ADJ-00018788

Complainant

Respondent

Anonymised Parties

Accounts Manager

Healthcare Services and Products provider

Representatives

Jim Waters Solr.

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-00024114-001

13/12/2018

The Complainant submitted her resignation and claims that this was done because of the severe and constant pressure she was being put under by her Employer in circumstances where they knew or ought to have known that this would be the inevitable outcome.

The Complainant was unrepresented and gave her evidence in person. The Complainant is claiming that she was Constructively dismissed at the end of a long period of absence from the workplace.

The Respondent rejects the Complainant’s case and asserts that it did everything it could reasonably be expected to do to make provision for an employee out on sick leave. The Respondent was represented and provided me with written submissions together with the oral evidence of a number of employees.

I have carefully considered the evidence and documentation presented to me in the course of the hearing and for the purpose of assisting me in reaching a decision.

The Complainant worked with the Respondent healthcare provider for upwards of five years and during her time there, she worked as a successful Accounts Manager in charge of Advance Surgery and had a team of staff under her direction.

The Complainant was highly thought of and was doing a good job.

The Complainant suffered a life-altering assault in September of 2017. This assault was unrelated to the workplace and was sexual in nature and there is no doubt that the horrific and personal nature of the attack impacted on every aspect of the Complainant’s life from that moment forward.

I absolutely understand and respect the complainant’s need to keep this matter secret from her workplace. This is the prerogative of any person who has had such a crime perpetrated upon them. I note that a conscious decision was made where the Complainant had sought appropriate and confidential help from her G.P. and was availing of appropriate services and counselling.

In the immediate aftermath of this incident, the Complainant went out on an extended period of certified sick leave for four weeks together with a two week period of annual leave. During this time the Complainant provided her workplace with sick certs. It is noted that the Complainant was deemed entitled to the benefit of being paid out on sick leave which is entirely at the discretion of the Employer.

In the course of this period the Complainant did attend with the Occupational Health programme which was provided for in the workplace and the report created through this assessment noted that the Complainant had non-work-related stress but fully intended engaging with HR for the purpose of returning to the workplace.

The Complainant returned to the workplace and worked through for five months. I have no doubt that the Complainant found this period to be difficult one, though there is no suggestion that there was any issue with her work during this period. Then in March of 2018 the Complainant’s mother became gravely ill following a stroke. The Complainant and her siblings gathered at the Hospital expecting the worst. It seems that this event also triggered a post-traumatic type reaction to the assault which had so recently been suffered by the Complainant.

The Complainant reached out to her line Manager GK, and looked for help. The two had a meeting at which time the Complainant indicated that she was in the process of having a breakdown. Although I asked, I did not see any medical report confirming this diagnosis or what was meant by this. The Complainant fully accepts that GK could only have been aware of the Complainant’s mother’s illness as having given rise to this state of affairs. GK had no idea of the darker issues which had brought about the complainant’s anxiety and inability to cope.

In response, GK provided the Complainant with an option to take up three short three day working weeks around the Easter period. Although GK was not at the hearing to give evidence, I accept that she might have believed that this intervention would give the Complainant some breathing space and a chance to deal with the unexpected illness of a beloved parent. GK had no medical report or other information to suggest that the Complainant was in the state of crises that she was in.

On her return to work, the Complainant met up with GK who told the Complainant that she was doing a good job and should try and get on with it and that everyone has a certain amount of “crap” in their lives to deal with outside of the workplace. Again, GK was not at the hearing and I note that the Complainant’s mother has by now recovered so I am assuming that GK said this in the interest of getting the proverbial show back on the road. GK did not know or understand the issues and inertia that the Complainant was dealing with. The Complainant says that she felt humiliated as she had no history of taking time off work.

In fact, the Complainant went out on sick leave within days of this meeting. This was an extended sick leave which was comprehensively certified by the Complainant’s G.P who was in full possession of all the facts but unable to disclose them outside of describing the Complainant as having non-work related stress.

At this point I would have to accept that the Complainant’s Manager and the workplace HR department (who would become involved), had inevitably conflated the stress related sick leave with the illness of a parent. That is to say the workplace had not unreasonably assumed that the Complainant was out of work because her mother was ill, and I have to accept that they had no reason to think otherwise.

In her evidence, the Complainant did not appear to give full allowance for this fact. Her employer was completely ignorant of the very real and severe difficulties that the Complainant was having. The Employer had been intentionally left in the dark by the Complainant. I do not criticise the Complainant’s decision in this regard, but the Complainant has failed to see the situation from the Employer’s perspective.

Looking at the complete picture, I would have to say that the Employer’s decision to continue paying the complainant pursuant to the workplace sick payment scheme was indicative of their high regard for her. I note that the Complainant had access to, and was fully aware of the Sickness Absence and Notification Policy and there can be no doubt that there is an obligation contained therein –

“…to continue to provide your line manager with regular updates in relation to your progress.”

On balance, I cannot find that this stipulation is unreasonable. The Respondent is a large employer of hundreds of people across different sites nationwide. To be efficient, the Respondent (like any employer) has to be aware of absences through sickness, and to be kept appraised of serious illnesses and have some idea of likely return dates. The need to have sick certs, return to work forms and return to work discussions are all standard HR norms implemented for the mutual benefit and safety of both parties in the employment relationship.

The difficulty in the Complainant’s situation is that she found communication from her employer while she was out on certified sick leave to be intrusive. In fact, she believed she was being “harassed, bombarded and pressurised” by her employer in the prolific manner of such communication.

I have been asked by the Respondent to consider the varied nature of any and all communications with this employee out on sick leave. Most of the communication was conducted through emails and included making provision for the organisation of medical appointments, the acknowledgement of medical certificates, the sharing of medical reports, the detailing of VHI cover, the detailing of Permanent Health policies, the detailing and updating of monthly sick payments under the scheme, the status of social welfare payments as well as the inevitable requests to meet with a representative from HR for discuss the timing and manner of a safe return to work

The Complainant was (unbeknownst to her employer) very upset by this perceived bombardment of information and requests. Much of this had to do with the personal difficulties arising out of the trauma suffered by her and the seemingly tortuous healing process. The Complainant did submit herself to third party medical assessment provided by her Employer and there can be no doubt that the reports provided to her Employer specify “significant personal stressors” which were not work related. I understand that the Complainant fully disclosed her history to the third party medical adviser.

Whilst all the reports (05/18, 07/18, 09/18) confirm that there are ongoing symptoms likely to continue for a few months, the reports also tend to confirm that the complainant continues to improve and “…is fit to attend a meeting if you wish to engage with her”. I am satisfied that the Complainant was therefore on notice of the fact that the medical advice had confirmed the Complainant would be able to engage in preliminary meeting to discuss back to work. It was not for the Respondent to look behind this medical advice and therefore appropriate for them to look for a meeting in the usual way.

The Complainant was highly critical of the “tone” of the communications sent to her. However, any emails that were opened to me in the course of the hearing appeared to be even-handed, measured and fair, and simply tried to arrange a meeting to catch up and discuss progress and future plans. The HR Manager was simply implementing policy and herself had workplace obligations to fulfil. Had the HR Manager ignored the Complainant she would have left herself open to being criticised for that. The HR Manager was happy to meet away from the office and ultimately was happy that the Complainant should bring a colleague for support. The Complainant resisted all such proposals stating that she was feeling pressurized into meeting up, pressurized into meeting with her manager and making difficult workplace decisions. The Complainant said that the complete lack of compassion and sympathy in the implementation of company policies was giving rise to increased stress and anxiety. I note that in fact by the 13th of August 2018 the Respondent HR Manager recognised the difficulties and in light of her own duty of care had opted to leave it to the Complainant to determine when she was ready –

“But as I feel that despite my best efforts it is not coming across that way. I believe that it is probably best to wait for you to be ready to engage and I will leave it to you to decide when this will be. In the meantime, I would like to assure you that your well-being is paramount to us and I hope that you will soon feel better.”

On the 3rd of September 2018 the Complainant communicated with the HR Manager’s superior (BE) in London to complain about the treatment as she perceived it. The response was sympathetic and supportive to the extent that the Complainant even opened up to BE concerning the root issue that had given rise to the deterioration in her health. I accept that BE never passed this information on to the Dublin based Manager who was still in a self-imposed distancing mode. BE encouraged the Complainant to engage with the process and envisaged that ultimately a three day week might help the Complainant who had come to the end of her paid sick leave and was therefore struggling. In the alternative BE suggested that the permanent Health policy may eventually be applicable.

The Complainant once again engaged with the local HR Manager with a view to setting up a meeting (on October 4th) which the Complainant backed out of at short notice.

Five days later on the 9th of October the Complainant tendered her resignation stating that she “felt under intense and constant pressure from [the Employer] to return to work, meet HR, meet Managers etc. which has severely affected [her] ability to recuperate and feel well again.”

I note that in this last letter the Complainant also states that she will be asking the WRC to investigate this matter thereby indicating a course of action to be taken - though I suspect more for the purpose of vindication than anything else.

It is also worth noting that the Respondent HR Manager who had been dealing with the Complainant all along wrote back to the Complainant after receiving the letter of resignation, inviting the Complainant to take a two month period to contemplate the decision as it would not be accepted for two months - to allow the Complainant consider whether this was what she really wanted.

On balance, and having considered everything put before me, I cannot find that the Complainant’s decision to terminate her employment was by reason of the conduct of her Employer who I consider to have acted appropriately at all times. In fact, aspects of the communication (such as the willingness to allow for a two month “cooling off” period) went well beyond what might have been expected.

I think the Employer acted in a fair and respectful way towards the Complainant and the demands made on her were minimal and were not unreasonable in light of the medical evidence it had before it.

The Employer cannot be blamed for not having a full insight into the Complainant’s condition and even if it did I am not sure it would have acted any differently as the medical advice was based on the said full insight.

I have every sympathy for the Complainant who was clearly struggling at a personal level. However, nothing in the interaction between herself and the Employer could reasonably be attributable to a complete breakdown in the relationship which inevitably led to the tendering of a resignation.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00024114-001 – the Complainant was not unfairly dismissed and her claim for redress fails.