ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007955
Parties:
| Complainant | Respondent |
Anonymised Parties | A health care worker | A health care provider. |
Representatives | Barnaba Dorda SIPTU | Aisling McDevitt IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00010591-001 | 03/04/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00010591-002 | 03/04/2017 |
Date of Adjudication Hearing: 29/06/2018
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 77 of the Employment Equality Acts, 1998 – 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Summary of Respondent’s Preliminary Application: CA-00010591-002
The complainant had an accident at work on the 15/06/2015. On the 05/08/2015 the respondent’s Occupational Health Doctor stated that when the complainant returned to work she should not be placed back in the Pool area but should revert to her post as a health care assistant. He stated that the complainant would be fit to return to work once her “ current medical certificate had expired”. That was the following week. On the 11/08/2015 the complainant corresponded with the respondent stating that she disagreed with the doctor's opinion and stated that she did not want the healthcare assistant role but wanted to be placed in an administrative role. In September 2015 an administrative role was advertised, the complainant applied for this position but was unsuccessful. Specifically, in relation to this role the complainant stated that the respondent, in denying her the opportunity to fulfil this role, failed to make reasonable accommodations for her. The respondent argues that the complainant had six months in which to lodge a claim from September 2015. She did not lodge her claim until the 03/04/2017 and therefore his claim pursuant to the Employment Equality Act is statute barred. |
Summary of Complainant’s reply to Preliminary Application: CA-00010591-002
The complainant suffered an injury at work in May,2011. She sustained a soft tissue type injury to her left arm/shoulder. Then on the 15 /06/2015 she sustained a respiratory injury as a result of being exposed to chemicals in the hydrotherapy pool. The complainant was certified medically unfit for work from June,2015 to December,2016. In August, the respondent’s doctor stated that the complainant would soon be fit to return to work but should not be returned to the hydro-therapy pool. He stated that she should return to her health care assistant role. The complainant in a detailed letter dated the 11 /08/2015 set out her dissatisfaction with the respondent’s doctor’s opinion and set out why she could not return to a health care assistant role. On the 03/09/2015 HR wrote to the complainant requesting that she attend with their Doctor again to discuss his findings in August. She was asked to submit a copy of her CV and qualifications. On the 02/09/2015 the respondent sent an advertisement in relation to a HR executive position. The complainant stated that she didn’t get the advertisement in time. She did however call the HR department to obtain some information in relation to the role. This was the role that the complainant was anxious to return to work in. Her Union spoke to the respondent in February,2016 about that position. During the complainant’s sick leave, 27 positions were advertised however the complainant stated that she couldn’t apply for any of these because she did not have the required qualifications. The complainant continued to correspond with the respondent up until the date she resigned in November,2016. Following her resignation, she decided to file her claim with the WRC. |
Preliminary Application Findings and Conclusions:
Section 77 (5) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates. It is very clear from both the respondent’s evidence and the complainant’s own evidence that the “ date of the occurrence” was in September 2015. The complainant stated that she was not informed of the role until it was too late to apply. This is the role she wanted. This is the role that would have allowed her return to work. The complainant’s union representative spoke to the respondent about this role in February,2016. Whatever the confusion in September,2015 there can be no doubt that the complainant knew about the role and took issue with the respondent’s handling of the recruitment process for that role in February,2016. She failed to file her claim in relation to this issue until April, 2017. In those circumstances I find that the claim is statute barred and I do not have jurisdiction to determine the matter. |
CA 10591 -001
Summary of Complainant’s submissions:
The complainant was employed as a care assistant in the respondent physiotherapy department from the 04/12/2000. For a number of years, she carried out her duties in the hydrotherapy pool area. On the 15/06/2015 she was involved in an accident at work. One of her duties involved carrying out special procedures for the pool which involve the use of chemicals to treat the water. The complainant had an adverse respiratory reaction and went out on sick leave on the 18/06/2015. On the 05/08/2015 the occupational health physician was of the opinion that she had recovered from a recent significant chest infection however he recommended that when she was fit to return to work, she be removed from the hydrotherapy pool area and into a healthcare assistant role. On the 11/08/2015 the complainant wrote to the respondent setting out the reasons why she disagreed with the opinion of the occupational health care physician. She also stated other reasons why it would not be appropriate for her to be returned to a healthcare assistant role. This was primarily due to an injury she had sustained in her left arm some years earlier. On the 03/09/2015 the complainant was invited to meet with the head of HR to address her concerns. At that stage the complainant was offered a 21 hour per week physiotherapy care assistant role which the respondent believed would assist her return to work. The complainant expressed an interest in being redeployed an administrative job which she felt would be more appropriate. The head of HR requested that she send in her CV and a list of her qualifications. On the 07/09/2015 of the complainant received a letter from the head of HR stating that the only suitable position available was as a physiotherapy care assistant. The complainant agreed to take up this role. She was due to commence the role on the 10/09/2015. On the 09/09/2015 she attended with the respondent’s occupational health doctor. He concluded that she was unfit to return to work. On the 14/09/2015, the complainant received in the post, a notification that there were some vacancies available for employees at the respondent’s premises. The format of this letter was unusual that it contains no details of the actual vacancies. It turned out that the role that was advertised was for a HR executive. This was precisely the role that the complainant wanted to move into. The complainant made enquiries about this role on the 16/02/2016 via her Union representative. She was informed that any of the posts in the HR department required a minimum of 2 years experience.
On the 23/06/2016 the occupational health physician found that the complainant was fit to return to work but only in the capacity of light work. The respondent met with the complainant to establish exactly what light duties she was capable of carrying out.
On the 10/08/2016 the complainant was examined by the respondent’s occupational health physician who stated that given the complainant’s current health condition, she would only be fit to return to office type work. On the 12th and 19th of October the respondent confirmed that they did not have any vacancies with light duties that would be suitable for the complainant.
On the 14/11/2016 the complainant received a recruitment advertisement for a Superannuation Officer post. THere was a very short deadline for application . The complainant learned that the position has been advertised in the workplace on the 28/10/2016. She became very frustrated with how she was being treated by the respondent. On the 17/11/2016 to complaining resigned her position from the respondent company with four weeks notice. She raised several grievances in her resignation letter. These were addressed by the respondent. The complainant was given a right to appeal the outcome of the initial grievance process but she did not do so. The complainant secured alternative employment several days prior to her resignation. The complainant lost her position with the new company five months later, due to this entity being restructured. She is now in employment and her remuneration exceeds that of the respondent.
Summary of Respondent’s submissions:
On 15/06/2015, an incident occurred at the Hydrotherapy pool, where the Complainant worked as a Physiotherapy Assistant Pool Plant operative. The incident involved the Complainant managing pool conditions. The Complainant subsequently went on sick leave from the 18/06/2015 until the 16/12/2016, a period of 18 months. From the 18/06/ 2015 the Complainant was under the care of her GP and Occupational Health. For the record, the respondent denies that it had any role in any sickness that the Complainant suffered.
The incident was reviewed by external Occupational Health. They stated that the procedure which took place involving the Complainant was correct and all correct safety equipment was used. It is also important to note that no other staff member suffered any side effects. The Complainant had alleged it was managing the conditions of the pool which was the cause of her illness, and had resulted in her sick leave.
The Complainant was initially certified by her GP from 18/06/2015 to the 01/09/2015 due to respiratory issues and asthma. The following table illustrates the medical opinions received by the company in this regard, with “GP” indicating that the opinion was outlined in a medical certificate from the Complainant’s General Practitioner, whereas “OH” indicates that the opinion was expressed in an occupational health report.
18th June 2015 GP -Unfit for work from 18th
22nd July 2015 GP -Unfit for work from 22nd July to 5th August 2015 due to exacerbation of asthma
31st July 2015 GP -Unfit for work from 3rd August to 1st September 2015 due to slowly resolving respiratory condition with chest pain
5th August 2015 OH - Fit to return to work once her current medical certificate has expired (another month). Does not have occupational asthma.
31st August 2015 GP -Unfit for work from 31st August to 7th September 2015 due to slowly resolving respiratory condition. Recommend a staggered re-introduction when appropriate.
3rd September 2015 Meeting between Complainant and Mr. X who offered the Complainant the role of Physiotherapy Assistant at reduced hours in another area of the hospice.
7th September 2015 GP -Unfit for work from 7th September to 14th September 2015 due to slowly resolving respiratory condition
9th September 2015 OH - Certified by G.P. until 14th September 2015. If her G.P is to certify her fit, OH Physician would be happy with that decision.
Out of work due to musculo-skeletal type chest pain of her upper back area. Heart and lung remain clear.
10th September 2015 GP -Unfit for work from 14th September to 21th September 2015 due to slow recovery of respiratory syndrome
21th September 2015 GP -Unfit for work from 21th September to 28th September 2015 due to slow recovery of respiratory syndrome
24th September 2015 OH - Unfit for work due to significant upper back pain and tenderness.
24th September 2015 GP -Unfit for work from 28th September to 25th October 2015 due to thoracic pain under investigation
7th October 2015 OH - Fit to return to work after 25th October 2015
Results from MRI scan of her upper back was normal, apart from basic wear and tear of upper back.
9th October 2015 Letter that informs the post of Physiotherapy Assistant is still available to Complainant
21th October 2015 GP -Unfit for work from 26th October to 26th November 2015 due to costochondritis
21th October 2015 GP -Unfit for work from 27th October to 27th November 2015 due to costochondritis
11th November 2015 OH – Opinion pending review a report from the Consultant Respiratory Physician.
23th November 2015 GP -Unfit for work from 25th November 2015 to 25th January 2016 due to costochondritis
21st January 2016 GP -Unfit for work from 25th January to 24th February 2016 due to costochondritis
22th February 2016 GP -Unfit for work from 25th February to 24th March 2016 - costochondritis
25th March 2016 GP -Unfit for work from 25th March to 25th April 2016 due to costochondritis
18th May 2016 OH – Complainant did not attend the appointment.
23rd May 2016 GP -Unfit for work from 24th May to 21st June 2016 -costochondritis
1st June 2016 OH - G.P appointment on 20th June 2016. Estimate that she would be fit to return to work albeit on light duties only with no manual handling initially.
Consultant Respiratory Physician has the opinion that it is unlikely that the Complainant has asthma and that the procedure performed by her in her workplace caused her any harm.
21st June 2016 GP -Unfit for work from 21st June to 18th July 2016 Due to costochondritis
23rd June 2016 OH - Fit to return to work albeit on light duties only in 2 weeks’ time.
Complainant suffers from a flare up of her chest pains and she has pain on coughing.
24th June 2016 A response was issued to OH physician stating that there was no available position available that only consists of light duties.
27th July 2016 Meeting with Complainant
Discussed about possible employment opportunities and informed that there was no light duties only role within the department.
9th August 2016 GP -Unfit for work from 15th August to 15th September 2016 due to costochondritis
10th August 2016 OH - Due to see the employee on 7th September to determine her prognosis.
There is no restriction for the Complainant to work in the hydrotherapy area. She is fit for light duties only with no pushing/pulling/lifting any item 10kg. In reality it limits to office type of work.
7th September 2016 OH - Unfit for full duties. Review again in 1 months’ time.
The Complainant’s lungs, chest wall, upper back and right shoulder revealed a discreet area of tenderness.
14th September 2016 GP -Unfit for work from 14th September to 15th November 2016,Due to chest pain
12th October 2016 OH - Fit for light or restricted duties that involve no pushing/pulling or lifting any item over 10kg. Unfit for all duties due to ongoing intermittent thoracic pain. It was nonetheless expected that she would be fit to return to her role in the short to medium term and it was envisioned that a follow up review would occur within weeks.
14th November 2016 GP -Unfit for work from 16th November to 16th December 2016, due to costochondritis
17th November 2016 Complainant handed in resignation letter by email
18th November 2016 Ms. Kirwan responded to the resignation letter
As is evident from the above table, the Complainant was largely certified as medically unfit to attend work from 18/06/2015 until her resignation on 17/11/2017. On occasions where a medical opinion suggested the Complainant may be fit to return to work, this was pursued.
On 03/09/2015, having received a medical certificate from the Complainant’s GP indicating that a gradual or phased return to work may be feasible, the company met with the Complainant and outlined to her the details of an available part time Physiotherapy Assistant role (21.06 hours per week) within the company, in an area where the work involved would have been less physically onerous. The role offered was that of Physiotherapy Assistant, the Complainant was also asked to submit her CV in case further suitable roles were to arise.
On 07/10/2015 the company’s occupational health physician indicated that the Complainant was fit to return to work from 15th October onwards. The company wrote to the Complainant on 9th October informing her that this role remained available to her and that she could commence same on 27th October 2015.
Notwithstanding the company’s occupational health report, the Complainant responded via email on 12th October and stated that she accepted this role pending her recovery as confirmed by her own doctor. The company held this position open for the Complainant in the belief that her return to work was imminent. While, due to service needs, the role was eventually filled, this was done on a specified purpose basis, with a view to facilitate the Complainant in returning to this role when she was fit to do so.
Unfortunately, subsequent medical certificates indicated that the Complainant was not fit to return to work up until 23rd June 2016, some eight months later. On this date, the company’s occupational health physician report stated that the Complainant would be fit to return to work on light duties approximately a fortnight from that date. The company looked forward to the Complainant’s return to work, however it was naturally necessary for the company to ascertain what “light duties” might be appropriate and such clarification was sought.
The response received by the company in this regard, on 10/08/2016, was that “light duties” would limit the Complainant to activities which would not include lifting, pushing or pulling anything greater than 10kg.
Serious consideration was given to whether this requirement could be fulfilled by the hospital, however same was impossible as physiotherapy roles by their nature involve activities for which the complainant was no longer capable.
The HR Partner for Health and Social Care Professionals the Physiotherapy Manager, met the Complainant to consult with her in this regard. This meeting took place on the 27/07/2016 and during this meeting it was accepted by the Complainant that light duties of the nature required were not available within the Physiotherapy department and the Complainant admitted that she often became fatigued at home owing to her own day to day tasks.
However, it was envisaged that she would soon make a full recovery and both her role and the less onerous Physiotherapy Assistant role were held open for the Complainant to facilitate her return to work.
The Complainant received no fewer than twenty-seven such communications throughout her absence. She was informed of each and every role which became available during her sick leave. The Complainant was aggrieved that one particular role was advertised in a non-descript manner. I.e. the direction given was for employees to enquire as to the available role. This was a role she states she may have been interested in. However, she was unaware of its existence.
Notwithstanding this, had she enquired about the roles available (as she had been invited to) and applied for same, she would have been subject to the same minimum criteria as all applicants. This role required 2 years’ experience in a HR role. On review of the Complainant’s CV, it is clear that she does not have such experience.
Furthermore, the Complainant was notified of five other roles with HR responsibilities during her sick leave, including Head of HR, Manpower Manager, Recruitment Assistant (x2), Superannuation Officer, and Payroll Assistant. The roles of Medical secretary, Head of Finance, CPCT Secretary, Medical Secretary, Education Technologist in Health Care, Ward Clerk were also advertised to the complainant and were office-based roles. At all times the Complainant was informed of such roles at the same time as all other employees who were on leave.
On 17/11/2016, the Complainant tendered her resignation, citing her reasoning as her “ongoing reported health condition” which impacted her “professional and private life since June 2015.” The Complainant stated that the company had been unable to provide a suitable alternative employment to suit her health condition and her recovery. The Complainant also stated that part of the reason for her resignation was financial constraints.
On 18/11/2016, Ms K replied to the Complainant’s resignation letter and expressed her disappointment at the Complainant’s decision to resign her employment with the company. Ms. K asked the Complainant to reconsider her resignation.
Ms K noted that the company was aware that the Complainant had secured another position in another organisation but nonetheless highlighted that the Complainant had raised a number of grievances in her resignation letter. It was put to the Complainant that the company had in place a grievance procedure for the purpose of addressing such concerns.
The Complainant agreed to progress her grievance through the internal procedure. A grievance panel was formed which consisted of Principal Medical Social Worker & an HR Partner.
The Grievance was heard at Stage One of the respondent’s Grievance policy. A Grievance investigation meeting was held on 29/11/2016 with the following issues being raised by the Complainant:
- Why the Respondent had felt it not possible to offer the Complainant an alternative position with “light duties” or duties in administration or a role where she could have used her HR qualification.
- The manner in how the Complainant was advised about vacancies in the organisation, particularly in relation to HR as the process appeared to differ compared to vacancies in other departments within the respondent
- Financial constraints experienced by the Complainant when her sick pay benefit was reduced and no TRR was received. The Complainant was also unhappy as she had received no assistance towards medical expenses and the organisation stating there was no light duties suitable and so the Complainant could not earn a salary.
- The Complainant had an issue with Ms.K Head of HR, directing the Complainant to address her issues to the respondent doctor. .
- The Complainant also had an issue with Ms K not informing her of the HR Executive vacancy in the meeting of 3 September.
- The Complainant also had issues with her meeting with then Occupational Health Physician Dr. K on 12/10/ 2016.
The Complainant was informed in advance of the meeting of her right to be represented and availed of same. She was accompanied by Mr. Y, SIPTU Shop Steward.
The Complainant was afforded the opportunity to state her case and in the course of the meeting outlined the issues that had caused her to tender her resignation, those listed a – f above. The Complainant informed the panel that she had accepted an office job in another organisation on 16/ 11/2016 and was due to commence the position on 19 December. It is noteworthy that this offer of employment had been accepted by the Complainant some two days before her resignation letter was received by the company and thus her grievance had not even been formalised prior to her accepting alternative employment.
During the course of the investigation, meetings were held with Ms. K (Head of HR), The HR Partner for Health and Social Care Professionals, The Manpower Manager, The Recruitment Assistant The The Physiotherapy Manager, The Interim Physiotherapy Manager September and October 2015 , The Occupational Health Physician and Occupational Health Nurse.
Clearly the investigation was thorough; every effort was made to ensure that each of the Complainant’s allegations was fairly investigated.
The investigation outcome was issued on 09/12/ 2016. The findings were as follows;
- a) The panel found that, after the Complainant’s GP recommending a gradual reintroduction to work in August 2015, the Complainant was offered the role of Physiotherapy Assistant, at reduced hours and in a different area of the Hospice, in a meeting on 3 September 2015. This role was offered by the Interim Physiotherapy Manager at that time, Mr Afolabi and by the Head of HR, Ms Kirwan. Mr Afolabi had proposed 2 alternative schedules in attempt to facilitate the Complainant’s request to finish at 2:00pm every day, as well as the Complainant’s own GP recommendations. However, a schedule could not be formed which would permit the Complainant to leave at 2:00pm every day, due to service needs. The Complainant did however accept the role in an email dated 12 October 2015 pending her full recovery. This position was held open for the Complainant as it was the understanding of xx that the Complainant’s return to work was imminent, as per the Occupational Health reports received by the company at that juncture. However, medical certs continued to be received at monthly intervals. Due to service needs the company did have to fill the position, but did so on a temporary basis to ensure that once the Complainant did become fit to return to work, this position was available to her. Xx confirmed that he remained conscious of the Complainant’s need to work on a gradual reintroduction but despite his efforts he could not find anything suitable in the Physiotherapy Department apart from what had already been offered.
On 23/06/2016, the doctor wrote to the respondent stating that it was expected that the Complainant could return to work in the capacity of light duties within 2 weeks from that date. The respondent queried whether this would be an interim arrangement pending full duties in hydrotherapy in the future. The doctor stated that there was no restriction for the Complainant to work in the hydrotherapy pool area and that light duties would mean no pushing, pulling or lifting any item over 10kg. He indicated that office work may be suitable.
Various managers within the respondent met to discuss options operationally. At this meeting, the recommendations from Occupational Health were discussed and it was concluded that all Care Assistant roles involved Manual Handling such as pushing, pulling or lifting over 10kg and therefore it was not possible to accommodate the Complainant. The complainant was consulted with in this regard. The panel came to detailed conclusions in relation to each of the grievances and same were forwarded to the complainant
In concluding the Complainant’s grievance outcome, the panel reminded the Complainant that if the matter remained unresolved she could appeal it under Stage 2 of the company procedure. The panel also reminded the Complainant that her position remained open and again asked her to reconsider her resignation.
The Complainant did not appeal the outcome to Stage 2, nor did she withdraw her resignation
Conclusions and Findings:
The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.
Section 1 of the Unfair Dismissal Act defines constructive dismissal as:
“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 the 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 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 rightscommissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(c) payment by the employer to the employee of such compensation (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) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.
The burden of proof, which is a very high one, lies on the complainant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.
“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 further performance”
If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test
“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”
Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:
“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.”
The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:
“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair”
I note that the Complainant had tendered her resignation prior to any grievance having been lodged. Despite that, the respondent actively sought to hear the Complainant’s complaints as outlined in her resignation letter. In doing so I find that the respondent went beyond what would be expected of a reasonable employer. Furthermore, I find that the respondent company conducted a fair and thorough investigation in a timely fashion and the outcomes of the investigation report contained reasonable recommendations. The Complainant was afforded due process throughout the grievance procedure and the principles of natural justice were adhered to, including the right to appeal the outcome of the investigation report. The complainant for reasons not set out, did not appeal the original decision or seek to progress it on to stage 2.
The complainant takes issue with the fact that the respondent did not make an ‘office’ role available to her. Two things are clear from the evidence. Firstly, all office/administration type roles require a minimum of 2 years experience. The complainant did not have that. It is unreasonable to expect the respondent, who is bound by certain regulations, to amend its recruitment requirements simply to meet the demands of the complainant. Secondly, other than the role in September, 2015 there were no suitable roles available for the complainant. She was kept informed of all the positions available and the respondent did offer her a 21 hours per week role in order to facilitate her return to work. The complainant dug her heels in and more or less stated that it was on office based role or nothing.
It is clear that the respondent has made every effort to engage with the Complainant in order to overcome her difficulties. However,the Complainant failed to afford the respondent the opportunity of continuing engagement, in opting not to appeal her grievance and resigning her employment. Even if she had, I find that it was not reasonable, in all of the circumstances, for her to terminate her contract of employment.
The claim fails.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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 10591-001 The complaint fails.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA 10591 -002
The complaint is statute barred.
Constructive dismissal, obligation to exhaust internal process, Statute of limitations. |
Dated: 2nd August 2018
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Key Words: