Complainant

Respondent

Anonymised Parties

Pre-school assistant

Childcare Centre

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00020702-001

23/07/2018

The Complainant applied for a job with the Respondent as a pre-school assistant and was successful.   She started work on the 5th of March 2018.

She was hospitalised due to illness and she was released on the 3rd of April 2018.   She had breathing and respiratory problems. She never returned to work.

Her case was that her employment was terminated by the employer on the 12th of April 2018.   She received several texts from the employer enquiring as to her return date and she found these oppressive.  

She suddenly received her P45 in the post. She had already submitted a sick certificate and was in the process of finishing a further one.

The P45 was dated 12th of April 2018.

They were aware that she was hospitalised.

They sent several texts to the Employee, but it was not to the extent complained of by her.

There was no sick pay scheme in place and the employee was not in receipt of any wages. Because the employee was paying her LPT (Local Property Tax) weekly through payroll, this caused difficulty for the employer.   They received an email from the employee stating that she had made enquiries with Revenue and she texted

“Revenue said to take me right off your system until I return to work. They don’t even know what they are doing. So, take me off your wage system totally until the doctor says I can go back. That’s the only thing Revenue says to do.”

The employer responded

“Ok we’ll do that and post out copy of P45. Please send in new sick certs this week. But I will have to have a definite date or decision re return to work over the next two weeks. I can’t get relief staff and I have to make a decision about keeping a position opened for you. Best of luck with your health.”

On the 17th of April 2018 the employee sent a further text to the employer

“I won’t be coming back to work I have been found to have other medical problems so I’m not fit enough to work. Thanks for giving me the chance there. Kind regards.”

I have viewed copies of the texts between the parties and an email from the employee dated the 13th of June 2018 when she applied to the employer looking for a job. In it she said that she normally didn’t get ill, but was “well now. If there is anything going, would love a second chance”.

The employer responded that they would note that she was looking for work again if anything suitable came up.

The employer’s case is that they issued the P45 at the employee’s request to deal with the LPT scenario. This is backed up by the text communications between the parties.   They didn’t anticipate that she would resign, but she did resign by her text of the 17th of April 2018.   When they received this text, it read that the employee had resigned. The email of the 13th of June 2018 some eight weeks later gave no indication that the employee felt she was unfairly dismissed.

This dispute referral was lodged with the WRC on the 23rd of July 2018.

I have viewed the text of the 17th of April 2018 wherein the employee stated she wouldn’t be coming back to work, and she thanked the employer for giving her a chance.   This cannot be described as anything other than a resignation. I don’t accept that it was a case of constructive dismissal. I have read the texts between the parties and they were not of such as to amount to constructive dismissal within the meaning of Section 1 (b) of the Unfair Dismissals Act 1977.

I am unable to accept the Employees case and I make no recommendation.