Complainant

Respondent

Anonymised Parties

A Technician

A Diagnostic Devices Company

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-00010217-001

14/03/2017

Following a period of illness, the Complainant indicated   that he wished to return to work on the 21^st November 2016. He   supported this request with a medical certificate from his GP. The Respondent employer requested a full report from the Complainant’s medical advisors prior to agreeing a return to work. Due to reasons connected with a firm belief, based on alleged experience, that Medical Reports would not be kept confidential, the Complainant refused to comply with this request. Furthermore, there was nothing in the Contract of Employment to justify the Employer’s request.

Various correspondences and E mails passed between the parties   and their legal advisors in the December /January period culminating in an   appointment being arranged with a completely independent Medical Review Company   for early March 2017 in Dublin. The Respondent refused to provide the   necessary confidentiality assurances and also declined to cover in advance   the Complainants’ travelling expenses connected with the Independent medical review.   In all these circumstances the Complainant felt that the Respondent was being   completely unreasonable and was left with no option but to resign from his   employment. This took place on the 14^th March 2017 although the   P45 gives a cessation date of the 18^th March.

In summary, the Respondent employer was clearly acting unreasonably and the Complainant had no option but to consider himself dismissed.

The Complainant claimed Constructive Dismissal on his claim form.

The Respondent employer is a small medical /electronics   diagnostics company. The Complainant was a key member of a small staff and   the Respondent employer was very concerned with his absence from August 2016   with a non-physical medical condition. On learning of the Complainants   availability to retune to work on the 21^st November he felt that   it would be best to have a full medical report on the Complainant before   agreeing to this return. This decision was based on the Insurance requirement   of a business in their sector which involved a lot of potentially dangerous   electronic /x ray equipment. Health and Safety issues concerning all staff/customer   staff and a genuine concern for the wellbeing of the Complainant were also   important. The refusal of the Complainant   to comply with this medical request was very disappointing. In an effort to   finally resolve matters an Independent review was arranged with a leading   Occupational Health Practice in Dublin for the 1^st March 2017. Unfortunately,   a dispute took place concerning Confidentiality and expenses. Before these   issues could be resolved the Complainant’s legal advisor had indicated that the   Complainant had ended his employment.   The Respondent had never indicated any desire to end the Complainant’s   employment and the decision by the Complainant was most disappointing.

3:1     The Law and   Constructive Dismissal

It is well established Law that in a case of Constructive   Dismissal two tests have to apply to substantiate a claim. These are

(a)    Fundamental Breach of Contract to such a serious degree as to leave an employee with effectively no choice but to resign from the employment.

(b)   Unreasonable Behaviour by the Employer to such an egregious degree that a reasonable employee would be left with no choice but to resign.

I will consider these in sequence.

3:2     Fundamental   Breach of Contract.

Having heard the evidence and reviewed the Contract of   Employment (dated January 2005) I could see no grounds for a Fundamental   Breach. The Complainant received Salary and Sick Payments as agreed. The   absence from the Contract of a specific reference to Company Doctor referrals   was not in my view a fundamental breach.

As a test to support a Constructive Dismissal case I did not   find that the Complainant satisfied the required standard.

3:3    “Unreasonable” Behaviour

Much oral evidence was given on the day of the oral   hearing from both the Respondent Manager/Director and the Complainant. It was   clear that the parties had once had a very good relationship but somehow this   had gone astray in late 2016.

The Complainant referenced incidents surrounding an earlier   illness that had required minor surgery of quite a personal nature. He   alleged that It had not been treated at all confidentially and had led to his   severe embarrassment in front of colleagues. He was genuinely afraid that   there would be a repetition of this scenario particularly as his illness   absence had been due to a nonphysical situation and would lead to much   embarrassment when it became the subject of workplace tittle tattle. This was   what prompted his refusals to supply anything other than basic information.

The Respondent, in summary, maintained that the Company was in the electronic & x ray diagnostics business and had to operate to very   high Health & Safety and Insurance requirements. The reasons for the   absence of the Complainant since August were very concerning and any   reasonable employer would have sought full medical reports prior to allowing   the Complainant back to work. Put simply this was a situation that had to be   managed to the highest standards. The return to Work interview meeting was designed to set all minds at ease and allow a most valued employee of some 14 years’ service a smooth return to work.

It was clear to me that an early referral to Legal Advisors on both sides inevitably delayed matters and did not help the atmosphere between the parties.

In considering the evidence, I was conscious that the Respondent   Employer was a specialist electronic/diagnostic contractor to the Health and other Industrial Sectors. A very high standard of Health and Safety was critical. This is reflected in most of the wording of the Contract of Employment.

The absence from August to November had been for “Stress”  and the Respondent was very concerned that this issue had to be carefully examined prior to the Complainant returning to work.

The duty of an employer in regard to health and Safety is captured in Section 8 of the Safety, Health and Welfare at Work Act,2005 which  is quoted below.

General Duties of Employer

General duties of employer.

8

8. —(1) Every employer shall ensure, so far as is reasonably practicable,   the safety, health and welfare at work of his or her employees.

(2) Without prejudice to the   generality of subsection (1),   the employer's duty extends, in particular, to the following:

( a) managing and conducting work activities in such a way as to   ensure, so far as is reasonably practicable, the safety, health and welfare   at work of his or her employees;

( b) managing and conducting work activities in such a way as to   prevent, so far as is reasonably practicable, any improper conduct or   behaviour likely to put the safety, health or welfare at work of his or her   employees at risk;

( c) as regards the place of work concerned, ensuring, so far as   is reasonably practicable—

(i) the design, provision and   maintenance of it in a condition that is safe and without risk to health,

(ii) the design, provision and   maintenance of safe means of access to and egress from it, and

(iii) the design, provision and   maintenance of plant and machinery or any other articles that are safe and   without risk to health;

( d) ensuring, so far as it is reasonably practicable, the   safety and the prevention of risk to health at work of his or her employees   relating to the use of any article or substance or the exposure to noise,   vibration or ionising or other radiations or any other physical agent;

( e) providing systems of work that are planned, organised,   performed, maintained and revised as appropriate so as to be, so far as is   reasonably practicable, safe and without risk to health;

( f) providing and   maintaining facilities and arrangements for the welfare of his or her   employees at work;

( g) providing the   information, instruction, training and supervision necessary to ensure, so   far as is reasonably practicable, the safety, health, and welfare at work of   his or her employees;

( h) determining and   implementing the safety, health and welfare measures necessary for the   protection of the safety, health and welfare of his or her employees when   identifying hazards and carrying out a risk assessment under section 19or when preparing   a safety statement under section 20and ensuring that   the measures take account of changing circumstances and the general   principles of prevention specified in Schedule   3;

( i) having regard to   the general principles of prevention in Schedule 3, where risks cannot be eliminated or adequately   controlled or in such circumstances as may be prescribed, providing and   maintaining such suitable protective clothing and equipment as is necessary   to ensure, so far as is reasonably practicable, the safety, health and   welfare at work of his or her employees;

( j) preparing and   revising, as appropriate, adequate plans and procedures to be followed and   measures to be taken in the case of an emergency or serious and imminent   danger;

( k) reporting   accidents and dangerous occurrences, as may be prescribed, to the Authority   or to a person prescribed under section 33, as appropriate,   and

( l) obtaining, where   necessary, the services of a competent person (whether under a contract of   employment or otherwise) for the purpose of ensuring, so far as is reasonably   practicable, the safety, health and welfare at work of his or her employees.

(3) Any duty imposed on an employer under the relevant statutory   provisions in respect of any of his or her employees shall also apply in   respect of the use by him or her of the services of a fixed-term employee or   a temporary employee.

(4) For the duration of the assignment of any fixed-term employee or   temporary employee working in his or her undertaking, it shall be the duty of   every employer to ensure that working conditions are such as will protect the   safety, health and welfare at work of such an employee.

(5) Every employer shall ensure that any measures taken by him or her   relating to safety, health and welfare at work do not involve financial cost   to his or her employees.

In the light of the above Section the actions   of the Respondent in seeking full information regarding the Complainant’s   medical condition prior to his return could not be described as excessive. It   was effectively a Statutory Duty of Care. The Complainant’s minimalist approach   to supplying information was not appropriate.

Regarding the confidentiality issue this was a matter that   could easily have been resolved between the Legal teams representing the   Parties. In fact, the letter of the 7^th February from the Occupational   health consultants and the undertaking from the Respondent did address this   issue. Unfortunately, this Occupational Health correspondence appears to have   got lost in the exchange of letters between the legal teams regarding the   expenses issues which became quite contentious. The amount involved was   approximately €150. The Respondent maintained that this could have been   passed as expenses post the Medical but it was not practice to pay expenses   in advance.

All told, it was in my opinion, a matter that had got out   of hand and seemed to have overshadowed any normal communications.

It is a well-established legal precept in matters of   Constructive Dismissal that all avenues of communication need to be utilised   by the Complainant prior to a resignation. At the Oral Hearing I was not satisfied   with the responses of the Complainant’s Legal Advisor as to why he had not   simply picked up the phone to have a “sort the air” discussion with his Legal   opposite number before writing what was effectively a resignation letter.   There may have been a change of Legal personnel in his office that   complicated the matter but I did find this plausible as an explanation.

However, in returning to the Unreasonable Behaviours   argument to sustain a claim of Constructive Dismissal I must point to the Safety,   Health and Welfare at Work Act,2005 and the duty of care on the Respondent   employer. The duty of care requirements regarding a Medical Examination could   not be described as being “unreasonable” and this is the primary issue.

As a Legal Test, I did not find that the Complainant   satisfied the necessary standard to relay on the Unreasonable behaviour   argument in support of his claim for Constructive Dismissal.

3:4       Summary

I did not find that the two tests of (a) Fundamental   breach of Contract and (b) Unreasonable behaviours were satisfied by the Complainant.

Accordingly, I did not find the case of Constructive   Dismissal well founded. It is dismissed.