Complainant

Respondent

Anonymised Parties

A Cabin Crew Member

An Airline

Representatives

Michael Landers IMPACT Trade Union

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-00005628-001

03/07/2016

The Complainant was employed as a member of cabin crew by an international airline since 2007. She and her Representative outlined the background to her claim at the hearing.

In December 2013, an incident occurred whereby the Complainant alleged that she refused to carry out an unlawful instruction to work beyond the statutory agreed hours which led to her being disciplined (with a written warning, effective from the 26^th March 2014, being placed on her personnel file). In her submission to the WRC the Complainant stated that she appealed the decision but did not receive a reply from her employer. In 2013 she was diagnosed with a stress related medical illness and she alleged that this incident led to her feeling more vulnerable and insecure and her health deteriorated, to the extent that she was absent from work from April 2015 to the date of her alleged dismissal in February 2016.

On the 30^th December 2015, the Complainant attended a meeting with the Company’s Resource and Attendance Manager and a HR Representative. The purpose of the meeting was to discuss a report prepared by the Company’s Chief Medical Officer, which included an opinion that “it does not appear likely that this employee will be fit to resume cabin crew duties within the foreseeable future”. The Complainant was not advised that a Representative could or should accompany her to this meeting.

The Complainant stated that two options were put to her at this meeting; 1) that she would join a resource pool for cleaning and baggage handling positions that might arise or 2) that if her employment ceased by mutual consent an ex-gratia payment could be made to her.   She stated that a figure of €10,000 was mentioned. The Complainant also stated that she had previously applied for a voluntary service package but was unsuccessful (and she was to be offered an ex-gratia payment instead).

The Complainant submits that on the 12^th January 2016 the HR Representative contacted her by telephone to inform her that an ex-gratia payment of €10,000 was on offer.   Having discussed the matter with her husband she called the HR Representative to accept. She was told that there was a letter that she would have to sign that would be posted out to her.

The Complainant stated that on the 2^nd February 2016 the HR Representative contacted her asking that she send a copy of her birth certificate to expedite the ex-gratia payment and she did, in email and soft copy form.

The Complainant stated that in the days following she received a phone from the HR Representative saying that the “Powers That Be” have decided not to make an ex-gratia payment, as it would set a precedent that would enable other employees to leave the airline.

The Representative accepts that the Complainant sent an email to the HR Representative on the 15^th February 2016 tendering her resignation from the Company. In it she expressed her bitter disappointment that having been given an expectation she should would get some recognition for the loyal service to the Company, this was not now happening. She asked for her P45 and to have other administrative matters completed.

In a more detailed email to the HR Representative three days later (18^th February 2016) the Complainant stated that she was left with no option but to tender her resignation, as after being given the expectation, expressed in a verbal agreement with the HR Representative, that she would receive a gratuity payment, the Company had reneged on this commitment. She concluded this email by asking that the matter be reconsidered and the ex-gratia payment as originally offered, paid.

The Representative stated at the hearing that the Complainant accepts that she resigned her position from the Company. However, he emphasised that her medical condition was very poor and that she believed at that time that it would be in her best interests (from a health perspective) to seek closure on what had been a difficult period in her life.

Having being unsuccessful in a previous application for voluntary severance she believed that the offer of a €10,000 ex-gratia payment was the best outcome she could hope for and she is adamant that this precise amount was discussed with the Company’s HR Representative on various occasions. Otherwise, she would not refer to it in her email correspondence. The Representative accepted that the HR Representative might have ‘jumped the gun’, in that he may not have had authority to make the offer, but the Complainant fully understood and expected that it would be approved and paid.

In summarising, the Representative stated that based on the facts of the case (where an offer of an ex-gratia payment was made and then withdrawn), then the Complainant’s decision to resign was not unreasonable, but was induced by the employer’s behaviour towards her. He contends that the act of reneging on a commitment, in this particular case made to an employee who had been absent from work with a stress related illness for some considerable time, is sufficient to meet the test of constructive dismissal and her claim should succeed.

The Respondent strongly rejected the claim and submitted that the Complainant resigned her position voluntarily and during a process whereby the Company was engaging with her to consider her options (in light of her long-term illness).

The Complainant commenced employment on 2^nd July 2007 as a member of cabin crew. It was acknowledged that she was subject to an investigation under the disciplinary procedures arising from her failure to operate a rostered duty in December 2013. The Respondent stated that the process was fair and transparent, and the Complainant was represented by a trade union representative throughout.   They also stated that the Complainant had the right to appeal the written warning given but chose not to do so.   They do not see any relationship between the disciplinary matter in late 2013/early 2014 and the Complainant’s claim for unfair dismissal.

On the 18^th April 2015, the Complainant went on paid sick leave, which continued until her resignation on the 15^th February 2016. She attended meetings with the Company’s Chief Medical Officer on three occasions (04/08/15, 29/09/15 and 07/12/15), which enabled him to report on her medical condition and assess her fitness to return to work.

A meeting was arranged for the 30^th December 2015 to discuss the options open to the Complainant in the light of the most recent medical report which stated that “it does not appear likely that this employee will be fit to resume cabin crew duties within the foreseeable future”. At this meeting the Company’s representatives explained to the Complainant that she would be placed in their resource pool for a six-month period and she could apply for staff vacancy notices at or below her grade, that a member of the HR team would provide support to her as would externally appointed career consultants. She was also made aware of the Company’s Employee Assistance Programme and she was given a claim form to apply for the Income Protection policy that the Company arranged through an insurance company.

At this meeting the Complainant allegedly queried as to whether a voluntary severance option was available to her, and she was told that it was not an option for her as her role was not redundant and the previous scheme was closed.

The Complainant then asked as to whether the Company would be willing to consider paying her an ex-gratia severance payment. The HR representative undertook to speak to Management but contrary to what was claimed by the Complainant, the Respondent stated that at no stage was an offer of a gratuity payment made to her (although it is acknowledged that a discussion about the possibility of a payment did take place).

The Company wrote to the Complainant on the 6^th January 2016 outlining the issues discussed at the meeting on the 30^th December 2015. The Respondent stated that it was subsequently confirmed to the Complainant that the respondent was not willing to make any kind of ex-gratia gratuity or severance payment to her.

The Complainant subsequently completed the application form for her proposed claim for income continuance which was submitted by the Respondent to the insurance company on the 20^th January 2016). However, subsequently the Complainant indicated her unwillingness to engage with the assessment process (for income protection) and her resignation followed on the 15^th February 2016 (via an email to the HR Representative).   The Respondent also provided a copy of a handwritten letter to the HR Representative, dated 28^th February 2016, in which the Complainant restates her decision to resign her position as she needs to move on with her life.

The Respondent contends that the Complainant was treated in a fair and just manner throughout, the Company met its legal obligations in full in relation to the Complainant’s contract of employment and that her decision to resign was in no way related to any breach of that employment contract. The Respondent submits that options were presented to the Complainant including being placed in the Resource Pool on full pay for a six-month period together with support from internal HR and an external career consulting firm.   She was also advised of the Company’s income protection scheme for employees absent due to long term illness and the Company was processing an application on her behalf when she resigned her position.

A constructive dismissal arises where an employee involuntarily resigns from their employment, with or without providing the requisite notice to the employer. The resignation is classified as involuntary as it arises as a consequence of the unreasonable behaviour of the employer.

In accordance with Section 1 of the Act a definition of constructive dismissal that can be relied upon is:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or not given to the employer, in 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”.

I have considered the oral and written submissions of the parties in the case and the following is an examination of the facts and evidence presented:

It was undisputed that the Complainant was absent from work with a serious illness, and that she was very fragile throughout the period from December 2015 to February 2016. A review of the documentation provided by the Respondent shows that it adhered to its own procedures for managing employees on long term illness and in that regard it met its duty of care to deal with the Complainant’s situation in a fair and reasonable manner.

At the hearing, it was disputed whether an offer of an ex-gratia payment, verbal or otherwise, was made by the HR Representative to the Complainant. A letter from the employer to the Complainant dated the 6^th of January 2016, that summarised in detail the matters discussed and agreed at the meeting on the 30^th December 2015, made no reference to an ex-gratia payment, or any discussion about same.

A copy of a contemporaneous note of the meeting of the 30^th December 2015 refers to the Complainant’s query about a voluntary severance option. In it the HR Representative was “to find out if available or an alternative”. This doesn’t quite tally with the Respondent’s written submission, in which they stated that the HR Representative stated at the meeting that voluntary severance was not an option for the Complainant.

The Complainant’s email of the 18^th February 2016, sent three days after her resignation, is clear and specific that an amount of €10,000 was offered and then withdrawn.

Based on the facts and the evidence heard I am inclined to accept the Complainant’s contention that this offer was made, verbally, by the HR Representative, on the 12^th January 2016 and discussed on other occasions. I believe the HR Representative assumed that he could obtain approval for what might have been a relatively modest termination payment (possibly in the context of previous voluntary severance arrangements), but he was subsequently informed that this was not the case.

I believe that there were shortcomings in the Respondent’s management of the situation, especially in relation to the alleged offer of an ex-gratia payment that was subsequently withdrawn.   The Respondent may also wish to reflect on its decision to accept the Complainant’s resignation by email, without a discussion or otherwise as to whether it was in her best interests, given her emotionally fragile state throughout the process.

However, the burden of proof in a complaint of constructive dismissal under the Acts rests with the Complainant to prove that their resignation was justified. In effect, the Complainant must prove that they have exhausted all other avenues of resolution before resigning from their position. This would generally require them to bring their grievance to their employers’ attention and initiate the Company’s grievance procedures.  

In Murray V Rockabill Shellfish Limited (2012) the EAT determined that:

It has been well established that a question of constructive dismissal must be considered under two headings, entitlement and reasonableness. An employee must act reasonably in terminating his contract of employment.   Resignation must not be the first option taken by the employee and all other reasonable options, including following the grievance procedure, must be explored. An employee must pursue his grievance through the procedures laid down before taking the drastic step of resigning.

In this case I must find that the Complainant did not exhaust the avenues open to her before deciding to resign her position. These included seeking legal opinion or the advice of her Union Representative (who had advised her during the disciplinary hearing in March 2014 and represented her at this hearing).

Therefore, I am satisfied that the Complainant voluntarily resigned her position and accordingly, the claim for unfair dismissal fails.