Complainant

Respondent

Anonymised Parties

A complainant

A Retailer

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-00011230-001

10/05/2017

This dispute involves a claim by the complainant against the respondent that she was subjected to an Unfair Dismissal. The complainant referred her complaint against the above respondent under the Unfair Dismissals Act on the 10th of May 2017.   The complainant has submitted that she was unfairly dismissed by the respondent when he issued her with her p45 on   the 4th of February 2017 after she advised him that her cancer had returned and she was going in to hospital for tests.

The complainant submits that

She was employed by the respondent from 21st of September 2015 to 4th of February 2017,

She was employed by the respondent as part of an employability scheme to help people with illness to get back to work, this meant that any job she had needed to be flexible around hospital appointments,

She advised the respondent by phone in February 2017 that her cancer had returned and that she would not be available for work for a while as she was going into hospital for tests,

She went into hospital for surgery on 17th of February,

She later received her p45, a week after her surgery when she went to the workplace to collect her payslip and holiday pay.

The respondent submits that,

The complainant was employed by him since September 2015, on an employability scheme to help people with illness to get back to work, this meant that the job needed to be flexible around hospital appointments,

The respondent was in receipt of a grant and subsidy for the complainant’s wages as part of the employability scheme,

The complainant advised him in February 2017 by phone, that her cancer had come back and that she was going into hospital for tests, she later advised him that she would be going for surgery on 17th of February,

The complainant initially phoned him and said she would be leaving work due to her illness but later she stated that she was not leaving but was out on sick leave,

There was no dismissal and the complainant continues to be employed by him and can return to her job at any time.

The Unfair Dismissal Act, 1997 stipulates that: Section 6(1) ”Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The complainant in the present case submits that the respondent provided her with her p45 after she told him that her cancer had returned. The respondent submits that the p45 was provided as a result of a misunderstanding and that this was immediately acknowledged by the respondent.     The respondent states that the complainant is still employed and that there was no dismissal. The complainant considers herself to have been dismissed.   I must decide whether it was reasonable for the complainant in the circumstances to consider herself dismissed.

Sec 1(b) of the Unfair Dismissals Act states, “the termination by the employee of his/her contract of employment with his/her 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”.

In a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The claimant needs to demonstrate that they have no option but to resign. In addition, there must have to be something wrong with the employer’s conduct.

In UD 1146/2011 the Employment Appeals Tribunal (EAT) held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

It is well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve her grievance prior to resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

In Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84) it stated,

i) the onus is on the claimant to prove his case,

ii) the test for the claimant is whether it was reasonable for him to terminate his contract”.   In addition The EAT in Donnegan Vs Co Limerick VEC UD828/2011 stated,”In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace”.

In McCormack v Dunnes Stores : EAT 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 complainant advised the hearing that she had been working for the respondent in his pop up shop since September 2015 as part of an employability scheme to help her get back to work after having undergone treatment for cancer.    She stated that she had found out in February 2017 that her cancer had returned and she had to undergo further tests. She stated that she phoned the respondent to tell him that she would be taking time off as her cancer had returned and she would be going in to hospital for tests.   Following these tests it transpired that the complainant had to go for surgery on 17th of February 2017.   She stated that the respondent wished her well and assured her that he would have outstanding pay waiting for her when she called into the office.

The complainant told the hearing that there was an exchange of text messages between the complainant and respondent starting with a message from the respondent on the morning of the 14th of February wishing her well with her hospital visit as she was getting her test results that day.   The complainant replied on the 16th of February asking for her payslip which she had forgotten and stating that she would send someone to collect it. The respondent replied that he would sort it for her and would text her once it was ready.

The next message from the respondent to the complainant is a message advising the complainant that the payslip is ready for collection. It states that the payslip is now ready for her whenever she wanted to call in for it along with her holiday pay and p45.

The complainant replied saying that she did not want her p45 as she was not leaving work she was only out sick and asking if she was being sacked.   The respondent then replied saying that she was not being sacked but stated that he had misunderstood her phone call the other day in which she told him her cancer had returned and she would be unable to work as she needed to concentrate on medical procedures and her recovery. He apologised for taking her up wrong. The respondent at the hearing agreed with this version of events and copies of the text messages were submitted in evidence.

The complainant told the hearing that she had then a few days later called into the office to collect her payslip. She stated that Mr. C was not in work at the time but that an envelope had been left for her containing her payslip, holiday pay and her p45.

The respondent told the hearing that this envelope had been prepared by someone else on his instructions at the time when he had been under the impression that the complainant wished to leave her job due to her illness to concentrate on medical procedures and her recovery.

Mr. C stated that he himself had been undergoing personal issues at the time as his wife was in and out of hospital and that he had been absent from work himself and so had forgotten to issue an instruction to the staff member to remove the p45 from the envelope to be given to the complainant.

Mr. C went on to state that he assumed the complainant was still his employee as she continued to send him in medical certificates for her illness while she was absent from work which he accepted. Mr. C stated that there was no dismissal and that the complainant’s job remained open for her to return to at any time. The respondent told the hearing that the complainant continued to send in medical certs and that he only became aware that she had considered herself dismissed when he received notification of the complaint to the WRC on 31st of May, 2017.

Mr. C stated that he had then contacted the complainant and arranged a meeting with her to reassure her that her job remained open for her to return to it once she had recovered from her illness. This is the meeting referred to below by the complainant where Mr. M was also in attendance.

The complainant’s medical certs were provided to the hearing as well as a letter from her doctor dated 18th of April, 2017 stating that due to complications from her surgery she has been attending a clinic on a weekly basis for wound care. The complainant also told the hearing that she was not available for work until the start of August 2017 and stated that she had after that time, applied for a few jobs but couldn’t find any. The complainant did not submit any documentary evidence of job applications.

The complainant submits that she considered herself dismissed due to the fact that she received her p45. The complainant told the hearing that she had following her complaint to the WRC, met with Mr. C and his father in law Mr. M who is Mr. C ‘s business partner to discuss the matter of her employment. She stated that Mr. M had been very angry during the meeting and was clearly annoyed that she had involved the WRC in their business.   She told the hearing that she could not return to work in these circumstances.

I am satisfied that the complainant in this case received her p45 for the respondent after advising him that she was going to be absent from work due to illness. The respondent has stated that this was a misunderstanding on his part which he clarified immediately and I accept this.

The respondent went on to state that the complainant following the clarification of this misunderstanding then continued to send in medical certificates while she was out on sick leave. I am satisfied that the complainant did this.   The respondent has stated that the complainant’s job is still waiting for her and that he has advised the complainant of this fact. I am satisfied that this is the case.

I am also satisfied from the totality of the evidence adduced here that the respondent in this case did not behave so unreasonably that the complainant could consider herself dismissed.  Accordingly, I am satisfied from the evidence adduced that there was no dismissal and that the misunderstanding which led to the complainant being given her p45 was cleared up once the complainant notified the respondent that she was not leaving work due to her illness.   I am satisfied that the p45 was given in error due to the earlier misunderstanding.  

In all the circumstances, I cannot find that the Respondent’s conduct was so unreasonable as to make it impossible for the complainant to continue in the employment or could justify the Complainant’s terminating her employment by way of constructive dismissal nor was it 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 and that the complainant was not subjected to a constructive dismissal.

I find that

(i)      the complainant’s employment did not come to an end by dismissal and that the   complainant was not subjected to a constructive dismissal.