Complainant

Respondent

Anonymised Parties

A Driver

A Logistics Company

Representatives

Peninsula Business Services

Act

Complaint Reference No.

Date of Receipt

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

CA-00020816-001

26/07/2018

The complainant had an accident on January 12th, 2016 that rendered him unable to work. He commenced a period of sick leave on January 13th. Eventually he resigned on June 14th, 2018. He earned approximately €500 per week.

The complainant had an accident on January 12th, 2016 that rendered him unable to work. He commenced a period of sick leave on January 13th.

This continued until December 18th of that year when his doctor certified him as being fit for ‘light duties’. He approached the respondent about a return to work on December 19th, 2016.

He attended for an assessment on January 19th, 2018 at which the doctor concluded that it was difficult to see a return to work.

He met the respondent on February 14th and was told that a second opinion was needed.

This did not take place until April 4th and the conclusion was that he was not fit to return to work.

This report was sent to the respondent. He continued to seek a return to work throughout the months of May and June.

Nothing was done, and he resigned on June 14th. He claims constructive unfair dismissal.

The complainant was re-employed almost immediately and his losses amount to ten days loss of income.

The sequence of events set out above is generally agreed with the following additional detail.

The respondent operates a furniture removal service.

Evidence was given that when the respondent received the first medical assessment in December 2017 suggesting that the complainant be given light duties it was not in a position to provide him with any, given the nature of its work.

It simply had no options to facilitate him. Him with light duties, which had been defined in the medical certificate as being loads under ten kilograms, and it was recommended that he not stand for long periods.

Later that month the respondent sought an independent medical report from an occupational health specialist who concluded that;

‘it was difficult to see [the complainant] resuming work in the position described with his stated symptoms/limitations and where constant manual handling is an essential and core component of the position’

The respondent met the complainant on February 14th, 2018 in the course of which his considerable health and fitness difficulties were explained by him following which the respondent decided to seek further information from the doctor who carried out the January examination.

The respondent did not receive this and arranged for a further examination which took place on April 5th.

This concluded that the complainant was ‘unfit for work’ and that while restricted duties may be of benefit initially ‘risk of aggravation of symptoms is significant’.

Copies of the medical report were sent to the complainant.

The report of the April medical examination was sent to the doctor who carried out the January examination asking for her opinion on the second report as there was some contradiction between the two reports which had to be resolved.

The respondent had sufficient grounds to be concerned about permitting the complainant’s return to work given the divergent medical opinions, the best of which was not too reassuring. The complainant had made it clear that he wished to return because of his financial position and seemed indifferent to his capacity to do so.

He submitted his resignation on June 14th

The complainant began the process of seeking a return to work in December 2017. He did not resign until the following June.

The complaint is one of constructive dismissal. It is necessary to look at the sequence of events between December and his resignation in June to see whether the conduct of the respondent unreasonably delayed a possible return to work.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of any contract of employment.

It is, after all, a breach of a legally binding contract.

In the case of an employer wishing to do so, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

Most complaints under the Act arise when the employer has terminated the employment and these are then the tests as to whether the dismissal has been a fair one.

In general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, the duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

‘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.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

The sequence of events is set out in the summary of the respondent’s submission. Overarching all was the difficulty with the various medical opinions.

The first of these, in December 2017 was based on the expectation that he could be provided with light duties. The owner of the company gave evidence to the hearing that it could not do so and I accept this.

The next opinion, which was arranged fairly quickly expressed the view that it was difficult to see a return to work.

Again, the respondent moved quickly to meet and discuss the situation with the complainant; some two weeks after the medical assessment.

There was some delay until the next medical appointment in April which was decisive in its conclusion that a return by the complainant even to ‘light duties (should such be found) could exacerbate his injuries; a risk the respondent would have been very ill-advised to undertake.

The respondent sought further clarification then although it is not exactly clear why, but that is of no comfort to the complainant. None of the three medical opinions considered that the complainant was fit to return to his normal duties.

Two concluded he was (or might be) fit only for light duties, one of those stating that this could make him worse and another concluded he it was difficult to see how he could return at all.

While a delay of six months might seem somewhat excessive, as noted above it is not as if the respondent was delaying or obstructing the return of one of its employees who was otherwise fit to do so. Had this been the case it might have been a different matter.

Indeed, looking at the various delays that occurred between medical consultations, meetings etc they were not unreasonable.

Overall, I find the respondent did not act in such a way as to justify the complainant’s resignation. It took prudent steps to ensure that the complainant was fit to return to work and had sufficient, if somewhat inconsistent medical evidence that he was not.

Accordingly, the complainant does not meet the tests set out above and his complaint fails.

For the reasons set out above I do not uphold complaint CA-00020816 and it is dismissed.

Constructive Unfair dismissal.