Complainant

Respondent

Anonymised Parties

A Security Worker

A Security Company

Representatives

Terence O'Sullivan TJOS Solicitors

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-00021441-001

29/08/2018

The complainant details he was left with no alternative but to resign his position effective 1st March 2018, owing to the conduct of the respondent.

The complainant in his complaint form had made reference to complaints under equality legislation but clarified at the hearing that his only complaint was his constructive dismissal claim under the Unfair Dismissals Acts, 1977 – 2015.

The complainant commenced employment on 23rd August 2003 earning €11.77 per hour. In 2016 the complainant suffered a heart attack.   In January 2018 the respondent contacted the complainant to ascertain a return to work date.

It was detailed that a letter to the complainant from the respondent, dated 22nd January 2018, requested the complainant to give his authorisation so that the respondent could ascertain a medico-legal report form the complainant’s gp. The complainant detailed that he had no issues as such with this but was shocked that his failure to provide authorisation for same would result in his dismissal. It was of further concern to the complainant that the authorisation form attached to the letter also sought permission for access to the complainant’s medical records. The complainant replied on 27th January detailing that when he was fit to return to work, his gp would provide a cert confirming same.

On 30th January the respondent advised the complainant that failure to return the authorisation form regarding the medical information would result in his dismissal as the respondent would consider him incapable of returning to work.

On 9th February the complainant replied and detailed that the respondent had been the cause of the heart attack and hoped he could resolve the issues between them. Another letter similar to the previous letter, was sent by the respondent which the complainant replied to dated 12th February 2018 which included the complainant asking if the respondent and himself could resolve their issues.

The complainant did not wish to give access to his medical records and felt upset at the manner in which the respondent was pursuing this issue. The complainant felt that he had no alternative but to resign his position and did so by letter dated 16th February effective 1st March 2018. In this letter the complainant details that he felt he had no choice to resign for a number of reasons including the respondent’s rejection of the complainant’s willingness to resolve the issues; what he deemed was discrimination by the respondent and the respondent’s failure to provide reasonable accommodation.

The respondent replied on 20th February 2018 denying that resigning was the only option available to the complainant and detailed that the complainant had “failed, refused and neglected to acknowledge my repeated requests” for the complainant to sign the letter authorising the medical information. The complainant was also advised to return his uniform and to arrange to have the uniform dry cleaned.

On 23rd February while working his notice, the complainant contacted the respondent and advised that he did not understand the legal basis why the respondent had been was looking for the medical information and he reiterated this on 6th March 2018. The respondent replied on 9th March 2018 advising that the complainant “requested to be allowed to resign” and “we are in agreement”.

The complainant detailed his upset at the way in which he was treated following a serious medical issue which he submitted had been caused by the stress of working with the respondent. The respondent had looked for unreasonable access to his personal records and it was unfair to continuously threaten the complainant with termination if he failed to provide this authorisation.

The respondent sought clarification from the complainant at the outset of the hearing around what his specific complaint was and the respondent were happy to proceed following clarification from the complainant that his complaint was under the Unfair Dismissals Acts.

The respondent denied the claims and detailed that the complainant had not met the burden of proof required to determine that he was left with no alternative but to resign his position.

It was not disputed that the complainant had been unwell and as he remained out of work on sick leave, the respondent sought to ascertain the complainant’s fitness to return to work as part of a review of employees, such as the complainant, who had been out sick on long term absence.

As part of this review, the respondent sought access to information from the complainant’s gp, as it was submitted that the complainant’s gp was the person most appropriate to determine the health status of the complainant. The complainant was advised that this information was necessary to determine the complainant’s capability yet the complainant failed to give his authorisation despite repeated requests by the respondent.   All the respondent required was a medico-legal report and the respondent did not require any access to the complainant’s medical records. The respondent is fully aware of their responsibilities under GDPR and would never have breached those.

The complainant then made the decision to resign his position and it was submitted that there was no breach in his contract nor had the complainant put forward proof that the respondent had failed in their reasonableness. It was also submitted that there was no requirement for the respondent to ask the complainant to reconsider his decision to resign.

With regards to mitigation it was detailed that the complainant is unfit for work and is therefore not available for work.

The claim is one of constructive dismissal, pursuant to Section 1 of the Unfair Dismissal Act 1977.   In reaching my conclusion I have carefully evaluated the evidence adduced in the course of the hearing and taken full account of written and oral submission made by the parties.  

Section 1 of the Unfair Dismissal Act defines constructive dismissal as: “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 the 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”.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his/her position, often referred to as the “contract test”. The employer is thus “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 further performance” as held in Western Excavating (ECC) Ltd v Sharp[1978] IRL 332. Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test seeks out whether the employer conducted his or her affairs, in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so he/she is justified in leaving.

The Supreme Court in Berber detailed, “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 to determine if it is such that the employee cannot be expected to put up with it.” This places the burden of proof on the employee to show that her resignation was justified in all the circumstances.  

The question arises therefore, whether because of the conduct of the Respondent, the Complainant was or would have been entitled, or it was or would have been reasonable for him, to terminate the contract of employment. It is necessary, therefore, to examine the conduct of the parties. In normal circumstances a complainant who seeks to invoke the reasonableness test, must also act reasonably by providing the employer with an opportunity to address any grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment, before taking the step to resign which has been set out in Conway v Ulster Bank LimitedUDA474/1981.   There may also be situations whereby failure to utilise or give prior formal notice of a grievance may be justified such as Liz Allen v Independent Newspapers [2002] 13 ELR

The complainant suffered a heart-attack in 2016 and remained out of work. The respondent engaged with the complainant to ascertain a potential return to work date and requested authorisation from the complainant for a medical report from the complainant’s gp. In the attached letter, whereby the complainant was to authorise his agreement to the medical report, the complainant was also asked to confirm his authorisation that the respondent could access the complainant’s medical records. The complainant detailed that they did not want to provide this and following an exchange of correspondence the complainant resigned his position.  

It was clear from the complainant’s evidence that his source of upset was not because of the respondent’s request for a medical report but because the respondent was seeking access to the complainant’s medical records and that the complainant’s failure to provide same would result in the complainant’s dismissal.   In evidence the respondent detailed that it was just a medico-legal report which they required and that they did not require access to all the complainant’s medical records and that as an organisation they are very aware of the requirements of GDPR. I have reviewed the documentation which the respondent issued to the complainant, requesting authorisation, under the heading “Authority”. It details both a request for authorisation from the complainant for a “medico-legal report” and a request for authorisation from the complainant for the gp to “furnish all medical records required for the purpose of providing the medico-legal report”.   I note that the respondent did not provide an explanation as to why this additional request, for medical records, was in that authorisation form. Based on the evidence presented, I find that it was reasonable for the complainant to assume that the respondent wanted access to all his medical records and that failure to authorise same would result in his dismissal.

While I note that the complainant was not explicit in his letters before his resignation regarding his specific concerns with giving access to his medical records; I do note that he was his willing to provide a medical report when he was deemed fit to return to work and that he detailed that he hoped the respondent and himself could resolve the issues. Letters following his letter of resignation, and during the complainant’s notice period, do outline the complainant’s specific concerns as to why did the respondent need access to the complainant’s medical records and despite the complainant hoping the respondent and himself could “resolve this issue”, I find no evidence that the respondent engaged with the complainant to resolve the issues. I also note the extraordinary tone of the respondent’s letters which consistently referred to terminating the employee’s employment if he failed to provide authorisation. Even upon receipt of the letter of resignation, while effective 1st March, opportunities was given to the respondent to provide clarity regarding what exactly they wanted and the reasons why but they failed to do and instead the respondent details the complainant has options without specifying what were his options, and that it was the complainant who “requested to be allowed to resign” and “we are in agreement”.

The complainant had been out sick with a serious medical issue, yet the respondent failed to address the complainant’s specific concerns around his medical records.   Furthermore, the respondent failed to avail of the complainants repeated requests to resolve the issues and the respondent repeatedly threatened to terminate the complainant’s employment.  

In Berber Finnegan J. held: -

“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.”

I do not find the conduct of the employer to be reasonable and as such I find that the complainant could not have been expected to put up with it.   I find the complainant has met the standard of reasonableness required to substantiate a claim of constructive dismissal and while not formally utilising the respondent’s formal grievance procedure, this has been considered justified in Liz Allen v Independent Newspapers [2002] 13 ELR 84 and I find that the complainant did make efforts to resolve the issues.

I find that Complainant was constructively dismissed from his employment and this dismissal was unreasonable and unfair and that the complaint of unfair dismissal is well founded.

With regards to mitigation of loss, I note that the complainant remains unfit for work.   I find that as the complainant has been deemed unfit for work, therefore, no loss has accrued under the Act. The maximum compensation payable in circumstances where no loss has accrued is four weeks remuneration.

1.       For the reasons set out above, I find that the decision to dismiss the complainant was unreasonable and unfair and that the claim is well founded. I find it is just and equitable in all the circumstances of this case to order the respondent to pay the Complainant the sum of €1,830.00.

Constructive dismissal,