ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002858

Complaint for Resolution:

Date of Adjudication Hearing: 05/10/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

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 commenced with the respondent as an administrative support worker in January 2006. The respondent is a community voluntary body providing employment opportunities for those facing particular problems finding employment because of disability etc.

In February 2013 she was diagnosed with a serious illness which required her to undergo treatment necessitating an absence of ten months.

In December 2013 she discussed her return with the respondent and she did return in January 2014 on the basis of part time work. This involved working a full week of mornings only and a total of twenty hours a week.

In the course of the succeeding months she was put under pressure to return to full time work, but by July she knew that she would not be able to do so for some time and suggested that the balance of ‘her’ hours i.e. the twenty she was not working, might be filled by means of a job sharing arrangement. This was not acted on.

Later that year she faced difficulty getting to work when the public transport service she relied on was withdrawn. This resulted in various forms of inconvenience and cost to her as she ultimately had to take taxis to work, and also because she had developed certain mobility difficulties the previous October.

By March 2016 as her problems with travelling had become so serious that she requested that the hours she worked might be spread over three days to reduce the burden of her travelling. This was turned down.

On April 14^th she gave notice of her intention to resign her position on April 29^th and advised the respondent that she regarded herself as having been constructively dismissed.

In a lengthy letter of resignation she set out the grounds on which she would base her claim. In a response on behalf of the Board on April 18^th her resignation was accepted with regret.

Respondent’s Submission and Presentation:

The respondent says that the complainant has not established a prima facie case as required by Section 1 of the Unfair Dismissal Act.

It also says that it could not respond to the complainant’s request for a change in her shifts, or to fill the position on a job sharing basis because this would not have met its service needs.

At all times it was willing to engage with the complainant. In March 2015 she had raised a grievance and although a meeting was arranged to consider it the complainant withdrew from the process. A second grievance was fully investigated and found to be without substance.

The respondent manager gave evidence that she had sought to assist the complainant in her travel to work difficulties by suggesting that colleagues could give her a lift but that this was rejected out of hand.

Finally the respondent noted that the complaint to the WRC was made on March 19^th 2016, a matter of thirteen days before the termination of the employment.

Findings and Conclusions

I must address the preliminary issue in this case concerning the date of referral of the complaint. The complainant said she referred it the day after she received a letter from the respondent accepting her resignation, April 18^th 2016. She regarded that as being the last word on the matter.

Nonetheless, on that day, April 19^th 2016 date she was still in employment and had not been dismissed, whether fairly constructively or otherwise. The clear practise and authority (mainly of the EAT) is that where a complaint is referred prior to the effective date of the termination then it does not fall within jurisdiction as no dismissal had taken place.

This is a most unfortunate case given the complainant’s serious illness, treatment and subsequent misfortune in relation to her access to work and it is always a source of disappointment when such matters, which appear from this perspective to have been eminently resolvable, have not been. I do not attribute responsibility to one side more than the other in that regard; I simply record a degree of regret that parties fail to do so.

Because, once a case is referred it must be decided on the basis of its facts and merits and the applicable law.

The breach of a contract of employment is, like any other breach of contract a very serious matter. Most cases involve an examination of whether an employer acted fairly in doing so and the test is a demanding one involving a mix of both procedural and substantive issues. The onus falls on the employer in such cases to justify any termination.

So when ‘the shoe is on the other foot’, and when an employee breaks the contract, and then seeks to pursue the employer for constructive unfair dismissal the bar is set just as high. Likewise, the burden of proof, which now passes to the employee is set at a high level.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

The Supreme Court has said that;

‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

Put simply, the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

Notwithstanding my decision on the jurisdictional issue, I set out the above to say that I do not consider that the complainant would have discharged the necessary burden of proof in any event.

Of course the respondent might have taken a different view in relation to the three day working or whether the complainant should work full or part time but there was no obligation on it to do so in this context. (The matter might have assumed different requirements under accommodation of a disability, for example) But it formed an honest view of what its service needs were.

Its unwillingness to respond to the complainant’s requirements do not come any way close to the level of unreasonableness of behaviour or repudiation of her contract necessary to justify an employee unilaterally breaking her contract. There is no doubt that the critical, ‘triggering’ event was the complainant’s travel difficulties. She stated in her submission that;

‘While initially these hours were suitable, in November 2014 my circumstances changes; cessation of the bus service which I used and no alternative’

Although she does also refer to the long terms effects of her treatment and some other issues. Nonetheless these problems related to getting to work were outside the control of the respondent and evidence was given of some effort on its part to assist the complainant.

Accordingly, even if the premature referral had not occurred she would not have succeeded on the facts of the case in meeting the required legal standard of justification of her decision to terminate her employment.

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.

Accordingly for the reasons set out above I dismiss complaint CA-00003941-001

Dated:   26/10/2016