UDD1743

This is Ms O’Connor’s (‘the Complainant’) appeal from a decision of an Adjudication Officer (ADJ-00002729, dated 25 January 2017). The Adjudication Officer had found that the Complainant’s claim of constructive unfair dismissal was not well-founded. The Notice of Appeal was received by the Court on 1 March 2017. The appeal was heard by the Court sitting in Cork on 28 September 2017. An appeal of the Adjudication Officer’s decision under the Redundancy Payments Act 1967 was also referred to the Court. However, at the outset of the hearing of the appeal, Mr Browne – Solicitor for the Complainant – elected to proceed with the appeal under the Unfair Dismissals Act 1977 (‘the Act’) and the appeal under the Redundancy Payments Act 1967 (RPA/17/4) was withdrawn.

Complainant’s Employment History with the Respondent

The written submissions to the Court from both parties recounted the Complainant’s employment history with Noonan Services Group Limited (‘the Respondent’) in some detail. However, it is sufficient, having regard to the nature of the within appeal, to summarise that history as follows.

The Complainant was employed by the Respondent from 24 August 2009 as a Manager with its Cleaning Services Division working at Mercy University Hospital in Cork (‘MUH’). The Complainant became seriously ill in September 2010. She remained on sick leave until June 2012 when she sought to return to her old position without giving advance notice to the Respondent of her intention to do so. The Respondent was of the view that the arrangements that had been put in place at MUH during the Complainant’s absence had been working very well and did not want to change them. They, therefore, made a decision to exercise the mobility clause in the Complainant’s contract of employment and offered her what, in their view, was an equivalent position to that which she had held prior to her sick leave. The position offered to the Complainant was based at Cork University Hospital (‘CUH’). The Complainant was notified in writing that her contractual terms – including her salary – would be red-circled. Nevertheless, the Complainant rejected this proposal from the Respondent as she viewed the position at CUH as an effective demotion. The Complainant had been placed back on the Respondent’s payroll with effect from 25 June 2012. She remained on the payroll until 7 September 2012 when she was removed again as she had not made herself available for work by that date.

The Respondent subsequently offered the Complainant a temporary role at the Boston Scientific site, outside Cork. The Complainant commenced in this role in October 2012. She remained working there until some time in October 2013, when she went out on long-term sick leave. The Complainant did not attend work thereafter. Prior to her departure on sick leave, some difficulties had arisen in respect of the Complainant’s working relationship with the staff she was responsible for managing. The Complainant raised this as an issue with her Operations Manager. He dealt with the matter as a formal grievance and issued a Grievance Outcome letter to the Complainant. (At the hearing of the within appeal, the Complainant contended that the process in question was not in fact raised by her as a formal grievance. She, nevertheless, accepted that she had not disputed this at the time nor had she appealed the outcome of the process. Furthermore, her solicitor –in a letter dated 5 March 2014 to the Respondent – stated that the Complainant ‘had also understood that she had exhausted all grievance procedures’.)

On 20 January 2014, the Complainant notified the Respondent in writing of her intention to resign from her employment with effect from that date. The Respondent replied on 4 February 2014 (and again on 18 February 2014) requesting the Complainant to reconsider her decision and offering her the option of mediation to attempt to resolve the issues that had arisen with regard to her relationship with the company since her return to work in 2012. The Respondent wrote a similar letter to the Complainant’s solicitor on 25 February 2014. He replied by letter dated 5 March 2014 and informed the Respondent that his client wished to retract her resignation and was willing to engage in mediation. The Respondent subsequently requested the services of the Independent Mediation Service of the Labour Relations Commission. It appears that the intended mediation never took place. However, the parties did jointly attend a conciliation meeting in June 2014 chaired by Mr Brendan Cunningham of the (then) Labour Relations Commission. This process appears to have been adjourned and was not resumed.

Ultimately, the Complainant notified the Respondent, through a letter from her solicitor dated 11 February 2016, that she deemed her employment to have been terminated with effect from 18 January 2016. At the time, the Complainant had experienced some personal upheaval in her life and had decided to spend some time caring on a full-time basis for her mother although she did not state this as the reason for her resignation. She applied to the Department of Social Protection for Carer’s Benefit but chose not to apply to her employer for Carer’s Leave. The Complainant told the Court that she sent her Carer’s Benefit application form to the Respondent for completion in late September or early October but did not hear back from the Respondent. Her evidence was that she then instructed her solicitor to send the form again to the Respondent for completion and he did so under a covering letter dated 8 December 2015. The Respondent stated it has no record of having received the form directly from the Complainant and that the first time it became aware of the Complainant’s request in this regard was when it received the aforementioned letter from her solicitor. A reading of the relevant paragraph of the letter of 8 December 2015 supports the version of events contended for by the Respondent as that letter makes no mention of the Complainant’s assertion that she had already sent the form directly to the Respondent. The relevant section of the letter reads as follows:

• “Our client wishes, on a temporary basis to apply for Carer’s Benefit. We now enclose herewith original documentation from Social Welfare Services Offices and should be obliged if you could please complete these and return as soon as possible. Our client may be prevented from applying for her entitlements should this be delayed.”

It appears the Complainant was in receipt of Illness Benefit up until 18 January 2016 from which date she was placed on Job Seeker's Benefit by the Department of Social Protection.

Discussion and Decision

Both representatives made detailed written and oral submissions to the Court at the hearing of the appeal. However, having heard those detailed submissions, and having regard to the actual claim of constructive unfair dismissal before the Court, it was agreed between the Parties that the case turned principally on the events immediately prior to the Complainant’s second resignation and her reasons for deeming herself constructively dismissed on 18 January 2016.

The Complainant gave evidence and was cross-examined in relation to those net issues. During the course of her evidence, she told the Court that the timing of her resignation was motivated by two specific matters: firstly, developments in her family and personal life that culminated in her decision to become a full-time carer for her mother; and secondly, the Respondent’s negligence in incorrectly completing her application to the Department of Social Protection for Carer’s Benefit. The Complainant denied that the Department of Social Protection’s decision to remove her from Illness Benefit and to place her on Job Seeker’s Benefit with effect from 18 January 2016 had any material bearing on her decision to regard herself as constructively dismissed from that date.

The Act places a high burden on a Complainant in a constructive dismissal case. In order to succeed in such a claim, a Complainant must establish that either a breach of contract by the employer going to the root of the contract has occurred or that the employer’s unreasonable behaviour was such that she was justified in believing that she could not continue any longer in that employment. Furthermore, it is incumbent on an employee who believes themselves to be in such circumstances to alert the employer to her situation (for example, by availing of the employer’s grievance procedure) in order to allow the employer an opportunity to rectify the problem before resigning.

An employee’s personal or family circumstances in themselves, no matter how unfortunate, cannot ground a claim for constructive dismissal under the Act. Likewise, a genuine and not uncommon clerical error by an employer in completing a Department of Social Protection form is an insufficient basis on which to seek to characterise one’s resignation from employment as a constructive unfair dismissal. In any event, no evidence was put before the Court to suggest that the Complainant sought to engage with the Respondent in respect of the matters she has advanced in the course of the within appeal as the factors which motivated her decision to resign her employment with effect from 18 January 2016.

The appeal is, accordingly, dismissed. The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
6th October, 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.