ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004851

Complaint for Resolution:

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-00006907-001	09/09/2016

Date of Adjudication Hearing: 24/03/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Location of Hearing: Ashdown Park Hotel

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissal 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

Summary of Complainant’s Case:

The complainant, when she first started with the respondent was keen to learn as much about the business as she could. She requested that she be moved to various different sections so that she could improve her knowledge of the workings of each section of the factory. She was a general operative. She accepts that her contact stated that flexibility was a requirement of the job. In 2014, her overtime hours started to become a problem. She was not given an option of accepting or refusing the overtime hours, it was mandatory. The busier the factory got the more demands were made of her and her time. In 2014, she asked if she could carry out all of her duties in the offal room as she was finding moving from area to area very difficult. On the 07.07.2014 she gave a copy of a letter from her doctor to the respondent. It stated “The above named lady is suffering from depression and anxiety. We both feel that her symptoms could be improved if she were to work regular planned work hours. She was more or less told that if she didn’t want to do the job they would always find somebody else to do it. They stated that all staff have to be flexible and move from area to area. She stated that that was not true. She knew of employees, and named them, who consistently stayed in the one area. She also stated that despite starting her shift at 5am, she would not be allowed to go home until those who started at 7am were going home.

On occasion she requested time off to attend at her doctor. The respondent demanded proof that she was actually attending her doctor. Because of that, she felt that they didn’t believe her.

On the 24.03.2016 a colleague when on maternity leave. The complainant was then expected to carry out all of that employee’s duties, in addition to her own. She couldn’t cope with the pressure and the work load.

On the 31.03.15 she handed in a letter to her employer explaining why she was finding it so difficult. Nothing changed after that meeting.

On the 01.04.2016 she fainted while at work. She was taken to hospital by ambulance. She was diagnosed as suffering from extreme stress and it was that that caused her to faint. Following the incident her doctor advised her not to return to the work at the respondent factory. She decided, for the sake of her health, and because she knew the respondent wasn’t interested in helping her, to resign her position.

She handed in her letter of resignation dated the 24.04.2016 on the 24.04.2016.

She was on illness benefit for several months following her resignation. She did not have the information with her at the hearing and failed to submit it following the hearing. She admits that she didn’t try and secure employment but instead decided to do a healthcare course. She started that in September, 2016.

Summary of Respondent’s Case:

No Appearance

Decision:

Section 41 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 of the Unfair Dismissals Acts, 1977 – 2015 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 1 of the Unfair Dismissal Act defines constructive dismissal as:

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

—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

Section 3, In this section “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. The burden of proof, which is a very high one, lies on the claimant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate her contract of employment.

It is clear from the evidence adduced during the hearing that the complainant was suffering from mental health issues. She acted responsibly when she told her employer that she was having difficulties and submitted medical evidence in relation to those difficulties. Her employer acted irresponsibly when it ignored the complainant’s requests and her doctor’s advices. The complainant requests were reasonable and rational. She simply needed some consistency to her working day and regular hours. Instead she got an excessive work load and irregular hours.

I am not satisfied that there was a breach of the complainant’s contract of employment going to the root of her contract. Her contract did specifically state that flexibility was required. Despite the fact that the contract didn’t set out the level of flexibility that was required the complainant was fully aware that it was a requirement and was perfectly capable of being flexible, until she got ill.

When the complainant got ill she did the responsible thing by telling her employer what her issues were and producing medical evidence to corroborate same. It is clear from the evidence that her employer had no interest in addressing her issues or making any allowances for her. In fact, I find that they did the opposite. They place even more pressure on her and made more demands of her. In all of the circumstances I find that it was reasonable for the complainant to terminate her contract of employment.

The complainant admitted that she was on illness benefit for a period of time. She also admitted that she did not seek out new employment because she decided to do a course to improve her employment prospects going forward. In those circumstances any award I can made is limited to four weeks remuneration. Due to the circumstances as set out about I am of the opinion that four weeks remuneration is the appropriate compensation in this matter.

The complainant’s claim pursuant to Section 8 Unfair Dismissals Act, 1977 succeeds. I award the complainant the sum of €1,537.00 pursuant to Section 7 (1) (c ).

Dated: 25/05/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Key Words:

Constructive Dismissal. Mitigation of Loss.