ADJ-00004045

ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00004045

Parties:

Complaint:

Date of Adjudication Hearing: 23rd February 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 15^th July 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Acts. The complaint was scheduled for adjudication on the 23^rd February 2017. The complainant attended the adjudication and was represented by Marius Marosan. One witness attended for the respondent and it was represented by IBEC.

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant commenced employment with the respondent on the 22^nd September 2014 and this came to an end on the 18^th April 2016. She worked 35 hours per week and was paid €12.50 per hour. The complainant claims that she was constructively dismissed from her role as site coordinator and the respondent denies the claim.

Summary of Complainant’s Case:

The complainant outlined that she had been treated very badly by the respondent, especially at the hands of her Supervisor. She commenced working for the respondent on the 22^nd September 2014 and was site coordinator at a third level university campus. Her role was to coordinate the cleaning of university buildings, for example student residences. She was not introduced to her staff or shown to the buildings. She was also not given any training. All she received was a list of cleaners. It took her three or four weeks to make contact with the cleaners and the clients to gather all the information she needed. She did not want the respondent to look bad and when she raised this with the Supervisor, she was met with an aggressive response.

The complainant made a formal complaint to the respondent HR Director on the 11^th December 2014. This followed a period when she was humiliated from the 9^th December 2014 onwards. She said that she was crying all the time and having panic attacks. She went on sick leave for work-related stress. She also went to see the company doctor. The complainant outlined that in October 2014, she took time off as her daughter was sick with a chest infection.

The complainant said that she attended an interview on the 18^th December 2014 and she has been upset at this meeting. She had not seen the minutes of the meeting presented by the respondent to the adjudication. She said that they were accurate apart from they did not include the complainant’s reference to trying to contact the Supervisor, who told her not to disturb her. The HR Director said that they would meet again before Christmas. This did not take place and the next contact she had was the invitation to attend the company doctor in February 2015.

At the meeting of the 11^th March 2015, the complainant repeated her grievances and expanded upon them. The respondent asked if they could contact her colleagues to ask about her and she replied that she did not mind. She was trying to control herself. She asked for the respondent bullying policy and the health and safety policy and they were sent to her. She said that the last time she heard from the respondent was in relation to the lap top. On the 11^th April 2016, she sent an email to the respondent looking for “a solution” but never received a reply. It appeared to the complainant that the respondent wished her to leave. The complainant said that she continued to submit sick certificates but heard nothing from the respondent. She did not follow up with the respondent as she did not want to push people. She never received a P45. The complainant outlined that she had looked for alternative employment and was ashamed to contact a previous employer, another cleaning contractor. She had left this role to take up the site coordinator role with the respondent. She was on medication for her blood pressure. The complainant outlined that she had been certified as fit for work in December 2016. In respect of redress, the complainant said that she could not go back to work for the respondent and she was seeking compensation.

In reply to the respondent, the complainant said that she had availed of internal procedures. She had contacted the HR director and followed the grievance procedure. The respondent had not dealt with the issues she raised. It should have all the copies of the minutes and in particular the letters. The complainant said that she did not receive any letter from the respondent in March or April 2015, and if the letter had been sent to her, why did the respondent not refer to this following her email to the respondent on the 11^th April 2016.

In an email of the 3^rd August 2017, the complainant responded to the documents submitted by the respondent. She disputed the references made to her saying she intended to resign and that Supervisor would be on site every two weeks.

Summary of Respondent’s Case:

The respondent outlined that the claim should fail as the complainant had not exhausted internal procedures. She had not been dismissed from her employment and she did not meet the burden for a claim of constructive dismissal. It relied on the definition provided in section 1 of the Unfair Dismissals Acts and referred to Conway v Ulster Bank (UD474/1981) and Travers v MBNA (UD720/2006) regarding the need to exhaust internal grievance procedures.

The respondent met with the complainant on the 18^th December 2014 on foot of her complaint. She met with two members of HR. In minutes of the meeting (presented at the adjudication), the complainant outlines that she did not receive support from the Supervisor, for example being supplied with contracts of employment of existing staff. She gives a detailed account of difficult interactions with the Supervisor and states that the Supervisor called to the site every two weeks and that the complainant phoned her two or three times.

In early 2015, the complainant was referred to occupational health, where she was deemed unfit for work but fit for engagement to resolve the matter.

The respondent again met with the complainant on the 11^th March 2015 where her complaint was discussed. The respondent later sent the complainant the respondent Health & Safety Policy and the Bullying Policy. The respondent exhibits the minutes of the 11^th March 2015, where the respondent puts the complainant’s working arrangements at the university site to the complainant. It was put to the complainant that the Supervisor had given an account of brief interaction with the complainant and that the complainant had told the Supervisor that she intended to resign. The complainant does not accept this and raises how the Supervisor spoke with her and managed her.

On the 31^st March 2015, the respondent followed up on the March meeting with the complainant. The HR Director said that he met with the Supervisor and with a named Facilities Manager. There were no minutes of these meetings. The response was sent to the complainant and she never reverted back. The complainant could have appealed the outcome but did not do so. There was no need for the respondent to follow up. In the letter of the 31^st March 2015, the HR Operations Manager set out the respondent’s commitment to addressing bullying. He concludes that he does not uphold the complaint. He refers to the Supervisor being on site once every two weeks and to the Supervisor speaking to the complainant two or three times in this period. He finds that the complainant has failed to establish how her dignity in the workplace was undermined by her manager. He finds that while the relationship between the complainant and the Supervisor may have been strained, it was neither bullying or harassment.

In this time, the respondent continued to receive the complainant’s sick certificates. It confirmed that it received the complainant’s email of the 11^th April 2016. The minutes of the meeting would have been sent to the complainant by ordinary post. The respondent submitted that the complainant could only claim financial loss for the period she was certified as fit for work. On the complainant’s evidence, this was a 10-week period from December 2016 to the date of the adjudication. It submitted that Allen v Independent Newspapers [2002] E.L.R. 84 was not appropriate to this case.

On the 27^th July 2017, the respondent formally submitted the minutes of the meetings of the 18^th December 2014 and the 11^th March 2015 as well as the investigation outcome letter of the 31^st March 2015.

Findings and Conclusions:

There are a number of unusual facets about this case. The parties dispute whether pertinent documentation was exchanged between them, most importantly the outcome letter of the complainant’s grievance of the 31^st March 2015. The complainant said that this letter as well as the minutes of the 18^th December 2014 and 11^th March 2015 were not sent to her and the first time she saw them was at the adjudication. The respondent states that it sent the letter of the 31^st March 2015 by ordinary post. It is not in dispute that some 12 months later the complainant emailed the respondent on the 11^th April 2016 looking for a follow-up to her grievance. It is also not in dispute that the respondent did not reply to this email. The complainant asserts that she was entitled to have considered herself dismissed as of the 18^th April 2016.

The complainant’s employment with the respondent began on the 22^nd September 2014 and she felt cause to bring a grievance against her Supervisor within a short period. She lodged a grievance on the 11^th December 2014, leading to a grievance meeting of the 18^th December 2014. In the interim, the complainant was medically certified as unfit for work, but fit to participate in a grievance process. A grievance meeting took place on the 11^th March 2015 and the respondent states it issued an outcome to the grievance, having interviewed other witnesses. The respondent did not uphold the complainant’s grievance.

This is a claim of unfair dismissal where the complainant asserts that she was entitled to consider herself to have been dismissed by the conduct of the employer. She claims constructive dismissal. In respect of the claim of unfair dismissal, the definitions section of the Unfair Dismissals Acts (at section 1(b)) provides in relation to the definition of constructive dismissal:

“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.”

The Employment Appeals Tribunal in Conway v Ulster Bank (UD 474/1981) (as opened by the respondent) held as follows:

“We do not hold the view that the transfer of the appellant [employee] was, of itself, a repudiation of the contract of employment and that the resignation was merely an acknowledgement of an acceptance of this. The transfer may have been misused in this case buts its use did not demonstrate that the respondent no longer intended to be bound by the contract of employment, nor did the fact of transfer so alter the employment as to make it a thing radically different from what it was before the transfer. Transferability was part of the contract and could properly and fairly be used to the same effect in different circumstances. The termination of the employment would, we feel, fail on a contractual test to be a constructive dismissal.”

Central to this case is the respondent’s reaction to the complainant’s email of the 11^th April 2016. This email was from an employee who was on extended sick leave and who continued to submit certificates regarding her medical condition. She emailed to look for “a solution” to this prolonged absence. According to the respondent, a letter was sent on the 31^st March 2015 to the complainant stating that her 2014 grievance was not upheld and ends by asking the complainant to state whether or not she has resigned. The respondent then took no further action, despite continuing to receive certificates from the complainant. It is unusual that the respondent did not react to the complainant’s email of the 11^th April 2016 by drawing the complainant’s attention to the letter of the 31^st March 2015.

While it is not possible to make a definitive finding whether or not the letter of the 31^st March 2015 was sent to the complainant, inferences can be drawn from the failure of the respondent to follow up on the question posed to the complainant at the end of this letter, in particular in the light of her follow-up communication with the respondent. The letter asks whether or not the complainant has resigned, but the respondent does not follow up on the request, despite continuing to receive sick certificates from the complainant. Furthermore, this was followed by the complainant’s direct request of the 11^th April 2016, which the respondent did not respond to.

Taking these factors together, an inference can be drawn that the respondent was aware that the letter of the 31^st March 2015 had not been received by the complainant soon after that date, as the complainant continued to submit certificates without addressing the question posed in the letter. It is of note that a year had passed when the complainant sent the email of the 11^th April 2016. I can draw the inference that the respondent was aware that the complainant was “out in the cold”, i.e. on certified unpaid sick leave but with no further steps being taken to address her grievance. I find that it would have been aware that the letter of the 31^st March 2015 was either not sent or not received. Given that she was certified as fit to participate in the grievance process but not fit to work with the respondent, the complainant could not return to work until the process had completed.

As the complainant was, in effect, out in the cold and following the failure of the respondent to answer her email of the 11^th April 2016, the complainant was entitled to consider herself to have been dismissed by the conduct of the employer. I find that the date of dismissal is the 18^th April 2016. I find that the conduct of the employer repudiated her contract of employment in line with the objective test outlined in Berber. While one can criticise the complainant for not agitating more after the events of March 2015, what is striking in this case in the lack of action on the part of the respondent, even if it held the bona fide belief that the letter of the 31^st March 2015 had been sent to the complainant. Applying Berber, the lack of action on the part of the respondent amounts to a breach of the implied term in every contract of employment of mutual trust and confidence. In turn, this amounts to a repudiation of the complainant’s contract of employment.

It follows from the above findings that the claim of unfair dismissal is well-founded. In assessing redress, I note the period of time the complainant attended work between September and December 2014. I also note the unusual circumstances around the extended period of sick leave between December 2014 and April 2016. I note that the complainant was deemed fit to participate in the grievance process and not fit to work while this was outstanding. Her entitlement to redress cannot, therefore, be restricted to after December 2016. Taking these factors into account, I make an award of €17,000.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00005863-001

I find that the complaint made pursuant to the Unfair Dismissals Act is well-founded and the respondent shall pay to the complainant the amount of €17,000.

Dated:   29^TH August 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Unfair Dismissals Act

Constructive Dismissal

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

Sick leave