ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007341
Parties:
| Complainant | Respondent |
Anonymised Parties | A Former Administrative Assistant | A Third Level Institution |
Representatives | Lars Asmussen BL instructed by Sean Ormonde & Co. Solicitors | Arthur Cox Solicitors |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act 1998 | CA-00009933-001 | 27/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977 | CA-00009933-002 | 27/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act 1994 | CA-00009933-003 | 27/02/2017 |
Dates of Adjudication Hearing: 09/10/2017, 08/01/2018 and & 12/02/2018
Workplace Relations Commission Adjudication Officer: Aideen Collard
Procedure:
The Complainant referred the aforesaid complaints to the Workplace Relations Commission (hereinafter WRC) on 27th February 2017. In accordance with Section 77 of the Employment Equality Acts, Section 8 of the Unfair Dismissals Acts and Section 41 of the Workplace Relations Act 2015, following the referral of these complaints to me by the Director General, I inquired into same and gave the Parties an opportunity to be heard by me and to present any relevant evidence. The Complainant was represented by Mr Lars Asmussen BL instructed by Sean Ormonde & Co. Solicitors. The Respondent was represented by Arthur Cox Solicitors and a number of witnesses attended on its behalf. An issue around which complaints were proceeding was clarified at an initial hearing on 9th October 2017 and documentation and written submissions were exchanged before evidence was taken on 8th January 2018 and 12th February 2018. Specifically, the Complainant had brought parallel complaints of discriminatory dismissal under the Employment Equality Acts and unfair dismissal under the Unfair Dismissals Acts. Following an exchange of correspondence between the Parties and WRC regarding the applicable time limit for election under the legislation, the Complainant opted to pursue a complaint of constructive dismissal (CA-00009933-002). Additionally, various grounds and sub-complaints had been ticked in relation to the complaint referred under Section 77 of the Employment Equality Acts and the Complainant ultimately pursued complaints of a failure to provide reasonable accommodation, discrimination on the ground of disability, and victimisation (CA-00009933-001). The complaint under Section 7 of the Terms and Conditions of Employment (Information) Act 1994 (CA-00009933-003) was withdrawn towards the end of the hearing and it is therefore unnecessary to set out the related evidence and submissions. All oral evidence, written submissions, supporting documentation and law presented by both Parties have been taken into consideration in arriving at this decision. As the onus of proof rested with the Complainant in all the complaints, she gave her evidence first. The Parties’ respective evidence and submissions in relation to all of the complaints is set out in full before considering each one in turn.
Background:
The Complainant was employed by the Respondent, a Third Level Institution, in various administrative roles from 23rd October 2000 until her resignation effective from 30th August 2016. She received a gross monthly salary of €4,167 which was reduced to an average of €3,171 for the last 12 months owing to part-time hours for a six-month period. She sought compensation from the Respondent for constructive dismissal under the Unfair Dismissals Acts and for a failure to provide reasonable accommodation, discrimination on the ground of disability and victimisation under the Employment Equality Acts. The Respondent refuted these complaints, also putting in issue whether the Complainant had a disability as defined by the latter Acts and sought to have them dismissed.
Summary of Complainant’s Case:
The Complainant gave evidence supplementing a detailed written submission made on her behalf. She confirmed that she was employed by the Respondent since 23rd October 2000 on a number of temporary contracts, and following an internal promotion in 2006 had been employed as an Administrative Assistant at Grade IV in the Disability Service for the Respondent (inclusive of a temporary position in the Access Office from March 2016), until her resignation effective from 30th August 2016. She outlined the staffing structure and confirmed that Dr A was the Department Head for the Disability Service and Access Office and Ms B was her direct Line Manager in the Disability Service and reported to Dr A. Her written contracts in relation to her various roles were furnished. She described her responsibilities which included a wide range of administrative duties relating to the operation of the Department and working with students/individuals with disabilities to enable their accessibility to the Institution. She also outlined the differences between her role in the Disability Service and Access Office. She had an impeccable work record with the Respondent as evidenced by internal references furnished and had never been subject to any disciplinary action.
However, throughout the course of the Complainant’s employment, interpersonal difficulties had arisen in her relationship with her Line Manager, Ms B. In written submissions, it was contended that she had subjected her to bullying, harassment and related misconduct with the purpose of isolating and undermining her. In particular, it was alleged that she had engaged in gossip about her, had constantly chipped away at her role and responsibilities, had subjected her work to undue scrutiny, had isolated, undermined and demeaned her, had prevented her from doing her job and from progressing in her career and education, had been dismissive of her, had ignored her, and had also disseminated private information about her disability to other staff in an inappropriate manner. When asked to provide concrete examples of such treatment in direct evidence, the Complainant initially drew a blank and was given the opportunity to come back to her evidence in this respect. Later she said that Ms B had raised her voice a few times and gave examples of her handling of routine workplace matters that had made her feel undermined. She alleged that on one occasion in 2015, Ms B had rejected her request for reduced hours out of hand. She felt that over time, Ms B had become increasingly distant, their communication had deteriorated and she had felt isolated.
The Complainant also described a decline in her health from October 2012 until her resignation, brought on by workplace stress owing to interpersonal difficulties in her workplace amongst other factors. She had suffered from a number of serious and extensive health conditions relating to her digestive system, thyroid and adrenal glands including stress, exhaustion and fatigue, requiring medical treatment and periods of sick leave. A detailed chronology of her various health conditions and periods of leave since 2012 was provided along with the reports from three occupational assessments arranged by the Respondent. They showed a pattern of the Complainant going on a period of sick leave followed by a return to work on a phased basis before commencing a further period of sick leave. The first assessment report dated 20th June 2014 related to a period of sick leave from February 2014 and noted her allegation of “ongoing workplace problems” with her Line Manager, Ms B, for the previous seven years which she had unsuccessfully tried to address directly. It also referred to the Complainant meeting with HR in 2013 to discuss her allegations, noting that she had not made a formal grievance at the time. It concluded that she was fit to meet with HR to discuss her allegations with a view to returning to work. Other correspondence from HR around the same time as furnished referred to the identification of “communication issues” between the Complainant and Ms B and a series of meetings to address these were held which she felt were ineffective. She had returned to work in June 2014, initially on light duties on a phased basis before resuming sick-leave in June 2015 due to chronic fatigue syndrome and adrenal insufficiency. The report from the second assessment dated 27th July 2015 noted a diagnosis of chronic fatigue syndrome and a discussion regarding “appropriate support measures to put in place to help facilitate a full recovery”. She returned to work on a recommended phased basis from September 2015. However, she commenced a further period of sick leave from November 2015 and the third assessment report dated 16th December 2015 noted a flare up of her chronic fatigue syndrome and right shoulder problems. It also noted that she had accepted part-time hours and should be well enough to return to work from January 2016. HR provided her with a letter outlining her terms and conditions for part-time hours for a six-month period from January 2016 before resumption of her full-time position from 1st July 2016 which was agreed and signed by both Parties. Throughout her employment, the Complainant had also repeatedly asked to be more mentally challenged in terms of her workload. In March 2016, she accepted a temporary part-time role in the Access Office under a different Manager, Ms C on a one-month trial, where she excelled and her health vastly improved.
The Complainant’s temporary part-time role in the Access Office was extended until Dr A wrote to her on 19th May 2016, confirming that following a meeting with Ms B and Ms C, she could not transfer there permanently owing to funding issues and would have to return to her former full-time role from 1st July 2016. She was distraught and could not understand this decision being made without referral for further occupational assessment, and also given that the Access Office was subject to the same funding as the Disability Service. She met with Dr A on 7th June 2016 and appealed to her not to implement the move given her health difficulties but Dr A refused to change her position and suggested a dual role between the Disability Service and Access Office. When the Complainant sought to outline her difficulties with this proposal, it was contended that Dr A had victimised her by accusing her of avoiding additional duties and giving her advice on time management. The Complainant took some time to consider the proposal and consult with her Trade Union. Following a further email exchange, she met with Dr A again on 27th July 2016 and attempted to outline her difficulties with the proposed dual role. She felt that it was effectively a hybrid of the two roles she had done previously, and as such it would be too heavy and stressful for her. Given that she was also faced with returning to work under Ms B, she felt compelled to inform Dr A of her bullying behaviour. Dr A followed up with an email to the Complainant later that day copying in a HR Department Representative, Mr D. It expressed her disappointment that the Complainant considered the proposed role as “not providing more challenging work but rather ‘simply more’” and given the concerns raised, suggested she should return to her former role in the Disability Service from 8th August 2016. Dr A further stated: “As discussed earlier, I would encourage you to consider us addressing the concerns that you raised to me with Ms B. It is very difficult for me to stand over an environment in which I know that you have difficulties in your relationship with your line manager - without addressing these directly with her. I suggest strongly that the 3 of us arrange a meeting during the first week in September to discuss tangible steps which we can take to address these. In the meantime, it would be helpful if you could list what these concerns are and possible solutions.”
By email dated 2nd August 2016 to Dr A and copied to Mr D, the Complainant sought to further explain her difficulties around the proposed dual role and returning to the Disability Service stating: “The arrangement to take on the dual role arrangement and the prospect of returning to the Disability Service, left me with no other option but to communicate to you a difficulty I had around this due to serious unsatisfactory working environment, unprofessional behaviour and poor management of personnel issues during my time there. I appreciate you seem to have learned of this at a late stage but despite outlining briefly the level it was at, the meeting concluded with the offer of three options: to go forward with a grievance, to return to the disability service and go through a mediation process or leave. A grievance procedure is always an undesirable option for all concerned. I understand the procedure is that all avenues must be exhausted in these cases but a mediation process at this late stage too was not an option. The situation is complex however during my time there, I did the very best I could to deal with issues that arose in a professional, mature and informal way and was proactive in doing so while continuing to work in the same office and this was wholly unsuccessful. This was not a “personality clash”. This experience was also not exclusive to me alone over the years, and despite the serious impact this had on me, I was willing to move on from it and the move to another department proved positive. I could not have foreseen recent events and I value the efforts you made to bring this to some conclusion and left with the 3 options available to me, I feel the third option of leaving is the right decision and it is the right time now to move on. Following this email I will formally tender my notice you...” She also emailed Dr A, Ms B and Mr D on the same date attaching a formal letter of resignation which stated: “Please accept this letter as formal resignation from my position as Administrative Assistant in the Disability… Service. In accordance with my terms and conditions my notice period is 4 weeks, making my last working day Tuesday 30th August 2016. It has been a long and considered decision to leave my position... which I have assumed for the past sixteen years, however I feel now is the right time for me to move on. I am very grateful for the learning opportunities (the Respondent) has given me in my time here. Wishing you all well for the future. Yours sincerely, etc.” In evidence, she elaborated on her reluctance to avail of a formal grievance procedure or mediation. She explained that she had been exhausted, was just about managing her health issues at the time and felt that they would not achieve a resolution.
The following day, Mr D asked the Complainant to attend a meeting with him on 4th August 2016 to discuss her resignation. She had attended and outlined the reasons for her resignation and in particular, that she felt that she had been left with no option but to resign given the way things had unfolded and the personnel involved. She had said she felt helpless and had reached rock bottom. She advised that she had no job to go to and no plans and that this decision would cost her dearly financially, but anything was better than what she was experiencing. She found Mr D to be considerate and caring but his response was simply to say that Dr A “had her moments” and he felt she had made the right decision. He did not attempt to convince her to withdraw her resignation or advise her to pursue a grievance and simply wished her luck. Likewise, Dr A did not try to persuade her not to resign. The Complainant was disappointed but felt vindicated that she had made the right decision and that her concerns would never be addressed by the Respondent. She followed up with an email to Mr D on the same date repeating her position and reasoning for her resignation, being that she had exhausted all informal means of dealing with her workplace difficulties and felt that the grievance or mediation processes were not feasible options, particularly as she knew someone who had a negative experience with the latter. Mr D also emailed the Complainant on the same date confirming her decision to resign. HR issued a formal acknowledgement of her resignation dated 5th August 2016, confirming the administrative details and her last day of work as 30th August 2016.
However, having spoken to someone else in her Trade Union who advised that there were other avenues available to address her difficulties and that she should withdraw her resignation to enable the Respondent an opportunity to resolve same, the Complainant felt that her resignation was “premature”. Accordingly, she sought to withdraw her resignation by email of 24th August 2016 to Mr D stating: “I met with (a member of HR) this morning. I advised her I wished to request a withdrawal of my resignation. It was the wrong decision at the time. As time drew close to the end of my resignation period I sought advice from my Union Representative who advised that I was misinformed of the options available to me.” In an emailed response by return, the Employee Relations Manager wrote to the Complainant stating that the Respondent was not in a position to accept her withdrawal of resignation as her position had been filled in the meantime. She was devastated given her lengthy and loyal service with the Respondent and thought that was it. It was clear to her that the Respondent had wasted no time in filling her position and had no intention of resolving matters and her history of illness was a major factor. Accordingly, the Complainant’s employment terminated on 30th August 2016 and she was furnished with a P45 shortly thereafter. The Complainant subsequently obtained legal advice and by letter dated 23rd February 2017, her Solicitors wrote to the Respondent, threatening the complaints herein as referred to the WRC on 27th February 2017. The Complainant also outlined the adverse consequences suffered owing to the termination of her employment including a decline in her health and financial difficulties. She outlined her efforts to mitigate her losses by seeking a training placement which had built up to a paid part-time counselling position from March 2017, for which she earned €21,000 per annum.
Under questioning by Solicitor for the Respondent, the Complainant accepted that she had received, read, signed and understood her current contract and company handbook containing the formal grievance procedures and policy on harassment and bullying. She accepted the obligation on both Parties to comply with policies and procedures. She was also questioned in detail about her various allegations against Ms B and the absence of anything in writing bringing any complaints to either Ms B’s or the Respondent’s attention. It was put to her that previous communication issues had been addressed when brought to HR’s attention. She contended that they had not been satisfactorily resolved. She agreed that she should have used the procedures when an informal approach failed before resigning but said she had been too fatigued and stressed. It was also put to her that she had the benefit of Trade Union advice. She refuted the Respondent’s position that it was her request for a return to full-time hours for financial reasons that had brought matters to ahead. It was further put to her that she had made no request for part-time hours or further accommodation in relation to her health issues at the material time. In response, she said she felt she had no alternative but to accept the return to full-time hours. She agreed that she had accepted the Respondent’s position that a full-time role in the Access Office at grade IV was not feasible owing to funding issues. She accepted that she had not brought her issues with Ms B to Dr A’s attention before their meeting of 27th July 2016 and it was put to her that given her imminent annual leave, she had not afforded Dr A an opportunity to address same. Dr A’s and Ms B’s positions were also put to her. She refuted Dr A’s position that she had never given her the option of leaving. She agreed that she had not disputed the Respondent’s basis for not accepting withdrawal of her resignation at the time.
The relevant statutory provisions and caselaw being relied upon were set out in detail in written submissions. Refuting the Respondent’s position, it was submitted that the Complainant suffered, at various times, from a range of disabilities falling within the meaning of Section 2(1) of the Acts, which provides for a broad interpretation. Furthermore, the Respondent was fully aware of the existence and severity of the Complainant’s disabilities as apparent from their correspondence, conversations, medical certificates, reports and her performance. It was contended that the Respondent had failed to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts. It was confirmed that this alleged failure occurred in relation to the proposed changeover from her part-time role in the Access Office to a dual or full-time role from July/August 2016. It was submitted that having provided her with reasonable accommodation in the form of a part-time role in the Access Office which accommodated her illness, the Respondent had inexplicably sought to remove this accommodation without consultation or medical advice by forcing her to take on a new dual role and/or return to her former full-time role. Contrary to that contended in written submissions, it was accepted that in fact the Complainant had never assumed the dual role. It was also submitted that the Respondent had also discriminated against her on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts. It was submitted that she had been treated less favourably than her work colleagues on foot of her disability and in particular, had been subjected to bullying in the form of divulgence and dissemination of private and sensitive information. It was also submitted that the Complainant had been discriminated against in relation to the termination of her employment but it is noted that a complaint of constructive dismissal was pursued in this respect. It was further contended that the Complainant had been victimised within the meaning of Section 74(2) of the Acts. Specifically, it was contended that the Respondent’s actions in unilaterally withdrawing her accommodation was in reaction to Complainant’s repeated requests and/or complaints regarding the failure to provide same.
It was further submitted that either applying the contract or reasonableness tests, the Complainant was constructively dismissed by the Respondent by virtue of the fact that its conduct was so unreasonable as to leave her with no option other than to resign and/or further that such conduct also amounted to a repudiatory breach of contract such that she was entitled to treat the contract as terminated and herself dismissed. In particular, reliance was placed on the Labour Court decision in An Employer -v- A Worker (Mr O)(No. 2) EED0410 and comparisons drawn between the facts in the instant case and that case where an employee was deemed to be constructively dismissed in relation to the manner she had been treated on return from sick leave. It was also noted that the employee in question was not penalised for not availing of the grievance procedures. In the instant case, it was submitted that the Complainant had not been treated in a sympathetic and supportive manner on her return to work from various periods of sick leave. Further, complaints of misconduct against her Line Manager, Ms B were not addressed, investigated or resolved by the Respondent and when she had brought these to Dr A’s attention, she had been issued with an ultimatum including the option of just leaving. Reliance was further placed on decisions with similar features in Kennedy -v- Foxfield Inns Ltd 1995 ELR 216, Richardson -v- Avant Shipping UD 145/07, Allen -v- Independent Newspapers (Ireland) Limited 2002 ELR 84 & Monaghan -v- Sherry Brothers 2003 ELR 293.
Summary of Respondent’s Case:
The Respondent’s papers and background information broadly mirror that of the Complainant’s in terms of setting out her history of employment and sick-leave with the Respondent and therefore there is no requirement for a repetition of same, save for where material factual conflicts arise.
Ms B’s Evidence and Position
The Complainant’s Line Manager, Ms B gave evidence outlining her working history and relationship with the Complainant. She was clearly very hurt by her allegations and strongly denied ever subjecting her to “…bullying, harassment and related misconduct” as contended. She said that such allegations had never been brought to her attention and the first indication of this alleged treatment was contained in the Complainant’s submissions herein. Specifically, in relation to the allegation that she was “constantly chipping away at her role and responsibilities”, the Complainant had in fact been afforded more responsibilities. Ms B also strongly refuted the allegation that she and/or the Respondent had “disseminated private information about the Complainant and her disability” as she was unaware of same, and also had a clear understanding of the importance of confidentiality, it being intrinsic to her role. She recalled historic personnel issues and HR drawing her attention to communication issues after a difficult period in 2014, and of same being addressed and everyone moving on but nothing along the lines of what was now being alleged. She confirmed that the Complainant had been accommodated with phased returns to work, part-time hours and a temporary role in the Access Office on her various returns from sick leave. She had also received a very significant amount of support from Ms B and the Respondent for her professional and academic development including time off work for study and exams and the full or partial payment of fees. An extensive list of academic and training courses which she had been facilitated with was furnished. She vehemently denied the allegations again when put to her by Counsel for the Complainant.
Dr A’s Evidence and Position
Dr A gave evidence confirming her position as a Head of Department overseeing eight units including the Disability Service and Access Office. She said she was not privy to the contents of Complainant’s occupational assessments but HR would bring any relevant issues such as her complaint of stress in 2014 to her attention. As confirmed in emails at the time, she had not regarded the Complainant’s role as being particularly stressful but had noticed that she seemed tired when combining it with studies and counselling coursework. However, she had supported her professional development and when the Complainant had sought more intellectually challenging work, had provided her with same. She had accommodated her phased returns to work after sick-leave in 2014 and 2015 and arranged the part-time hours at her request to accommodate her return from sick-leave in January 2016. She had also sourced her temporary part-time role in the Access Office as an interesting opportunity in March 2016. She confirmed that as per her email of 4th May 2016 to Ms B and Ms C, the Complainant had contacted her to inform her that she wished to return to full-time hours for financial reasons. She elaborated on the funding difficulties and explained that the budgets for the Disability Service and Access Office were ring-fenced separately based upon the sources and there was insufficient funding for a full-time role in the Access Office at the Complainant’s Grade IV level. Accordingly, she had informed the Complainant by email dated 19th May 2016 that for this reason she would need to return to her former full-time role from 1st July 2016. On foot of the Complainant’s response of 23rd May 2016 expressing disappointment but accepting of the funding issues, they had a meeting on 7th June 2016 to discuss the situation. Dr A had looked at ways to resolve the situation, she knew that the Complainant enjoyed working in the Access Office and had suggested a dual role with the Disability Service taking the ‘meaty’ bits from both roles. An outline of the proposed dual role was compiled with the assistance of Ms B and Ms C and furnished. The Complainant was to consider her position and revert. Dr A said that she had also enquired as to her well-being at this meeting and there was no issue of any illness at the time. She denied that she had sought to undermine the Complainant and contended that helpful advice had been misconstrued.
As evidenced in emails, Dr A made several attempts to arrange a follow-up meeting with the Complainant who was taking advice from her Trade Union and it eventually took place on 27th July 2016. She agreed that the Complainant had expressed concerns about the proposed new role being effectively two jobs in one, too heavy and too stressful. However, at no stage had she mentioned part-time work to accommodate her health issues. Out of nowhere, she had brought her allegation of ‘bullying’ against Ms B to her attention for the first time at that meeting but had been unable to provide her with any tangible examples. Dr A had suggested meeting with Ms B, the grievance process or mediation as ways of addressing these issues but the Complainant had indicated her reluctance to all. Dr A had intended to address the matter on her return from annual leave and in her follow-up email to the Complainant of the same date as set out above, had strongly suggested that they have a meeting with Ms B on her return to discuss steps to address her issues and asked for a list her concerns and possible solutions. She was also of the view that given the Complainant’s concerns it would not be right to ask her to take on the dual role and had suggested a return to her former role. Dr A then went on annual leave abroad leaving HR in charge of personnel matters.
Whilst on leave, Dr A had sight of the ensuing exchange of emails as outlined above giving rise to the Complainant’s resignation on 30th August 2016. In relation to the Complainant’s contention that she had offered her three options, namely, raising a grievance, mediation or leaving, she vehemently denied informing her that she had the third option of leaving and had only discussed the former two as confirmed in an email to HR at the time. It was further noted that Mr D had met with the Complainant to ensure that she wanted to proceed with her resignation before processing same. She also confirmed the circumstances surrounding the Respondent’s refusal to accept the Complainant’s withdrawal of her resignation. The Complainant’s resignation had been duly acknowledged and processed on 5th August 2016 with an effective date of 30th August 2016. She had met with a member of HR for the purposes of her exit interview on 24th August 2016 and indicated that she did not wish to proceed as it was her intention to withdraw her resignation as per her follow-up email to HR set out above, stating that she had made the wrong decision. Dr A confirmed that the position had been permanently filled and the Complainant had not taken any issue with the veracity of this explanation at the time. It was further noted that the Complainant had emailed HR on 30th August 2016, stating: “I was ill-advised. I accept your refusal and will not appeal it or be submitting a grievance.” Accordingly, her resignation was processed. Counsel for the Complainant questioned the manner in which Dr A had handled matters along with the prudence of directing the Complainant’s return to work under Ms B in the knowledge of their difficulties. Overall, Dr A felt that she had handled matters appropriately given she had been left with nothing to work with but said she would have liked more time to try and resolve matters before going on leave.
The relevant statutory provisions and caselaw being relied upon were set out in detail in written submissions on behalf of the Respondent. In relation to the complaint of a failure to provide reasonable accommodation and discrimination, it was submitted that the Complainant did not have a disability within the meaning of Section 2(1) of the Employment Equality Acts and that the various illnesses complained of did not constitute same. Furthermore, she had never informed any member of staff, either formally or informally that she suffered from a disability. Any complaints arising outside the six-month period of referral were also statute-barred. In relation to the contention that the changeover from the part-time role to the proposed dual role and/or her former role constituted a failure to provide reasonable accommodation, there was no evidence that the Complainant had ever requested any reasonable accommodation when the onus rests with her as per D -v- A Government Department DEC-E2008-011. There was no reference to any health issues requiring part-time hours or any other accommodation in her exchange of emails with Dr A at the material time. Inconsistencies with her evidence were also highlighted including the conflict between seeking a more challenging role and alleging a failure to provide reasonable accommodation. In the absence of any complaints under the Acts, no complaint of victimisation could arise. Without prejudice, it was clear from all the evidence that the Respondent had in fact provided the Complainant with various accommodations over the course of her employment including phased returns to work from sick-leave, part-time hours and support with her academic and professional development.
It was also submitted that the circumstances giving rise to the Complainant’s resignation did not satisfy the definition of constructive dismissal as provided by Section 1 of the Unfair Dismissal Acts and interpreted using the contract or reasonableness tests as set out in Western Excavating (ECC) Ltd -v- Sharp (1978) ICR 221. Reference was also made to the heavy onus of proof that rests on an employee alleging constructive dismissal as set out in numerous cases including McCormack Core -v- Dunnes Stores UD 1421/2008. Essentially an employee has to demonstrate that the employer’s breach of contract or unreasonable behaviour was sufficiently grave to justify terminating his /her employment without notice. It was further submitted that to succeed, an employee must demonstrate that he/she has utilised and at least substantially exhausted his/her employer’s grievance procedures as established in caselaw including Conway -v- Ulster Bank Ltd UD 474/1981.
In the instant case, the Complainant had never complained about workplace bullying during her employment and had raised it just prior to her resignation without affording the Respondent an opportunity to address same. She had never sought to invoke the Respondent’s grievance procedures including its policy on harassment and bullying, notwithstanding her acknowledgement to Dr A that “all avenues must be exhausted in these cases”. Neither did she avail of the offer of mediation or the proposed meeting to address her difficulties before resigning. She also had the benefit of advice from her Trade Union before her resignation. She had accepted that the Respondent had been unable to rescind her resignation as it had been filled by the late stage she had sought to withdraw it and confirmed she would not appeal or raise a grievance. Accordingly, she had failed to discharge the requisite burden of proof and this complaint should be dismissed.
Findings and Conclusions:
CA-00009933-001 – Failure to Provide Reasonable Accommodation, Discrimination on the ground of Disability & Victimisation under the Employment Equality Acts
The issue for decision is whether the Respondent failed to provide the Complainant with reasonable accommodation under Section 16 of the Employment Equality Acts, discriminated against her on ground of disability in terms of Section 6(2)(g) or victimised her contrary to Section 74(2) of the Acts. Section 85A of the Acts sets out the burden of proof which applies to all complaints of discrimination and victimisation and requires the Complainant to establish, in the first instance, facts from which such treatment may be inferred before the onus shifts to the Respondent to rebut the inference.
As set out above, the complaint of a failure to provide reasonable accommodation was confined to the circumstances surrounding the changeover from the Complainant’s part-time role in the Access Office to a dual or full-time role from in or around July/August 2016. It is therefore unnecessary to examine the previous accommodation provided save than to note that it was not disputed that she had been accommodated with phased returns to work and part-time hours after periods of sick-leave in accordance with the occupational assessment recommendations. The Complainant contends that she was under a disability and should have been consulted and/or subject to further medical assessment before a decision was made to return her to full-time hours, either in a dual role or her former role. The Respondent puts in issue whether in fact the Complainant had a disability within the meaning of the Acts and/or contends that she never sought reasonable accommodation at the material time. Section 16 of the Acts essentially imposes a requirement on an employer to provide an employee with a disability with ‘appropriate measures’, more commonly referred to as ‘reasonable accommodation’, subject to the proviso that this does not impose a disproportionate burden. Specifically, Section 16(3)(a) provides: “For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.” Therefore, for reasonable accommodation to arise, it is necessary for an employee not only to have a disability within the meaning of the Acts but also that appropriate measures are necessary in order for that employee to be fully competent and capable of undertaking their duties. Where an issue of reasonable accommodation arises, in practical terms, Section 16 of the Acts as interpreted in A Health and Fitness Club -v- A Worker EED037, requires the employer to undertake a two-stage enquiry. Firstly, the employer has to establish the employee’s capacity to undertake their duties, etc. and secondly, if it is apparent that the employee is not fully capable, the employer must consider what if any special treatment or facilities may be availed of by which the employee can become fully capable.
Having weighed up all the evidence, I prefer the Respondent’s position in this respect. I am satisfied on the balance of probabilities that firstly, the Complainant herself requested a return to full-time hours in or around May 2016, particularly as there is no other plausible explanation for Dr A’s email referencing same and secondly, that there was no issue as to the Complainant’s capacity to work full-time hours at the material time and/or request or requirement for reasonable accommodation. Specifically, in her detailed email to Dr A of 2nd August 2016 and subsequent resignation letter, she made no reference whatsoever to any health issues arising at the time, requiring part-time hours or any other accommodation. Given the level of detail regarding her objection to the proposed dual role and her interpersonal difficulties with Ms B, it is simply not credible that she would not make any reference to reasonable accommodation if it had been a live issue at the time. Furthermore, the Complainant accepts that she was not forced to take on the proposed dual role which she deemed to be too heavy and stressful and was simply being required to return to her former contracted position as per the written agreement. I am further satisfied that there was no trigger such as a further period of sick-leave or a request for part-time hours that may have imposed an onus on the Respondent to have the Complainant further assessed. As no issue of reasonable accommodation arose, it is unnecessary to consider the issue of whether she had a disability at the material time.
The latter two complaints of discrimination on the ground of disability and victimisation were raised in written submissions but were not substantially pursued at the hearing. For the sake of completeness, I am satisfied that no prima facie evidence supporting either complaint was provided. Specifically, I found the Complainant’s evidence in relation to the allegations against Ms B giving rise to discrimination such as the alleged breach of confidentiality around her health issues to be very vague and unsustainable. Additionally, there was no evidence that she had taken any of the requisite steps such as raising a complaint under the Acts for the purposes of claiming victimisation.
Decision:
Section 79 of the Employment Equality Acts requires that I make a decision in relation to this complaint. Based upon the aforesaid reasoning, I find that the Complainant has not established a prima facie case of a failure by the Respondent to provide her with reasonable accommodation, discrimination on the ground of disability or victimisation. Therefore, no onus shifts to the Respondent to rebut any such inference and accordingly, I dismiss these complaints in full.
Findings and Conclusions:
CA-00009933-002 – Constructive Dismissal under the Unfair Dismissal Acts
For a successful complaint of constructive dismissal under Section 8 of the Unfair Dismissals Acts, the Complainant must satisfy the definition in Section 1(b) which provides: “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,…” In Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the Labour Court elucidated the ‘contract’ and ‘reasonableness’ tests used either individually or together to assess whether an employee has been constructively dismissed. The ‘contract’ test arises: “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 “…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.” According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61, the employee’s response to the employer’s conduct must be assessed objectively as follows: “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.” Unlike complaints of unfair dismissal, the definition also firmly places the onus/burden of proof on the employee to show that the resignation was justified. As outlined above, the case law overwhelmingly confirms that save for exceptional situations, an employee must have firstly exhausted all alternative avenues before resigning and each case will turn on its own particular facts.
Whilst many of the facts are not in issue, the Parties clearly have diametrically opposing views as to whether the Complainant’s resignation was justified in the circumstances and/or whether or not it was unreasonable for the Respondent not to accept her withdrawal of resignation. I must therefore consider the factual matrix presented in light of the aforesaid law to objectively determine whether or not the Complainant is entitled to succeed in her complaint of constructive dismissal as follows:
Firstly, applying the contract test, in circumstances where the Complainant was only being required to return to her contracted full-time role (having rejected the proposed dual role) as previously agreed by the Parties in writing, I find that there was a no breach of contract in this respect, or indeed any other conduct by the Respondent constituting a fundamental breach of contract.
Secondly, applying the reasonableness test, I cannot objectively construe the Respondent’s conduct towards the Complainant as being so unreasonable that she could not fairly be expected to put up with it any longer in circumstances where: (i) I am satisfied that the Respondent had continuously accommodated her in relation to her sick-leave and professional and academic development, (ii) after raising her difficulties with Ms B for the first time with Dr A on 27th July 2016 just before her leave, she did not afford the Respondent a reasonable opportunity to address same before giving notice of her resignation on 2nd August 2016 (5 days later inclusive of a weekend), (iii) she was not prepared to meet, outline her concerns and possible solutions as requested, raise a formal grievance or avail of mediation and (iv) in the circumstances of the instant case I am of the view that she should have exhausted all alternative means of resolving her difficulties before giving notice of her resignation, particularly as it was not in dispute that she was aware of all the requisite procedures, acknowledged her obligation to exhaust same and had the benefit of Trade Union advice. I do not accept that she was offered an ultimatum of leaving as characterised or consider her reasons for rejecting the grievance procedures or mediation to be such that she was alleviated from same.
I have also considered whether the Respondent’s refusal to accept the Complainant’s withdrawal of resignation was so unreasonable as to meet either test required for constructive dismissal. I am guided by the decision of the EAT in Keane -v- Western Health Board UD 940/1988 which assessed the reasonableness of the employer’s actions in refusing to accept a withdrawal of resignation. In the instant case, I find the Respondent’s refusal to allow the Complainant to withdraw her resignation not to be so unreasonable as to constitute constructive dismissal in circumstances where (i) she made a fully-informed decision having being aware of the alternative avenues available and there was no evidence of the Trade Union subsequently advising her of new options, (ii) Mr D had met with her to confirm her decision to resign before processing same, (iii) she sought to withdraw her resignation at a late stage, (iv) it was not disputed that the Respondent had bone fide filled her position during her notice period and (v) she opted not to appeal that decision or raise a grievance.
Decision:
Section 8 of the Unfair Dismissals Acts requires that I make a decision in relation to a complaint of constructive dismissal in accordance with the relevant provisions. Based upon the aforesaid reasoning, I find this complaint not to be well-founded and accordingly, dismiss same.