FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : HOMECARE MEDICAL SUPPLIES (REPRESENTED BY IBEC) - AND - PAULINE O' CONNELL (REPRESENTED BY MAC SWEENEY & COMPANY, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer's Decision No; ADJ-00001951.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 9(1) of the Unfair Dismissals Acts 1977 to 2015 on 17 February 2017. A Labour Court hearing took place on 21 September 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal against the Decision of an Adjudication Officer under the Unfair Dismissals Acts 1977 – 2015 (the Acts) in a claim made by Ms Pauline O’Connell against her former employer, Homecare Medical Supplies, where she alleged that she was constructively dismissed. By decision dated 19thJanuary 2017, the Adjudication Officer held that the complaint was not well founded.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Pauline O’Connell will be referred to as “the Complainant” and Homecare Medical Supplies will be referred to as “the Respondent”.
The Complainant referred her case to the Workplace Relations Commission on 17thFebruary 2016. The appeal came before the Court on 21stSeptember 2017.
Background
The Respondent is a family owned business established in 1988, supplying products and services to the Healthcare market in Ireland including Nursing Homes, Hospitals, Community Care and Retail. It is an unlimited company and operates a chain of ten medical supply retail stores located throughout Ireland. It is understood that some of these branches are franchised. It is headquartered in Ballyhaunis, Co. Mayo.
The Complainant was initially employed by the Respondent as a Retail Assistant on 17thOctober 2010 at its branch in Terryland Retail Park, Galway, and was later promoted to the position of Retail Supervisor at that branch on 18thNovember 2013. She was paid €12.00 per hour and typically worked a 32-hour week, mostly four days per week. She resigned her position on 13thJanuary 2016.
Summary of the Complainant’s Position
Mr Shane MacSweeney, Solicitor, MacSweeney & Company Solicitors, on behalf of the Complainant, submitted that the Complainant was constructively dismissed from her employment as a Retail Supervisor at the Respondent’s Terryland branch, arising from her demotion following an open competition for the new role of store Team Leader. Mr MacSweeney contends that there was no material difference between the Supervisor role and the Team Leader role and that the competition was an exercise in implementing a pre-ordained outcome to swap the roles of the Complainant and her former sub-ordinate who was appointed to the Team Leader position.
Mr MacSweeney submits that the Complainant attempted to raise concerns about the situation prior to the competition but this was to no avail. He submitted that a further grievance after the outcome of the competition could not possibly unwind a competition that had concluded with an outcome. He further submitted that the process had been designed solely to ensure that the Complainant and her subordinate swapped roles. He said that in such circumstances a grievance procedure could not be relied upon to strip a fellow employee of an appointment.
Mr MacSweeney provided an extensive written submission to the Court and referred to a number of authorities in support of his position.
Evidence of the Complainant
The evidence of the Complainant, Ms Pauline O’Connell, can be summarised as follows:
She commenced employment at the Respondent’s Terryland store as a Retail Assistant in 2010. Her duties involved serving customers, maintaining the shop, dealing with deliveries.
In 2013 she secured a promotion to the position of Retail Supervisor. She had never been promoted previously in her career and she was very happy about it and was personally very proud. She had a level of authority and all matters and issues in connection with the shop were directed to her. She reported to the Retail Manager and she was responsible for the two Retail Assistants (Ms G and Ms S) assigned to the shop. She was never reprimanded in any way and received positive feedback on her performance in the role. The performance appraisal she had with the Respondent’s HR Manager and the Retail Manager was also very positive.
On 20thMay 2015 she received a general ‘all-staff’ email advertising a recruitment competition for the position of ‘Retail Team Leader’ for all of the Respondent’s retail outlets. This was the first time that the Complainant learned of the Respondent’s plan to institute a new Team Leader role at store level.
She was very concerned about the email as she believed, upon reviewing the job specification attached to the email, that the duties outlined for the Team Leader role were substantially the same as her Supervisor role (job content details for both roles were exhibited to the Court). She received telephone calls from colleagues in other shops who asked her was that not her job being advertised.
She contacted the HR Manager, Ms Lesley-Ann Walsh, on the same day to express her concerns. She states that the HR Manager told her she was not the supervisor of the shop and that the Retail Manager effectively handles the supervisory duties. She was told that all the staff who work in the shop were equal. She pointed out to the HR Manager that she had a contract of employment as a Supervisor and in response she was told that the contract was not passed by quality control and was“not worth the paper it was written on”.
She was very upset at the comments of the HR Manager and she sent an email to the Managing Director, Mr Peter McGuinness, on 21stMay 2015. She arranged to meet the MD at a hotel on the following day, 22ndMay 2015.
She states that at the meeting the MD told her that she was the Supervisor and that she took comfort from that. She says that he was very complimentary of her and told her that she was the best at her job. She says he discussed the Team Leader role with her and told her she should apply for the role, that nothing would change and that she was the most senior and experienced person for the job.
She said that she felt that she had been persuaded to apply for the role by the MD and on that basis she was happy to apply. She understood that the Team Leader role would require her to work an extra 3.5 hours per week and that she would have to do reports and spreadsheets. She had no problem with that and expressed same to the MD.
She said that she was interviewed for the role in July by the HR Manager and Mary McGuinness, who was a co-founder of the business and the wife of the MD. She was aware that the two Retail Assistants that she supervised in the shop had applied and were also interviewed.
Following the interviews, the MD came to the shop and told her that she was unsuccessful in the competition and that her sub-ordinate in the shop, Ms G, had been successful and would be appointed as Team Leader for the Galway shop. She said she was very shocked and upset and believed that her job and her status had been taken away from her. The MD told her he was sorry that she didn’t get the role and he said that he was going to increase her rate of pay by €1.00 per hour.
She told the Court that she was in shock at the outcome of the competition when she was unsuccessful and her former Retail Assistant with far less experience in the company was successful. She said they were literally swapping roles and she foresaw that tensions would arise. She said that this was a source of great anxiety and stress for her.
She said that she felt sure she would be successful and other colleagues told her that they felt the same way. When she saw the score sheets for the interviews much later after she had resigned (which were exhibited to the Court) she was also shocked that she came last out of the three candidates and thought that the scores didn’t make sense. She could not understand how she could have received the lowest possible score for ‘Work Experience’, and the lowest of the three candidates for the role, given her experience as supervisor of the shop.
When Ms G took up the role the Complainant could see that Ms G’s duties were identical to the supervisor duties which she previously performed. She said that reports and spreadsheets were not as it turned out part of the job. The only difference was that Ms G did the staff rota for the two people (the Complainant and Ms G – the other Retail Assistant had departed from the company) in the shop.
She said that nobody had a discussion with her about the changes to her duties after the Team Leader role was instituted. She found it very difficult that matters and issues that would have previously been referred to her as the supervisor were now dealt with by Ms G. She recalled one particular matter that she raised with the MD regarding a shoe product and she was told that it was nothing to do with her, that Ms G was responsible. She felt that she went from hero to zero in a matter of weeks and there was nobody in the company that she could turn to.
After two to three weeks working with Ms G as a Team Leader she felt that Ms G’s demeanour towards her changed. She states that Ms G made off-the-cuff remarks that were not helpful to her and were derogatory, that she talked down to her, that she told her that she was in charge, that she told her to shut up, that she told her that she was wrecking her head. She exampled one occasion in which she says that Ms G told her that when she was writing on paper that she should write between the lines.
The Complainant states that she also had concerns about Ms G’s handling of the role, with particular regard to stock issues and a lack of grasp on the systems operating in the shop. The Complainant says that Ms G had only been working in the company for seven months so she could identify these issues by virtue of her experience.
She informed the MD of her concerns and she was told by him to use the formal processes if she wished to make a complaint. A couple of days later she was contacted by the HR Manager who provided details of the formal grievance procedure.
She subsequently submitted a grievance letter on 20thNovember 2015 relating to the Team Leader’s conduct. Two meetings took place to deal with the grievance. At the second meeting on 26thNovember 2015 the MD and the HR Manager held the meeting with the Complainant and Ms G to settle matters.
The Complainant states that she had gone to see her GP on the day before the second meeting and he prescribed anti-depressants and sleeping tablets. She said that the GP said that she needed to take herself out of a toxic environment. He gave her a medical cert excusing her from work due to work related stress.
At the meeting on 26thNovember 2015 she signed a document prepared by the company which set out the outcome of the grievance. She went out sick after that meeting and never returned to the company.
Under cross-examination, the Complainant agreed that there was no reference to demotion in her grievance. She stated that she didn’t lodge a grievance about the outcome of the competition because she felt nothing was going to change. The deed was done. She said that she felt that the grievance she lodged was connected to her demotion. She said that in her view it was all linked.
She said that she felt she could not approach the HR Manager after what she had said about her Supervisor role and contract earlier in May when the Team Leader role was advertised. She said that she didn’t ask to see the score sheets at that time as she was not getting advice at that stage and didn’t realise she could request them. She added that she was not aware at that time that a scoring system was being used.
She agreed that she had applied for the Team Leader job and added that she did this because she was encouraged to by the MD.
She agreed that she congratulated Ms G on her appointment. She says she did this to save face and felt she had no choice as it was not Ms G’s fault that she (the Complainant) was not successful.
She agreed that the MD had awarded her a pay increase which she accepted but she said that a pay increase did nothing for the fact that her status had been taken from her.
She said that she signed the grievance document on 26thNovember 2015 because she was upset and was not in a fit state. She states that she was crying hysterically at the meeting on 26thNovember 2015 and she was just told to go back to work and forget about it.
She says that in the period that she was out sick from 26thNovember 2015 up to the date of her resignation on 13thJanuary 2016 she did not receive any contact at all from anyone in the company. She says that, by GP referral, she began to see a Clinical Psychologist around the time of her resignation. She was seeing the Psychologist from that time up until approximately six months ago, March/April 2017.
She said that she resigned because she felt that she could not go back. The company had sided with Ms G, there was no place for her, and she was cast aside.
Summary of the Respondent’s Position
Mr Ronnie Lawless, Ibec, on behalf of the Respondent, disputed the allegation of unfair dismissal and stated that the Complainant having formally raised a grievance, which was addressed by management, failed to avail of the appeal process, and resigned due to an issue which was not raised in that grievance process. Mr Lawless placed heavy reliance on the Complainant’s failure to exhaust all available internal procedures prior to her resignation and pointed the Court to a number of authorities on that point.
Mr Lawless also provided an extensive written submission to the Court and referred to various authorities in support of his position.
Evidence of the Managing Director for the Respondent
The evidence of the Managing Director, Mr Peter McGuinness, can be summarised as follows:
The MD told the Court that he started the company in 1988 with his wife and his brother. The company is headquartered in Ballyhaunis, Co. Mayo and consists of retail shops nationwide. Some shops are managed directly by the Respondent and some are franchised out.
The business grew year on year and obtained a significant HSE contract resulting in increased staffing levels in the period 2009-2012. That contract was terminated in 2013 and the company exited from it in 2014. Significant losses were sustained in that two year period.
The company was forced to look at restructuring and engaged with its stakeholders in this regard. Consultants were engaged and a full review of the business was conducted.
A review of the retail business was completed in December 2014 and implemented in 2015. The review resulted in the positions above store level of Retail Manager and Retail Support Manager being made redundant.
This meant that certain management duties previously within those roles needed to be devolved down to store level. The decision was made to appoint a new structure for all the shops, described as“a new young management team”,and this led to the creation of the Team Leader roles with clearer management responsibilities.
With regard to the Complainant, the MD stated that she was working four days per week in the Galway shop and that this was less than ideal.
The MD says that he was contacted by the Complainant after the Team Leader roles were advertised and he met her the following day in a hotel in Galway. He told the Court that he put a note to file subsequent to the meeting and the note, in the form of an email to the HR Manager dated 22ndMay 2015, was exhibited to the Court.
The MD says that at the meeting he acknowledged that the Complainant was doing a lot of the tasks set out in the new Team Leader role description. He said that he explained the Team Leader role to her and told her that the focus was not just on tasks but needed to be on management and strategy also. He said that he discussed with her that retail was under threat from online sales and that changes had to be made.
He states that he did not cajole or persuade her to apply for the job. He was there to explain the situation to her. He said that he didn’t guarantee anything to her; he didn’t say that there would be no change. He states that he didn’t on that occasion point her towards the grievance procedure if she was unhappy with the situation regarding the creation of the Team Leader role. He states that at the close of the meeting she said that she would happily apply for the role.
He states that he wasn’t involved in the interview process but was entirely aware of the significance of the outcome for the Complainant. He says that he had high regard for the Complainant and met with her to inform her of the outcome.
He says that he told her that he had high regard for her customer service skills, which were excellent. He said he told her that he was sorry that she was upset. He says that he talked to her about her strengths and areas where she might need to improve. He told her he was giving her a pay increase.
He says that she did not raise any issues with the outcome and she commented that the five days a week and additional reporting and management functions would not have really suited her anyway.
The MD stated that when he was contacted by the Complainant regarding her complaints about Ms G’s conduct towards her he told her there was a formal process she should use.
When they received the formal grievance letter he says that he and the HR Manager met with the Complainant and Ms G and gave a fair hearing to all sides.
He believed that reconciliation had been achieved at the grievance meeting on 26thNovember 2015 and all parties signed the document. He said that the Complainant produced a sick cert at the very end of the meeting on 26thNovember 2015. He states that he believed that the cert should have been submitted earlier.
He said he received her letter of resignation in January 2016 which he responded to (both the letter of resignation and the MD’s response were opened up to the Court). He said he was sorry to see her go.
In cross-examination, the MD agreed that there was a lot of cross-over between the Retail Assistant, Retail Supervisor and Team Leader roles. He agreed that he didn’t envisage having both the Supervisor role and the Team Leader role and he ultimately agreed that the introduction of the Team Leader role placed the Complainant’s seniority and status in jeopardy.
In that regard he agreed that the situation whereby the Complainant’s first knowledge of the Team Leader role was by way of the ‘all-staff’ email advertising the role could have been handled better. He said that he understood how she would have been concerned to receive it.
He stated that he was surprised at the outcome of the competition as he had expected that the Complainant would come out on top. He was asked if that was the case did he seek feedback from the panel to understand what had happened to which he replied that he didn’t.
The MD agreed that if the supervisor duties were removed from the Complainant and given to the Team Leader, which is what occurred, the Supervisor would effectively revert to a Retail Assistant. It was put to the MD that in those circumstances the Complainant was demoted. The MD stated that he did not regard it as a demotion as she received a pay increase and her title did not change, but he stated that he could see how the Complainant saw it as a demotion.
The MD agreed that the Complainant was the only Supervisor across all the stores who applied for the Team Leader role and did not get it.
It was put to the MD that he should have foreseen difficulties arising when the outcome of the competition was the Complainant and her former sub-ordinate effectively swapping roles. He said that when he informed the Complainant of the outcome of the competition and took account of her reaction he did not foresee difficulties.
In response to questions from the Court, the MD confirmed that he did not make any contact with the Complainant in the seven weeks that she was out sick. He said he make a judgement not to as she had submitted a cert which indicated ‘work related stress’. He said that he was aware that nobody else in the company was in contact with her either. He confirmed that he did not consider sending her for examination by a company nominated medical practitioner.
In reference to the interview scoring documentation opened to the Court, it was put to the MD that on the score sheets the option described as ‘A good applicant, but I do not recommend’ was ticked in all three cases. The MD was unable to offer an explanation as to how Ms G had been appointed when all three candidates were apparently not recommended.
With regard to her resignation, the MD stated that he did not seek to meet with the Complainant when he received the letter. He said that in hindsight that he should have but he didn’t, probably due to his anger at some of the statements she had made in her letter.
The Law
Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal as follows:-
- “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”
Section 6(1) of the Act states:-
- 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Discussion & Decision
As the Complainant is alleging constructive dismissal, the fact of dismissal is in dispute and the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her terminating her employment.
Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his position, often referred to as the “contract test”. This requires that an employer be“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”as held inWestern Excavating (ECC) Ltd v Sharp[1978] IRL 332.
Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so she is justified in leaving.
The question for the Court to decide is whether, because of the conduct of the Respondent, the Complainant was or would have been entitled, or it was or would have been reasonable for her, to terminate the contract of employment.
There was a sharp difference in the evidence tendered by the Complainant and that of the MD on many of the material points in issue in this case. In evaluating the evidence the Court finds the Complainant’s evidence credible and consistent. The evidence tendered by the MD was somewhat inconsistent, hesitant and less forthright. Overall the Court found the Complainant’s recollection of the material events more reliable.
Therefore, having regard to the evidence, the Court is satisfied that the material facts are as follows:-
The Complainant was demoted from her position of Retail Supervisor following the institution by the Respondent of the role of Team Leader.
Despite the obvious potential impact on the Complainant were she to be unsuccessful in the competition for the Team Leader role, no consultation or engagement of any sort with her was undertaken prior to the ‘all-staff’ email advertising the Team Leader role. This was unsatisfactory in circumstances where she was the only one of three staff in the shop whose status could be adversely affected by the institution of the new role.
The comments of the HR manager during the telephone conversation on 20thMay 2015 when the Complainant’s seniority status and contract were called in to question by the HR Manager were suggestive of an attitude by the company towards the Complainant that was disrespectful and dismissive of her and indifferent towards her. The Court is satisfied that this attitude by the Company was also evident in the subsequent developments and events leading to the resignation.
In constructive dismissal cases, the Court must examine the conduct of both parties. 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 whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign:Conway v Ulster Bank LimitedUDA474/1981.
The actions of the MD at the hotel meeting in May 2015 when the Complainant attempted to raise her concerns flattered her into believing that she would be successful in the competition and effectively discouraged her from pursuing a grievance in connection with her possible demotion. The MD did not point her towards the grievance procedure should she have wished to dispute the potential impact of the Team Leader role on her employment status. It seemed that the Respondent did not wish the Complainant to raise a grievance at that time in relation to the advertised competition for the Team Leader roles. This is in contrast to the MD’s response to the complaint raised by the Complainant about the Team Leader’s conduct in the role in November 2015. At that time in November the MD’s reaction was to point her towards the grievance procedure. Overall, the MD’s actions substantially inhibited the Complainant in raising a grievance in May 2015.
In any event, the Court is satisfied that the grievance ultimately raised by the Complainant in November 2015, one which she was encouraged to raise by the MD in contrast to his approach to her concerns raised at the hotel meeting in May 2015, was linked to the concerns she first attempted to raise with the MD at the hotel meeting and was in effect a grievance about the loss of her supervisor position.
Ms G was appointed to the role despite the fact that the documentary evidence opened to the Court indicated that none of the candidates were suitable to be appointed. This must raise significant questions as to integrity of the selection process deployed.
Tensions which arose when the Complainant’s and Ms G’s roles were reversed were foreseeable by the Respondent. No supportive or preventative measures were put in place by the company. Neither was there any discussion with the Complainant about what the arrangements were to bevis-�-viswhat her duties and responsibilities were, as a supervisor, versus those of the new Team Leader.
No contact was made with the Complainant by the Respondent during her sick leave absence over a seven week period, when she was certified as suffering from “work related stress”. The Respondent gave no consideration to having the Complainant examined by a company nominated medical practitioner. General employment practice in such situations is for an employer to arrange for their employee to be examined by a company nominated medical practitioner. The Respondent's inaction in this regard was indicative of its overall intent and was further evidence of the disengagement by the Respondent from the employment relationship with the Complainant, a process which, in the Court’s view, commenced when the Respondent set about instituting the Team Leader role in the manner that it did from 20thMay 2015.
The Complainant’s resignation, which raised serious complaints and issues for the Respondent, was immediately accepted by the MD in circumstances where the Complainant was out sick. No offer to meet to resolve matters was advanced and, notwithstanding that the Complainant was out sick in the care of her GP, no opportunity was provided to her to delay her decision and reflect on the situation.
In light of the forgoing, the Court is satisfied that, having regard to the actions and inactions of the employer in this case, the Complainant was entitled to terminate her employment and it was reasonable for her to do so in the circumstances of this case. Accordingly, the Complainant was constructively dismissed from her employment with the Respondent. There being no substantial grounds justifying the dismissal, the Court accordingly finds that such dismissal amounts to an unfair dismissal within the meaning of the Acts.
In reaching its decision the Court has taken account of all written and verbal submission of the parties, including the written legal submissions received from both representatives following the hearing and has had full regard to the evidence adduced in the course of the appeal.
Redress
At the hearing, the Court requested a written legal submission from Mr MacSweeney regarding the question of whether or not a complainant who was unavailable for work due to illness, and who attributes the cause of the illness to the conduct of the employer, could be compensated for the period of unavailability as a period of loss under the Acts. A written submission in this regard was received from Mr MacSweeney dated 4thOctober 2017. A replying submission was received from Mr Lawless dated 19thOctober 2017.
Section 7 of the Unfair Dismissals Act 1977, as amended, sets out the provisions dealing with redress, which in summary provides that the Court decides on appropriate redress, having regard to all the circumstances, as between: reinstatement; re-engagement; compensation.
In this case the Court is satisfied that neither of the job-back remedies are appropriate, and the appropriate form of redress, having regard to all the circumstances, is that of compensation.
Regarding compensation, the Act provides that compensation for financial loss (which is defined as including any actual loss and any estimated future loss) attributable to the dismissal, as is just and equitable having regard to all the circumstances, of up to a maximum of 104 weeks remuneration, may be ordered by the Court.
In determining the amount of compensation, the Court is required to have regard to the following: the extent to which any financial loss is attributable to any act, omission or conduct by either the employer or the employee; the measures adopted by the employee to mitigate the financial loss; the extent to which the employer has complied with disciplinary procedures in relation to the dismissal; and the extent to which the conduct of the employee was attributable to the dismissal.
With regard to financial loss, Mr MacSweeney submitted that the Complainant has been unavailable for work due to illness since her dismissal. It was further submitted that the conduct of the Respondent which led to the Complainant’s constructive dismissal also led to her illness. Mr MacSweeney submitted to the Court a medical report dated 14thJune 2016 from Professor Gary Donohoe, Clinical Psychologist & Neuropsychologist, which report, he submits, supports his contention before the Court.
Relying on the case ofAllen v Independent Newspapers (Ireland) Limited[2002] ELR 84, it is Mr MacSweeney’s contention that in the circumstances of that case the Employment Appeals Tribunal found that the Tribunal’s discretion in determining financial loss was wide enough to encompasses a situation where if the employee’s illness led to her financial loss and the employer’s conduct had been a contributory cause of the illness then,ipso facto, the employee’s financial loss is attributable to the employer’s conduct.
On that basis, Mr MacSweeney seeks compensation by reference to a period of 20 months loss to cover the period mid-January 2016 to Mid-September 2017.
The Court notes that in its conclusions and prognosis section, Professor Donohoe’s report states that the Complainant:
- “….has experienced significant distress in the context of her work related difficulties. This has resulted in clinically significant symptoms of anxiety and depression in recent months. In the absence of mental health related problems prior to these difficulties, my opinion is that Pauline’s current difficulties arise as a direct result of the circumstances in which she left her job. Given that Pauline’s mental health was good prior to her current episode, and the family support she enjoys, I expect her to make a steady recovery in the coming months with further therapeutic input in the form of antidepressant medicant and psychological therapy”
The Court further notes that the Respondent did not provide medical evidence to the Court. Neither did the Respondent put forward an alternative explanation for the Complainant’s illness. Mr Lawless, in his replying submission to the Court following the hearing, argues that Professor Donohoe’s report was sighted by the Respondent for the first time at the hearing before the Court. He submits that the Complainant, at the time of her resignation, brought up for the first time that her ‘work related stress’ was related to her failure to secure the Team Leader role. He further submits that the Respondent was therefore denied an opportunity to have its own medical assessment of the Complainant conducted. In this regard the Court notes that Mr McGuinness’s evidence was that he did not consider sending the Complainant for examination by a company nominated medical practitioner at any stage throughout the seven weeks of her absence, notwithstanding that he was aware that she had been certified by her GP as suffering from ‘work related stress’. Mr McGuinness further stated in evidence that his response to the Complainant’s resignation, which put him on clear notice of serious issues regarding the Complainant, was to simply accept the resignation. The Court is satisfied that the Respondent had ample opportunity to investigate the Complainant’s medical status but it chose not to do so in any way either at the time she went out ill or at the time of the resignation or at any other time.
Mr Lawless, in his submission, also seeks to distinguish the instant case from theAllen v Independent Newspaperscase.Mr Lawless makes the point that in theAllencase, as distinct from the instant case, the employer had the opportunity to assess the extent of the complainant’s complaints and medical situation. For the reasons already outlined above, the Court disagrees with Mr Lawless in this regard.
Accordingly, on the basis of the findings already made as to what led the Complainant to resign her employment with the Respondent and on the basis of the medical evidence submitted, the Court is satisfied that the Complainant’s illness was caused by the factors which led to her constructive dismissal. Effectively her illness was caused by events which led to her dismissal and these events caused her financial loss.
Having regard to the foregoing, including the date of the medical report before the Court, the prognosis for recovery and the period up to which the Complainant was seeing Professor Donohoe, the Court measures the period of financial loss in this case as a period of fifteen months from the date of resignation on 13thJanuary 2016 to mid-April 2017. Based on a weekly rate of pay of €390.00, the Court measures the total compensation amount at €25,350.00.
Determination
The Complainant was unfairly dismissed by the Respondent. The Court orders the Respondent to pay to the Complainant compensation in the amount of €25,350.00.
The appeal, therefore, succeeds and the Adjudication Officer’s decision is overturned accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
31 October 2017.______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.