Successful Constructive Dismissal Claim – Tribunal question absence of witnesses to refute evidence

The case of Darren Keating v Drycon Limited UD 2007/2010 in last Thursday’s roundup of Employment Appeals Tribunal cases was a successful claim by the Claimant for constructive dismissal, which as we know is a very difficult test to satisfy.BackgroundThe Claimant commenced employment as an experienced sales representative in April 2008 and served the Cork and West Limerick areas. The Respondent was in the business of supplying tiles, silicone and sealants to the hardware trade. Difficulties arose in February 2009 according to the Claimant when he was out of work due to back pain. The Claimant stated that the Managing Director was abusive to him and told him if he valued his job to stay on the road. He also stated that the Managing Director told him that if he lost weight it may help his back. The Claimant also gave evidence that in 2009/10 the Managing Director put the former Managing Director of a large building company in the car with him who accompanied him on rounds which made his work situation very difficult. He stated the Managing Director was hostile/abusive and would shout and swear at him constantly and most abuse centered on the collection and control of payment from customers to the company.In April 2010 the Claimant stated that his wife was expecting a baby and was rushed to hospital and he requested a week off work and the sales manager agreed. He stated he was subsequently requested to return to work by the Managing Director to meet a Client.Various emails and documentation were opened to the Tribunal including a communication dated 24th February 2010 which the Claimant considered to be a formal warning. The Claimant stated that things came to a head on 30th April 2010 at a general staff meeting concerning stock cards whereby he was shouted at in the presence of the sales manager. The Claimant stated that he decided to gather his things and cried on the way home. He stated that his health was deteriorating and he was certified with stress. The Claimant stated that the sales manager told him that he would be paid for three days sick leave only. He stated that the harassment, shouting and screaming continued when he returned to work and he decided to seek advice from a solicitor and his doctor.The Claimant stated that he left his job for three reasons namely (1) his health was being adversely affected (2) the ongoing difficulties at work were causing problems in his marriage and (3) the stress he felt he was under from the company and managing director. The Claimant stated that after he got 2 weeks work from a competitor and found a full-time position in November 2010 whereby his salary remained the same.In his evidence, the Managing Director stated that the collection of customer accounts was the primary responsibility fo the sales representative. He stated that the Claimants contract of employment dealt with notice and disciplinary issues but not grievance issues.The Respondent stated that he did not ask the Claimant to undergo a medical or fill in a questionnaire prior to commencement. The Claimant had complained that due to back pain, the company car did not suit him and the Managing Director stated that he changed the model of the car to suit the Claimant condition. In 2009 the Respondent notified staff of the new credit control policy and the importance of payment collection. At the meeting of 15th February 2010 the Claimant was dismissive of stock cards and was relaxed on the stance on current debtors. After the meeting a letter was sent to the Claimant expressing concern at how he was handling debtors but the MD stated that this was not a warning. He rejected the allegation that he used threatening and abusive language to the Claimant or that he was a bullying boss.Employment Appeals Tribunal DeterminationThe Tribunal agreed that it was a difficult case due to the conflict of evidence and agreed that the relationship between the Claimant and the respondent was fractious. The Tribunal noted:

1. The placing of a former Managing director of a competitor company with the Claimant was very unusual and they could see why this would raise difficulties for the Claimant.
2. The Claimant’s efforts in relation to the completion of stock cards was slipshod at best.
3. The Claimant’s contract of employment contained no adequate grievance procedure and left the Claimant at a significant disadvantage.
4. The Respondent did not ignore the problem of the Claimant back as they purchased a vehicle to assist him.
5. The letter of 24th February 2010 could reasonably be interpreted as a formal written warning.
6. In relation to the verbal abuse which the Claimant stated he suffered, it was the view of the Tribunal that the allegations could have been refuted if witnesses stated to have been at the meeting were brought along. The Tribunal noted that all of the third parties were former employees of the Respondent Company and the absence of or failure to appear of the witnesses had led the Tribunal to form a particular conclusion.
7. The Tribunal were of the view that as a result of the verbal warnings and the content of the letter dated 24th February 2010, it was not unreasonable for the Claimant to anticipate the next step would be dismissal.

On balance the Tribunal concluded that the Claimant had proven the case of constructive dismissal. The Tribunal also noted that to some degree the Claimant had contributed to the the position he found himself in and awarded him €7500 under the Unfair Dismissal Acts.