Complainant

Respondent

Anonymised Parties

Clerical Officer

Local Authority

Representatives

Neil Cosgrave Cosgrave Solicitors

-

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-00008032-001

07/11/2016

The Complainant has been employed with the named Respondent since 4th June 2013 until she terminated her employment on 9th May 2016. The Complainant was paid €35,600.00 gross per annum and she worked 35 hours a week. The Complainant referred a complaint to the Workplace Relations Commission on 7th November 2016 alleging she had been constructively dismissed.

The Complainant was employed by the Respondent from June 2013 and assigned to work in the Respondent’s Navan Office. She had originally been employed by the Respondent in 1998 but transferred to a different Local Authority in 2001 until her transfer back to the Respondent in June 2013. The Complainant lodged a Grievance complaint with the Respondent by letter dated 14th April 2016. She did not receive a response to this letter and resigned on 9th May 2016. She did receive a response from the Respondent dated 17th May 2016 after she had tendered her resignation. Her grievance primarily concerned the workplace environment due to the fact that she was seated directly underneath an air conditioning unit and the Respondent was well aware she was suffering from a chronic respiratory condition and had been on sick leave for a continuous period before returning to work on a phased basis in July 2015. The Complainant had a previous complaint in 2014 which was resolved in 2015 when she returned to work having been absent on sick leave. The Complainant stated that the termination of the employment relationship was precipitated by the Respondent’s failure to deal with her most recent complaint of April 2016.

The Complainant is seeking compensation and stated at the Hearing that she has not worked since the termination of the employment and that she has not claimed Jobseekers Benefit.

The Complainant commenced employment with the Respondent on 4th June 2013 following the facilitation of an inter-county transfer from another Local Authority and she was assigned to work in the Kells Office of the Respondent. In October 2013 the Complainant sought a transfer to another department/location and she requested a four day working week over a five-day period. It was not possible to accommodate the Complainant. The Complainant commenced sick leave in October 2013. She was requested to attend for independent medical assessment on 10th December 2013 and the report confirmed the Complainant was fit for work. At this point the Respondent facilitated her request for a four-day working week over five days on an exceptional basis and offered her a reassignment to a separate office within the Kells Office as she had been experiencing difficulties. The HR Officer met with the Complainant on her return to work on 7th January 2014 to outline this offer but the Complainant declined this offer that she had originally requested. She stated this would not be suitable for her due to her childcare arrangements and she sought a transfer to the Navan Office. However, there was no suitable vacancy in the Navan Office and the Complainant could not be accommodated. The Complainant remained on sick leave and a further medical assessment was arranged for 3rd February 2014 and this report stated the Complainant was unfit to return to work pending a review by her specialist. However, this report also suggested a one to one meeting to enable the Complainant to discuss her work difficulties. HR met with the Complainant on 27th February 2014 where the offer to facilitate her with her previous request was again offered to her but this was dismissed as being unsuitable for her. The Complainant remained certified as unfit for work following a further medical assessment on 8th April 2016. The medical report of 8th April 2014 clearly states as follows – “she is adamant that her employer should facilitate her childcare needs and redeploy her to Navan. No other option is acceptable to her…She cannot see any possible resolution other than her employer facilitating a transfer to Navan. There are no objective clinical signs to enable me to recommend redeployment to Navan. Redeployment is requested for social and family reasons and therefore is a matter for the employer to facilitate”.

The Complainant remained on sick leave and submitted a grievance on 14th May 2014. The HR Officer responded to all issues raised by letter dated 5th June 2014 and a meeting was held on 17th June 2014 although a further letter was received from the Complainant dated 16th June 2014. Both letters were addressed and a formal response issued on 2nd July 2014. Two further medical reports were received in October and November 2014 and both outlined the Complainant was fit to return to work. Her return to work was requested by 23rd December 2014. She did not return to work. The Respondent met with the Complainant and her Solicitor on 18th February 2015. Following discussion it was agreed the Complainant would transfer to Navan Office on a phased basis and work-sharing working mornings only in order to facilitate her. A return to work date was agreed for 7th April 2015 at this meeting. During this meeting the Complainant sought details of any severance package that may be available to leave the organisation and it was suggested that this should be done on the basis of the voluntary redundancy scheme of 2013/2014 which she had applied for but had been denied on the basis that she did not qualify for the scheme. This scheme was closed so the Respondent rejected her suggestion of a redundancy package.

There was a further exchange of correspondence up to 2nd March 2015 and again on 23rd March 2015 when the Complainant’s Solicitor wrote to the CEO concerning a redundancy package to be agreed between the Parties and the Solicitor outlined proposals for a unique package to be applied to the Complainant. The Respondent responded on 1st April 2015 rejecting the proposal and proposing a return to work date of 13th April 2015. The Complainant’s Solicitor then sought a career break of six months by letter dated 10th April 2015. The career-break policy does not provide for a career break on the basis that an employee is ill. A revised return to work date of 20th April 2015 was proposed. The Complainant remained on sick leave and she was referred for a further medical on 21st May 2015 which confirmed her fitness to return to work and a further return to work date of 29th June 2015 was proposed. The Complainant returned to work in June 2015 on a 2 day working week in Navan as agreed but commenced sick leave again from 7th December 2015 and did not return to work until she tendered her resignation in April 2016.

The Complainant again applied for a career break on 8th January 2016. This was denied to her as she was submitting medical certificates and the scheme does not allow for this. The Complainant was requested to return to work by letter dated 10th March 2016 to the office she had requested on a work arrangement she had requested and that the air-conditioning system was not being utilised and therefore should not have adverse effects on her. The Complainant submitted further grievances by letters dated 14th April 2016 and 9th May 2016 concerning the following grievances – insufficient work being assigned to her – the workplace physical environment – social welfare payments while on sick leave – and career break. The CEO, to whom the letters were addressed replied by letter fated 16th May 2016

On the basis of the evidence and written submissions, including a replying submission on behalf of the Complainant, I find as follows:

Section 1(1) of the Act defines what is commonly called constructive dismissal and requires the employee to show that their resignation was reasonable in all the circumstances of this case or that the conduct of the Employer was such that an employee would have been entitled to terminate the contract of employment. This section states as follows – “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 to would have been reasonable for the employee, to terminate the contract of employment, without giving prior notice of the termination to the employer”.

This is a two tier test, one of which the Complainant must satisfy.

Was the conduct of the employer such in this case that the Complainant was justified in terminating the contract of employment on 9th May 2016. The evidence shows that the Respondent did all in their remit to facilitate the Complainant with her requests following her transfer to the Respondent’s Kells Office in June 2013. She sought and was granted a facility of working 4 days over a five day week which when granted to her was rejected by her. The Complainant remained on sick leave from October 2013 to June 2015 and again from December 2015 to May 2016 when she resigned. The Complainant was facilitated with a transfer as she had requested to the Navan Office.

I note that the Complainant and her legal representative sought a redundancy package and had put forward proposals as to how this could be facilitated. A redundancy situation did not exist and the Complainant did not meet the criteria for the statutory scheme.

I note that the Complainant filed a complaint in relation to a number of issues – work environment – assignment of work – career break – social welfare payments while on sick leave by letter dated 14th April 2016 but tendered her resignation on 9th May 2016 and cited the fact she had not got a response, even a one liner in relation to her letter of14th April 2016. Was the Complainant reasonable in tendering her resignation prior to her complaints being investigated and dealt with under the Grievance Procedures of the Respondent. I note that in the letter dated 14th April 2016 from the Complainant to the CEO she concludes as follows – “Whilst I note from the Grievance Procedure that the norm is for you to convene a meeting with all parties concerned….I would ask you to consider whether you might possibly arrange a one to one meeting in my case and a further meeting could then be arranged subsequently”.

On the basis of the evidence I find that the Complainant has not shown that the conduct of the Employer was such to justify her resignation or that the Complainant acted in a reasonable manner in tendering her resignation prior to her Grievances being investigated in the manner she had proposed to the CEO or in accordance with the Grievance Procedures of the Respondent.

On the basis of the evidence, written submissions with all supporting documentation, my findings above and in accordance with Section 8(1) of the Act I declare this complaint of “constructive dismissal” is not well founded as the Complainant was unable to show the conduct of the Employer was such as to justify her dismissal or that she had acted in a reasonable manner by tendering her resignation without allowing the Respondent investigate her grievance of 14th April 2016.