Complainant

Respondent

Anonymised Parties

A Production Assistant

Medical Services Company

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-00015225-001

23/10/2017

The respondent employed the complainant as a production assistant from 20th of July 2007 until the 26th of July 2017. He earned €596 and worked 39 hours per week. The parties made written and oral submission to the hearing.

The complainant submits that he had suffered an injury and was out of work for about one year prior to his return. The respondent resisted his return to the extent that his trade union had to write on three occasions to insist that he be allowed to do so. He was finally permitted to return on the 26th of June 2017. He was obliged to absent himself again on the 4th of July suffering from medically certified workplace stress. He returned on the 18th inst. He had a conversation with management concerning his position within the company on the same date. He resigned on the 20th inst. as a result and gave one weeks’ notice. He was informed that he could leave on the same day.                                                       He had approached the respondent in December 2016 and was informed that he was not entitled to any long-term illness benefit. He informed the HR manager that he was declared fit to return to work at the end of April 2017. He was questioned by him in relation to his desire to return and his application for long-term illness benefit. It took two weeks to have the company doctor to confirm that he was fit to return. He was then required to attend a consultant for review. A consultant’s appointment was arranged for mid-June. Threats to take the matter to a third party were ignored and requests by his trade union that he be allowed to return to work were refused. He attended the consultant in mid-June and was declared fit once again. Two hours after his appointment he was contacted by HR to be informed that he would have to complete a dexterity test as did all temporary staff (he was a permanent member of staff). He attended the test on the 23rd of June 2017 and was contacted by HR on the same day and informed that he should return on the 26th of June 2017.       He spoke to his supervisor on the day of his return and requested a transfer to the evening shift to facilitate his desire to attend an engineering course and continue working. The course would enhance his career prospects. The supervisor refused his request. He approached the manufacturing manager on the same day with the same request. He said the decision was in the hands of the supervisor. He suffered a panic attack on the same evening and was certified unfit for work for a two-week period. He returned to work on the 12th of July and spoke to the supervisor on the 13th inst. The supervisor confirmed his decision and the complainant said that he would have to resign in that case. He spoke to the site director later who confirmed that the decision was in the hand of the supervisor but that he would have a word with him. A short time later he learned that a colleague had been requested to transfer to an evening shift while he was out sick (the complainant had spent three years on that shift). The supervisor informed him that he had been approached by the site director but that his request would not be sanctioned. He refused to answer the direct question as to why his colleague had been shifted despite his own request. The supervisor told him that he could resign and that he would be paid in lieu of the weeks’ notice. He was in shock at the treatment he received and complied.

The respondent submits that the complainant resigned by email of the 20th of July 2017. The complainant was due to return to work following two weeks of certified absence on the 17th inst., but returned on the 18th inst. He met with two supervisors to discuss his return to work cert. He informed them that he had been accepted in GMIT for a full-time college course. He requested a transfer to the night shift to facilitate his attendance. He was informed that there was no requirement on the evening shift presently but that they would enquire from the manufacturing manager. He stated that if he could not be facilitated he would be left with no alternative but to resign. He was asked whether he was making a rash decision and if he was being impulsive. He said he had the matter under consideration for the past three months and that he was not being rash. He subsequently resigned his position by email of the 20th inst. The respondent had no control over the complainant’s decision nor was it able to guarantee a long-term shift position owing to the dynamic nature of the manufacturing environment and the need to ensure flexibility.

The burden is on the complainant in a constructive dismissal case to show that the respondent acted in a manner that was so unreasonable as to make it impossible for the complainant to continue in the employment relationship on the one hand and that he/she took all reasonable steps to avoid taking the ultimate step on the other. It seems to me that the complainant herein failed to use the avenues open to him in respect of the return to work and perhaps even more importantly as it relates to the respondent’s refusal to meet his request for transfer to the evening shift. He resigned giving one weeks’ notice on the 20th of July when he could have held off until he had returned from holiday (presumable at the end of August) and reviewed the matter in the light of further developments at that time. He could have instituted an internal/external grievance in the matter but failed to do so. That said I do not accept that the behaviour of the respondent in this case was so oppressive as to make it impossible for the complainant to continue in his employment. In my view the herein termination of employment does not amount to a constructive dismissal under this Act.

The complaint is not well founded.