SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
CORAJIO T/A MR PRICE BRANDED BARGAINS
REPRESENTED BY COLLIER BRODERICK
- AND -
Chairman: Mr Haugh
Employer Member: Ms Connolly
Worker Member: Ms Treacy
1. Appeal of Adjudication Officer Decision No. ADJ-00013472 CA-00017666-001.
2. The Employee appealed the Decision of the Adjudication Officerto the Labour Court on 12 November 2018 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 16 January 2020. The following is the Determination of the Court:-
This is an appeal by Mr Fionan Curran ('the Complainant') from a Decision of an Adjudication Officer (ADJ-00013472, dated 10 October 2018) under the Unfair Dismissals Act 1977 ('the Act'). The Complainant's Notice of Appeal was received by the Court on 12 November 2018. The Court heard the appeal in Dublin on 16 January 2020. The Complainant was a litigant in person. Corajio Unlimited Company T/A Mr Price Branded Bargains ('the Respondent') was represented by Mr Pat Collier of CollierBroderick Management Consultants.
The Complainant commenced employment with ('the Respondent') on 14 April 2014 as a Stock Control Manager. His salary was €34,000 per annum. His place of work was at the Respondent's Head Office but he was also, from time to time, required to visit the Respondent's warehouses and retail outlets throughout Ireland. He had more than 30 years of stock control experience prior to joining the Respondent. The Complainant went out on sick leave on 13 March 2017. He did not return to work thereafter. By letter dated 26th February 2018 he tendered his resignation and, on the same date, submitted a claim of constructive unfair dismissal under the Act to the Workplace Relations Commission.
The Respondent submits that he was the first qualified stock control manager appointed to the Respondent's business, which at the time consisted of some fifteen retail shops and a warehouse in Blanchardstown. He was supported by one full-time member of staff and also shared 30% of two other staff members' time. Over the course of 2014, responsibility for oversight of the warehouse in Blanchardstown shifted to the Complainant although, in his view, he was neither qualified for, nor given the resources to assume that additional responsibility. He further submits that the Respondent added a separate greeting card line to its distribution business in 2015 for which he was also made responsible. Further responsibilities, he says, were added to his role in 2016 while the level of staff support available to him was being reduced. Between 2014 and 2016, the Respondent's business expanded to include some thirty-five shops and three warehouses. The Complainant raised his concerns about his changing workload informally with both the Respondent's Human Resources Manager and Operations Director, on a number of occasions. He accepts, however, that he did not do so formally before commencing sick leave in March 2017.
In the four-month period following the commencement of his sick leave on 13 March 2017, the Complainant submitted seven medical certificates to the Respondent, each of which stated that the Complainant was suffering from 'dizziness and headaches'. The Complainant attended the Respondent's occupational health advisor (Medwise) on 6 July 2017 who advised that the Complainant was not fit to return to work at that time but was sufficiently well to engage with Human Resources to discuss his 'perceived work stressors'. The Respondent submits that this was the first occasion on which it had been advised that the Complainant's condition was stress-related.
The Respondent also submits that it held five informal 'keeping-in-touch' meetings with the Complainant between May and December 2017 and that it attempted to explore the Complainant's perceived stressors at the meetings held on 4 August 2017 and on 31 August 2017. The Complainant's evidence, however, is that a large part of the meeting on 4 August 2017 focused on the reasons the Complainant had failed to mention that he had been suffering from stress prior to his consultation with the occupational health advisor. The Complainant also told the Court that while the HR Manager appeared to be promising to address his work-related issues at the meeting on 31 August 2017, she didn't convey the sense to him that she had any real authority to discuss meaningful changes to his workload.
At this point it appears the Complainant felt that he would need external assistance to resolve matters with the Respondent. He therefore sought the assistance of the Conciliation Service of the Workplace Relations Commission. A conciliation conference took place on 15 February 2018. The conciliation conference was adjourned to allow the Complainant to produce medical certificates to substantiate his belief that his illness was due to work-related stress. The Complainant submitted a letter dated 19 February 2018 from his GP advising of the GP's opinion that the Complainant's health issues were "related to long term stress related to his work environment".
On 26 February 2018, the Respondent's Human Resources Manager wrote to the Complainant requesting that he attend Medwise for a second consultation. The Complainant says that he found this request inexplicable as the Respondent, in his view, had not engaged with him in any meaningful way following his first consultation with Medwise to explore his work-related stress issues, as had been recommended by the consulting occupational physician in her report to the Respondent. The Complainant, therefore, resigned his employment on 26 February 2018 as he had formed the view that "the Respondent had simply made it impossible for [him] to regain [his] health." In his written submission to the Court, the Complainant states:
- "[T]he second referral to the company's doctor, Medwise, was an adversarial act, one that was designed to give the company further support in denying the stress the Complainant experienced in work and its contribution to the Complainant's illness and to excuse their continued refusal to assure the Complainant it would be recognised if and when the Complainant recovered. The cumulative effect of the Respondent's refusal to acknowledge the Complainant's workplace stress before the Complainant departed on sick leave, their refusal to acknowledge afterwards and this final arbitrary referral to Medwise was a breach of their duty of trust and confidence in me."
The Complainant submits that the Respondent breached both express and implied terms of his contract of employment. In the Complainant's submission, the Respondent imposed an impossible burden of work on him that ultimately broke his health. He also submits that the Respondent failed in its statutory duty to ensure his safety, health and welfare at work and its contractual duty to maintain his trust and confidence. Finally, the Complainant also submits that the Respondent was so unreasonable throughout its dealings with him that this also entitled him to resign his employment and claim constructive unfair dismissal within the meaning of the Act.
The Respondent submits that the Complainant has failed to demonstrate a breach of contract or unreasonable behaviour on the Respondent's part that justified his decision to resign his employment. The Respondent also submits that the Complainant was unreasonable in resigning in circumstances where he had failed to avail himself of the Respondent's Grievance Procedure.
Discussion and Decision
The burden of proving his resignation was reasonable in all the circumstances falls on the Complainant. It is well-established in the case-law of this Court and of the Employment Appeals Tribunal under the Act, that an employee should bring any difficulties or concerns he or she has concerning their employment to their employer - usually by utilising the grievance procedure, where one is in place - before resigning in order to give the employer a reasonable opportunity to address the employee's concerns. It is accepted that the Respondent was in a phase of rapid expansion in the period following the Complainant's recruitment and that this placed considerable pressure on the Complainant in his role as Stock Control Manager as well as on all other colleagues in the business. The Complainant had to compete with other managers for access to staff and other resources and undoubtedly voiced complaints to management about the evolving situation as it affected him and the work of his department i.e. he was being expected to deliver more with fewer staff and resources. This is very much part of the mix in any business that is undergoing a programme of expansion. Recruitment of additional staff often lags behind the growth in activity. Existing employees are frequently called upon to put their shoulder to the wheel.
The Respondent was not put on notice by the Complainant that the changing work environment in which he found himself was possibly a source of unreasonable stress to him until it referred him to its occupational health advisor, some four months after he commenced his sick leave. Thereafter, the Respondent continued with a series of informal 'keeping-in-touch' meetings with the Complainant in an effort to understand his circumstances. The Respondent attended at Conciliation in an effort to resolve the Complainant's concerns. The Respondent referred the Complainant for a second consultation with Medwise with a view to getting an up-to-date assessment of the Complainant's medical situation and prognosis. The Complainant - without any basis for so doing, in the Court's view - concluded that the Respondent's decision to seek a second review by Medwise was an aggressive step on its part designed to build a case to engineer his dismissal. He, therefore, decided to pre-empt any such move on the Respondent's part by resigning his employment on the day he was notified of the second appointment with the occupational health advisor.
In light of the foregoing, the Court finds that the Complainant has not established that the Respondent breached its contractual obligations to him or acted in such an unreasonable manner that justified his resignation. The appeal, therefore, fails and the decision of the Adjudication Officer is upheld.
The Court so determines.
Signed on behalf of the Labour Court
1 April 2020Deputy Chairman
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.