Complainant

Respondent

Anonymised Parties

A   Service Advisor

A car retailer

Act

Complaint Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00005728-001

06/07/2016

The   complainant asserts that she was constructively dismissed from her employment   with the respondent. She worked for the respondent between 1998 and 2016 and   received remuneration of €640.54 gross per week. The respondent denies the   claim and also raises a preliminary objection arising from High Court personal   injury proceedings taken by the complainant against the respondent.

In respect   of the respondent’s preliminary application, the complainant indicated that   there was no loss of earnings claim in the personal injury proceedings. Any   issue of double recovery would be a problem for the High Court to address.   The case of Stephens v Archaeological   Development Services Ltd [2010] IEHC 540 concerned interference between   two sets of proceedings. This did not apply here as the unfair dismissal   claim was the loss of earnings claim, and there is no such case pleaded in   the personal injury proceedings.

In   evidence, the complainant said that she commenced working for the respondent   in June 1996 and was not provided with a contract of employment or a   grievance procedure at this time. She initially worked as a receptionist and   in 2004 or 2005, took on the role of Service Advisor. The respondent was in   the business of selling and servicing cars. Her role involved dealing with   customers and managing technicians. In 2013, the receptionist left and was   not replaced. The complainant then did both roles as there was no-one else to   do the receptionist role. She informed respondent management of the need to   appoint a replacement receptionist, saying that she raised this with the   Managing Director and the former Dealer Principal, her line manager. She   stated that she raised this issue every couple of weeks and months.

The   complainant outlined that in 2014, the respondent lost the franchise of a   leading car manufacturer, but retained the after-sales service for this   brand. It also had two other franchises. There was increasing footfall at   this time. When she was on a period of annual leave, the former Dealer   Principal texted her to say that the Service Manager had left and that she   should prepare herself for her return to work in August 2014. The Service   Manager was not replaced and she said that she “came back to hell”. The   message had ruined her holiday as she knew that it would be difficult on her   return. When she came back to work, there had been cars left in the garage   over the period of her annual leave. She was left to deal with the service   issues. The Service Manager role managed the whole department, taking   bookings and managing technicians, including preparing their work schedules.   The Service Manager had been technically trained, and she was not. She raised   this with management, in particular as they were managing three brands and   the respondent was getting busier.

The   complainant outlined that the respondent introduced an incentive/target   system in March 2015, which was successful for the first few months. The   respondent, however, upped the targets in August or September 2015. This   increased workload impacted on the complainant’s health and she started to   drop the ball. She was busy in answering the phone at reception and dealing   with customers. It started to affect her sleep and her personal life. She   raised this with management and the respondent accountant, in particular as   the garage was getting busier and took on a new car franchise.

In   November 2015, the complainant approached the Dealer Principal and broke down   in front of him. She said that he needed help and that she could not do this   on her own. She said that she also needed to take a few days off. She then   went to her GP and was signed off on sick leave between the 18^th   and 25^th November 2015. During this time, a named colleague texted   her to say that a receptionist had been taken on. The complainant returned to   work on the 26^th November 2015 and expected to meet the new   receptionist. This person, however, had only been hired for one week. The   complainant found that nothing had changed on her return. She did not speak   to management or the accountant. She realised that despite going to the   Dealer Principal in a terrible state, nothing had changed. She had a meltdown   in work and began shaking and crying.

The   complainant went on a second period of sick leave after the 27^th   November 2015 and was certified as unfit for work by her GP. She remained on   sick leave until the New Year. She was not paid while on sick leave. The   complainant resigned in March 2016. She said that a medical appointment had   been arranged for March 2016 and then re-arranged for a later date.

The   complainant commenced new employment in November 2016. She had been on   €35,000 with the respondent and was on similar pay with her new employer. The   complainant stated that in October 2016, she had been approached by a party   opening a new store, who was aware of what had happened with the respondent.   The complainant said that she had attended interviews for other roles in   October 2016. She had not thought that she would return to the motor industry   and that at this time, she had not been ready to go back to work.

In the   period between November 2015 and March 2016, the Dealer Principal had   contacted the complainant by phone to ask how she was and what he could do.   She told him how she was and that it was too late to do anything. She knew   that she could not go back to work with the respondent, even if she was   offered a million euro.

In   cross-examination, the complainant said that she could not recall if there   had been a probation period and stated that she had not signed a contract. A   copy of a contract was put to the complainant and she accepted that she had   annotated this. It was put to the complainant that she had been supplied with   a grievance procedure; she replied that she had been away when this was circulated.   The complainant said that there had not been an increase in her pay when she   took in the Service Advisor role in 2003. She agreed “pretty much” that there   had been no issues with her employment until 2014. She accepted that her   complaint form stated that the receptionist resigned in 2014, when this took   place in 2013. It was put to the complainant that 2014 had been the worst   year in living memory for the respondent business; the complainant replied   that she was not aware of this. It was put to the complainant that the   receptionist was made redundant as 80% of the calls were for the Services   Department; she replied that she did not think that this was the case. It was   put to the complainant that she said that her workload doubled when the   receptionist left but 80% of the calls were for the Services Department; she   replied that she carried out both the receptionist and Service Department   roles, and that the respondent also had busy sales and parts departments. The   complainant was asked whether she emailed her line manager and the Managing   Director about being overwhelmed with work in 2014; she replied that she   spoke verbally to people, including the former Dealer Principal. It was put   to the complainant that she should have lodged a grievance in writing to her   line manager; she replied in hindsight, yes but she had raised this in   face-to-face conversation. She had conversations with management during the   course of 2015 regarding her doing the two roles. The complainant agreed that   she went to the Dealer Principal on the 17^th November 2015 and was   upset and stressed and that she was granted a week off on sick leave from the   18^th November 2015.

It was put   to the complainant that the Dealer Principal checked in on her informally on   the 26^th and 27^th November 2015; she replied that he   may have done so once or twice. The complainant accepted that she had   submitted medical certificates for the period of the 7^th December   2015 to the 22^nd March 2016 and that she had two conversations   with the Dealer Principal in that time. She acknowledged receiving   correspondence from the respondent on the 17^th December 2015 and   she was not sure if she replied to the email. It was put to the complainant   that she stated that they had discussed these issues many times in response to   the statement that the respondent had no idea that work was causing her   stress; she replied that she was mentally in a difficult position. It was put   to the complainant that the respondent had asked for a written account of her   issues; she replied that she did not respond because it was then too late.   She had worked for the respondent for 20 years, so it was a big decision for   her to resign. It was too late and the damage had been done.

It was put   to the complainant that she had not submitted a grievance in writing; she   replied that her having a meltdown was enough evidence of her need for help.   It was put to the complainant that she was a longstanding and valued employee   and could have replied to the email of the 17^th December 2015; she   disputed the reference to her being “valued”. It was put to the complainant   that the email of the 17^th December 2015 had been excluded from   her booklet for this adjudication; she replied that she did not see the   relevance of the email. In respect of attending a medical assessment, the   complainant had told the Dealer Principal that she could not attend the   appointment on the 8^th March 2016. She was not ready to attend   anything to do with the respondent and her GP had deemed her unfit to work.   It was put to the complainant that her attendance at the occupational health   service would have facilitated her return to work. It was put to the   complainant that she had been sent a further email of the 14^th   March 2016 and offered a second appointment; she replied that she had not   attended the second appointment. The complainant was asked whether she had   acted reasonably in the period from mid-2014 to the 21^st March   2016 in terminating her employment when all the respondent was trying to do   was to get to the root of the problem; she replied that she had raised the   issues with the Dealer Principal on the phone. She was asked whether the   phone call had been a reasonable response when she had been asked to go an   occupational health assessment. It was put to the complainant that there had   been nothing in writing until her letter of resignation. It was put to the   complainant that at the first hint of the employer trying to resolve the   issues, her response was to resign; she replied that it was too late. She had   panic attacks and the respondent only acted after her breakdown. She had also   not been thinking clearly. She questioned whether the respondent understood   what had happened.

In further   questioning, the complainant stated that she received Illness Benefit after   her resignation and that she had resolved an overpayment in December 2016.   The complainant accepted that she was only fit to return to work in November   2016 and that she had done interviews in October 2016 to build her   confidence. In re-examination, the complainant said that she did not recall   receiving the contract exhibited by the respondent and received this later in   2012 or 2013.

In reply,   the complainant said that the named Parts Manager had only taken on the   warranty role from the Service Manager. The complainant had dealt with the   remaining aspects of the Service Manager role, for example service customers   and she handled money. During the time of her changed role, there were four   technicians and the respondent had taken on new franchises. There had been an   increase in demand for service as sales slowed. She said that she had a   number of conversations with the respondent and the 26^th and 27^th   November 2015 and she never said she was fine. The figures doubled when she   took on the Service Manager role and the bonus structure was changed to make   the targets unreachable.

In closing   comments, the complainant outlined that the evidence was clear that she   suffered a psychological injury arising from her employment that was   reasonable to foresee. The respondent was aware of the complainant’s workload   difficulties. The respondent had sought to scramble its response in emails   sent to the complainant when it was too late and when the damage was done. It   was then too late for the complainant to put issues in writing. The   complainant relied on the Allen v   Independent Newspapers [2002]   E.L.R. 84 and   stated that there was plenty of evidence that the complainant suffered mental   health difficulties caused by the respondent and that it had been the conduct   of the respondent that caused the complainant to resign. The complainant had   visited her GP and was prescribed medication.

The   respondent raised the preliminary matter of personal injury proceedings taken   by the complainant against the respondent. It was submitted that the adjudication   hearing should not proceed at this time as there were extant High Court   proceedings. The respondent referred to paragraphs 57, 58 and 61 of Stephens, where the High Court   considered claims being maintained at the same time. The Court referred to   caveats about such multiple proceedings, including the need for demarcation between   the claims, that there should be no double recovery and the need for case   management, which is the preserve of the High Court. The respondent also   referred to the decisions in Cunningham   v Intel [2013] IEHC 207 and Morgan   v Irish Horse Welfare Trust [2014] 25   E.L.R. 41. It   acknowledged that a loss of earnings element to the claim in the latter case.   The respondent also referred to the inherent jurisdiction of the High Court   to make orders in relation to the personal injury proceedings and that this adjudication   hearing could interfere with that jurisdiction.

In   evidence, the Dealer Principal said that he had been in this role since   November 2014. He was responsible for the day-to-day workings of the garage   and he had worked with the complainant until her resignation in March 2016.   He said that the complainant had raised her concerns about the workplace in   November 2015. He stated that the complainant had not put her concerns in   writing. In respect of the conversation of the 17^th November 2015,   the Dealer Principal stated that the complainant had come into his office and   raised the issue of the pressure of the workplace. She said she needed time   off, asking for a week off. He replied that she could take the week off. He   called the complainant into his office on her return to work to ask her how   she was. She replied that she was coping much better and he stated that his   door was always open. He spoke to the complainant again in the afternoon and   she responded that it had been a hard day, but everything was good. The   Dealer Principal spoke to the complainant again on the Friday morning and   after this conversation, he was satisfied that everything was back to normal.

The Dealer   Principal outlined that sales were low when he started in the role in 2014.   The garage had sold 750 cars in the good times, but only sold 150 cars in   2014/15. Sales calls were low, so there was no need for a standalone   receptionist. 80% of the calls were for the after-sales and services   department. The Dealer Principal did not accept that the complainant’s   workload doubled when her role changed. He added that the workshop was also   slow. In respect of the departure of the Service Manager, the Dealer   Principal said that his predecessor had given some of the Service Manager’s   duties to the Parts Manager and some duties were given to the complainant. It   was the Parts Manager who dealt with customers and the complainant did not   have full responsibility. As far as he was aware, the complainant did not   raise an issue with the Managing Director, as provided by the grievance   procedure. The complainant’s working hours did not change following the   change in her role.

During the   period of sick leave, the complainant sent him the medical certificates and   there was no further contact from the complainant. The Dealer Principal sent   the complainant the email of the 17^th December 2015 regarding the   causes of her stress, but she never replied. He would have addressed any   grievance she had and he wanted to meet the complainant to discuss this. The   email of the 29^th February 2016 regarding the occupational health   assessment sought to assess the timescale around her return, but did not   address the nature of the role. The Dealer Principal phoned the complainant   on two occasions regarding her well-being and asked if there was anything he   could do. He discovered that the complainant had not attended the   occupational health appointment on the 8^th March 2016 and so, a   second appointment was organised for the 14^th March 2016. The   complainant emailed on the 3^rd March 2016 to say that she could   not attend the 8^th March appointment and the second appointment   was then organised. The Dealer Principal phoned the complainant after she did   not attend the 14^th March appointment to ask to meet her and to   ask what he could do. The complainant replied that she was not ready to meet   him and she would contact him. The complainant then sent the letter of   resignation on the 21^st March 2016. The Dealer Principal said that   the complainant had been given a week off and the complainant had not   escalated this to the Managing Director. He said that there was nothing more   he could have done.

In   questioning, the Dealer Principal agreed that he commenced in the role in   November 2014. It was put to the Dealer Principal that the complainant never   said everything was okay on the 26^th or 27^th November   2015; he replied that they had a meeting on the Thursday and she said she was   coming back as she feeling better. They had not discussed her work situation.   He commented that when he commenced in the role, the receptionist and service   advisor were the same. He agreed that the Managing Director did not live in   Ireland and lived in a named EU state. The Dealer Principal was asked what steps   he had taken to improve the complainant’s work situation; he replied that the   complainant had said she was fine and no change was, therefore, made to her   work situation. The Dealer Principal was asked whether he offered additional   support in the form of training; he replied that he had said to the   complainant that his door was always open and acknowledged that the offer of   training had not been made. It was put to the Dealer Principal that the   complainant had been medicated and it was reasonable for her to limit her   engagement with the respondent; he did not agree with this and said that her   lack of engagement was unreasonable.

The   company director gave evidence. He said that he had been a company director of   the respondent since late February 2014 and worked in the role for eight   hours per week. He directed that the letter of the 7^th April 2016   be sent to the complainant. He said that the Service Director left because   his position became unviable. The respondent introduced the bonus structure   and no employee had complained. In questioning, it was put to the company   director that the complainant had raised her workload with him; he replied   that the complainant had never complained about her workload. It was put to   the company director that he worked on the financial aspects of the   respondent; he replied that while his background was in finance, he oversaw   all aspects of the company. The company director was asked who the “I” was in   the letter of the 7^th April 2016; he replied that he did not know   whether the letter had been signed. In further evidence, the company director   said that the only change in the bonus structure was to do with the number of   working days for each month. He stated that there had been one technician and   three apprentices.

In closing   comments, the respondent submitted that when an employee asserts constructive   dismissal, the burden of proof falls on the employee. The complainant has not   established that she has discharged this burden for three reasons. First, she   had not acted reasonably; second, her resignation was not the final resort   and third, she was under an obligation to explore all options, including the   grievance procedure. On no analysis of the chronology could it be said that   the complainant had acted reasonably. There were difficulties in November   2015 and the complainant requested one week off. The complainant then   returned to work and was off on sick leave for a further four months. The   complainant never specifically set out her difficulties despite being called   upon to do so. There is an obligation on an employee to behave reasonably   when contemplating resignation. The complainant declined to set out her   complaint in writing and ignored the emails sent by the respondent. She   refused to attend occupational health appointments and resigned instead. This   was the opposite of a reasonable response.

It was   further submitted that the grievance procedure provided that the employee   could ask the Dealer Principal to escalate the grievance to the Managing   Director. No such request was made of the Dealer Principal. The complainant’s   resignation was not the final resort and at the first engagement by the   employer to deal with the health issues, she resigned. This was a case where   the complainant resigned and was not constructively dismissed. She had not   acted reasonably or fairly. Even if the claim succeeds, it was submitted that   the complainant had been in receipt of Illness Benefit and could not work.   She cannot recover for losses. Referring to the analysis of the Allen decision in Frances Meenan   ‘Employment Law’, the respondent submitted that the evidence given before the   Employment Appeals Tribunal in that case was psychiatric evidence, so the   Tribunal could link the injury to employer conduct. It was not possible for   the Adjudication Officer to find in this case that the employer caused   psychiatric injury to the complainant. This was not a case on the lines of Allen as insufficient medical evidence   had been presented.

The complainant commenced employment with the   respondent in 1998. Her employment ended when she tendered her resignation by   email of the 21^st March 2016. She gave one month’s notice. The   complainant asserts that she was constructively dismissed by the actions or   lack of action of the respondent and submits this claim pursuant to the   Unfair Dismissals Act. The respondent denies the claim and asserts that the   complainant had not acted reasonably.

The respondent also raises a preliminary matter of   personal injury proceedings taken in the courts by the complainant against   the respondent. The respondent submitted that this case should be adjourned pending   the conclusion of the High Court proceedings, relying on certain dicta of the   Stephens case and the Morgan decision where the Employment   Appeals Tribunal adjourned an unfair dismissal claim on similar grounds. The   complainant replies that her proceedings are demarcated and any issue   regarding double recovery etc can   be addressed by the High Court. She submits that she has not pleaded loss of   earnings in the personal injuries claim and this is what she seeks in these   proceedings.

Having considered the submissions, I note in the   first instance that the EAT decision in Morgan   adjourned proceedings on the basis of Regulation 14 of the Redundancy (Redundancy Appeals   Tribunal) Regulations, 1968 (S.I. 24/1968). This statutory power has not been   extended to Adjudication Officers appointed on foot of the Workplace   Relations Act. Notwithstanding this, I find that these proceedings should   continue. It is clearly not within my jurisdiction to find that the   complainant incurred a psychiatric injury or to determine any question   arising from the personal injury claim. My role is restricted to whether the   complaint made pursuant to the Unfair Dismissals Act is well-founded and if   this is the case, what financial loss the complainant incurred.

The claim   is one of constructive dismissal, i.e. arising from the employee’s   termination of her employment on foot, it is alleged, of the conduct of the   employer. This form of dismissal is provided at section 1 of the Unfair   Dismissals Act, in particular at subsection (b) of the definition of   “dismissal”. This provides:

“dismissal”, in relation to an employee,   means—

“(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.”

The classic   formulation of the legal test in respect of constructive dismissal was   provided by the UK Court of Appeal in Western   Excavating (ECC) Ltd v Sharp [1978] IRLR 27. This laid out two tests,   referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised   the ‘contract test’ in the following terms: “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 other performance.” The ‘reasonableness test’ assesses the   conduct of the employer and whether it “conducts   himself or his affairs so unreasonably that the employee cannot fairly be   expected to put up with it any longer, if so the employee is justified in   leaving.”

In respect   of repudiation of contract, the Supreme Court in Berber v Dunnes Stores [2009] 20 E.L.R. 61, held that the test   for whether employer conduct had breached the implied term of mutual trust   and confidence in every contract of employment was an objective one. Finnegan   J. held:

“1. The test is objective. 2.   The test requires that the conduct of both employer and employee be   considered. 3. The conduct of the parties as a whole and the accumulative   effect must be looked at. 4. 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.”

In relation   to availing of a grievance procedure, the Labour Court held as follows in Mr O v An Employer (no. 2) [2005] 16 E.L.R. 132:

               “The court accepts that in normal circumstances a complainant who   seeks to           invoke the   reasonableness test in furtherance of such a claim must also act                reasonably by providing the   employer with an opportunity to address what ever      grievance they may have. However there is authority for the   proposition that this             is not   a fixed or universally applicable rule and there can be situations in which a   failure to give prior formal notice of   grievance will not be fatal.”

Also in   respect of reasonableness, the Employment Appeals Tribunal in An Employee v An Employer   (UD1421/2008) held:

              “In advancing a claim for   constructive dismissal an employee is required to show    that he or she had no option in the   circumstances of her employment other than     to   terminate his or her employment. In effect the relevant section reverses the        burden of proof for an employer set out   in section 6(1) of the Act. The notion places   a high burden of proof on an employee to demonstrate that he or she                acted reasonably and had   exhausted all internal procedures formal or otherwise          in an attempt to resolve her grievance with his/her   employers. The employee          would   need to demonstrate that the employer’s conduct was so unreasonable as           to make the continuation of employment   with the particular employer           intolerable.”

In Murray v Rockabill Shellfish Ltd   [2012] E.L.R. 331, the Employment Appeals Tribunal held at page 333 as   follows:

               “The   Tribunal must consider whether because of the employer’s conduct the                claimant was entitled to   terminate his contract or it was reasonable for him to do          so. An employee is entitled to   terminate the contract only when the employer is      guilty of conduct which amounts to a significant breach going   to the root of the        contract or   shows that the employer no longer intends to be bound by one or           more of the essential terms of the   contract. In the case of Brady v Newman           UD330/1979,   the Tribunal stated at pp 9-10:

“… an employer is entitled to   expect his employee to behave in a manner which would preserve his employer’s   reasonable trust and confidence in   him   so also must the employer behave.”

The contract of employment provides as follows in   relation to “grievance procedures”:

“[The   respondent] recognises the necessity for maintaining harmonious working   relations and avoiding internal disputes which might interfere with the   normal operation of the company. The following procedures should be followed   when dealing with all grievances and disputes.

An   employee or employees with any problem or grievance shall, in the first   instance, approach their manager with a view to having the problem or   grievance solved immediately.

If the   problem or grievance cannot be resolved at manager level, the employee or   employees shall request the manager to refer the matter to the Managing   Director.

The   Managing Director shall arrange a meeting with the employee or employees   without undue delay.

Failing   agreement at such a conference the dispute shall be referred to the   conciliation machinery of the Labour Relations Commission or any other body   as may be appropriate.”

The contract of employment also addresses ‘health,   safety and welfare’. This provides:

“[The   respondent] aim is to do everything in its power to ensure that all employees   work in a healthy, safe environment. The Company has appointed the following   employees to monitor health, safety and welfare issues within the company: A,   B and C.”

Section 8 of the Safety, Health and Welfare at Work   Act, 2005 provides wide ranging duties on an employer in relation to health   and safety. Given the scope of this provision, it includes the duty that an   employee not be subjected to significant overwork for an extended duration of   time. It is established that the obligations under section 8 are implied by   statute in every contract of employment (see Walshe, J ‘The Terms of Employment Contract” in “Employment Law”, Murphy   and Regan Editors, Bloomsbury, 2017.)

In assessing the evidence in this case, there is a   conflict whether the complainant availed of the grievance procedure outlined   above. The complainant asserts that she did and the respondent submits that   this is not the case as no grievance was put in writing and nor was the   matter escalated to the Managing Director.   I find that the complainant complied with the grievance procedure. I   reach this finding for the following reasons. There is no requirement in the   procedure that any grievance be reduced to writing. It is clear from the evidence that the   complainant raised issues regarding her working environment. I do not believe   that the complainant can be criticised for not escalating the matter to the   Managing Director, where there was no obvious way for the complainant to do   so. The grievance procedure does not state how this should occur.

While there is conflict about what transpired before   and after the November 2015 meetings between the complainant and the Dealer   Principal, it is clear that the complainant approached the respondent in a   very distressed state and attributed this to her work pressures. The complainant   states that this event (which she described as a meltdown) followed many   earlier complaints she made to the respondent. This is disputed by the   respondent. Having considered the evidence, I am inclined to resolve this   conflict in favour of the complainant. The complainant paints a picture of a   workplace adapting to the recession, with significant staff reductions and   changing business patterns (for example more demand for servicing over   sales). Given the range of car sale, service and repair services, her   narrative is eminently plausible. This is contrasted with the absence of   documentary evidence on the part of the respondent. Their evidence was that   the volume of sales decreased, but there is nothing to show what the impact   of the new franchises was or the on-going after-sales role they retained for   a leading car manufacturer. I also note that in this time, key personnel left   the respondent business, for example the Service Manager. This corroborates   the complainant’s evidence of a significantly changed workplace, with   significant additional demands on the complainant.

In assessing whether the complainant is entitled to   succeed in a claim of constructive dismissal, the starting point of such   assessment is the text message sent by the respondent to the complainant in   August 2014. This asked the complainant to be prepared for a higher workload   on her return. There followed a period of 15 months where the complainant   complained of the additional workload and asked for more staff supports. I   accept her evidence in this regard. This came to a head with the “meltdown” in   November 2015. The complainant went on one week’s sick leave and learned of   the recruitment of additional administrative support. I accept the   complainant’s evidence that on her return from sick leave, she was perturbed   by the administrative support ceasing and by the outstanding work left for   her to catch up on. Given the extent of her distress prior to going on sick   leave, I find that this amounts a breach of the implied term of the   complainant’s contract of employment of both a safe place to work and of   mutual trust and confidence.

The response of the respondent was not sufficient. I   acknowledge the contents of the respondent correspondence of the 17^th   December 2015, the 29^th February 2016 and the 7^th April   2016. Given the findings I have made above, the respondent knew the issues   the complainant sought to be addressed. They were understaffing and overwork.   The reaction of the respondent was to ask that the issues be reduced to   writing and that the complainant attend an occupational health assessment.   There was no actual response to the kernel of the issues raised by the   complainant. Applying the test in Berber,   and looking at the responses of both employee and employer, I find that the   complainant has met the standard for a breach of the implied term of mutual   trust and confidence. It follows that the complaint of unfair dismissal is   well-founded.

The complainant tendered her resignation on the 21^st   March 2016 and this took effect on the 21^st April 2016. The   complainant’s rate of pay was €640.54 gross per week.

Her evidence was that she returned to employment in   November 2016 and had been in receipt of Illness Benefit in the interim.

Section 7 of the Unfair Dismissals Act, as amended,   provides:                 “7.— (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 adjudication officer or   the Labour Court, as the case may be, considers          appropriate having regard to all the circumstances:                 ...                 (c)   (i) if the employee incurred any financial loss attributable to the   dismissal,          payment to him by   the employer of such compensation in respect of the loss (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) as is just and   equitable having regard to all the            circumstances,   or                 (ii)   if the employee incurred no such financial loss, payment to the employee by          the        employer   of such compensation (if any, but not exceeding in amount 4 weeks              remuneration in respect of the   employment from which he was dismissed          calculated   as aforesaid) as is just and equitable having regard to all the        circumstances,                 ...                 (2)   Without prejudice to the generality of subsection (1) of this section, in                determining the amount of   compensation payable under that subsection regard                shall be had to—                 (a)   the extent (if any) to which the financial loss referred to in that   subsection        was attributable to an   act, omission or conduct by or on behalf of the employer,                 (b)   the extent (if any) to which the said financial loss was attributable to an                action, omission or conduct by   or on behalf of the employee,                 (c)   the measures (if any) adopted by the employee or, as the case may be, his         failure to adopt measures, to mitigate   the loss aforesaid,                  (d)   the extent (if any) of the compliance or failure to comply by the employer,   in    relation to the employee, with the   procedure referred to in subsection (1) of           section   14 of this Act or with the provisions of any code of practice relating to     procedures regarding dismissal approved of   by the Minister,                 (e)   the extent (if any) of the compliance or failure to comply by the employer,   in    relation to the employee, with the   said section 14, and                 (f)   the extent (if any) to which the conduct of the employee (whether by act or          omission) contributed to the   dismissal.                 (2A)   In calculating financial loss for the purposes of subsection (1), payments to      the employee —                 (a)   under the Social Welfare Acts, 1981 to 1993, in respect of any period                following           the dismissal concerned, or                 (b)   under the Income Tax Acts arising by reason of the dismissal,                 shall   be disregarded.

               (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 extent of the complainant’s financial loss is   from April to November 2016, upon which time the complainant obtained   alternative employment. She received a contribution-based social welfare   payment in the interim. The amended Unfair Dismissals Act is clear that such   social welfare support should not be taken into account in assessing   ‘financial loss’. The question, therefore, is whether the loss incurred by   the complainant is attributable to the employer, as envisaged by section   7(2)(a) of the Act. Given the findings I have made above regarding the   breaches by the respondent of the implied term of mutual trust and confidence   and the term implied by statute of a safe place of work, I find that the loss   of income between April and November 2016 is attributable to the actions of   the respondent. The complainant is, therefore, entitled to recover for   financial loss arising in this period.

For the sake of clarity, it is not necessary to hear   psychiatric evidence to assess whether the loss incurred by the employee is   attributable to the employer. Even had I heard such evidence, it is certainly   not my role to determine whether a psychiatric injury has occurred.

In calculating the amount of redress, I note that   the period of financial loss arises over 28 weeks. The amount of redress owed   pursuant to the Unfair Dismissals Act is, therefore, €17,935.

CA-00005728-001

I find that the complaint made   pursuant to the Unfair Dismissals Act is well-founded and the respondent shall   pay to the complainant redress of €17,935.

Unfair   Dismissals Act

Implied   term of mutual trust and confidence

Term   implied by statute in relation to safety, health and welfare at work

Berber v Dunnes Stores [2009] 20 E.L.R. 61

Financial   loss attributable to the employer

Illness   Benefit