Complainant

Respondent

Anonymised Parties

An Administrator

A domestic utility provider

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-00011440-001

19/05/2017

The Complainant brings a claim for redress under the Unfair Dismissals Act when she says her employment was terminated in and around May of 2017 at which time her Employer made the decision to discontinue the Complainant’s pay.

The Complainant gave evidence on her own behalf and was assisted by her friend and partner. The Complainant says that she was unfairly dismissed while out on sick leave and before she had had a number of workplace issues addresses by the employer. The Complainant prepared a comprehensive timeline and made submission on her own behalf.

The Respondent opened comprehensive submissions and presented it’s evidence through a number of witnesses and documents. The Respondent’s case is that it was fully aware that the Complainant had some work place issues and had indicated a willingness in correspondence to deal with this issues and, in particular, had nominated an independent external investigator (CJ). In addition to this proposal the Respondent was anxious to have the Complainant return to the workplace in circumstances where the Complainant had been certified fit to return to the workplace by both her own and the company Doctor. The Complainant was informed in correspondence (by the head of Human Resources) that the company would facilitate the Complainant staying out on full pay until such time as a “Return to Work Conversation” had taken place (per their own procedures). It was anticipated that this meeting with the Head of HR would allow the Complainant and her employer agree a process for returning to the workplace and was to include a discussion on allowing the Complainant commencing a pattern of rotation within the workplace if that was her preference.

The Complainant was written to on the 13th of April 2017, the 24th of April 2017 and the 28th April 2017 regarding these proposals and attempts were made to talk to the Complainant personally over the phone.

The company correspondence included notice that the company would be bound to stop remunerating the Complainant if she failed to engage in the return to work process. The company said that the Complainant was given repeated warnings in this regard.

On the 12th of May 2017, the Complainant was advised that her failure to contact or communicate with her employer and her failure to return to the workplace and/or engage with the return to work conversation programme had led to the cessation of her remuneration. The company states that this last letter of the 12th of May was categorically not a letter of termination of employment as evidenced by the fact that the Complainant is again invited to come forward for her return to work conversation.

The Respondent has raised as a preliminary point the fact that the Complainant’s Workplace Relations Complaint Form issued some days later on the 19th of May 2017, and therefore issued while the Complainant continued to be an employee of the Respondent Company.

The Respondent referred me to precedent EAT caselaw on this point wherein Section 8(2) of the Unfair Dismissals Act is very strictly applied so that:

A claim for redress under this Act shall be initiated by giving notice in writing …as the case may be:

(A)    Within the period of 6 months beginning on the date of the relevant dismissal

The Respondent has submitted that my Jurisdiction to hear a claim under the Unfair Dismissals legislation is impaired by reason of the fact that the Complainant had not been dismissed at the time that the required Notice seeking redress was given.

I have carefully considered the evidence that has been adduced during two days of hearing. The Complainant herein is a long-standing member of the Respondent company’s staff having worked with them since 2007. In and around the middle of 2016 the Complainant had her performance reviewed by a Mr. C and it is clear from the evidence provided to me that the review process was singularly difficult from the Complainant’s perspective. To this date, the Complainant has had no satisfactory explanation for the methodology used and the reason for her performance slippage. I would generally accept that there were some personality issues between the Complainant and Mr.C and that the Complainant feels she did not receive the support that would be expected of an employer of this size and with this level of resource. In fact, the Complainant was forced to work her way up through the Management system looking for support and it was not until October of 2016 that the (newly appointed) head of Human Resources POC came on board and met with the Complainant and her partner and it appears that the idea that the parties engage in a mediation was proposed at this juncture. Having perused the plethora of communications between July 2016 and October 2016 I accept that the Complainant having initially suggested that she had been bullied and intimidated (per her “Grievance” email of the 27th of July 2016) did not appear to be anxious to proceed on a formal footing. However, those persons against whom her initial complaints had been made (Mr. C and his line Manager) were not willing to engage in a process which might be deemed to have assumed their wrongdoing. I recognise that they were entitled to have their names cleared and that their preference had been to force the Complainant to bring a formal Grievance against them. To some extent the correspondence appears to have had the parties at cross purposes and I accept that the Complainant is never entirely clear on what she wants.

In any event, the Complainant met with the Head of HR (POC) on the 14th of October 2016. The Complainant’s partner was with her. POC learnt that the Complainant felt “unsafe in the workplace” which caused him concern. In response to this information, POC sanctioned the Complainant taking some paid time away from the workplace and advised that he would look to have the Complainant assessed by an occupational health consultant before her return to work and/or her fitness to engage in any proposed workplace process. In fact, form this point onwards the Complainant started to submit medical reports indicating that the Complainant needed to stay out of the workplace with work related stress. I fully accept that the Respondent’s position that it recognised that the Complainant’s leave was sick leave and that she was paid in accordance with the sick leave policy. I note that medical advices when obtained do indicate that the Complainant should be fit for any proposed meditation as the purpose of the meditation is to alleviate the workplace stress.

By December 2016, the Complainant’s partner has agitated at the highest levels of the Management structure although it is pointed out that whilst allegation are being made no formal complaint or grievance has been delivered and the Complainant has instead agreed to a mediation process.

A mediation process does proceed in January 2017. An independent mediator – Mr. B - is appointed and although the Complainant and her Union representative fully engage with the mediation on offer, the Complainant is frustrated that the persons that she sees as being her protagonists in the workplace are not present and are instead, having their interests represented by a Mr. A. However, I would accept that a mediation process is not engaged with solely for the purpose of finding blame or having retribution. The mediation is primarily for the purpose of allowing parties to move on, having worked through their differences. In this regard, I do note that the HR Manager indicated   through the mediation process a willingness to the rotation of the Complainant’s position in the workforce to better suit her needs.

The mediation appears to collapse in early March 2017 as the Complainant appears to have trust issues with the Mediator. Whilst some progress has been made the Complainant is still not satisfied that her difficulties have been fully addresses. At this juncture, the head of HR POC confirms that the Grievance Policy continues to apply and that the Complainant together with her Union Representative can decide if they want to initiate the next stage of that policy (per letter dated the 4th of April 2017 cc’d to the Complainant and her partner). I am satisfied that the letter of the 4th of April 2017 requires that the Complainant make her wishes known and that the decision is entirely in her hands in accordance with the Grievance policy.

The complainant does not indicate whether or not she wishes to formulate a Grievance at this time. For reasons not clearly explained the Complainant’s Union representative is no longer available to represent her interests and the Complainant is to some extent represented by her partner whose Judgement is less than partial and who may well have done more damage to the communication structures than good.

It is now some six months since the Complainant went out on sick leave. In and around this time both the complainant’s medical practitioner and the company doctor agree that the complainant is medically fit to return to the workplace albeit the company doctor specifically states that the lack of resolution relating to her concerns need to be resolved.

In light of this development, Mr POD writes to the Complainant on April 14th 2017 indicating that the company policy with respect to returning to the workplace after a period of sickness includes having a “return to work conversation” wherein any concerns which a returning employee might have can be addressed before the return. Mr. POD suggests such a meeting might usefully take place towards the end of April and leaves it with the Complainant to suggest a date and time suitable to herself. Mr. POD references the earlier commitment made to look at the idea of a rotating position as forming part of the conversation.

Mr. P OD speaks to what he knows are the ongoing issues that the complainant might have with fellow employees or indeed that fellow employees might have with the complainant and offers that an independent investigator will be appointed to deal with these issues, described as an “open grievance process”.

It is noted that the complainant was advised by this letter dated the 13th of April 2017 that the entitlement to sick pay lapses and that the Complainant although not yet physically back in the workplace is put back on her full salary in line with an overall sense of the need to prepare for the return to work.

The Complainant was asked repeatedly if she ever responded to this comprehensive letter of the 13th of April and the three subsequent letters or correspondences of the 21st of April, the 24th of April and the 28th of April. The Complainant had no recollection of making any response to these or to the phone calls that Mr. POD placed to her but which were intercepted by the Complainant’s partner. The Complainant did not deny receipt of the correspondence and I must therefore conclude that the Complainant was on Notice of the fact that her Employer expected her to engage with the return to work conversation in circumstances where her health was such that she was declared fit to return to work.

I have no hesitation in accepting that the Respondent was acting within the parameters of acceptable conduct when on the 12th of May 2017 it notified the Complainant that it had notified payroll to stop paying the Complainant’s remuneration in circumstanes where she was refusing to engage in any way with her employer for the purpose of exploring how best to return the Complainant to work.

I cannot and do not see the act of withholding remuneration in this manner as being tantamount to a dismissal of the Complainant. When asked by me, the Complainant accepted that she understood what was meant by the term and concept of “unpaid leave”. I am satisfied that a person with her knowledge and understanding of employment would be well aware that there are many circumstances which might give rise to an individual being outside the workplace and still part of a workforce, accruing service, even though not getting paid.

I am satisfied that the Employer did not intend to terminate service and employment when it stopped remuneration in May of 2017. Nothing in the letter of the 12th of May directed to the Complainant that she was no longer eligible to receive her remuneration amounts to a termination. In fact, Mr. OD once again implores the Complainant to engage with the return to work conversation.

I reject the Complainant’s argument that she should have reverted to paid leave when the sick pay was concluded and that the company failure to remunerate should be deemed a dismissal. The Complainant was well aware that she had been put back on to full pay and that there was no room for some prolonged period of paid leave available to her.

I do not accept therefore that the Respondent dismissed the complainant on the 12th of May 2017. I do not accept that the Respondent’s act was ambiguous in any way. The Complainant’s argument that she believed she had been fired by this act of stopping her pay is misconceived and ill-judged.

In these circumstances, I find that the Workplace Relations Complaint Form which issued on the 19th of May 2017 issued in circumstances where no dismissal had in fact taken place and in the circumstances I have no jurisdiction to hear a claim for redress as Section 8 (2) of the Unfair Dismissals legislation categorically states that a notice of a claim for redress under this shall be initiated “…within the period of 6 months beginning on the date of the relevant dismissal”

I find as a matter of fact that there was no dismissal and no act that could reasonably be construed as being an act of dismissal and therefore no relevant date from which the 6 month period could start to run.

The Complainant’s alternative submission that the Workplace Relations Complaint Form could of itself be seen as an indication of a Constructive Dismissal gains no traction in circumstances where the complainant has failed and refused to engage with the Employer. As explained to the Complainant the burden of proof that shifts to the Complainant is high and the decision to resign must be reasonable in all the circumstances. It is long established that the Complainant in such cases must be seen to be avail where possible of the internal mechanisms and I would find that the Complainant has failed in this regard.

I note and accept that the Complainant’s employment was terminated on the 27th of July 2017.

The Complainant’s complaint fails as the Complainant was not Dismissed by her employer and continued to be in the service of the Respondent employer at the time that she submitted a claim for redress under the Unfair Dismissals legislation.