a letter by her representative dated 8^thSeptember 2016.

She confirmed that she was aware prior to her absence on parental leave that a re-structure of the operation would take place while she was absent. She also confirmed that she never engaged with her line manager following her receipt of the e-mail of 31^stAugust. She said she never went to anybody because of trust issues. She said that trust had broken down in 2012 when she was demoted. She clarified that the demotion was in terms of job title and she confirmed that she had never suffered a loss in terms and conditions of employment including salary and benefits.

On re-direct from her representative she said that if she had returned to employment after her parental leave it would not have been the same.

Summary position of the Respondent.

The Respondent submitted that it had, prior to the hearing of this matter at first instance, been unaware of an e-mail from the sales director dating from 2013 making negative commentary as regards the Appellant. The Respondent accepted that the e-mail content was offensive and inappropriate. The Respondent however submitted that it had never been given the opportunity to address this matter because the Appellant had never made the matter known to the Respondent either through the grievance procedure or in any other manner.

The Respondent submitted that its business is such as to require frequent change and re-structure. The Respondent submitted that the Appellant had never been demoted during her period of employment. In the re-structure which was detailed on 31^stAugust 2016 she had been moved from a non-customer facing role servicing a declining market to one where she had customer facing personal responsibility for a significant and growing element of the snacks division as part of a structure which included a more senior colleague with responsibility for the remainder of the division’s business. The Respondent submitted that the role to which she was assigned was a developmental one and had been described to her at meetings prior to her departure on parental leave. The role carried title junior as an internal means to differentiating the size of the market responsibility of a customer business manager. In the snacks division she was to be personally responsible for €11m worth of business while her colleague had responsibility for a further €25m worth of business. The title ‘junior’ was for internal use only and was not used in customer interactions.

The Respondent submitted that the Appellant had never raised a grievance prior to the correspondence received from her representative on 8^thSeptember 2016. The Respondent had in place a grievance policy which complies with SI 146/2000 and allows persons pursuing a grievance to be represented by a Trade Union or a colleague. The Appellant was a member of the Trade Union UNITE throughout her employment and at all times material to the within appeal.

The Appellant however sought to be represented by an external party. The Respondent at all times clarified that it was anxious to engage to address the Appellant’s grievance but declined to allow representation outside the framework of the published and established grievance procedure.

As a result of the Appellant’s unwillingness to engage through the mechanisms provided by the grievance procedure, no direct engagement took place prior to receipt from the Appellant of a letter of resignation dated 3^rdMarch 2017.

The Respondent submitted that the Appellant had given the Respondent no opportunity to address her grievance or any concerns raised by her through her representative’s letter of 8^thSeptember 2016. The Respondent was at all times willing to engage with the appellant but could only do so through the framework of its grievance policy. The appellant unreasonably refused to utilise that framework.

Summary testimony on behalf of the Respondent

The Court heard testimony from Ms MQ, senior HR Business Partner at the material time, who stated as follows:

The HR unit had interacted with the Appellant when she sought to apply for parental leave and Ms MQ was the contact point for her. The Appellant at that time never indicated that she had concerns or difficulties at work. The first indication of concern was the letter received in September from the Appellant’s representative.

The Respondent sought to engage with the Appellant at all times in relation to her grievance but was not prepared to set aside the arrangements contained in the grievance procedure which was and is compliant with Statutory Instrument 146/2000 which is the Code of Practice on Grievance and Disciplinary Procedures.

The first time she saw the 2013 e-mail was at the hearing of this complaint by the Workplace Relations Commission. That e-mail was unacceptable.

On questioning by the Court Ms MQ stated that in any given month the Respondent would be dealing with 10 grievances raised by employees through the procedure as published. In the experience of Ms MQ no employee ever left the job as a result of raising a grievance.

Mr D, a Director with 26 years’ service with the Respondent gave testimony as follows:

He interviewed the Appellant for the role of Junior Account manager in 2014 and her subsequent promotion in 2015 was as a result of that interview. He said that he spoke to the Appellant daily as regards work matters and had never been made aware by her of the e-mail which she had seen in 2013. He set out that the structure in the company was such that a Customer Business Manager would be responsible for €20m worth of business or more while staff with lesser business value in their responsibility would be known internally as a Junior Customer Business Manager.

Under cross examination he clarified that a sales executive position was an administrative position and a junior account manager was a position in the structure between a sales executive and a Customer Business Manager.

Mr C also gave testimony on behalf of the Respondent as follows:

He was the Appellant’s direct report at all material times. He met the Appellant twice before she left on parental leave in 2016. She did raise issues as regards a toll tag which other staff had and which she did not. He explained to her that a toll tag was given to some staff who had vehicles provided by the Respondent. She did not have such a vehicle and so would not be afforded a toll tag. She did have a car allowance. She had raised the fact that some staff had better salary and benefits than she did. He told her that this was the case and advised her that if she wanted to improve her situation she might have to do as he did and leave the Respondent company to advance her career.

He advised her that he would seek to develop her responsibilities on a step by step basis. She, at that time, was responsible for the Respondent’s accounts in home baking which was an area of no growth. He told her that in the then upcoming re-structuring he would seek to move her to the snacks division where she would have personal responsibility for a growth area of the business with sales of approximately €11m which compared with €6.5m in home baking. In addition, her new role would involve face to face interaction with customers.

The e-mail of 31^stAugust delivered upon the commitments made in those conversations and in no way involved a demotion of the Appellant. The new role afforded to the Appellant was an advance and a developmental opportunity for her in the context of her career with the Respondent.

The Law

Section 1 of the Act defines constructive dismissal in the following manner

• 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

• 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The fact of dismissal is in dispute and consequently the onus of proof rests with the Appellant to establish facts to prove that the actions of the Respondent were such as to justify her terminating her employment.

The Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment such that the employee would be “entitled” to resign his position, often referred to as the “contract test”.

Secondly where the employer conducts 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.

The question for the Court to decide is whether, because of the conduct of the Respondent, the Appellant would have been entitled, or it would have been reasonable for her, to terminate the contract of employment.

In this case the Appellant resigned her position by letter dated 3^rdMarch 2017.

The Court notes that no engagement took place between the parties arising from the Appellant, through her representative, raising a grievance in September 2016. The Court notes that the Appellant refused to attend meetings without her representative and that the Respondent insisted that any meetings or engagements which might take place following the raising of a grievance by the Appellant should be structured in accordance with the policy then in place in the employment. Under that policy the Appellant had the option of being represented by her Trade Union or by a colleague employee. The Appellant was at all material times a member of a Trade Union recognised by the employer for representation of employees.

The Court takes note of the Code Of Practice on Grievance and Disciplinary Procedures made in accordance with the provisions of the Industrial Relations Act, 1990 and promulgated as Statutory Instrument 146 of 1990. That code sets out that an employee should be entitled to be represented in grievance procedures and clarifies the term ’ employee representative’ for the purposes of the Code as follows:

• 4.For the purposes of this Code of Practice, "employee representative" includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise.

The Court is of the view that the Respondent cannot be deemed to have failed to take steps to remedy a situation in circumstances where the Appellant refused to participate in the arrangements in place to address her grievance.

The Act places a high burden on a Complainant who contends that she has been unfairly constructively dismissed. In order to succeed in such a claim, a Complainant must establish that either a breach of contract by the employer going to the root of the contract has occurred or that the employer’s unreasonable behaviour was such that she was justified in believing that she could not continue any longer in that employment. It is incumbent on an employee who believes themselves to be in such circumstances to alert the employer to her situation (for example, by availing of the employer’s grievance procedure) in order to allow the employer an opportunity to rectify the problem before resigning.

In this case the Respondent communicated a role re-assignment to the Appellant while she was on parental leave. It is common case that the re-structuring leading to the re-assignment was discussed by the Appellant with her line manager prior to her departure on parental leave. The Appellant’s subsequent grievance was not processed prior to her resignation because of the Appellant’s unwillingness to confine her representation to that provided for by the published policy of the Respondent.

In all the circumstances, the Court cannot find that the Respondent’s conduct was unreasonable to the degree that it would justify the Appellant’s termination of her employment by way of constructive dismissal

Determination

The Court determines that the Appellant’s complaint is not well founded. The appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so Determines.

Signed on behalf of the Labour Court



Kevin Foley
MK______________________
29 May 2018Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.