ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00005362

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00007437-001 23/09/2016   Date of Adjudication Hearing: 06/10/2017 Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, 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 is a cleaner/shop assistant.   The Respondent is a small independent retailer.

Summary of Complainant’s Case:

The Complainant’s case is that she was constructively dismissed and that she worked as normal up until her dismissal.   She stated the date of her leaving employment was the 20th of November 2015. The Complainant gave evidence that she believed she was going to be fired from her employment. She believed that there were complaints against her but she was never given details of the complaints, who made the complaints and what they were about.   The Complainant confirmed that she suffers from depression and was out of work for several months from November 2015. The complainant then broke her elbow in January 2016. She also confirmed she suffers from paranoia.   The Complainant brought a claim for unfair dismissal to the WRC in April 2016. She withdrew this.   The Complainant gave evidence that she did receive correspondence from the Respondent but was not able to return to her job.   She emailed the Respondent in August 2016 and set out that she would like to meet with them and set up a mediation process.   She confirmed she was in receipt of social welfare until she obtained new employment in August 2017.  

Summary of Respondent’s Case:

The Respondent’s case is that they had no indication from the Complainant that she was going to return to work. She was absent from the workplace from November 2015. They knew that she was unwell. They didn’t receive any medical certificates from the Complainant. She had undergone a similar episode of ill health circa 12 years ago, but she had sought medical treatment. She returned to work once her health improved.   They sent a number of registered letters to her enquiring as to when she would be in a position to return to work. She did not engage with them.   She came to the shop on one occasion and there was a dispute as to whether an email had been sent or not.   They did not dismiss her. They took her off payroll and forwarded her P45 to her on the 8th of December 2016.  

Findings and Conclusions:

I have reviewed the written submissions and the oral submissions given at the hearing.   The Complainant believed that she resigned and that it was the Respondent’s behaviour that forced her to do so.   Constructive dismissal is defined in Section 1 of the Unfair Dismissals Act 1977 to 2015. The statutory definition contains two tests, either or both of which may be relied upon by the Complainant. The Complainant relied on the contract test. This entitled her to resign on the basis that there was a significant breach of contract by the Respondent which goes to the root of the contract or which showed that the Respondent was no longer to be bound by the contract.   I am not satisfied that there was a significant breach of the contract. The Complainant’s absence from work was due to her illness. The Respondent sought to engage with her over many months.   They did not receive a reply.   If I examine the conduct of the Respondent under the reasonableness test and look at all the circumstances surrounding the termination of the complaint’s employment, I find that the actions of the Respondent were reasonable in that they had provided accommodation to the Complainant free of charge for many years including the periods which she was on sick leave. They attempted to engage with her on a number of occasions giving her an opportunity to meet with them and to discuss whether she was in a position to return to work or on what basis she could return to work. They received no response. The Complainant stated she sent them an email on the 16th of August 2016 but the Respondent claimed they never received it and there was no evidence provided to me at the hearing that an email was sent.   The complaint before me is that of constructive dismissal.   In a constructive dismissal claim the Complainant bears a burden of proof.   It is clear that the complainant did not submit a letter of resignation nor did she in anyway convey to the respondent the fact that she considered herself constructively dismissed. The net issue for consideration is whether the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1 of the Act. In all the circumstances, I cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating his employment by way of constructive dismissal nor was such as to show that the respondent no longer intended to be bound by one or more of the essential terms of her contract of employment. Accordingly, I must hold that the complainant’s employment did not come to an end by dismissal.    

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. The case of constructive dismissal is not well founded and is dismissed.  

Dated: 11/01/2017

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Key Words: Constructive dismissal