ADJUDICATION OFFICER DECISION

A General Operative (Represented by Donal P Quinn Solicitors

V

A Religious Society (Represented by Brian Matthews Solicitors)

Adjudication Decision Reference: ADJ-00002814

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

Date of Adjudication Hearing: 15/11/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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(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(s).

Complainant’s Submission and Presentation:

This case refers to a General Operative in the office of a book distribution centre (the Complainant) who has alleged that she was constructively dismissed in view of the manner her employer, a religious society (the Respondent) handled her sick leave, sick pay, and her return to work. The Complainant’s job involved inter alia the packing, storing and mailing of publications.

The Complainant commenced employment on 8^th September 2008 and is paid a gross salary of €525 per week.

The Complainant maintained that she went sick on 22^nd July 2015 with a back injury, at which time she notified the Respondent by text message to advise that she would be unable to attend work for the remainder of the week under doctor’s instructions. She advised that she would provide a certificate. The following days the Complainant contacted the Respondent by text messages keeping them up-to-date in relation to her situation and where the Respondent responded to same.

The Complainant subsequently advised the Respondent by email on 3^rd September 2015 that MRI testing had shown two bulging discs at the base of her spine and a dysfunctional sacroiliac joint, and where the Complainant anticipated it would be some considerable time before she would be able to pack or lift boxes. She further advised that this was causing her great concern for the future, and her ability to do her job. At that point Complainant advised that she thought it would be possible for her to just do the administration work. The Complainant also advised that she had sick Certs to cover her absence, and that she would drop these into her employer the following week where they could have a chat about matters that stage.

The Complainant contended that the Respondent wrote back to her 16^th of October 2015 advising her that the sick pay scheme and the terms of employment in her contract stated that the Respondent would pay full pay, less disability benefit, for 12 weeks. On that basis her final payment for sick leave was 15^th October 2015 and that she could continue to claim illness benefit from the Department of Social Protection.

The Complainant argued that in previous periods of illness she had not been required to submit social welfare payments and as such this requirement was now new to her and a departure from her previous experiences. She also maintained that the Respondent failed to address her request to return to work to complete administration tasks only in order to facilitate her recovery.

As a consequence of the Respondent’s alleged lack of response, the Complainant engaged the services of HR consultant who wrote to the Respondent on behalf of the Complainant on 30^th November 2015. In this correspondence the Complainant sought clarification on the reduction of the social welfare disability benefit from her pay, and sought clarification on why without notice the Respondent had decided to deduct €376 from the Complainant’s salary leaving her with just €102 approximately. The Complainant advised that over this period she had not received any disability benefit. The Complainant argued that her contract states “during absence through sickness or injury the [employer] will pay (inclusive of social welfare entitlements) full pay during absence for sickness or injury 12 weeks if you have completed four years or more service. On that basis the Complainant argued that she was entitled to receive her full pay.

In cross examination at the hearing the Complainant acknowledged that she had not applied for social welfare payments when she initially went sick as she had not been required do so before. She advised that when she was put on notice by the Respondent on 16^th October 2015 that she was now required to submit her disability benefit she applied to the Department of Social Protection where she was told that payments could not be made retrospectively and therefore she did not qualify for a disability benefit. Similarly, when she spoke to her doctor to get her sick certs that her doctor was not in a position to alter the start date of her sickness. This meant the Complainant would not qualify for the disability benefit. It was inferred in the evidence that, as she had not been required to claim disability benefit before, she assumed she did not have to do so on this occasion. The Complainant maintained that by her employer now requiring this she was greatly disadvantaged as she did not qualify for the disability allowance. The Complainant was seeking a full restoration of her pay which she estimated at €2,508; and thereafter she was seeking her normal weekly pay.

In the letter to the Respondent on 30^th November 2015 the Complainant also advised that she had suffered a serious musculoskeletal related illness which was caused by factors including the lifting of heavy boxes in the Respondent’s distribution centre, and where the Complainant never received instruction on safe moving and handling. She advised the Respondent that this was a breach of health and safety legislation and had serious consequences for her. The Complainant again sought the employer’s response with regard to whether she could return to work in an administrative capacity.

The Complainant also sought payment for her annual leave that she had not taken up to the 31^st December 2015 due to her sick leave

The Complainant advised that if the matters were not responded to by Friday, 11^th December 2015 that she would have no option but to lodge a complaint to the Workplace Relations Commission for protection of her rights.

The Complainant advised on 22^nd December 2015 she received a detailed response. In this letter the Respondent advised that it had not received any medical certificates or doctors certificate of the Complainant’s absence since 22^nd July 2015 and where the Respondent requested certificates to be submitted. However, in her evidence during cross examination at the hearing the Complainant maintained that she would have submitted sick certs in an envelope to her employer, but she could not recall exactly when she had done this. She also maintained that she would have faxed her original sick cert from her home to the Respondent.

The Complainant explained that the Respondent advised the Complainant in its letter of 22^nd December 2015 that they would review matters upon receipt of the certificates, and they were happy to have the Complainant back at work once the Complainant facilitated arrangements for a return to work. It further advised that the administration work would only be a part-time role until such time as the Complainant was medically fit to undertake the balance of her duties.

The Complainant outlined that the Respondent also advised in its letter that having reviewed the Complainant’s sick record, that her previous absences due to sick leave were only for short periods of time and therefore the issue of Social Welfare benefit deduction would not have arisen. The Respondent asked the Complainant to furnish her details from the Department of Social Protection regarding the benefits she was paid since 22^nd July 2015. The Respondent further advised that if the Complainant had not been in receipt of any social welfare disability benefit they would make an appropriate adjustment to what she had been paid, but it was seeking certification from the Complainant before they progressed this matter.

The Complainant also advised that in this letter the Respondent asserted that prior to the Complainant’s return to work they would need to hear from her doctor with regard to her fitness to return to work, and that when the Complainant did return to work they would keep under review what tasks she would be able to undertake, and if necessary they would refer to their own doctor for assessment. The Complainant maintained that this approach was frustrating for her as in September 2015 she had already advised the Respondent that she was willing to return to work but that this had been ignored.

The Complainant advised that she responded to the Respondent’s letter on 8^th February 2016 and maintained that the Respondent continued to act in breach of her contract of employment. The Complainant advised that she again put on record her correspondence of 30^th November 2015 where she had made reasonable requests to the Respondent, but that the Respondent had failed to answer. In her letter the Complainant contended that she remained unpaid for six months; that the Respondent was in breach of her contract by deducting pay; that the Respondent has failed in their duties under the health and safety and welfare act which required the provision of a safe place of work; and that the Respondent had signalled its intention to reduce the Complainant to part-time work without any reference to her fitness to do her job.

In this correspondence the Complainant attached her sick Certs and her final cert indicating that she was now fit to return to work in an administration capacity (this cert was dated 5^thJanuary 2016). Furthermore, in this correspondence the Complainant asked to be immediately advised of the return to work date; that the Respondent undertake an intention to comply with its statutory obligations under the Health Safety and Welfare Act (sic). In addition, the Complainant asked for the money owed to her to be paid, and where she was also to be forwarded a safety statement, a risk assessment, and the date the employer intended to provide manual handling training. The correspondence further advised that if the Respondent failed to respond to the requests that the Complainant will be left with no option but to lodge a formal complaint to the relevant statutory authority. The Complainant requested a response within 10 days of receipt of the letter.

The Complainant advised that she received a response on 20^th January 2016 in which the Respondent was again seeking details of the sums that she was paid from the Department of Social Protection, and again quoting the sick pay scheme in her contract of employment. The letter also raised questions in relation to her medical certificates and asked whether she would be providing certificates for a period from 22^nd July to 19^th August. The Complainant also complained that the Respondent was seeking further clarification as to whether a sick cert of 5^th January 2016 indicated if she was to return to work and that some of the handwriting on the medical certificates were illegible. The Complainant also contended that the Respondent raised unreasonable concerns in relation to the Complainant returning to administrative work only; and where the Respondent was seeking further information in relation to the provision of a safe place of work and where it requested further information in relation to her injury.

The Complainant argued that this response was unhelpful and frustrated her further and as she did not know where it was going she was now at her wits end. The Complainant maintained that she was finding the situation very stressful as she was not at work and had no income for the previous six months, that she was seeking to return to work but again felt the Respondent was making matters very difficult.

The Complainant then advised that she received an invitation from the Respondent on 2^nd March 2016 to attend staff briefing. She advised she was not in a position to attend and she subsequently was informed the staff briefing referred to issues relating to the workplace which included reviewing all positions in the business in Ireland. The Complainant received notes of this meeting. However, as the Complainant had become frustrated in relation to attempts to return to work, and to receive full pay which she contended was in accordance with her contract of employment, she advised the Respondent on 3^rd March 2016 that she was forced to resign from her position as the Respondent had not given her any return to work date. She further inferred that her decision was influenced due to the frustration she had experienced when using the services of a representative to seek return of her wages, a return to work date, and proper manual training but none of these issues had been resolved. She therefore contended that she had no option but to resign and to her seek alternative employment. The Complainant maintained that she had been put under serious strain as a consequence of the actions of the Respondent.

The Complainant stated she received further correspondence from the Respondent on 11^th March 2016 which provided her with a €1,000 cheque as down payment of her back pay until they received the documentation that they had been seeking and the Respondent asked her to reconsider her decision to resign and where the Respondent asked the Complainant to come back to them as soon as possible.

The Complainant maintained that she had resigned her position and therefore did not respond to the Respondent, yet she received a further letter on 6^th April 2016 from an accountancy firm advising her of the changes that have taken place and that redundancy procedures would apply where staff would be made redundant. The Complainant advised that she sought further clarification and on 20^th April 2016 she received a notification of redundancy and a proposed agreement where she was asked to sign a discharge of any rights to make a claim under the Unfair Dismissals Acts in respect of any personal injury that she may be considering. She felt this correspondence was wholly inappropriate particularly as she had advised her employer that she was considering raising her complaint to the appropriate authority.

Based on her experiences and frustrations in trying to return to work, establish a safe working environment, and restore deductions from her pay the Complainant maintained that she had no option but to leave employment where she contended that the Respondent’s action amounts to constructive dismissal.

The Complainant maintained that since her termination she has been seeking alternative employment but she has been unsuccessful. She provided evidence that she applied for a number of administrative jobs in July 2016.

Respondent’s Submission and Presentation:

The Respondent argued in its written submission that the events portrayed by the Complainant are not an accurate sequence of events. The Respondent denied that it breached the Complainant’s contract of employment or that they have given rise to any basis upon which the Complainant would have been entitled to or that their actions in attempting to address matters could amount to constructive dismissal.

The Respondent confirmed that the Complainant was absent from 22^nd July 2015, initially on the basis of an unidentified illness or injury. The Respondent advised that they maintained contact with the Complainant by text when she went sick on 22^nd July 2015, and in response to the Complainant’s initial text messages. The Respondent also advised that as they had not heard from the Complainant for a couple of days they sent a text message to the Complainant on 29^th July 2015 asking how she was, where they also asked what the doctor’s advice was, and asked when they could talk with the Complainant. The Complainant responded on 4^th August 2015 and advised that she was quite immobile, that she would send in her certs, and that she would let the Respondent know when the doctor advised she could return to work.

The Respondent maintained regular text messaging with the Complainant from the 5^th to 24^th August 2015. On 17^th August 2015 the Complainant advised she was not making much progress and suggested as her treatment improves the situation she would hope to be back to work within a week, where she could do half day’s work until she fully covered. On 24^th August 2015 she further advised the Respondent that she had been diagnosed with degenerative bone disease which was the cause of back pain and this accounted for other pain that she’d had over the last while but had ignored. The Respondent maintained that the Complainant also advised that the pain would be controlled by medication and where she intended to be back to work the following Monday.

The Respondent contended that on 3^rd September 2015 Complainant wrote to them advising she was still quite immobile and that she had sick certs to cover all her absence and that she would drop into them in the next week. They argued that no such certs were received until 8^th February 2016, and when the Respondent received the certs they were all dated in January 2016. The Respondent further argued that it did not receive any sick certs by fax as alleged by the Complainant, nor that it received certificates in an envelope, or by post. In effect the Respondent argued that Complainant did not attend work or meet with the Respondent during the course of her absence.

The Respondent also argued that the Complainant was not entitled to full pay for the 12 weeks as she has alleged. It advised that the contract of employment states “during absence through sickness or injury the employer will pay (inclusive of social welfare entitlements) full pay during absence of sickness for… 12 weeks if you have completed four years or more service”. The Respondent therefore argued that it did not accept that the Complainant was entitled to be paid full pay without reference to her social welfare entitlements. It further argued that it specifically engaged with the Complainant in relation to the issue of social welfare reductions and sought information from the Complainant in relation thereto in order to consider whether she was entitled to the monies. It argued that despite a number of attempts to get this information, specifically on 16 October 2015, 22^nd December 2015, 20^th January 2016, 9^th February 2016 and 11^th March 2016.

The Respondent acknowledged that the Complainant may have received full pay for previous absences, however it argued that such absences were only for short period of time and that when the Complainant indicated that she may be absent/ill for some time that it sought advice from its administrator on what the normal practice was and where it was confirmed that the balance of pay over 12 weeks would be based on social welfare benefits. Therefore, the Respondent argued that from 16^th October 2015 onwards it was seeking confirmation from the Complainant of the social welfare benefits that she had received in order to pay her for the balance in accordance with her contract of employment.

The Respondent further argued that it could not be held accountable for the fact that the Complainant did not seek social welfare benefits once she went sick, particularly as she was aware that the illness may be lengthy. The Respondent also argued that it could not be held responsible as a consequence of the Complainant not seeking such benefits from the Department of Social Protection at that time and therefore it could not be held responsible for the Complainant not qualifying for such payments because she was late in making the claim to the Department.

The Respondent in its evidence acknowledged there may have been some delay in it responding to some of the Complainant’s correspondence as she had used an email that was not regularly used by the Respondent. However, the Respondent maintained that it did respond and did attempt to address the Complainant’s concerns throughout her period of absence.

The Respondent further argued that it received letters from the Respondent through a representative and whilst it found the tone of this correspondence to be adversarial, the Respondent responded in detail to the matters raised. It also maintained that regularly it sought information in relation to the social welfare benefits to enable it consider whether the Complainant had been underpaid during her sick leave, which it maintained that she had not.

Furthermore, the Respondent maintained that it was seeking sick certificates from the Complainant and needed to review these before return to work arrangements could be put in place. It argued that the sick certificates which were eventually provided on 8^th February 2016 would have indicated that the Complainant was not fit to work until 5^th January 2016, and where it was observed on the sick cert that she was only fit for administrative duties only with no lifting work from that point. The Respondent therefore argued that in the absence of this information it was not in a position to bring the Complainant back to work until she was fit to do so. In this regard, it observed that when the Complainant suggested in September 2015 that she could return to work in an administrative capacity that her own doctor had not certified her fit to return to work at that stage. The Respondent also advised that it was in a position to consider a return to work in an administrative capacity once the Complainant was certified as fit. The Respondent contended that the Complainant’s cert dated 112 January 2016 whilst highlighting that she was fit to return to work on administrative and no lifting duties form 5 January 2016, was only forwarded to it on 8^th February 2016.   None the less it wrote back to the Complainant on 29^th February 2016 advising that it could accommodate her return to work on limited duties but this may require a change to her duties and that they would do our best to redeploy you in a way that ensures that you can work full time. In this letter the Respondent also asked for clarification on the Complainant’s reference to her injury being caused by the workplace and that id this was the case that the Respondent would have to conduct a full review prior to your return to work so that we can ascertain what changes are necessary to the workplace or your role before your return.

On that basis the Respondent suggested its letters to the Complainant about this issue was appropriate and reasonable. The Respondent maintained that it was the Complainant who first suggested administrative duties and it was on that basis it corresponded and responded to the Complainant. Therefore, the Respondent did not accept that it was behaving unreasonably or in a manner that the Complainant could have reasonably viewed herself as being constructively dismissed.

The Respondent argued that throughout this period it was seeking to receive the appropriate information from the Complainant but it did not receive any sick certs until 8^th February 2016 despite asking for them on the number of occasions before then, and similarly the Complainant had failed to provide the Respondent with the information it was requesting regarding social welfare payments. It was not aware that the Complainant had not made a claim to the Department of Social Protection at the time.

The Respondent also questioned the basis that the injury was related to lifting at work. In this regard the Respondent advised that the initial information from the Complainant referred to a condition she had been experiencing for some time but had not attended to. It maintained that once it was advised that the injury may have been as a result of the workplace incident that it was merely establishing information regarding a safe place to work, and that it was asking the Complainant whether she was in fact able to return to work and where it reserved a right to seek an independent opinion in order to consider what adjustments would be required for the Complainant to return to work.

In addition, the Respondent maintained that it contacted the Complainant on 2^nd March 2016 and on 8^th March 2016 advising her of changes that were taking place in the workplace and seeking her involvement in these discussions with a commitment that no changes would be made to her role until she was confirmed fit to return to work.

Following the staff meeting on 2^nd March 2016 the Respondent received a letter of resignation from the Complainant dated 3^rd March 2016. On 8^th March 32016 the Respondent forwarded the Complainant details of the staff meeting of 3^rd March 2016. Then on 11^th March 2106 the Respondent   acknowledged the Complainant’s letter of resignation, advising the Complainant that her position was still open and again sought confirmation that the Complainant was fit to return to work. In this letter the Respondent also enclosed a cheque of €1,000 as a down payment on her back pay, and where it again sought information from the Complainant to allow it make final calculations on this matter. (The Respondent noted that this cheque was accepted by the Complainant and was cashed). The Respondent also asked the Complainant to reconsider her decision to resign. The Respondent again maintained that there is nothing it has done which could have caused the Complainant to feel she was constructively dismissed.

The Respondent maintained that in light of the Complainant accepting the cheque, and in the hope that the Complainant was reconsidering her position to resign particularly as she did not give an indication otherwise, they instructed an accountancy practice they had engaged with to assist in their reorganisation to write to the Complainant in relation to possible restructuring and redundancy which was taking place. They argued that the Complainant sought further information on this matter and it was in light of that request it had forwarded het the standard termination contract which included reference to the Unfair Dismissals Act and personal injury claims, in addition to a range of other legislation that would be subject to the agreement of this nature. The Respondent refuted that this letter was an attempt to deny the Complainant of her rights, nor could it be reasonably regarded as representing an intimidating approach. The Respondent maintained the Complainant had asked this information and in addition it advised the Complainant in a covering letter that it should consider legal and other advice in relation to the offer and provided the opportunity for the Complainant to be provided with €250 to take such independent legal advice.

The Respondent therefore maintained that did not behave in a manner that could be regarded as constructive dismissal of the Complainant.

Findings:

The breach of a contract of employment is a very serious matter and which in cases of unfair dismissal, requires an examination of whether an employer acted fairly. This 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. In cases where an employee breaks the contract, and then seeks to pursue the employer for constructive unfair dismissal, as in this case, 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. In this regard 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.’ (Finnegan J in Berber v Dunne’s Stores [2009] E.L.R. 61).

In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour. In this case the Complainant has claimed that she was constructively dismissed as a consequence of the Respondent’s handling of her sick leave, payment of sick pay, and in her attempt to return to work.

Having considered all the information presented in the course of the hearing I am satisfied that the Complainant reported sick on 22^nd July 2015 with a back injury. She did advise the Respondent that her sickness may be a lengthy process. The evidence presented also demonstrates that in September 2015 she did ask the Respondent if they could consider a return to work in an administrative capacity. This request was made before the Complainant was actually certified fit to return to work.

I’m also satisfied that the Respondent applied the sick pay scheme in accordance with the Complainant’s contract of employment. I acknowledge that the Respondent would have paid the Complainant full pay without the need for social welfare benefits included in previous times when she was on much shorter periods of absence. It would be reasonable that employers can occasionally apply such discretion which is to an employee’s advantage without deeming such action as setting a precedent.

In this case the Complainant’s contract stated during absence through sickness or injury the employer will pay (inclusive of social welfare entitlements) full pay during absence of sickness for… 12 weeks if you have completed four years or more service”. This is what the Respondent applied on this occasion. Had the Complainant advised the Respondent when she was asked in the first instant that she had not made an application to the Department for sick pay benefit it is probable the matter in relation to her sick pay would not have been as protected as it became.   It is however noted that the Respondent’s first communication with the Complainant regarding the social welfare benefits was not communicated to her before the end of the 12 week period. In this regard had the Respondent been more proactive in advising the Complainant of her sick pay entitlements once it became aware that she would be on sick leave for a period of time it is probable that, if there was to be a dispute about her sick pay, it would have been addressed much earlier. Notwithstanding I find that as the Respondent applied the conditions as set out in the Complainant’s contract of employment it has not committed any wrongdoing in relation to this matter.

I also note that the evidence supports that the Complainant did not send in her sick Certs in a timely manner as is required under her contract of employment. I acknowledge there is some doubt as to whether the Complainant sent in her sick certs before 8^th February 2016. On the one hand the Complaint said she did, but on the other hand the Respondent maintains they did not receive them. I do no doubt the Complainant’s evidence that she believes she sent them, however the evidence also does indicate the Respondent did not have procession of them and this is testified by the Respondent asking the Complainant for them from 16^th October 2015 and on other occasions.   I see no advantage for either the Complainant withholding them, nor the Respondent not having them. On that basis I am satisfied if they were sent the originals were not received, and that sick certs dated 12^th January 2016 were subsequently provided on 8^th February 2016 for most of the Complainant’s sick leave period.   Of interest in this evidence is that the Complainant’s certificate to return to work on administrative duties with no lifting was certified on 5^th January 2016, but dated by the doctor on 12^th January 2016, and only received by the Respondent on 8^th February 2016

I am satisfied that the evidence suggests on balance that the Respondent, in attending to the matter of managing the Complainant’s sick leave, behaved reasonably at all times. There is nothing to suggest in the correspondence it sent to the Complainant that it was indicating or inferring that it did not want the Complainant back to work. I am satisfied the evidence supports that the Respondent was merely seeking confirmation that the Complainant was fit to return to work, particularly when it received the sick certs to this effect on 8^th February 2016. However, the certs were sent in the context of other correspondence from the Complainant’s representative which included an assertion that her back condition may have been caused by factors which included her work practices.   In this regard the Respondent was obliged to respond to the correspondence it received which was indicating that Complainant may have been subject to a workplace injury, and where the Complainant advised that if the Respondent failed to meet her expectations regarding payment of her sick pay (which I have already found she was not entitled to) and a return to work on administrative duties only, she would consider bringing her claim to an appropriate third party.

Notwithstanding the dispute that was unfolding, and the letters of ultimatum that Respondent received from the Complainant, the Respondent did provide the Complainant with a cheque for €1,000 in an attempt to resolve matters regarding her sick pay, and the Complainant accepted and cashed this cheque.

During the dispute, and unrelated to it, the Respondent had reviewed its business and decided for economic reasons it could not sustain the operation of its publications from Ireland. It therefore began a process of consultation with its employees in March 2016 and invited the Complainant to attend this consultation process. The Complainant decided to submit her resignation at this stage on the basis she was constructively dismissed, and therefore she did not attend the briefing.

I am however satisfied that the Respondent was reasonable in providing the Complainant with further information on the changes which were taking place, and when the Complainant was aware that redundancies were being considered she sought information on the package. This information was therefore forwarded to her for her consideration in letter date 20^th April 2016. However, the Complainant rejected this offer and has inferred that as she had already resigned the proposed requirement for her to forego any claims she might have if she was to accept the redundancy package was further intimidation from her employer.  

Having considered this sequence of events as presented in the evidence I am satisfied that the Complainant asked for the information relating to the redundancy package, that the proposed redundancy agreement was a standard format provided to all employees, and where the Respondent offered to make a contribution of €250 for the Complainant to seek independent legal advice. The Respondent offered the Complainant the package despite the fact that she had resigned. I therefore do not find that the Respondent behaved unreasonably.

I find that the Complainant’s correspondence to the Respondent, where it placed ultimatums on the Respondent, does not represent a reasonable approach from the Complainant, particularly where she was wrongly accusing the Respondent of breaching her contract of employment regarding payment during sick leave. In reality the Complainant made an assumption she would be paid full pay when on sick leave, and subsequently ignored requests from her employer to provide them with confirmation of her social welfare payments. It appears from the evidence that when the Complainant realised she would not qualify for Social Welfare benefits that her position with her employer became more adversarial, with an intention to escalate matters to a third party if the Respondent did not concede to her demands.

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 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.

Having reviewed the evidence and the correspondence exchanged with the parties I am not satisfied that the Complainant has passed the burden of proof to demonstrate the Respondent behaved in a manner that amounted to a breach of the Complainant’s contract of employment, or that the Respondent behaved in a manner that rendered the Complainant’s position untenable to the extent that it amounts to constructive dismissal.

I find that the evidence does not support that the Complainant had exhausted all reasonable procedures in seeking to resolve the matter, particularly in relation to her assumption that she was entitled to full pay when on sick leave. Whilst I also find that the Respondent should have been more proactive in advising the Complainant of her sick pay entitlements once it was aware that she would be on sick leave for a period of time, I do not find that it breached the Complainant’s contract of employment as alleged.

The complaint is not upheld and therefore fails.

I note in the Respondent’s written response to the adjudication hearing it states that for the avoidance of doubt the redundancy package remains open to the Complainant and she is entitled to accept the terms thereof. On the basis this concession has not been withdrawn I maintain that it remains open for the Complainant to consider the redundancy package.

Dated:   28/03/2017