Frank O’Dwyer v Tesco Ireland [2022]

The Complainant commenced working with the Respondent on the 17^th of  September 2007 where he was employed as a Team Leader. In July 2021, he resigned as a result of having been bullied by the Store Manager where he worked.

The alleged bullying started in 2015, after the Store Manager directed the Complainant to manipulate the Respondent’s club card system by instructing the Complainant to put points the Store Manager had earned in respect of a purchase he had made onto a blank club card. Afterwards, when the Complainant encouraged other customers to do likewise, he was disciplined.   The sanction was subsequently overturned on appeal but the Complainant claimed the Store Manager implied he would exact revenge.

A series of incidents followed that the Complainant perceived as bullying. For example, during the busy Christmas 2018 period, the Store Manager stationed the Complainant on the check outs, instead of allowing him to perform his functions as Team Leader.

In April 2019, the Store Manager called him to the front of the store and asked why he had not ensured customer trollies had been collected. The Complainant stated he apologised explaining they were so busy in store; he did not have time to check them. The Complainant stated of all the team leaders and supervisors on duty at the time, he was the only one singled out. A similar incident followed shortly thereafter where the Complainant was once again singled out by the Store Manager in relation to an issue with trollies.

In another incident, the Store Manager reprimanded the Complainant for carrying his mobile phone on him. The Complainant tried to speak to the Personnel Manager about this issue but claimed nothing was done about it.  Subsequently on the 7^th of June 2019, his line manager arranged a meeting with the Personnel Manager to identify ways that could resolve the issues the Complainant was having with the Store Manager. No resolution came from this meeting.

Between July and September 2019, further clashes with the Store Manager occurred including the Store Manager threatening a performance review with a view to demoting the Complainant from his position as Team Leader.  On the 2nd of September 2019, the Complainant asked the Store Manager at a meeting what could be done to prevent the constant barrage of criticisms, arguments and complaints and asked him what he wanted from him. The Complainant stated the Store Manager told him they did not argue but ‘debated’ and if he was not able for the debates, then he was not able for the job.

On the 6^th of September 2019, the Complainant stated as he was walking away from a checkout that he had just opened for a till assistant during a busy period, the Store Manager came from behind him, grabbed his arm and while pushing him forward told him aggressively to get another staff member off the computer and onto the checkout. The Complainant said he felt humiliated following this physical assault.

Further to the review meeting of the 5^th of September, the Complainant was told by the Deputy Manager that colleagues had written complaint letters against him. He believed these colleagues had been encouraged by the Store Manager to write these letters and decided at this stage that he could not take any more of the treatment he had been subjected to in the workplace. As a result, he attended his doctor on 9 September 2019 and was signed off on sick leave.

He did not return before resigning from the Respondent effective from the 2^nd of July 2021.

The Respondent stated in evidence there had been no issue with the Complainant’s performance during his employment and highlighted he had been promoted from the position of Customer Assistant in the filling station to that of Team Leader prior to being transferred to the main shop in October 2018.

The Respondent submitted a full and comprehensive investigation was carried out following the grievance submitted by the Complainant. The investigator did not uphold the allegations made by the Complainant.

The Adjudication Officer highlighted there are two circumstances in which a resignation may be a ‘constructive dismissal’. They are:

1. Where the employer’s conduct amounts to a repudiatory breach of the contract of employment such that the employee is ‘entitled’ to resign, often referred to as the ‘contract test’;
2. The second circumstance, which can be relied upon either as an alternative or in combination with the contract test, is where the employer conducts his affairs in relation to the employee so unreasonably that the employee cannot be expected to put up with it any longer. This is described as the reasonableness test.

The Adjudication Officer found 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.

The Adjudication Officer found the Respondent acted unreasonably by failing to uphold the allegations made by the Complainant against the perpetrator, and considering all of the foregoing, the Adjudication Officer ultimately held that the Complainant was unfairly dismissed.

Accordingly, The Adjudication Officer awarded the Complainant the sum of €15,000 in respect of the unfair dismissal.

Guidance for Employers:

As mentioned above, there are two circumstances in which a resignation may be a ‘constructive dismissal’. Although difficult to prove, it’s worthwhile on receipt of resignation letters from employees to check for comments about leaving due to employer actions and ensuring these are examined/investigated robustly.

The full case is available here:
https://www.workplacerelations.ie/en/cases/2022/august/adj-00034404.html