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-00013394-001

30/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00013394-002

30/08/2017

The complainant worked for the respondent between the 2nd May 2006 and the 15th March 2017. She claims constructive dismissal and minimum notice. The respondent denies the claims.

The complainant outlined that her son was born in August 2015 and in January 2016, she was diagnosed with post-natal depression. She began a course of medication in February 2016 and was due to return to work on the 21st March 2016. Her doctor advised that the medication would take four weeks to kick in. She explained everything to the respondent and submitted a certificate of her unfitness to work. The doctor increased the dosage and she submitted another certificate.

The respondent referred the complainant to an occupational health assessment, which took place on the 20th May 2016. The doctor certified that the complainant was unfit for work and did so following further consultations on the 24th June and the 16th September. The complainant was contacted by the respondent HR Department as her entitlement to sick leave was coming to an end. She was referred to a psychiatrist on behalf of the insurer providing income protection. She attended this consultation on the 5th October 2016 but never heard anything back.

In January 2017, the Customer Service Manager emailed the complainant to attend a welfare meeting in his office at 3.30pm. She suggested a later time when the office would be quieter. He replied that it was useful for both the employee and employer see the impact the absence has on the office. She stated that her health was her priority and that she was willing to come into the office later or on other day. The Customer Service Manager suggested meeting at a local public house. She was extremely uncomfortable about meeting in a pub and asked if he had booked a private room. The thought of it made her sick and attending the meeting was one of the worst experiences of her life.

The Customer Service Manager and the HR Officer attended the welfare meeting. They asked how the complainant filled her days and what she did at the weekends. She replied that she made lists to get up in the morning and get out of the house. During the meeting, there were a good few people in the pub, having drinks and lunch. She was from the town and knew one of the barmen. This was stressful. They asked her to see the doctor again and this would be the fourth time seeing a company doctor.

The complainant attended the occupational health doctor on the 20th January 2017. The Customer Service Manager wrote on the 27th February to invite her to another welfare meeting regarding the outcome of the insurer’s medical assessment. The complainant outlined that she saw a psychiatrist in a local health service who said she was unfit for work. She wrote to the respondent on the 28th February and referred to the respondent being flippant as she felt she was not believed and had to prove her illness. She started working for the respondent in 2006 and was taking every step to get well and go back to work. She had good working relationships with everyone, even with the Customer Service Manager. There was no response to her grievance. She twice requested the sickness policy but this was not provided to her. She was provided with Sickness Benefit policy which relates to entitlements. The complainant informed the respondent about not getting the psychiatrist’s report in the evening of the 28th February 2017.

The complainant outlined that she received the letter dated the 3rd March on the 7th March 2017 regarding an appointment the next day. This letter was the first reference to termination of employment. She did not receive the respondent’s dismissal policy. She stated that there were no niceties in her dealings with the respondent and she had to constantly prove her illness. She was dealing with the illness and also dealing with work through the illness. Her family life was destroyed by this illness. She could not tell the respondent when she could go back.

The complainant outlined that she was following steps to get back to work. She was getting there and had earmarked September 2017 to return. She had not told this to the respondent. Since her dismissal, the complainant continued to see her counsellor and felt better. She was certified as being fit to work in December 2017 and was now looking for work. She was also considering going back to college.

In reply to the respondent, the complainant said that the Customer Service Manager had referred to differing periods for her to return. The letter of the 27th February referred to one to three months, while his statement referred to longer periods. She commented that the first welfare meeting was held in a public house/restaurant and there are no cubby holes. There were men sitting at the bar. It was not appropriate to meet in a public house and the complainant asked for the meeting to be held at a different venue. She was not asked if she was happy with the venue. She became very upset and was not get angry. She was polite and cried.

The complainant said that a welfare meeting could not assess whether she could return to work. She still had not received the psychiatrist’s report and the insurer never replied to her. It was not true to say that she had sent into a GP letter in October 2016 because she had received the psychiatrist’s report. While she did not state that her email of the 28th February 2017 was a grievance, she assumed that it would have been taken as this. She had signed the employee handbook in 2006 and the respondent should have sent her the policy when she sent the email.

The complainant said that she had childcare issues and never asked for an appointment/meeting on a Friday at 1.30pm. In her emails to the Customer Service Manager, there were colloquial exchanges giving background. They had agreed mileage for attending appointments but she never received this payment. She moved the June appointment from 12.30 to 13.30 and they accommodated her by an hour. There was no criticism of this in June and it was only raised the following March. It was only in March that she requested that meetings take place on a Friday. She did not know that these emails would be used against her and they were friendly emails. There was one appointment rescheduled in 2016 and the respondent was making this a huge deal.

The complainant commented that a colleague has a similar illness but was not hauled to four medical appointments and two welfare meetings in 11 months. It was clear to the respondent what her issue was. The complainant submitted that the fact of having a welfare meeting immediately after the psychiatrist’s report was submitted to meant that she had no option but to resign. She took the Customer Service Manager’s 14th March email as a threat.

The respondent outlined that grievance and disciplinary policies were provided to the complainant in 2006, which she signed. There were two streams to deal with absences through sickness. There was thewelfare/HR stream to get people back to work and the second is the sick pay scheme. The respondent provides 26 weeks of full sick pay. An employee could then go on income protection and it was for the insurer to conduct their own medical review. This assessment related to entitlement to income protection and not going back to work. There was an appeal to this decision.

The psychiatrist’s report was made available to HR on the 30th January 2016. It was reasonable for the employer to discuss the contents of this report with the complainant in the context of her returning to work. The respondent submitted that five referrals to occupational health was not excessive. There was only one welfare meeting in 11 months so this could not be pressure. This was about getting the complainant back to work.

The respondent pointed out that the occupational health report of the 20th January 2017 refers to the complainant being reviewed again. The respondent had not wished to hire a hotel room for the meeting of the 13th January. The hotel was not crowded and they took a quiet corner. The complainant confirmed she was okay to continue in that setting.

The respondent submitted that the complainant’s email of the 28th February 2017 did not constitute a grievance and did not require investigation. The GP’s letter of the 1st March 2017 placed the respondent in a difficult position as it states that any further contact would worsen the complainant’s condition. This prompted a further referral to occupational health to see if she could attend a welfare meeting. The respondent did not know what further steps to take and could not take further action following the email on the 28th February 2017. In respect of its letter of the 14th March, the respondent submitted that there was a financial cost to changing appointments and it sought to support the complainant. While the complainant submitted medical certificates late, the respondent did not hound her over procedure. The question was whether there was a prospect of her return to work. The day of the hearing was the first time she has said she could be fit in September. The respondent referred to Conway v Ulster Bank UD747/1981 and Allen v Independent Newspapers and submitted that the respondent had no opportunity to deal with the issues raised by the complainant.

TheCustomer Service Manager said he had worked for the respondent for 30 years and managed about 70 people. Over the years, he had gained a great amount of experience dealing with both short-term and long-term sickness. The respondent sought to open a line of communication and used welfare meetings as well as referrals to occupational health. He had a track record of bringing people back to work. The complainant was a team leader and manager of 8 to 10 people. The complainant and he were friends and colleagues. The complainant was due to return to work in March 2016. He later referred the complainant to the company doctor to understand what the issue was. He wanted a prognosis in the short or medium term. He had managed absences of 2 to 5 years.

The Customer Service Manager said he knew that referral to a company doctor could cause anxiety. He had referred 10 people to the occupational health doctor over the last few years. He always forwarded the report to the employee. The complainant attended three appointments in 2016 and there was not a great deal of progress. He tried to hold welfare meetings in the office as this could help people. Where they used an off-site venue, they chose two hotels, one in walking distance. At the meeting on the 16th January 2017, there was no one beside them. He tried to understand what the employee is going through so he asked about their day. He was surprised by the complainant’s evidence that she was stressed at the meeting. He said at the start of the meeting that he recognised that this was stressful but that it was his experience that such a meeting helped. It can be difficult and the employee needed to open a line of communication. They sought to get an understanding of the prognosis of the return to work as it could lead to the respondent not being able to keep a position open. The welfare meeting is the start of the return to work process. There was no discussion about income protection and no one mentioned the October 2016 assessment. The Customer Service Manager described that the atmosphere as friendly, constructive and the starting point of the road to recovery. They shook hands and he said that there would be more meetings. He asked the complainant to keep the certs coming in and it could lead to trouble if they were late.

The Customer Service Manager said he later saw the psychiatrist’s report. This was relevant information and warranted another welfare meeting. He could not park it to one side. The respondent sought a second welfare meeting to take place on the 8th March 2017. There was no preconceived course of action and they wanted to understand where the complainant was at. The respondent rescheduled three appointments and facilitated meetings on Friday afternoons. He mentioned the childcare issue as there was always a scheduling issue. While the letter of 14th March refers to a medical appointment arranged for the 8th March, the respondent took no further action when the complainant did not attend. The Customer Service Manager acknowledged receipt of the complainant’s email of the 28th February and that he had not responded to it. The email followed their conversation their conversation at 17.22 hours. The Customer Service Manager said that a welfare meeting would have been difficult but would have been beneficial. The purpose of the meeting was to discuss the psychiatrist’s report.

In evidence, the HR Officer said that the welfare meeting of the 16th January 2017 was not easy. The Customer Service Manager was transparent and the complainant shared information about what she was doing. The complainant discussed her medication and her attendance at counselling. The HR Officer drew up the minutes and had seen the occupational health reports of May, June and September. The impression was that the complainant was making efforts but things were not working out. The purpose of the welfare meeting was to engage with employees on sick leave and to understand their situation and how they were as well as their next steps. The HR Officer said that the welfare meetings were not easy, but Customer Service Manager was transparent and explained the next steps. The respondent’s tone was courteous and the Customer Service Manager tried to show compassion. The respondent had used this hotel before for welfare meetings. She corresponded with the doctors and received the reports. She made more requests to accommodate the complainant than typical.

The HR Officer said that the grievance policy would have been presented to the complainant in 2006. She received the contract and the handbook, which the complainant signed. Copies of the handbook were available to staff. The respondent had cases of long-term sick leave, some of 8 to 9 years and there was no effort to remove them. She said that not submitting sick certificates as required could lead to suspension from the sick pay policy and be subject to a disciplinary process. The complainant was a team leader so was aware of policy documents.

In respect of the complainant’s email of the 28th February 2017, the HR Officer said that from her memory, there was no reference to a grievance or investigation and the email ended with the complainant saying she would not be able to attend the meeting.The HR Officer was surprised to see the last paragraphs of the letter of resignation as everything had been done reasonably. The respondent’s intention had been to work with the complainant to get her back to work. The HR Officer said that the complainant was crying at the January welfare meeting.

In evidence, the HR Director said that the complainant had not objected to the report provided by the insurer. The report by a psychiatrist trumped the reports of the occupational health doctor by qualification. The psychiatrist’s report was a piece of information but did not change things. The complainant had raised what had gone on and the HR Director met with the Customer Service Manager. He noted that the complainant was on maternity leave and then on sick pay. She could then apply for income protection. He had been responsible for the introduction of paid maternity leave in the respondent. They had all attended training on mental health wellness. This was a concern in the turbulent economic times.

The HR Director said he replied to the complainant’s letter of the 15th March. She should have appealed the decision to refuse her income protection even if she had not received the report prior to late January. This was her report and she alone was privy to it. He looked through the correspondence and spoke with the Customer Service Manager and the HR Officer. It was a statement of fact that had the complainant advised that she could return to work in the short or medium term but this was never advised to them. He had the benefit of seeing all the pro-active discussions and relied on medical advice. Attending work was a good thing for mental illness and the complainant was accommodated. The welfare meetings supported the complainant going back to normal working life. The HR Director said that the complainant had threatened litigation in the letter of resignation but he answered her email. He did not respond to the further email of the 7th April 2017. The respondent had not threatened any benefits even though there was some non-compliance. They wanted to get the complainant back to work and to normal life.

The respondent submitted that the very first complaint from the complainant was made on the 28th February 2017. The complainant could have objected to the venue of the January meeting in the hotel. A constructive dismissal claim cannot succeed where the complainant has not engaged the internal processes. There was no reference to a grievance in the email of the 28th February and nothing stated in the email required investigation. The letter of resignation does not refer to the respondent not answering her grievance. There was no mention of a grievance until after the complaint was lodged. The respondent submitted that the complainant had not satisfied the reasonableness test for constructive dismissal.

CA-00013394-001 Unfair Dismissals Act

The complainant was a longstanding employee of the respondent. She started working for the respondent in 2006 and was promoted to the team leader position in 2009. There is no suggestion of any issue with the complainant’s performance and her manager remarked that they were friends. The complainant had her first child in 2013 and returned to work without issue. Unfortunately, the complainant was diagnosed with post-natal depression following the birth of her second child. She was due to return to work on the 21st March 2016, but was certified as unfit for work. The complainant resigned by email on the 15th March 2017. The last three paragraphs of the email state: “I am appalled as are the people I have spoken to professionally at how [the respondent] have behaved toward me and the bully tactics that have been used “to manage me out of the company” which is a saying I’ve heard too often in my time there … I feel I have no other option but to tender my resignation as of immediate effect after nearly 11 years as an employee … The next contact from me will be litigation.” The respondent replied on the 29th March 2017, accepting the complainant’s resignation, to which the complainant replied on the 7th April 2017.

Over the twelve months of her absence due to post-natal depression, the complainant submitted 13 certificates from her own GP. She also attended a named local mental health service. She attended four consultations with an occupational health physician engaged by the respondent (20th May 24th June 26th September 2016 and 20th January 2017). The conclusion of the occupational health report of the 20th May 2016 states “I spoke to [the complainant] about the well-recognised benefits of the workplace for people dealing with mental health issues such as anxiety and depression. She became quite visibly anxious during the conversation when I discussed returning to work, even though I reassured her that I did not think she was currently fit to return, and that, when she returns, we can arrange for her to come back gradually.”

The complainant availed of the respondent sick-pay scheme for six months after her scheduled return on the 21st March 2016. The respondent has an income protection policy with a named insurer and in October 2016, the complainant attended a consultation with a consultant psychiatrist in respect of her admission to the income protection scheme. In a letter of the 13th October 2016, the insurer’s IP Claims Assessor states “We have recently received the results of the Independent Medical Examination with [consultant psychiatrist]. It is our opinion based on the medical evidence received that [the complainant] is not currently totally disabled from following her normal occupation as required by the policy and is fit to return to work. I must advise therefore that we are unable to admit this claim.” This letter was addressed to the respondent’s payroll administrator. In follow-up correspondence in January 2017, the IP Claims Assessor confirmed with the respondent that a letter was issued to the complainant, who had not appealed the outcome.

The complainant denies ever receiving the insurer’s letter in October 2016 and on the 28th February 2017, states that she is “startled and appalled to find yesterday that the insurance company doctor has advised you that I am fit for work…” This email was in reply to the respondent’s letter of the previous day regarding a welfare meeting to discuss the insurer’s letter (which was copied to the complainant). The respondent submitted that the complainant knew in October 2016 of the insurer’s negative finding and that the March 2017 welfare meeting was “to understand why [the complainant] did not advise that [the insurer’s] Consultant Psychiatrist confirmed you were fit to return to work.” [HR Director’s letter of the 29th March 2017]

Before addressing the conflict in evidence whether the complainant knew of the insurer’s finding prior to receiving the respondent’s email of the 27th February 2017, I note that neither party has seen the report or notes of the consultant psychiatrist. The insurer’s letter of the 13th October 2016 refers to “our opinion”, i.e. the insurer’s opinion. This goes on to say that based on this medical evidence, the insurer’s opinion is that the complainant is not totally disabled. No document sets out the medical evidence, i.e. the consultant psychiatrist’s assessment or opinion.

Having considered the evidence, I find that the complainant’s account is correct that she did not know of the outcome of the consultation with the insurer’s doctor until this was conveyed to her by the respondent on the 27th February 2017. I make this finding for the following reasons. I have regard to the insurer’s email to the respondent of the 30th January 2017, stating that it wrote directly to the complainant. This letter, however, has not been produced. I note that, despite her illness, the complainant was proactive in replying to correspondence. She replies within one day of receiving the respondent’s correspondence of the 10th January and the 27th February. I also note that she regularly submitted medical documentation, including in October 2016. The complainant submitted a GP certificate on the 24th October 2016 and I note that the September certificate expired on the 21st October 2016.

The occupational health doctor’s report of the 20th January 2017 concludes “In my opinion this lady remains unfit for work duties. Unfortunately her lack of progress despite the efforts of her GP and her Mental Health Team, is reflected in the recent changes in her medications. In my opinion it was take at least four weeks for her new medications to take effect and it is likely that she will require an increase in dose. We also need to await her response to counselling. I note that she feels that the pressure to get back to work is not helping her, and she is considering her options regarding this.” The doctor asks to review the complainant in six or eight weeks. The next correspondence is the respondent’s invitation of the 27th February to a welfare meeting regarding the insurer’s report.

The complainant attended a welfare meeting on the 16th January 2017 and was invited to attend a second meeting in March 2017. She submitted a GP note to say that she could not attend the second meeting and subsequently resigned. The respondent’s email of the 11th January 2017 outlines that the welfare meeting is “to understand your current health status and condition and ascertain your ability to return to work in the short to medium terms which is 1 – 3 months. Finally can I assure that this policy is/will be deployed for everybody with a long term absence from work.” The respondent repeats the 1 – 3 month timeframe in the email of the 13th January 2017, although the minutes of the meeting refer to a six-month period. The invitation of the 27th February 2017 refers to a welfare meeting scheduled for the 3rd March to understand the complainant’s current state of health in the light of the insurer’s report. In reply, the complainant asks for the respondent’s absence/sickness policy and asserts that this is not applied across the board.

Key to assessing the evidence in this case is to compare the complainant’s long letter of the 28th February 2017 with the respondent’s long letter of the 14th March 2017. This exchange immediately precedes the resignation. The complainant’s letter starts by stating that she will not be able to attend the forthcoming welfare meeting. She refers to the diagnosis of being unfit for work. She refers to the January welfare meeting and how unhappy she was. She questions discussing the five-month old insurer’s report in the light of her more recent diagnosis by the occupational health doctor. She refers to only learning of the insurer’s report the previous day. She outlines that she has been through one of the worst years of her life and the constant pressure and harassment from work have not helped. She refers to the respondent’s “flippant” attitude to her mental health and that every day is a struggle for her. The text of part of this email was included in the respondent’s referral of the 2nd March 2017 to the occupational health doctor, but the respondent does not reply to it.

The next substantive reply from the respondent is that of the 14th March 2017. This refers to the complainant’s email of the 7th March, which I take is the correspondence submitting the complainant’s GP’s letter of not being able to attend the March welfare meeting. The respondent’s email goes back over the notice for appointments in June, September and March and asserts that adequate notice was provided. The issues raised in the respondent’s letter of the 14th March 2017 are historic or minor scheduling issues. There was no criticism of the complainant at the time. Despite this and the contents of the complainant’s email of the 28th February, the respondent letter concludes “We will be in contact with you with details of your next appointment with our company doctor. Should you fail to comply with this, the company may be left with no other option but to terminate your employment.”

In a case of constructive dismissal, it falls on the employee to prove that the respondent’s actions were such as to justify her resignation. Section 1(b) of the Unfair Dismissals Act states:

“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 would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The classic formulation of the legal test in respect of constructive dismissal was set out in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27. This laid out two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ in the following terms: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The ‘reasonableness test’ assesses the conduct of the employer and whether it “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.” A claimant must meet one or other of the tests, but is not required to meet both.

In Berber v Dunnes Stores [2009] 20 E.L.R. 61, the Supreme Court stated that mutual trust and confidence is an implied term in every contract of employment. The Court held “There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.”

Moreover, the Supreme Court in Berber set out the following approach to assess whether a contractual term of mutual trust and confidence was repudiated or broken by an employer’s conduct:

“1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at. 4. 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.”

In relation to the reasonableness test, the Labour Court held as follows in Mr O v An Employer (no. 2) [2005] 16 E.L.R. 132:

“The court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address what ever grievance they may have. However there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal.”

In Murray v Rockabill Shellfish Ltd [2012] E.L.R. 331, the Employment Appeals Tribunal held at page 333 as follows:

  “The Tribunal must consider whether because of the employer’s conduct the claimant was entitled to terminate his contract or it was reasonable for him to do so. An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. In the case of Brady v Newman UD330/1979, the Tribunal stated at pp 9-10:

            “… an employer is entitled to expect his employee to behave in a manner             which would preserve his employer’s reasonable trust and confidence in him      so also must the employer behave.”

In a case where the employee resigned while on sick leave, the Labour Court commented in O’Connell v Homecare Medical Supplies (UDD1747): “The Complainant’s resignation, which raised serious complaints and issues for the Respondent, was immediately accepted by the [Managing Director] in circumstances where the Complainant was out sick. No offer to meet to resolve matters was advanced and, notwithstanding that the Complainant was out sick in the care of her GP, no opportunity was provided to her to delay her decision and reflect on the situation.”

In assessing the evidence, I note the longstanding working relationship between the parties. I note that the complainant was diagnosed with a serious medical condition that resulted in her not being able to work. The complainant submitted certificates from her GP and attended four consultations with the occupational health doctor assigned by the respondent. The respondent sent the occupational health doctor detailed referral forms in advance of each consultation and the doctor prepared a report on each occasion. There is something of a mystery in relation to the consultation with the independent consultant psychiatrist. The parties do not have the actual medical report. The consultation took place in October 2016 and I have found as fact that the complainant did not know of the outcome until receiving the respondent’s email, months later in February 2017. She immediately replied that she was startled and appalled by the insurer’s finding. It appears that the respondent received the insurer’s report in October 2016 but it was only acted upon when the HR Officer followed-up in January 2017. While the outcome of the income protection referral required investigation, it is unclear why this was not included in the referral to the next occupational health consultation.

In considering the claim of constructive unfair dismissal, the events of the welfare meeting of the 16th January 2017 are significant. The respondent asserts that the meeting was constructive, although accepted that the complainant was crying during the meeting. Leaving aside the appropriateness of the venue, it is striking that the welfare meeting involved the complainant being upset and crying through the meeting. After all, this was a “welfare” meeting for an employee not able to work because of post-natal depression. The occupational health report of the 20th January 2017 states: “I note the details that you forwarded to me following the welfare meeting earlier this week. She told me that she found the whole process to be very difficult, she said that she feels under a lot of pressure from work to get back. She spoke to me about emails that she had received from her manager and about the meeting earlier this week.”

It is striking that the respondent’s reaction to the belated filtering across of the insurer’s report was to require the complainant attend another welfare meeting, rather than to refer the insurer’s report to occupational health. After all, the complainant had been upset and in tears at the first welfare meeting and reported this to the respondent’s doctor. The complainant reiterates her experience of the first welfare meeting in her email of the 28th February 2017. She asserts that she was not supplied with the insurer’s report. Not only was this the email of a clearly distressed employee, it asked questions of the respondent, for example whether a welfare meeting was prudent and what had happened with the insurer’s report. The respondent does not respond to this email. Instead, the email of the 14th March 2017 addresses historic and minor scheduling issues and refers to dismissal. The kernel of what the complainant has raised is not addressed to any extent. The contractual term of mutual trust and confidence required the respondent engage with the serious issues raised by the complainant. Applying the Berber decision and looking at the conduct of the parties, I find that the respondent’s conduct broke the term of mutual trust and confidence in the employment relationship in not engaging with the significant issues raised by the complainant. Referring to the O’Connell case, the respondent later accepted the resignation, with no offer of addressing the complainant’s issues. The complainant was, therefore, entitled to consider that the respondent had repudiated the contract of employment. It follows that the complaint of unfair dismissal is well-founded.

In assessing redress, I note that the complainant was unfit for any work until the end of 2017. Her illness was not work-related, although she refers to the impact on her health of dealing with this employment issue. Although unfit for some months, she later became fit for work. Taking these factors into account, I award redress of €8,000.

CA-00013394-002

It is well-established that an employee who resigns from their employment is not entitled to notice pay pursuant to the Minimum Notice & Terms of Employment Act, even where a claim of unfair dismissal is well-founded. This complaint is, therefore, not well-founded.

CA-00013394-001

For the reasons set out above, the claim of unfair dismissal is well-founded and I award redress of €8,000.

CA-00013394-002

The complaint made pursuant to the Minimum Notice & Terms of Employment Act is not well-founded.

Unfair Dismissals Act / constructive dismissal

Mutual trust and confidence

Berber v Dunnes Stores [2009] 20 E.L.R. 61

O’Connell v Homecare Medical Supplies (UDD1747):