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Constructive Dismissal Finding, but What More Could the Employer Have Done?

The Complainant in Frank O’Dwyer v Tesco Ireland ADJ-00034404 brought a constructive dismissal complaint against his former employer, Tesco Ireland, alleging that he was left with no alternative but to terminate his employment because of bullying on the part of the Store Manager.

Facts: The Complainant commenced employment with the Respondent on 17th September 2007. He worked as a Team leader and was paid an average of €467 per week. The Complainant gave evidence that issues developed in his relationship with the Store Manager after the Store Manager directed him to manipulate the Respondent’s club card system by putting points that the Store Manager had earned onto a blank club card. The Complainant was subsequently disciplined for suggesting to other customers that they do the same. The sanction was overturned on appeal. The Complainant claimed that the Store Manager then embarked on a campaign of revenge against him as a result of the incident having reflected badly on him.

The Complainant gave evidence of a series of incidents which he claimed amounted to bullying. The Complainant provided numerous examples of what he regarded as adverse treatment from the Store Manager, including examples of him undermining his position, singling him out, berating him in front of colleagues, and blaming him for issues without listening to his side of the story. The Complainant also gave evidence of being physically assaulted by the Store Manager who he told the Adjudicator grabbed his arm and pushed him forwards.

It was the Complainant’s evidence that he tried unsuccessfully to raise issues with the Personnel Manager and with the Store Manager himself. He told the Workplace Relations Commission (“WRC”) that the Store Manager made it clear to him that he did not regard him as suitable for the position of Team Leader. The Complainant also referred to a performance review meeting with the Deputy Manager of the store on 5th September 2019, in which he claimed that he was encouraged to resign from the position of Team Leader. He believed that the Store Manager was responsible for this. The Complainant also referred to having been told by the Deputy Manager that colleagues had written complaints against him. The Complainant believed that they had been encouraged to do so by the Store Manager and he felt unable to put up with any further adverse treatment. He attended his doctor on 9th September 2019 and was certified as unfit to work.

The Respondent gave evidence of its comprehensive investigation into a grievance made by the Complainant in December 2019 regarding unacceptable behaviour on the part of the Store Manager, and the option afforded to the Complainant of transferring to another store, which he refused. The Area Manager who carried out the investigation did not uphold the Complainant’s allegations. The Complainant appealed some of the investigation findings and, although some of his points of appeal were upheld, the Appeals Officer upheld the finding that the Complainant had not been bullied.

Evidence was also given regarding an attempt to arrange a mediation process between the Complainant and the Store Manager which the Complainant ultimately decided not to engage in. When the Complainant resigned on 21st May 2021 on the basis that his grievances had not been properly investigated, he was asked to reconsider on two occasions and the opportunity to participate in mediation was again offered. The Complainant’s resignation was ultimately accepted by the Respondent, effective on 2nd July 2021.

Decision: The Adjudicator considered the “contract test” and the “reasonableness test” and found as follows:

Contract Test

“I find firstly that the bullying of the Complainant by the Store Manager, of which he gave wholly credible evidence, was sufficiently intolerable and injurious to his health as to constitute a significant breach of the employment contract.” In so finding, the Adjudicator specifically referred to the Store Manager as having “repeatedly undermined and humiliated the Complainant” and found it “unacceptable that he placed his hand on the Complainant on 6 September 2019 when he pushed him while walking away from a checkout till.”

The Adjudicator placed significant emphasis on the fact that the Store Manager had not attended the hearing and that “there was no direct evidence presented by the perpetrator either to rebut the allegation of bullying, to suggest that he was aware of the Respondent’s bullying and harassment policies or that he knew bullying would not be tolerated in the workplace.” This was so notwithstanding the fact that the Complainant’s bullying complaint had been investigated by the Respondent and not upheld, which finding was confirmed on appeal. The Investigator and Appeals Officer were both in attendance at the hearing and gave evidence.

The Adjudicator concluded that “[i]n the absence of any of the aforementioned evidence from the perpetrator, I find that the Complainant has met, and Respondent has breached, the contract test set out in [the] Western Excavating [case].”

Reasonableness Test

The Adjudicator decided that although he was satisfied that the Complainant had met the “contract test”, he would, for “completeness” also consider whether or not the Complainant had acted reasonably in deciding to terminate his employment.

In carrying out this assessment, the Adjudicator noted that the Complainant had fully exhausted the Respondent’s grievance procedure before resigning. The Adjudicator was satisfied that the Complainant’s refusal to engage in mediation with the Store Manager “was reasonable given the extent to which he had been bullied and humiliated.” He also found that the Complainant’s refusal to transfer to another store was also not unreasonable “given the treatment he had been subjected to and the possibility that the perpetrator could also be transferred to that store in the future.”

The Adjudicator proceeded to consider the reasonableness of the Respondent’s behaviour. Although noting that the Respondent had carried out a “comprehensive investigation” into the Complainant’s grievance (including an appeal) and the fact that he was given the opportunity to transfer to another store and to engage in mediation, he found as follows:

“the perpetrator did not attend the hearing to give evidence…Given his failure to do so, I must consider the evidence to be preferred; that of the Complainant who gave compelling and direct evidence of the bullying he was subjected to or that of the Investigator and the Appeals Office who carried out very detailed and comprehensive investigation processes into the complaints but relied on evidence that was not presented at the hearing and was not subject to cross-examination.”

The Adjudicator referred to the decision in Zalewski v An Adjudicator Officer [2021] IESC 24 as authority for the requirement for evidence under oath and the right of cross examination where there is a conflict between the version of events put forward by the respective parties.

The Adjudicator concluded that

“[g]iven both the compelling evidence of the Complainant and the failure of the perpetrator to present direct evidence or allow himself to be cross-examined, I find that the Respondent acted unreasonably by failing to uphold the allegations made by the Complainant against the perpetrator. Accordingly, I am of the view that the Respondent has not met the reasonableness test set out in [the] Western Excavating [case]”

The Adjudicator found that the Complainant was constructively dismissed.

Redress: The Adjudicator noted that the Complainant had reached retirement since his constructive dismissal and found that compensation was the appropriate form of redress. The Adjudicator noted that in accordance with section 7(1) of the Unfair Dismissals Acts, the relevant period for assessing compensation ran from the date on which the Complainant was constructively dismissed i.e. 2nd July 2021 until the date on which he reached retirement age i.e. 18th April 2022.

The Adjudicator noted that the Complainant had not made any efforts whatsoever to mitigate his loss and that, although certified as medically unfit to work, no evidence had been provided that he was unable to mitigate his loss as a result of his ill-health. However, he referred to the WRC decision in ADJ 32667 where the Adjudicator stated inter alia that: 

“in considering compensation, regard must be had to all of the subsection of Section 7-and the tests are not confined to the efforts of the former employee-or the Complainant in this case. In circumstances where the Respondent is found not to have met the tests set out in subsections (c) and (d) …. and the Complainant made no contribution to the decision to dismiss her under (a) (b) or (f) It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort of mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.”

Notwithstanding that the Complainant was certified as unfit for work for the full period between termination of his employment and reaching retirement age, the Adjudicator awarded him €15,000 in compensation. This award appears to have been based on an assessment of the value of the loss of the Complainant’s rights under the Redundancy Payments Acts attributable to his constructive dismissal. Unfortunately, there is no indication in the decision as to how or why the Adjudicator decided that the Complainant lost these rights. It is assumed that the role which he occupied until 2nd July 2021 was subsequently made redundant, but this is not clear from the decision.

Analysis and Takeaway: The fact that the Adjudicator based his finding on the fact that the Store Manager did not attend the hearing and give evidence to rebut the allegations, raises serious issues in respect of an employer’s freedom to select the witnesses it regards as appropriate in defence of a complaint. There may be circumstances in which the attendance of a particular witness is not in fact possible, for example if he or she no longer works for the employer and/or is no longer in the jurisdiction. In this case, both the Investigator and the Appeals Officer attended the hearing and gave evidence on behalf of the Respondent, but their evidence was not regarded as sufficient.

The Adjudicator’s decision in this regard is at odds with established case law regarding the role of adjudicators in cases under the Unfair Dismissals legislation. While most of these cases deal with unfair dismissal, the principles can also be applied to constructive dismissal cases. For example, in Looney & Co. v Looney UD843/1984, the Employment Appeals Tribunal stated as follows:

It is not for the EAT to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employers position would have acted as it did in its investigation or concluded as it did or decided as it did as to do so would be to substitute our own mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision are to be judged.”

There are numerous subsequent cases that follow similar reasoning, including the decision of the High Court in Bank of Ireland v Reilly 2015 IEHC241.

It is respectfully submitted that it was not appropriate for the Adjudicator to decide whether or not the Complainant was bullied. Instead, the Adjudicator’s role was to determine whether or not the Respondent acted reasonably in how it addressed the Complainant’s allegations and dealt with the issues. In his decision, the Adjudicator acknowledged the comprehensive nature of the Respondent’s investigation into the allegations and the fact that the Respondent gave the Complainant the option of transferring to another store and/or engaging in mediation. He also noted that the Complainant was asked to reconsider his resignation on two occasions. It is hard to envisage what further action(s) the Respondent could reasonably be expected to have taken in all the circumstances of the case. This case is one to watch and an appeal by the Respondent seems likely.

Link – https://www.workplacerelations.ie/en/cases/2022/august/adj-00034404.html

Authors – Jenny Wakely and Anne O’Connell

3rd October 2022

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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