ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000716

Complaint for Resolution:

Date of Adjudication Hearing: 23rd March 2016

Workplace Relations Commission Adjudication Officer: Sean Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 or 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.

The Complainant was employed by the Respondent from 27^th October 2008 to 9^th July 2015 and his fortnightly rate of pay was €2,035.31c gross.   The Complainant was submitting that he had been constructively dismissed by the Respondent and the Respondent was denying the complaint.

Both parties made detailed submissions.  

Summary Complainant’s Submissions:

SIPTU said that the Complainant was employed by the Respondent and they stated where he was based.

On 19^th April 2015, the Complainant made application to the Operations Performance Manager under the Respondent’s Career Break Scheme for a period of leave from July 2015 to July 20118.   The reason he stated on the Application Form was for ‘Educational Purposes’ and possibly ‘Foreign Travel’.   Initially he informed the Respondent that he had ticked these boxes on the Form in order to keep his affairs private, but that the basis for the application was very personal and arose out martial and other tragic family circumstances and some work issues (he later put this detail in writing).

The Complainant was told that his application was refused, but no formal response had been issued, so on 3^rd June 2015, he wrote to the Area Operations Manager and he now provided great personal detail of his circumstances and he attached a letter from his GP supporting his application.

On 4^th June 2015, the Complainant received a letter from the Operations Manager, which formally informed that the Service was not in a position to grant his application for a career break at that time; the reason given was that there was currently a staff deficit that would prevent the backfilling of the job.

The Complainant then invoked the Respondent’s Grievance Procedure and a Grievance Hearing took place on 5^th June 2015.   The outcome was notified to him by letter of 5^th June 2015, from the Acting Operations Resource Manager, which informed that the grievance was NOT upheld.

On 8^th June 2015, the matter was elevated to Stage 2 of the Grievance Procedure.

On 9^th June 2015, the Complainant wrote to HR, informing that he intended to resign as of 9^th July 2015 and SIPTU said this was an effort to illustrate the serious nature of his predicament.

The Stage 2 Grievance Hearing took place on 12^th June 2015, with the Operations Performance Manager; the decision to refuse the application was upheld.   Stage 3 of the Grievance Procedure was invoked by the Complainant and the Hearing, with the named Manager from Corporate Employee Relations on 5^th July 2015, who issued his decision on 6^th July 2015 and again the original decision was upheld.

The Complainant left the employment on 6^th July 2015.

SIPTU said the application made by the Respondent is for an employee benefit that is open to employees for a variety of reasons.   He required this for very person reasons as state din in his letter of 2^nd June 2015.   SIPTU said it was extremely difficult for the Complainant to disclose the background to his request and reason for divulging these very personal details was to impress upon the Respondent the seriousness of his circumstances.

SIPTU said the Respondent states the refusal stemmed from their concerns around the effect it would have on the provision of the service.   The Complainant was aware of the situation obtaining at the time, where trained frontline staff were not been utilised in their frontline posts, but in administration posts and others were absent on career break; therefore he found it hard to accept that his application was refused based on perceived difficulties in backfilling his job.   SIPTU also understand that the Respondent has moved 6 paramedics out of the Area the Complainant was working in to another Area.

SIPTU said they note from the letter from the Corporate Relations Manager that the Service had commenced open recruitment of qualified paramedics; and they said this being the case a more reasonable response from the Respondent, would have been to aske the Complainant to postpone or ‘park’ his application for a period until this recruitment exercise was established and they were in a position to address the staffing issues referred to.

SIPTU said the Complainant was left with no option other than to leave his job when the Respondent refused to allow him the time off he needed.   SIPTU said that by reference to his letter of 9^th June 2015 and discussions at his appeal hearings the Respondent was aware of the Complainant’s intention to resign if this absence was not approved.   SIPTU said it is clear that this action (resignation) was involuntary and a last resort.   He did not wish to permanently leave a secure pensionable position with the Respondent. SIPTU said the constructive dismissal came about by the unreasonable approach taken by the Respondent in circumstances where an employee was requesting assistance during a particularly difficult time in his life, and it was within the gift of the Respondent to alleviate this difficulty.

SIPTU said the Complainant exhausted all internal procedures and the Respondent was fully aware of the effect their decision would have in him, who as confirmed by his GP, was in need of a break from the stress he was having to cope with and SIPTU said they had ample time to resolve matters in a fashion that would not result in the Complainant losing his job.

SIPTU said the Complainant was never advised by the Respondent of the implications of resigning his job and in fact there was no response from to his letter of resignation or his letter detailing his welfare issues.

SIPTU said the Complainant has moved to Canada in line with his stated intentions; he is currently engaged in training and upskilling that will benefit him in any future role as a paramedic.   As his children and extended family live in Ireland it is his intention to return to Ireland in about 2 years time.  

Based on the foregoing submissions SIPTU and the Complainant sought a favourable decision.

Summary of Respondent’s Submission:

The Respondent said the case today under the Unfair Dismissals Acts 1977, relates to the Complainant resigning from his job in their employment to move to Canada for personal reasons after him being refused a career break and consequently claiming constructive dismissal.   The Respondent submitted the complaint is unfounded, that no dismissal occurred and they deny the complaints made pursuant to the Unfair Dismissals Acts 1977.

The Respondent said that for personal reasons the Complainant sought a career break, which application was refused by Service Management in June 2015, due to staffing constraints.

The Complainant then invoked the Grievance Procedure, under with his application was refused at Stages 1, 2 and 3 of the Procedure.   The reason given for refusal was the detrimental effect that granting a career break would have on service delivery, especially as the region in which the Complainant was/is employed are under resourced at paramedic grade.

The Respondent said that, while appealing his grievance through the Procedure, the Complainant resigned from their employment in June 2015.

The Respondent said that their position is that no career break can be approved for frontline operation staff, this being decided upon by the management team, including the National Director.   They said the rationale being quite simple as approval of such career breaks would have a detrimental effect on service delivery and would lead to a further reduction in staffing at a time when the Service, including the Region in which the Complainant worked, is underesourced in terms of staffing requirements and unable to meet all rostered shifts.   Approval would also have a detrimental effect on the pay budget if possible to fill the roster gaps this would have to occur on double time, which the Service is precluded in budget frameworks from doing.

The Respondent said that their Terms and Conditions of Employment documents clearly states that the granting of a career break may be refused where it would have a detrimental effect on service delivery and therefore clarifies there is no automatic right to a career break.

The Respondent said that in September 2015, they has a deficit of approximately 167 paramedics to meet all service delivery requirements, leading to significant shortages in all areas and significant investment in recruitment over a number of years are required to deliver the required level of staffing.  

The Respondent said that this workforce deficit is now subject to a longer term plan including escalation of training; however the lead time for a paramedic to be fully qualified is 2 years.  

The Respondent said that their position is that extensive engagement has taken place with the Complainant in relation to the Grievance Procedure, including exhaustion of all internal stages, which did not alter the original decision not to grant a career break to him due to clear and recognised service delivery reasons.

In his correspondence with the Service the Complainant acknowledges that other colleagues have been refused career breaks and his case is not an isolated one, in his own Area alone 5 have been refused in the last 2 years.

The Respondent referred to what they said was a precedent, an adjudication decision, r-107292-ud-11; in that case the Rights Commissioner rejected that Claimant’s (a Nurse) case that she had been constructively dismissed because her request for a career break on compassionate grounds had been turned down by the DON because of the moratorium.

The Respondent referred to a further case that they considered to be a precedent adjudication case, r-149803-ir-14/JT under the IR Acts.   In that case the Rights Commissioner rejected that Claimant’s case for access to the Incentivised Career Break Scheme on the grounds that her application was not supported at regional level.

The Respondent said they note that Section 6(1) of the Unfair Dismissals Act refers to a dismissal requiring ‘substantial grounds’; however this was not the case in the instant case as no dismissal occurred, and the Complainant resigned.

The Respondent said that the Act defines ‘constructive dismissal’ as “the termination by the employee of his contract with her/his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract of employment.”   The Respondent said that clearly that was not the case here, as there was no unreasonable conduct by them and the complaint/claim does not meet the stated aim as set out in the 1977 Act.

The Respondent said that no dismissal occurred, the Complainant resigned in accordance with his correspondence of 9^th June 2015.   The Respondent said that no constructive dismissal occurred; the Complainant left their employment for personal reasons and not for work reasons.   The Respondent said there was no conduct so unreasonable by them that the Complainant was left with no option but to resign.

The Respondent said that in addition the Complainant was made aware in correspondence of 6^th July 2015 that the Service has commenced open recruitment for qualified paramedics and upon his return from Canada, he could reapply through that avenue if he so wished.

The Respondent reiterated that no automatic entitlement exists for career breaks and this is clearly set out in their terms and conditions of employment document.   Career breaks can and are refused where it is considered this would have a detrimental effect on service delivery, which is the case with frontline paramedic staff.

The Respondent said that approval of career breaks would create a very dangerous and potentially unmanageable precedent damaging to service delivery and financial pay budget management as well as a number of third party or legal challenges for retrospective application as the Complainant is not the only Paramedic refused a career break.m

In light of the foregoing submissions the Respondent submitted the complaint was not well founded, the Complainant had not been dismissed by them constructively or otherwise – and they sought a decision to that effect and that their position be upheld.

Findings and 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(1) 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

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I am required to decide if the Complainant was constructively dismissed by the Respondent.

I am satisfied that the Respondent acted in accordance with the provisions of the Career Break Scheme in relation to the Complainant, where it states: “An employee’s application may be refused where it is considered that the granting of a career break would have a detrimental effect on the service.”.   There was no breach of the provisions of that Scheme by the Respondent in relation to the Complainant.    The entitlement to a career break is not automatic, nor could it be so. I am equally satisfied that the reasons given to the Complainant for the refusal to grant him a Career Break in addition to being in accordance with the provisions of that Scheme were fair (and indeed obvious) ones for that refusal.   The reason advanced was that there was a (severe) deficit of staff in the Service in which the Complainant was working and this was common knowledge both within the Service and generally to the degree that it could be said to be ‘notorious’, I cannot accept that this would not have been well known to the Complainant.    The Complainant would also be aware of the length of time and training, of a number of years it will take to redress that deficit To grant him a Career Break in such circumstances, where it was not possible to backfill his position would have had a detrimental effect on service delivery.   In circumstances where their had been little or no recruitment or replacement within the Service in the previous years due to the moratorium on recruitment the Complainant must have, and most certainly should have, been fully aware of that fact and the extreme difficulty it would present to the Respondent to grant him a Career Break.

This refusal to grant a career break within the Service was not confined to the Complainant, indeed even in the Area in which the Complainant worked 5 applications were refused in the previous 2 years, accordingly the Complainant was treated no differently or no less favourably than his colleagues in this respect.

I note that in his relatively short letter of resignation of 9^th June 2015, the Complainant simply states:

                                                                   “Resignation Letter    

To whom it may concern;

Further to my verbal notice given on 25 May 2015, please accept this letter as my resignation from my position as Paramedic Practitioner with (the name and address of the Respondent included here)

I am available to work all my scheduled shifts as well as any overtime shifts from this date to my last shift, which will be 9 July 2015”

It will be noted that there is no mention in this letter of the reason for this resignation; and in particular there is no implication or suggestion whatsoever that the reason for the resignation is because he believed that he was being treated intolerably by the Respondent.   There is nothing whatsoever in this letter that alerts the Respondent to any suggestion of any problem that needed to be dealt with by them.

It is to be expected that if the Complainant believed that he was being forced by the actions or inactions of the Respondent to resign his employment with them, that, at a minimum that fact would be so stated or alluded to in his letter of resignation.

This simply is not the correspondence or resignation letter that is to be expected from an employee who believes he is being constructively dismissed and it undermines his submission of constructive dismissal.

I cannot see any evidence that the Respondent behaved in such an unreasonable fashion that justified any reasonable employee to conclude that they had no reasonable option but to resign from the employment.  

Nor can I see any evidence that the Respondent behaved in such a fashion that indicated they were not longer willing to be bound by any fundamental tenet of the contract of employment that existed between the parties (indeed I note that no such submission or suggestion was made to me).

Accordingly I must find that the Complainant has failed to discharge either the ‘reasonableness test’ or the ‘contract test’ necessary to prove or demonstrate constructive dismissal.

Based on the forgoing findings I find and declare that the Complaint was not unfairly dismissed by the Respondent, constructively or otherwise.     I declare that the complaint under Section 8 of the Unfair Dismissals Acts 1977 is not well founded and it is rejected.

Dated: 6^th July 2016