ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002729

Complaints for Resolution:

Date of Adjudication Hearing: 16/09/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 , Section 8(1B) of the Unfair Dismissals Act, 1977, Section 6 of the Payment of Wages Act , 1991 , Section 79 of the Employment Equality Act, 1998, and Section 39 of the Redundancy Payments Act , 1967 , following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The complaint under Employment Equality Act 1998 was withdrawn at hearing.

Complainant’s Submission and Presentation:

Claim for Constructive Dismissal

The complainant was employed as a Site Manager on a full time basis for a large Cleaning company on 24 August 2009.She was based in a large Hospital setting. She outlined the background to her claim at the hearing.

In September, 2010, she informed the company that she had been diagnosed with a serious illness and preceded on sick leave until June 2012.

When she sought to return to her position at the hospital, she was prevented from returning, the position had been filled by her partner on a locum basis during her absence. The respondent offered her an alternative position in another hospital setting, which the complainant viewed as a demotion. She refused the position. The complainant submitted that she has been the recipient of a very negative and hurtful remark from her line manager in Healthcare which resulted in a breakdown in the working relationship. The complainant understood from her Manager that the client, i.e. the hospital did not want her back .She sought to address this with the client herself but was unsuccessful. The complainant submitted that she had been unfairly delayed restoration to the payroll in June 2012 and had been removed from the payroll for a 9 week period during September and October 2012.

In September 2012, the complainant accepted a position in the Pharmaceutical division of the company on an interim basis. She submitted that this was a very difficult experience for her where she was undermined and subjected to a published petition for her removal from the site. The complainant submitted at the hearing that this placement was fraught with operational, IT and staff relations difficulties, the impact of which caused her to have her go on sick leave in October 2013.

The complainant resigned her position in January 2014. The respondent asked her to reconsider this step and the company offered her the opportunity to engage in a mediation process .The complainant withdrew her notice on February 4, 2014 and agreed to enter mediation. Both parties attended the Labour Relations Commission on 24 June 2014 and the case stood adjourned there-after. The complainant also submitted a copy of a medical note submitted to the respondent dated 24 June 2014 which referred to her absence from work being “partially due to work related stress” The note sought that an allowance be made for her personal health at work.

The complainant submitted a statement dated 11 July 2016 to the hearing which proposed to summarise the situation in the first person.

She contended that she had been “…. Rubbed out …… and disappeared from the company “from her attempted return to work in 2012. She understood that she had an agreement with the employer that she had a right to return to her position of Site Manager at the hospital and understood from the hospital itself that there was no barrier to this.

She was reluctant to accept the proposed pharma posting, but did so .She experienced the upset and distress of staff following the implementation of a new pay roll system late in 2012 which continued into 2013

.In addition, she submitted that she found Health and Safety to be “very poor” at the site and she received considerable back flack when she disturbed a time back arrangement for cleaning operatives without supporting documentation. In addition, she identified that there were Operational Guidelines underpinning service in the Hospital settings, these neither were nor reciprocated in the Pharma setting.

She described feeling excluded by the client and the respondent and submitted that the Union Rep was regarded more as the manager than she was .She understood that she would be expected to sign new terms and conditions of employment which would have resulted in a reduction in pay.

She submitted that she “couldn’t take anymore, wasn’t sleeping and her health was suffering ….when she commenced sick leave in September 2013”. When she handed in her keys and notes the day after, she discovered a published petition signed by three members of staff including the Union Official, calling for the return of a past manager.

She sought to address matters through a meeting with Mr OM2 and Ms C in October 2013 but she admitted that she had broken down crying.

In October 2013, the complainant submitted that the position of Site Manager at the hospital was made redundant. The hospital re-instated the position in 2015.

The Complainant told the hearing that 4 members of her family had been struck by serious illnesses since 2010 and she had lost her sister through this illness in 2015.

The complainant detailed that she had engaged in approximately 50 meetings/ email conversations with the respondent since 2012 .She stated that she would have liked to return to the hospital but believed that she had been treated badly .She submitted that her efforts to advance through the grievance procedure were obstructed by the respondent when she was directed back to the second stage of the grievance procedure. She stated that she was prepared “to deal with things” but this was not accommodated.

She described the circumstances of her termination of employment. In the course of an application for a social welfare payment, she received a document from the Department of Social Protection which gave her details as being in the wrong position and as having a record of leaving the company in 2013. These were not accurate and caused the complainant to feel undermined.

The complainant was passed medically fit for work ( on a part time basis ) in January 2016 and was placed on job seekers benefit as there was no record of her being in active employment .She was aggrieved and submitted her resignation on February 11,2016. She submitted evidence of mitigation and loss.

Respondent’s Submission and Presentation:

The respondent disputed the claim .The respondent outlined the sequence of events.

It was common case that the complainant held the position as stated. However, the respondent submitted that the complainant was subject to the contractual term on re-assignment of position which stated that:

“…….You will be based at X hospital, however the company reserves the right to transfer you to another location within Ireland in accordance with business requirements ……”

The respondent contended that the company was operating within this clause when the complainant made her unexpected announcement intention of her return to work on 14 June 2012 and sought resumption into her hospital position. The hospital was taken by surprise on that day as they had not received any advance notice .The Hospital followed this up by way of letter to the complainant on 15 June, 2012 seeking a two week notice period of resumption and a return to work meeting .The complainant was restored to the payroll on June 25, 2012 on the basis that a return site had been identified for her.

The respondent agreed that the complainant’s partner had served as locum in her absence and the contract had been running very well, with no plans to re-organise the service. The respondent initially offered the complainant the return position of

1 Assistant Site Manager in another hospital

2 No Change in Salary

3 Hours of Work 12.30 pm to 9pm

This was refused by the complainant. Further correspondence issued between the parties and they met to discuss the issue on July 12, 2012. The respondent issued a revised proposal on July 15^th. This involved a revised Job Title of Site Manager for the position in the proposed hospital and a red circled salary .The letter also sought an update on the complainant’s health status. The company did not receive a response to their proposal and after a number of follow ups wrote again to the complainant On 7 August indicating that a continued absence of response from her would cause the company to remove her from the payroll.

The respondent received a response from the complainant dated 9 August which raised issues on the complainants stated intention of returning to her position at the hospital she commenced at in 2009.

The complainant submitted a grievance a request for an investigation into her return to work in the hospital on 13 August 2012.

The Hr Manager ( Ms HRM) responded to the complainant on 14 August , unaware of the existence of the grievance .She requested the complainant to attend work in the proposed hospital setting on August 17^th , failure to do so would result in a removal from pay .

The meeting to address the grievance took place on August 22, 2012 resulted in a letter sent to the complainant on August 24^th seeking the complainant to accept the proposed hospital setting with a supportive structure and a commitment from the respondent to restore a positive working relationship with the complainants line manager , Ms LM1 . The letter sought a response on or before August 31.

The complainant received a reminder when she did not respond. This reminder outlined three alternatives for her to consider

1 Accept the proposed role

2 Not to accept and be removed from the pay roll

3 Lack of response would result in removal from pay roll

The respondent received a response from the complainant interpreting the letter as notice of termination of her employment and a restatement of her objection to accepting the proposed position.

Further correspondence issued between the parties as the complainant sought to escalate the grievance procedure to stage 3. The company understood that the grievance procedure had rested at the informal stage and sought to engage the complainant on moving towards the formal grievance procedure. In the meantime, the company was working to scope out an alternative proposal for the complainant outside the Healthcare division.

A meeting was arranged by the company and chaired by a senior Hr Manager, Ms HRM2 on October 23, 2012.

A number of clarifications followed on

1 Identity of the decision maker on the proposed new posting was not Ms LM1 but Mr OM 1

2 The company wanted the complainant to remain in the Healthcare division

3 The issue of proposed removal from the pay roll was balanced by work offered and then refused

4 A proposed new site was put forward as a means of returning the complainant to work.

The complainant was re-assigned on 25^th October to a Pharma base.

The company received a communication from the complainant which was highly critical of her “shambolic “return to work. The company responded by offering mediation between the complainant and Ms LM1.

The complainant appointed a Solicitor to act for after that. On 19 November, 2012, a claim was lodged for payment of euro 5,737.23 in compensation for 9 weeks loss of pay. This was rejected by the company.

The respondent had no further correspondence with the complainant until she was place on protective notice in March 2013 on foot of an anticipated restructuring. The contract continued on the site.

The company received a grievance from the complainant on September 23, 2013 in relation to her being undermined at work and circulation of petition against her .The outcome of this issued on 31 October .

1 The Shop Steward denied the allegations

2 All staff members who signed the petition were reprimanded in line with the company’s disciplinary procedure.

3 An open line of communication was required among all staff and between the Shop Steward and the complainant.

A recommendation was made for mediation.

This was not appealed by the complainant.

The company was in end of year communication with the complainant regarding her absence from work and a potential for a return to work but the complainant did not engage .The complainant referred to the position of Site Manager at the first hospital being made redundant in September, 2013.

When the complainant submitted her resignation on February 4, 2014, the company asked her to reconsider and offered mediation for the third time .There was a delay in securing a response from the complainant who requested that communication should now be channelled through her Solicitor .The resignation was set aside on March 5^th, 2014...

The case came before the Labour relations Commission in June 2014. During the course of the Conciliation Conference issues relating to the complainants position were discussed and the meeting was adjourned to consider the possibility of reaching an amicable solution and the company understood that the complainant was to consider her position in this regard. The complainant continues unwell and was not fit for work.

The complainants Solicitor contacted the company in December 2015 indicating the complainant’s preparedness to resume mediation / LRC .The complainant was in the process of an application for Carers Benefit.

The respondent was confused by the complainant’s resignation given the live complaint before the LRC. They had not been notified by way of Medical certificate that the complainant was fit to resume work .The company sought that the parties resume before the LRC, given the complainants statement in that regard from December 2015.

The respondent disputed that the complainant was compelled to leave the company .They submitted that the complainant had decided at an early stage in the process that she was no longer going to work with Ms LM1. She withdrew from the Healthcare division on that basis. The complainant was mistaken that Ms LM1 was the decision maker in formulating the proposed offer of a return to work for her, when in reality it was Mr OM1. The respondent submitted that the lack of acceptance of the “re-assignment “clause in the contract went to the heart of the complainants unease .The company needed this clause for business reasons.

There was a persistent delay in the response time of the complainant to company correspondence and she was critical of the company when she was removed from payroll for not making herself available for work.

The respondent submitted that the complainant had not at any time been dismissed by the company .The case was marked by the complainants refusal to re-assign her base location .The complainant did not accept the three offers of mediation .The complainant had an opportunity to resolve her grievances at the LRC .

The respondent submitted that they acted reasonably and that the complainant was the person acting unreasonably .She chose to resign her position rather than complete the procedures which were available to her, which she had started but not completed.

Ms LM1 told the hearing that the usual practice on return from sick leave was to ring at least 4 days in advance. When the complainant dropped into the hospital in June 2012, the contract at the hospital was up for tender and changes were not needed on site .Ms LM1 disputed saying that the complainant wasn’t wanted back at work.

During cross examination, Ms LM1 stated that she was taken off guard when the complainant came into her office in June 2012 as her last medical cert received had not indicated a change in her condition. Ms LM1 felt disrespected at the meeting, where the complainant’s partner was also in attendance.

She submitted that the company did not practice an absolute restoration to a position post sick leave, maternity leave. She disputed that the complainants health condition was ignored and instead she was offered the same job on a different site, where she would utilise the same skill set.

Ms LM1 confirmed that the complainants partner was on a temporary contract .The client was happy with the running of the contract .The offer of the proposed hospital was viewed as reasonable. This was the largest contract and the position was warranted there. There were close working relations between both hospitals. Ms LM1 managed both contracts.

Ms LM1 acknowledged that the longest period of sick leave which she had managed previous to the complainants two year absence was 9 months. Ms LM1 confirmed that

Decision:

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

Section 6 of the Payment of Wages Act 1991 requires me to make a decision in this case.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Section 39 of the Redundancy Payments Acts requires me to make a decision

Decision:

1. CA-00003757-001 Unfair Dismissal Act claim:

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.

I must consider whether because of the respondents conduct, the complainant was entitled to terminate her contract or whether it was reasonable for her to do so?

Constructive Dismissal is not specifically mentioned in the Unfair Dismissals Legislation .The definition relied on can; however be found in Section 1 of the Act.

1(b) 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 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 this case and I would now like to analyse the facts in the case.

The employment relationship in this case, while not unprecedented took on a certain complexity from the beginning through a tri-angular relationship. The complainant was employed by the respondent and then placed in the customer location to work for the respondent. There were three parties involved.

It is clear that neither party could have reasonably anticipated the tenure of the complainant’s absence through sick leave September 2010-June 2012. I accept that the respondent placed the complainants partner in a locum position in her absence .I can understand just why the complainant continued to identify with the position during this time as she described herself as “ supporting from the side-lines “ however, I must accept that that is not how the respondent saw her role .

I find that the circumstances surrounding the efforts of the parties on the return to work in June 2012, to be central to the case. It was undisputed that the complainant had a serious illness, which necessitated treatment. The respondent was in receipt of ongoing medical certificates. I accept that when the complainant dropped in to see her manager on June 12, 2012, it was an unannounced visit and both parties, the complainant and Ms LM1 was dissatisfied with the outcome. I identified where the respondent sought to “right the wrong “in relation to the statement attributable to Ms LM1 at the June meeting. However, the complainant did not wish to work with her again after that. This, in essence closed the Healthcare Division to her.

A careful examination of the complainant’s contract of employment confirmed that she was obliged to keep the respondent posted during her extended sick leave. There was no reciprocal clause involving the complainant . “                  

I am guided by the reference of Ms LM1, for the respondent, that she had not been advised of a Final medical certificate which supported the complainants planned return to work. I accept the evidence of the complainant that she had just received the news from her treating Dr and wanted to break the good news, however , I find her sense of injustice regarding this meeting to be slightly overreached , given that all present were from a management background who must have understood and appreciated the need to plan .

The complainant demonstrated a valiant effort in pursuance of her desire to return to her Hospital position. I am satisfied that she understood that she would be best suited there .However, the respondent is correct on the insertion clause on the presiding “mobility clause “. When asked at the hearing how frequently this clause was relied on? The response was returned as not that often. I have reflected on both parties submission on this key matter and I have to find that neither party gave sufficient consideration to the others perspective on the Site Manager position at the hospital .The complainant advanced her case base on her perceived absolute right of return, while the respondent sought to rely on the status Quo of the locum in order to preserve stability and extend the opportunity to retain the contract at the hospital .Both laudable aims but polarised positions.

I find that the respondent should have shown more sensitivity to the complainant in this regard, given her recovery from a serious illness and her clear desire to re-establish herself in the workplace. The respondent had a duty of care to place the complainant in a safe working environment but was equally entitled to receive a bi lateral engagement with the complainant.

I find there was a vacuum in this regard very quickly after June 2012 and this was not mended during the employment contract. The offer of the revised role in the second hospital may not have been ideal from the complainant’s perspective; however, I must find that it deserved a more considered response from her. It is clear that both parties were losing patience with each other at this time, positions hardened and the complainant viewed most developments as personalised attacks on her which stymied a potential for conflict resolution. I also note that the complainant chose not to rely on a representative in her case until she instructed a Solicitor late in 2012. Given the highly emotional time experience by the complainant in terms of her own illness and other family member’s illness, I must accept that the complainant was very fragile at that time.

The Supreme Court Case of Berber V Dunnes Stores [2009]20 ELR 61 sets down a test for Constructive Dismissal in the case of a wrongful dismissal.

1. The test is objective
2. The test requires the conduct of the employer and employee to be considered.
3. The conduct of the parties as a whole and the cumulative effect must be looked at.
4. The conduct of the employer complained of must be unreasonable and without proper cause and its effects 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.

I find that the respondent strayed outside the parameters of their own Disciplinary procedure when they removed the complainant off the pay roll in September, 2012. This unilateral action, in my opinion just served to harden positions further and was unreasonable when considered against the potential alternatives contained in the Disciplinary procedure.

However, I am struck by both parties’ descriptions of the acceptance of the Pharma position in November 2012. This should have been a new start for the parties; however, there was a multitude of operational issues from the complainant’s perspective which culminated in a grievance in September 2013, and some 10 months post commencement.

On a careful review of the case, I found it unusual that an employee would be permitted to have a company manager present as an advocate in the case where the employee was on notice of the complainants desire to meet with her. This deviated from an “ Equality of Arms “ necessary to uphold fair procedures .I accept that the position lacked the Protocols and Procedures associated with the Hospital , however , it was an in charge position .

The outcome of the grievance meeting in November 2013 offered mediation as the way forward but this did not emerge. I am satisfied matters descended to drift between the parties from that time onwards .The complainant submitted medical documentation that her work related stress was partially responsible for her absence from work in mid 2014 .Her Dr sought some consideration of her condition. The Labour Relations Commission hearing remained adjourned at the date of the hearing.

The respondent re-instated the position of Site Manager at the hospital in spring 2015. This position was taken up by someone already working there and the complainant was not approached by the Respondent in this regard.

In Murray V Rockabill Shellfish ltd [2012]23 ELR 331. 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 an 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. Unfortunately there was no grievance procedure that the claimant could invoke.

In the instant case, the complainant actioned the grievance procedure on two occasions during the course of her employment.

I am satisfied that the complainant closed the door on a return to the Healthcare Division when she received the outcome to her grievance in November 2012. However, I am satisfied that she continued to hold a sense of grave injustice on her perceived exclusion from a position she believe was rightly hers. This stayed with her until the hearing date. I have no intention of criticising the complainant for holding strong views, and I realise that her unpleasant experiences in the Pharma role did not help her to relaunch in the company. However, I must find that the company did keep the door open for a resolution, through dialogue, meetings, offers of mediation and the connection necessary to address the complainant’s workplace issues never really fused. Of course, both parties must hold a part responsibility for this inaction.

Instead, the complainant recorded a number of grievances and proved that she invoked the company procedures in the spirit of resolution; however the procedures were left hanging with regard to her grievances. In particular, she did not address the re-instatement of the Site Manager position at the hospital in early spring 2015. I appreciate that the complainant was on sick leave, but it seemed to me an ideal position to explore, at least.

I found a considerable shortfall in the respondent’s management of both periods of extended sick leave. There was no Occupational Health Dr involvement. This is regrettable. There was no one available to me to describe how the respondent managed the second period of sick leave, outside an end of year letter in 2013. I received an account that the sick notes had ceased in 2015, but no follow up was submitted.

In coming to my decision in this aspect of the case, I must examine the circumstances surrounding the dismissal in February 2016, two years after the first resignation and one month after the complainant had received confirmation from her Dr that she was fit for work on a part time basis.

I accept that the complainant may no longer have felt part of the company and wished to start the New Year on a better footing. I am also satisfied that the complainants catastrophic loss and ongoing family illnesses had proved a hard cross to bear .However , I did not identify, based on the submissions advanced by the parties that anything had happened to bring matters to a critical head ,outside some miss understandings transmitted by the Department of Social welfare .

I accept that there were shortcomings in the respondents management of the complainant ,however, on balance I must find that the respondent remained open to resolution and was awaiting feedback from the complainant in that regard at the time of the complainants termination of employment . I am influenced in this by reference to their final letter to the complainant .This indicated that they had not been notified of the complainants fitness for work.

On that basis, I must find that the complainant had not exhausted the external procedures resting at the Labour Relations Commission from June 2014. I am satisfied that the complainant voluntarily made a decision to leave her position without exhausting all avenues to her to find a solution .The claim for Unfair Dismissal cannot, therefore succeed.

2 CA-00003757-002 Payment of Wages Claim

Complainants Submission

Relying on the background as cited in the above case. The complainant submitted that on return from certified sick leave in 2012, she was offered a different position in a different location .She refused the position and was removed from the payroll for a 9 week period until she commenced a new position.

The claim cited: (A) €6825.00 in unpaid wages

                             (B) €1,092.00 in unpaid holidays

                               (C) € 6684.00 In unpaid notice.

Respondents Submission

The respondent disputed the claim on the grounds that the claim was significantly out of time.

Adjudicator Decision

I have considered the submissions of the parties. The definition of wages is set down in Section 1 of the Act.

“ wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

( a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

( b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

I have considered both parties submissions. I observed that the date on the complaint submitted mentioned 1 June 2006 . I am satisfied that the evidence adduced refers to a timeline of 2012 in this part of the claim and I have amended this detail. I note that the complainants Solicitor raised the matter of unpaid wages in November 2012. This remained unresolved.

(a)    I find that I am bound by the parameters of Section 41(6) of the Workplace Relations Act 2015 which requires a complaint to be received by the WRC within six months of the contravention or 12 months on reasonable cause. The instant complaint was received on 8 April 2016, which places it outside the permitted time lines .On that basis; I must find that the first aspect of the claim on unpaid wages is not well founded.

(b)     I find that this part of the complaint is well founded as Section 86(1) of the Workplace Relations Act 2015 amended the Organisation of Working Time Act 1997 to provide for the implementation of the Court of Justice of the European Union ( CJEU) rulings on accrual of annual leave entitlement during sick leave . I am satisfied that the complainant did not receive the sum of €1,092 in her cesser pay and I order the respondent to make this payment within 6 weeks.

(c)      I have already found that a Dismissal did not occur in this case; therefore I must find that the claim for payment of notice is not well founded.

Decision  I award the complainant the sum of €1,092.00 nett in compensation

3 CA-00003757-003 Employment Equality Claim

Withdrawn at Hearing

4 CA-00003757-004 Redundancy Claim

Complainant Submission

The complainant contended that she was entitled to a lump sum payment for redundancy.

Respondent Submission

The respondent disputed the claim as they contended that reasonable alternative employment was offered to the complainant

I find that that a redundancy situation did not exist because the complainant’s position still existed.

Dated:   25/01/2017