FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : WATERFORD SENIOR CARE LIMITED HOME INSTEAD SENIOR CARE (REPRESENTED BY ADARE HUMAN RESOURCE MANAGEMENT) - AND - LIAM TABB (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Foley Employer Member: Mr Marie Worker Member: Mr Hall |
1. Appeal Of Adjudication Officer Decision No(S). ADJ-00009322 ADJ-00009305.
BACKGROUND:
2. The Complainant appealed the Adjudication Officer's Decisions to the Labour Court in accordance with Section 8A of the Unfair Dismissals Acts 1977 to 2015. A Labour Court hearing took place on the 6th of June 2019. The following is the Determination of the Court:
DETERMINATION:
This matter comes before the Court as an appeal by Liam Tabb (the Appellant) against a decision of an Adjudication Officer in his complaint made under the Unfair Dismissals Act, 1977 against his former employer Waterford Senior Care Limited (the Respondent) that he had been unfairly dismissed.
The Appellant was employed by the Respondent as a Care Administrator in December 2010 until the termination of his employment in April 2017.
The Adjudication Officer decided that the Appellant had not been unfairly dismissed.
Background
The Respondent rostered the Appellant to work on December 27th2016. That roster was published by the Respondent to staff including the Appellant in October 2016.
The Appellant, on 22ndDecember 2016, advised his manager that he would be unable to work on the 27thDecember. The manager advised the Appellant that he was required to attend work on the 27thDecember. The Appellant did not attend work on December 27th. The Respondent, by letter dated 28thDecember 2016, invited the Appellant to attend a disciplinary meeting and advised the Appellant that he was suspended on full pay to further investigate allegations that the Appellant had failed to carry out his role and failed to carry out a reasonable instruction from management.
A disciplinary hearing was held on 5thJanuary 2017. At that meeting the Appellant supplied the Respondent with a medical certificate certifying the Appellant as unfit for work with effect from 3rdJanuary 2017. The Appellant was placed on unpaid sick leave with effect from 3rdJanuary 2017.
The Respondent advised the Appellant by way of a letter dated 10thJanuary 2017, of a decision to apply a disciplinary sanction of a first written warning to him as a result of the disciplinary procedure initiated on 28thDecember 2016.
The Appellant appealed that decision and an appeal hearing was held on February 2nd2017. The Appellant, at an outcome meeting held on 3rdMarch 2017, was advised that his appeal was unsuccessful. That outcome was confirmed in a letter from the Respondent to the Appellant dated 14thMarch 2017.
The Appellant continued on sick leave thereafter. On 27thMarch 2017 the Appellant attended a medical assessment at the request of the Respondent. That assessment resulted in a medical report certifying the Appellant medically fit to return to work.
The Appellant remained on sick leave and tendered his resignation from the employment by letter received by the Respondent on 28thApril 2017.
The fact of dismissal is in dispute.
Summary position of the Appellant.
The Appellant submitted that, coming up to Christmas 2016, he assumed that, with Christmas Day falling on the Sunday and Stephen’s Day falling on the Monday he would not be working on 27thDecember.
The Appellant realised on 22ndDecember 2016 that he was rostered to work on the 27th. He spoke to the Manager and the Director of Care and advised that he could not work on the 27thbecause he had made a family commitment. The Director of Care advised the Appellant that he should attend work on the 27thDecember or ‘suffer the consequences’. He suggested that he would work with a lap-top / phone from home on the day or that one of the part-time workers could work that day.
He submitted that the Respondent did not explore any of these possibilities but invoked the disciplinary procedure when he did not work on the 27thDecember.
The Appellant texted the Respondent on 26thDecember and advised that he would not attend work on the 27thDecember.
The Appellant attended work on the 28thDecember at his normal start time and after some hours his manager and the Director of Care asked him to attend at the Board Room. He was advised by the Director that he was being suspended in light of his not attending for work on 27thDecember. He was given a letter which advised him of his suspension in writing in order ‘to further investigate allegations that you failed to carry out your role and failed to carry out a reasonable instruction from management’.
The letter requested the Appellant to attend a disciplinary hearing on 30thDecember ‘regarding potential gross misconduct in your role’. That meeting was moved at the Appellant’s request to 4thJanuary 2017 and then to 5thJanuary also at the request of the Appellant. At that hearing the Appellant contested the procedures being followed by the Respondent and in particular the fact that he had been suspended from his employment.
At that disciplinary hearing the Appellant supplied the Respondent with a medical certificate certifying that he had been unfit for work from 3rdJanuary 2019.
On 11thJanuary the Appellant received a letter, dated 10thJanuary 2017, informing him that he was being issued with a first written warning.
The Appellant appealed that penalty on 13thJanuary. The appeal was heard by a representative of the Respondent on 2ndFebruary 2017. The Respondent, at a meeting on 3rdMarch, advised the Appellant that the appeal had been unsuccessful.
On 7thMarch the Respondent requested the Appellant to attend the Respondent’s medical advisers and he did so on 27thMarch. The medical advisors deemed him fit to return to work.
The Appellant was invited on 28thMarch to attend a meeting with the Respondent. The Appellant, having discussed the matter with his doctor, was not in a position to attend.
The Appellant submitted another medical certificate on 19thApril.
He submitted a letter of resignation on 28thApril 2017.
The Appellant submitted that the Respondent had failed to apply the disciplinary procedure in a fair manner and that this failure went to the root of the Appellant’s contract with the Respondent. The Respondent had failed to properly advise the appellant in advance of the nature of the meeting on 28thDecember and failed to advise him of his right to representation at that meeting. The suspension with pay was a gross injustice and was unnecessary. The Appellant drew the Court’s attention to the judgement in Bank of Ireland v James Reilly (2015) IEHC 241 where Noonan J held that
‘suspension is an extremely serious measure which can cause irreparable damage to the reputation and standing of an employee’.
Noonan j went on to say
‘it ought to be seen as a measure to facilitate the proper conduct of the investigation and any consequent disciplinary process’
The Appellant considered that his suspension fuelled negative speculation about him causing him embarrassment, feeling humiliated and undermined.
The issue of a warning was unwarranted by the Appellant’s absence on 27thDecember. In addition, the Appellant was removed from paid suspension on 3rdJanuary when he had provided a medical certificate stating he was unfit for work and that removal was unreasonable and discriminatory.
The Appellant submitted that it was reasonable of him to resign his employment. The Respondent acted unreasonably in not allowing him to work from home on his laptop / phone on 27thDecember, in asking him to travel to Dublin to attend an appeal hearing, in not taking into account the exemplary work record of the Appellant and in accepting the Appellant’s resignation without exploring the reasons or attempting to have him remain as an employee.
Summary position of the Respondent
The Respondent submitted that the events before the Court are founded upon the events which occurred on 27thDecember 2016. On that date the Appellant refused to follow a legitimate instruction of the Respondent by refusing to attend for work on his pre-rostered duty. That refusal resulted in confusion and uncertainty for the operations of the Respondent’s business on that day and completely undermined management’s responsibility to capably manage its business and operations taking particular account of the critical nature of its service to clients and also taking account of the time of year.
That event led to the conduct of disciplinary proceedings which ultimately resulted in the issuance of a first written warning to the Appellant. In the course of the disciplinary procedure the Appellant was suspended with full pay with effect from 28thDecember 2016. The Appellant submitted medical certification on 5thJanuary 2017 which certified him as unfit for work. The result of that certification was that the Appellant, as would happen with all persons so certified, was placed on sick leave from the 3rdJanuary which was the effective date for the certificate supplied. The Respondent submitted that its policy, which is universally applied, makes no provision for sick pay while on sick leave. At the point of entering upon sick leave the Appellant ceased to be on suspension on full pay.
The Respondent submitted that it operated its procedures fairly and in full compliance with its own Disciplinary procedure which it submitted is in accordance with S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000. The decision to apply a sanction to the Appellant of a first written warning was conveyed to the Appellant in the presence of his Trade Union representative on 10thJanuary 2017. That decision was appealed by the Appellant and ultimately an appeal decision to uphold the sanction of a first written warning was conveyed to the Appellant on 2ndMarch 2017.
The Appellant was declared fit for work by the Respondent’s medical adviser on 27thMarch 2017 and the Respondent made several subsequent attempts to contact and engage with the Appellant but these were unsuccessful due to the unresponsiveness of the Appellant. The Appellant then submitted further medical certificates stating that he continued medically unfit for work. Ultimately, the Appellant submitted a letter of resignation on 28thApril 2017.
The Respondent submitted that no action of it could be construed as unreasonable to the degree that the Appellant had no alternative but to terminate his employment. Neither had any action of the Respondent been of such a nature as to go to the root of the contract of employment and to undermine that contract. The Respondent submitted that the Appellant had never submitted a grievance as regards any aspect of the Respondent’s behaviour until the within complaint was made to the Workplace Relations Commission in July 2017.
The Law
Section 1 of the Act defines constructive dismissal as follows:-
- 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
- Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Dismissal as a fact is in dispute and therefore it is for the Appellant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act and that such dismissal was unfair within the meaning of the Act.
Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct was of such a nature as to entitle the employee to terminate his employment; in essence that the conduct of the employer amounted to a repudiatory breach of the contract of employment such that the employee would be entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”.
In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test” an employer must be“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”.
Secondly, the Act at Section 1 addresses the issue of reasonableness. It is settled law that the Court, in considering a complaint of constructive dismissal, must consider this issue either as an alternative to the contract test or in combination with that test. This test asks 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 and, if so, he is justified in leaving.
In the within matter the Appellant has submitted that his suspension was wholly unfair and inappropriate and that this act of the employer undermined the contract of employment. In addition the Appellant has submitted that the employer’s conduct of procedures and behaviour was unreasonable throughout to the degree that he was left with no alternative but to terminate his employment.
Discussion
The matter before the Court arises from events occurring on 27thDecember 2016. A disciplinary procedure was initiated by the employer on 28thDecember 2016 and the initial phase of that procedure came to an end on 11thJanuary 2017 when the Appellant was issued with a first written warning. In the course of that procedure the Appellant was suspended on full pay from 28thDecember 2016 until 3rdJanuary 2017 at which point he entered upon a period of sick leave consequent on his submission of a medical certificate certifying him as unfit for work. The Court notes that the Appellant disputes the action of the employer in placing him on sick leave with effect from 3rdJanuary and contends that he should have remained on paid suspension until 11thJanuary 2017 when a disciplinary sanction was applied to him.
The Court notes that the Appellant at no time raised a grievance as regards this matter notwithstanding the existence within the employment of a detailed grievance procedure.
The Court has given consideration to the balance of events which occurred in the period leading to the termination of this employment.
The matter of suspension was addressed by the High Court in Bank of Ireland v Reilly [2015] IEHC 241 in which Noonan J stated that: -
- “The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career……Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer”
There is no dispute that the employee handbook sets out a provision allowing paid suspension and specifies that such suspension is not a disciplinary sanction. However, it is also clear from the submissions of the parties that the proffered reason for suspension on 28thDecember 2018 was to allow further investigation of the matter of the Appellant’s absence. No evidence has been put before the Court that any such investigation was undertaken. The Court concludes, having regard to all the circumstances and applying the decision of Noonan J, that the suspension of the Appellant on 27thDecember was not justified.
The Court has considered the sequence of events which succeeded the initiation of paid suspension of the Appellant. That suspension concluded, albeit in a manner which is the cause of disputation between the parties, within days of its initiation and a disciplinary sanction at the second lowest available level was imposed on the Appellant on 10thJanuary. That sanction was appealed by the Appellant and that appeal was unsuccessful.
At all times following the 3rdJanuary 2017 and through the conclusion of any disciplinary procedure the Appellant was unfit for work for certified medical reasons. The Appellant was medically certified as fit for work on 27thMarch 2017. He was subsequently again certified unfit for work and terminated his employment by way of resignation on 28thApril 2017.
The Court considers that the suspension of the Appellant was unjustified and constituted an extremely serious measure. The Court however finds that the disciplinary process which was initiated on 28thDecember concurrent with a paid suspension resulted in the application of a disciplinary sanction at a low level.
The Court however finds that the Respondent undertook no action after the 11thJanuary which could be regarded as unreasonable to the degree that the Appellant would be justified in terminating his employment as a result. Similarly, the Court, having regard to the nature of the disciplinary procedure at issue and the short length of the suspension cannot conclude that the conduct of the disciplinary procedures was inadequate or unfair to the degree that the conduct of those procedures undermined the root of the employment contract.
The net issue for consideration is whether or not the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1 of the Acts. In reaching its conclusion on that question the Court has carefully evaluated the written submissions made by the parties in the course of the appeal and it has taken full account of the oral submissions made by the parties.
The Court notes that the Appellant never raised any grievance with the Respondent as regards any of the events which are submitted to have created the situation where he was left with no alternative but to resign from his employment.
In constructive dismissal cases the Court must examine the conduct of both parties. 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 whatever grievance he or she may have. The Complainant must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (see Conway v Ulster Bank Limited UD 474/1981).
In Beatty v Bayside Supermarkets UD 142/1987, in referring to the need to utilise grievance procedures, the Employment Appeals Tribunal held:-
- “The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.
On the other hand, in Allen v Independent Newspapers (Ireland) Limited [2002] ELR 84, the Employment Appeals Tribunal held that it was reasonable on the facts of that case for the complainant not to have faith in the employer’s ability to properly or effectively address her grievances.
In the instant case, the Court is not satisfied that there were factors present which might excuse the Complainant’s failure to formally complain to the Respondent before resigning. The Respondent had a grievance procedure in place and it is common case that the Complainant was aware of its existence.
He has submitted that he had lost faith in the Respondent to the degree that he considered that raising a grievance would be futile. The Court cannot accept that the behaviour of the employer which resulted in the imposition of a relatively minor disciplinary sanction could reasonably be found to have created a justification for this assessment.
On the facts of this case the Court cannot see how it could realistically be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle him to terminate his employment without having sought to ventilate and resolve whatever grievance(s) that he had through the internal grievance procedure. The fact that he failed to do so negates any possible basis upon which his subsequent decision to resign could be regarded as a reasonable response to the situation then pertaining.
Determination
In all the circumstances, the Court cannot find that the Respondent’s conduct was unreasonable to the degree that the Appellant could be justified as a result in terminating his employment by way of constructive dismissal nor was the Respondent’s conduct such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of the Appellant’s contract of employment. Accordingly, the Court must hold that the Appellant’s employment did not come to an end by reason of dismissal.
The Court determines that the within complaint is not well-founded. The appeal fails and the Decision of the Adjudication Officer is affirmed.
Signed on behalf of the Labour Court
Kevin Foley
TH______________________
July 2019Chairman
NOTE
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.