ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002300

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 14^th.July 2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

The complaint under the Payment of Wages Act 1991 was withdrawn at the hearing.

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(

Complainant’s Submission and Presentation:

The claimant commenced employment with the respondent on the 15^th.March 2012 as a Store Assistant and was promoted to Deputy Manager on the 1^st.October 2013.The claimant submitted that he was compelled to leave his employment because of the conduct of his employer when he was off for a period of sick leave on the 19^th.November.He sustained an injury of his finger at work on the 18^th.Nov. and developed gastroenteritis the following day – he attended his GP who provided him with a cert until the 29^th.November.He notified the respondent of his illness and submitted the certificate. A further certificate was submitted in respect of an infection of his finger – sourced in the injury at work- to cover sick leave to the 6^th.September and the claimant spoke to his store manager when he submitted the cert.He submitted that the manager was dismissive of the infection and that the manager asserted that he would have to work on the tills for a week notwithstanding the sick cert. The claimant responded that he could not work as his doctor had insisted that he could not risk further infection to his finger and it needed time to heal.He submitted a further cert to his assistant manager to cover the period up until the 21^st.December.He submitted that when he received a call from his GP on the 1^st.Dec. , he learned that his area manager had been making enquiries about the medical certificates and he considered this to be a complete breach of trust .It was submitted that the respondent was a large organisation and if there was any doubt about a medical certificate the company should have raised the matter directly with the claimant.

It was submitted that the respondent had failed to comply with the terms of their sick policy which states that the Company reserve the right to require a worker to undergo an independent medical exam. It was submitted that without the permission of the claimant the respondent had contacted his doctor , indicating that they had no trust in the claimant.

It was submitted that the claimant had adhered to the respondent’s policy while the company had not and the respondent’s actions had infuriated the claimant .It was contended that the claimant had nowhere to turn as the grievance procedure made no provision for pursuing a grievance against your area manager. He felt that he was left with no option but to resign on the 2^nd December2015.It was advanced that the claimant had no intention of resigning prior to this but believed he had no option when “ his area manager completely undermined him by calling his GP”. It was submitted that the company failure to enquire about the claimant following receipt of his resignation spoke volumes about the company’s attitude to the claimant. It was contended that a reasonable and prudent employer would have sent the claimant to a company doctor or at the very least “ request further information from the employee directly” rather than bypassing the employee and approaching the GP to fish for more information.

It was advanced that the respondent had constructively dismissed the claimant “ on the basis that they created a very negative and or hostile work environment that made the claimant’s continued employment with the organisation untenable. There was no avenue for the claimant to pursue his grievance against his area manager.It was submitted that there had been a fundamental breach of the employee/employer relationship .The provisions of UD 1222/2011 and Labour Court Determination (2005)33 were invoked in support of the claimant’s position.

Respondent’s Submission and Presentation:

The respondent asserted that as in all cases of constructive dismissal the onus rested with the claimant to demonstrate that he had no option but to resign and submitted that he had failed to do so.The burden of proof was on the claimant to prove his claim- the claimant had voluntarily resigned from his employment and this was clear from his letter of resignation.The employment was terminated by the claimant’s own resignation.It was contended that there was no need to refer the claimant to the company doctor - it was not mandatory under the Scheme. The area manager had sought clarification from the claimant’s GP.There was an onus on the claimant to raise his grievance internally and he had failed to do so.It was open to him to pursue his grievance and he had not done so and it was contended that there was no obligation on the respondent to go chasing the claimant.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.

Decision

At the hearing , evidence was given by the claimant , the area manager and the claimant’s GP

The claimant asserted that if he had pursued a grievance against his area manager his position would have been untenable and that consequently he had no option but to resign.The claimant was adamant that in a conversation with his GP he had advised him not to talk to his area manager and to refer him back to the claimant if he had any questions.The area manager for his part asserted that he contacted the GP’s Secretary because he wanted clarification about a date on one of the certificates and this was subsequently clarified in a conversation with the GP.The GP in his direct evidence referred to his contemporaneous notes and summarised the exchanges with the claimant.He stated that he would not have spoken to the area manager without the claimant’s consent .He added that if the claimant had been disgruntled about the matter he would have remembered.He accepted that one of the dates on the certificate was unclear.He stated that the claimant attended his clinic on the 3^rd.Decemeber and made no reference to having resigned the previous day.

While I accept the claimant’s contention that the company procedures are deficient by virtue of their remaining silent on the matter of processing a grievance against an area manager and acknowledge that the claimant was genuinely aggrieved with the manner in which his sick leave was managed by the respondent , I find on the basis of the evidence set out in the foregoing paragraph that the claimant has failed to meet the burden of proof required in a case of constructive dismissal.I do not accept that the respondent breached their sick pay policy – the requirement to refer an employee for an independent medical is discretionary ; the GP confirmed in his evidence that there was indeed an issue around the clarity of one of the dates in the certs and consequently I find it was not unreasonable for the employer to seek clarification on same; the GP confirmed that he obtained the permission of the claimant before engaging with the respondent and in such circumstances I cannot accept the claimant’s contention that he was left with no option but to resign.Accordingly, I do not uphold the complaint of constructive dismissal.

Dated:   5^th October 2016