ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002652
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00003577-001 | 30/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00003577-002 | 30/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00003577-003 | 30/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00003577-004 | 30/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00003577-005 | 30/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00003578-001 | 30/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00003577-006 | 30/03/2016 |
Date of Adjudication Hearing: 22/08/2016 & 28/11/2016
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Complainant’s Submission and Presentation:
The complainant withdrew CA 3577 - 002,003,004,005,006. The only matter she wished to proceed with is CA 3577-001 pursuant to Section 8 of the Unfair Dismissals Act, 1977.
In May, 2013 the complainant was given the opportunity to lead the Employee Relations team. She had been part of that team prior to that. She was successful at round one of the interviews. Her second interview was scheduled for 11am on the 22nd March. At 10.30 a.m. the interviewer came in and said she was late for the interview. This upset her. She did her interview but was advised later that day that she was not successful. She then went on annual leave and when she came back an external person had been offered the position. She didn’t take up the position so the complainant was asked to cover until June.
In June a re-organisation was taking place. The complainant from that point onwards was no longer the team leader. This upset her. Two weeks after that she had to take time off due to anxiety and depression. She was off for three weeks. When she came back someone else was doing her tasks. After that she was allowed to work from home 3 and 4 days a week. Before she was sick she was working from home 2 days a week. She felt she was being pushed out. Then in or around October, 2014 she discovered that others had received a pay rise and she had not. She spoke to her manager about it, but nothing was done.
There were some issues in 2013 but by 2014 everything had settled down. Around this time the complainant felt that she was overloaded with work. She was under a lot of pressure. She went home to Spain and when she returned she was introduced to her new boss. She was shocked as this person had previously been her subordinate. She found that very hard to take. Her son was also causing problems at home. The respondent arranged some ‘ Care Counselling’ for her and her son. She did avail of that.
The complainant was given a project to do, BPM. This was outside of her comfort zone and she stated that she did not know how to finish it. In September, 2015 she requested time off so that she could spend some time with her son. This was facilitated. However after a period of time her holiday and sick pay entitlements ran out. Whilst she was off she was receiving calls from the office about her sick certificates and the BPM project and she found this intrusion harassing. She complained about it and then there was’ silence’ from the respondent. All communication stopped, until the respondent contacted her emergency contact. She was furious about that as she felt it was a breach of her right to privacy. She went to Spain on the 16th December and resigned on the 17th following texts from the respondent in relation to her whereabouts and her sick certificates.
The complainant accepts that she missed several deadlines for the BPM project. She stated that she felt, despite the offer of assistance that she couldn’t ask for it.
Respondent’s Submission and Presentation:
The respondent had spoken to the complainant well in advance of the up coming promotion competition. The joint head of services centre specifically told her that it would be coming up soon and that he would notify her before the close of the competition. He did notify the complainant. The respondent is at a loss to understand why the complainant was so surprised that someone else had been given the position. The complainant had previously been that person line manager. The competition for the position had been open, fair and transparent.
Prior to the complainant’s issues with the BPM project she had been a high performer, scoring well in her appraisals. At the time of the BPM project she was working from home (WFM) two days a week. This particular project was new to the complainant but the respondent made it known to the complainant that should she require assistance they would make it available to her. In this regard they e-mailed her on the 26th May, 2015 stating:
“ If you need help with completing the deliverables or in the project in general please contact me in advance, don’t wait until the deadline to highlight any issues you may be having”.
The date for completion of the project was the 17th July, 2015. The complainant did not meet her deadline. The deadline was extended to the 21st July. She did not meet that deadline either. The respondent had a meeting with the complainant about the project. The complainant informed line manager that she had done most of the work on the project but was uncomfortable about asking for coaching on the project. At this juncture the respondent didn’t actually know how much work was left to be done on the project as the deliverables had not been uploaded. The completion date was moved to the 4th September, 2015 and the complainant was notified of this by e-mail. On the 17th August the complainant e-mailed the respondent stating that she was having problems with her son and as a result she was behind with her work. She requested that she be allowed to work from home for another couple of days. The respondent had facilitated the complainant by allowing her work from home over and above the normal arrangement. The complainant notified the respondent that she was very upset because of her son’s issues. She was advised to log off for the day and to try and relax for the evening. She was advised of the EAP services that were available to her should she need to seek help or guidance. Her line manager then asked if she could call her on the morning of the 18th. The complainant agreed. On the 25th there were a series of text message between the complainant and her line manager in relation to her son and his ongoing difficulties. She requested that she be allowed to work from home the following week so that she could keep an eye on her son. The respondent asked that she not log on until they had spoken and put a plan in place. On the 27th, the respondent text her to ask if she could take a call later that day to discuss her leave that week and to put a plan in place for the next week. The complainant had extended her leave (WFM) to cover the first week in September with the respondent’s approval. Despite the respondent trying to facilitate the complainant she did not meet the 4th September deadline. On the 3rd of September the deadline was extended to the 10th September. She was also advised by e-mail on the 3rd that if “ you need an further support/assistance/resource to get his project completed and submitted by the 10th please let me know”. The respondent tried to contact the complainant on the 4th for a pre-arranged call. The complainant e-mailed saying she was on a call but asked if later that day would suit. The respondent e-mailed her at 10.42am but there was no reply and again at 14.38 to which there was no reply. There was no contact from the complainant on the 4th. Her team leader then e-mailed her on the 7th in relation to her lack of communication on the 4th.
She produced a sick certificate dated the 10.09.15 which covered the period 08.09.2015 – 15.09.2015. The next sick certificate she produced was dated the 23.09.2015 and covered the period 15.09.2015 – 29.09.2015. That was followed by a certificate was dated the 14. 10.2015 to cover the period 30.09.2015 – 31.10.2015. Her final certificate was dated the 02.12.2015 and covered the period 01.02.2015 – 15.02.2015. The complainant did not returned to work prior to her handing in her resignation ( by text) on the 17. 12.2015.
The respondent accepts that it did communicate the complaint via phone, text and e-mail during her period of sick leave. They did so only out of concern for the complainant. During a conversation with her team leader on the 12.10.2015 the complainant told her that she was feeling very low and suicidal. Her team leader was very concerned for her wellbeing and was worried that she might commit suicide. Her team leader told her about various organisations that might be able to help her through this difficult time. She did text her that evening to make sure she was ok. The respondent also accepts that they did make contact with her emergency contact. Again that was done purely out of concern for the complainant as she was not replying to texts from the respondent.
The respondent set up medical appointments of the complainants on the 08.10.2015, 21.10.2015, 04.10.2015 and she did not attend any of them. She did inform the respondent that she was in a bad place and wasn’t fit to attend.
On the 10.12.2015 the HR manager e-mailed the complainant. In that letter it stated :
“ Regarding the below in reference to working from home as discussed with XX this was retracted due to performance issues and was not linked to your sickness. Due to this, working from home is not a viable option as we cannot provide the support and assistance to enable you to get your performance back on track. However, we will endeavour to support you either on a phased return to work wither on a reduced working week or shorter hours so you are home in time for the kids. In order to facilitate a return we need you to provide a fit note from your doctor and due to the length of absence attend the company doctor so that we can assess what we need to put in place to support you. We hope to welcome you back to the office soon.”
There was no reply to this e-mail. Her sick certificate expired on the 17.12.2015. The join head of services centre text her on the 17th stating :
“ Hi….., hope you are feeling better. X is off today but I wanted to follow up as your most recent sick cert was until the 15th and we have not received an update from you as to will it be extended or when we can expect an update. You have being advised we should receive the cert by the third day at the latest and should be kept up to date when the current cert is due to expire. Can you advise please. Thanks….. .
The complainant replied and stated that she was in Spain for the Christmas holidays having arrived there on the 16th. She also stated
“ there are too many barriers form the company side for me to return. I honestly don’t know what to do anymore “
Later on the 17th the complainant text her resignation stating:
“ I can’t take this humiliation anymore. Please take this text as my resignation”
Her resignation was accepted by letter on the 18.12.2015.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.
Section 1 of the Unfair Dismissal Act defines constructive dismissal as:
“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 the 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”
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances. The burden of proof, which is a very high one, lies on the claimant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract. “if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance” If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test “The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving” When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate her contract of employment. On a full assessment of the facts I can find no evidence to suggest that there was a significant breach going to the root of the complainant’s contract of employment. In those circumstances, I must ask myself, was it reasonable in all of the circumstances for the complainant to terminate her contract of employment. The complainant ran into difficulties with the BPM project. She did not know how to complete it and unfortunately did not ask for assistance, despite being offered it. It was also around that time that she was having difficulties with her son. She described those difficulties at length during the hearing. There is no doubt that the complainant was going through a very difficult period in her life. The respondent was cognizant of this fact and was very supportive and considerate during this period. They extended her WFH privileges so that she could spend more time with her son. They gave her numerous extensions on the BPM project and requested that if she needed assistance all she had to do was ask for it. The removal of the WFH privileges was seen by the complainant as a punishment. However, based on the respondent’s handling of he situation I am satisfied that it was done purely out of concern for the complainant. She was becoming more isolate and was struggling with her work. The respondent’s evidence that they felt she would benefit enormously both personally and professionally from being in the office where she would have the support of her colleagues fits well with their handling of the entire situation. The complainant took issue with the removal of her laptop. However, this was only done so that the data could be transferred to a new laptop. I am satisfied that this was the reason for the request to send her laptop back into the respondent’s office. The complainant took issue with the fact that someone who was once her subordinate was promoted to a position above the complainant’s. Based on the evidence submitted I am satisfied that the selection process for that position was fair and the complainant had been put on notice of the position well in advance. The complainant took issue with the amount of communication the respondent was having with her when she was on sick leave. She felt that they were bombarding her with texts, call and e-mails. The respondent stated that they had to get in contact with her when her certs expired. It is accepted that there were long periods of time when the complainant was out on sick leave and there was no certificate to cover the leave. The complainant did submit certificates however most of them were retrospective. The respondent also stated that when the complainant stated that she was feeling suicidal they felt it was their duty to keep in touch with her and to contact her emergency contact when she didn’t respondent. Normally when an employee is on sick leave a respondent should not contact them as the leave is protected leave. However, in the specific circumstances of this case I feel an exception has to be made. The complainant was very unwell and at one point, by her own admission, was suicidal. In those circumstances the respondent was justified in contacting her to ensure she was safe. Furthermore, a respondent has the right to contact an employee when their sick certificate expires, in order to establish if the employee is planning on retuning to work and if so, when. The complainant stated that at the time she felt that the respondent had put too many obstacles in her way when she was trying to return to work. The respondent stated that due to the length of time the complainant was out of work and the nature of her illness that it was justified, in line with their policies in asking that she get a ‘fit cert’ from her GP and that she attend with their company doctor. They accept that there was some confusion around the request for the complainant to attend with their company doctor. In any event the complainant would not have been available to attend with the company doctor as she was in Spain for the Christmas period. She was not certified by her doctor as unfit to work when she went to Spain. The complainant accepted that at the material time she was very depressed and was paranoid and probably read things in the situation that weren’t actually there. Whilst that is understandable based on her very difficult circumstances, it does not meet the criteria required to establish a constructive dismissal claim. Whilst I have the utmost sympathy for the complainant and the circumstances she found herself in, I find based on the legal requirements that the complainant was not justified in terminating her own employment. The complaint pursuant to Section 8 of the Unfair Dismissal Act 1977 fails.
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Dated: 12.12.2016