Complainant

Respondent

Anonymised Parties

A cleaner

A school

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-00026761-001

04/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00026761-002

04/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00026761-003

04/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00026761-004

04/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00026761-005

04/03/2019

The Complainant commenced employment with the Respondent as a cleaner on 12/12/2008, her hourly rate of pay was €10.98 per hour. The Respondent is the Board of Management of a primary school.

The employment ended on 11/02/2019.

This complaint was received by the Workplace Relations Commission on 4th March 2019.

Background.

The Complainant worked for the Respondent as a cleaner and worked 20 hours per week and earned €219.60.

The Complainant took maternity leave and arising from the pregnancy suffered mental health issues causing her to be absent for approximately 20 months. She regularly submitted medical certificates and attended at an occupational health medical that confirmed that she remains unfit for work.

On 11th February 2019 the Complainant felt that she was fit enough to return to work and was aware that she would have to provide notice to her employer of her intention to return to work, she visited the school for this purpose.

The school principle informed the Complainant that she was no longer worked for the school and proceeded to inform the Complainant that a cleaning company now cleaned the school. The Complainant was informed who the cleaning company were and told “Dave, he will be your new employer. I’m sure he will be happy to have you”.

The following day the Complainant contacted Dave and was asked what hours she was willing to work. He pointed out that his company’s working hours differed from those that she had previously worked. He ended the call by informing the Complainant that he would speak to HR.

A further meeting was held between the Complainant and the school principle on 14th February 2019. A written note of the school’s position was sent to the Complainant on 19th February, one week after the Complainant had been told of the termination of her employment. This letter was received by the Complainant on 21st February 2019.

Termination of Employment.

The termination of the Complainant’s employment took place on 11th February when she was told that she no longer worked for the school. (Redmond 3rd edition) “Termination is taken to have occurred when the employee is sent away”.” Once an employer has given notice to terminate it cannot revoke the notice unless the employee consents”. There was no such agreement here.

In the circumstances a termination took place on 11th February 2019. The Complainant was told that she no longer worked for the Respondent. The situation left no room for doubt. In Connolly v PRReilly [UD 768/1989] the EAT held that the phrase “we must now ask you to fid alternative employment” could only be interpreted as a dismissal even though the word “dismissal” was not used.

In Duggan v. A&T Drain Services the instruction to hand back the keys to the van was deemed to be a termination of employment.

The leading English case was Stapp v. The Shaftesbury Society [1982] the Court of Appeal, where the words used were “I must ask you to relinquish your duties with immediate effect from today 7th February 1981”.

In Devaney v. DNT Distribution Company Limited (UD 412/1993 cited Cox and Corbett page 718) stated that it was necessary to consider “how a reasonable employee in all the circumstances would have understood the employer’s intention”.

In the circumstances of this case the Complainant was even given the name of her supposed new alternative employer.

The Respondent’s Submissions and Constructive Dismissal.

The Respondent has produced lengthy submissions on the issue of constructive dismissal. This was not a constructive dismissal. This was a termination by the Respondent.

The Complainant was told:

1.       She no longer worked for the school;

2.       The cleaning company were her new employer;

3.       That she may not work in the school building anymore;

4.       The cleaning company would be happy to have her.

The Respondent’s submissions seek to characterise a person who has been told that she doesn’t work for her old employer anymore and that a new employer will be happy to have and that it isn’t clear where she will be working as a resignation.

Minimum Notice.

The Complainant is entitled to six weeks pay in lieu of her notice.

Conclusion.

The Respondent terminated the employment on 11th February 2019.

The Complainant was dismissed. No valid reason for the dismissal was given. It is respectfully submitted that this was an unfair dismissal and she is entitled to compensation.

The Complainant commenced employment with the Respondent on 3rd December 2008.   The Complainant was absent due to illness from 21st June 2017. In February 2018 the Complainant requested that the Respondent “let her go” as she could not afford child care while she was working and was not allowed to resign.   The Respondent did not agree to her request.

In February 2018 the Complainant was sent for occupational health assessment by the Respondent.   In addition, the school had decided to temporarily outsource its cleaning requirements to a contract cleaning company. In its letter dated 13th February 2018 to the Complainant, the Respondent referred to the fact that her position had been temporarily outsourced to another Company. It reassured her that this was a temporary measure being introduced to maintain the cleaning of the school while she was absent due to illness.

On 11th February 2019 the Complainant came to the school to ask when she could resume work.   During a conversation with the Principal, she stated that the other company had taken over the cleaning of the school. She assured the Complainant that she would talk to the contract cleaning company however she mistakenly said that the Board was not the Complainant’s employer anymore. The Principal admits that this was simply confusion on her part. Another parent was waiting for a meeting with her, so she promised to look into it and contact the Complainant again as soon as possible. The Complainant agreed to that.

On 12th February 2019 the Principal called the cleaning company to confirm the employment status of the Complainant. On that date the Complainant also phoned the cleaning company to ask if they were her employers. The Complainant was told that they were not. Following that phone call the Complainant phoned the Principal and stated that she was upset and distressed. She asked how her job could be gone.   The Principal explained that it was simply an error on her part and that her job was still there for her. The Principal invited the Complainant to meet with her and promised to sort out the problem and get back to her as soon as possible.

On 13th February 2019 the Principal met the Complainant informally when she collected her child from the school. The Principal arranged to meet the Complainant the following day. The Principal reassured the Complainant that there was no need to worry as everything would work out. The Principal apologised for not being able to meet that day because of a staff meeting.

On 14th February 2019 the Complainant met with the Principal, the Principal again explained that she had made a mistake. She told the Complainant that she would be welcome back on 18th March 2019, her hours would be the same and she would need to complete an occupational health assessment. The Principal assured the Complainant that her employment in the school had been very positive and that she was a valued member of staff. The Complainant repeated her concerns and stated that she was unsure if she could return. She stated that she had contacted the WRC. The stated that the WRC had told her to ask three questions but that she could not remember them now. The Principal offered to meet with the Complainant again and answer them.   The Principal stated again that the Complainant was welcome back and that she hoped she would return to work.   The Respondent sent a letter dated 14th February 2019 to the Complainant which stated that she was welcome at the school, her job had not been terminated and her terms and conditions had not changed.

On 27th February 2019 a letter was received from the Complainant which stated that due to the initial conversation with the Principal on 11th February 2019 she could not return to work at the school.

On 6th March 2019 a letter inviting the Complainant to reconsider her decision was sent. The letter stated that the Respondent wanted to give the Complainant the opportunity to reconsider her decision. It confirmed that she was a valued member of staff and apologised for any confusion that has existed in relation to this matter.

On 26th March 2019 the Respondent received a letter from the Complainant asking that all future correspondence be sent to her solicitor.

On 28th March 2019 the Respondent received a letter from the WRC with the Complainant’s complaint.

CONSTRUCTIVE DISMISSAL

The Respondent submits as follows

Constructive dismissal is defined in Section 2 of the Unfair Dismissals Act as “the termination by the employee of his contract of employment with the employer, where the 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 terminated the contract of employment without giving prior notice of the termination to the employer”.

It is submitted that this provision requires the court to carry out an objective assessment of the reasonableness of the behaviour of the employer and the response of the employee to the behaviour complained of. Support of such an objective approach is to be found in the judgment of the Supreme Court in Berber v Dunne Stores 2009 where Finnegan J held as follows:

“That being the history of interaction between the Appellant and the Respondent in looking at each event individually and at the events cumulatively, I am satisfied that the conduct of the Appellant judged objectively was not such as to amount to a repudiation of the contract of employment.   The conduct judged objectively did not advance an intention not to be bound by the contract of employment”.

In Western Excavating ECC Limited v Sharp 1978, Lord Denning described the reasonable test as posing the question of whether the employer “conducts himself or his 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”.

This passage is cited with approval by Redmond Dismissal Law in Ireland 2nd Edition at paragraph 19.07.

Accordingly, it is submitted that the onus of proof resting on the Complainant in a case such as this is stringent one. It is necessary for her to demonstrate that her employer has behaved in a fashion which is objectively so unreasonable that no employee could reasonably be expected to tolerate the conduct complained of any longer.

In addition, it is well established that it is incumbent upon the employee to utilise any available grievance process to a conclusion before restoring to resignation.   Authority for this proportion is to be found in Conway v Ulster Bank UD 1981.   This principle has been affirmed by the determination of the Labour Court in Caci Non-Life Limited v Daniela Paone where the Labour Court concluded as follows:

“It is well settled law that a Complainant who is advancing a claim of constructive unfair dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied on any particular case has to be considered from an objective perspective. Furthermore, it is incumbent on an employee to avail himself or herself of the employer’s grievance procedure before resigning so as to put the employer on notice of the employee’s issues and to permit the employer an opportunity to address them”.

In this case, it is submitted that the Complainant resigned before any grievance procedure had been utilised.

Notwithstanding this and without appropriate prior warning the Complainant prematurely tendered her resignation.

It is respectfully submitted that the course of action taken by the Complainant was neither reasonable nor appropriate in the circumstances.

It is respectfully submitted that the Complainant has failed to adhere to the necessary pre-conditions to resignation as identified in the authorities and for this reason, her claim cannot succeed.

SECTION 11 OF THE MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACT 1973

Section 4 (1) of the Minimum Notice and Terms of Employment Act 1973 provides that an employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of that section. It is respectfully submitted that the Complainant’s contract of employment was not terminated and for this reason, her claim cannot succeed.

CONCLUSION

Strictly without prejudice to the foregoing, it is submitted that the claims advanced by the Complainant are misconceived.

Further and without prejudice to the foregoing, it is submitted that the reasons for the Complainant’s resignation are not objectively reasonable and do not relate to any fundamental breach of contract on the part of her employer.

The Respondent reserves the right to raise further and better particulars of the defence at the hearing of the action.

The Complainant is not entitled to the relief claimed or any relief.

At the hearing of this complaint the complaint referenced CA – 00026761 – 002 submitted under section 39 of the Redundancy Payments Act, 1967 was withdrawn.

I then drew attention to the complaint referenced CA – 00026761 – 005 submitted under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 and informed the representative for the Complainant that if he wished to pursue this complaint he had the wrong respondent present. This complaint was also withdrawn.

The question to be answered is, was the Complainant dismissed from her employment or did she resign from her employment?

On 11th February 2019 when the Complainant called to speak to the school principle she did not have an appointment and to some degree caught the school principle unprepared to discuss her return to work after a 20-month absence. The school principle informed the Complainant that a cleaning company had taken over the cleaning of the school and assured the Complainant that she would talk to the cleaning company. However, she mistakenly said that the Board was not the Complainant’s employer anymore.   The Principal admits that this was simply confusion on her part. Another parent was waiting for a meeting with her, so she promised to look into it and contact the Complainant again as soon as possible. The Complainant agreed to that.

The following day the Principal called the cleaning company to confirm the employment status of the Complainant. On that date the Complainant also phoned the cleaning company to ask if they were her employers. The Complainant was told that they were not. Following that phone call the Complainant phoned the Principal and stated that she was upset and distressed. She asked how her job could be gone.   The Principal explained that it was simply an error on her part and that her job was still there for her. The Principal invited the Complainant to meet with her and promised to sort out the problem and get back to her as soon as possible.

On 13th February 2019 the Principal met the Complainant informally when she collected her child from the school. The Principal arranged to meet the Complainant the following day. The Principal reassured the Complainant that there was no need to worry as everything would work out. The Principal apologised for not being able to meet that day because of a staff meeting.

On 14th February 2019 the Complainant met with the Principal, the Principal again explained that she had made a mistake. She told the Complainant that she would be welcome back on 18th March 2019, her hours would be the same and she would need to complete an occupational health assessment. The Principal assured the Complainant that her employment in the school had been very positive and that she was a valued member of staff. The Complainant repeated her concerns and stated that she was unsure if she could return. The Principal stated again that the Complainant was welcome back and that she hoped she would return to work. The Respondent sent a letter dated 14th February 2019 to the Complainant which stated that she was welcome at the school, her job had not been terminated and her terms and conditions had not changed. It transpires that this letter was re-dated to 19th February and was received by the Complainant on 21st February.

On 27th February 2019 a letter was received from the Complainant which stated that due to the initial conversation with the Principal on 11th February 2019 she could not return to work at the school.

In consideration of the facts of this complaint I note that after making an initial mistake the Principle done everything possible to rectify same and assure the Complainant that her job was there for her. The fact that the cleaning of the school had been outsourced to a cleaning company on a temporary basis came as no shock to the Complainant. In a letter dated 13th February 2018, one year before the Complainant was fit enough to return to work the Principle in a letter to the Complainant said:

“In light of ongoing absence, and without currently knowing when you will be able to return to work, we naturally need assistance in the cleaning of the school. Your position has been temporarily outsourced to XXXX Cleaning Company. I would like to reassure you this is a temporary measure being introduced just to maintain the cleaning of the school”.

On 27th February 2019 the Respondent received a letter from the Complainant informing the school that she could not return to work in the school because of the way she had been treated. On the 6th March a letter inviting the Complainant to reconsider her decision was sent by the Respondent. This letter confirmed that she was a valued member of staff and apologised for any confusion that had existed in relation to the matter.

On 26th March 2019 the Respondent received a letter from the Complainant asking that all future correspondence be sent to her solicitor.

There is no question of Constructive Dismissal, this has not been claimed by the Complainant.

The Complainant informed the hearing that she has been claiming and in receipt of illness benefit since the end of her maternity leave, almost two years ago.

As the Adjudication Officer my job is to decide whether the actions of the Respondent were reasonable.

After an initial mistake, easily made, the Respondent in the form of the Principle has done everything possible to re-assure the Complainant that her job was still there for her and that she was a valued member of staff. These are the acts of a reasonable employer.

Given all the facts of the case I cannot say that the complaint is well founded and as such the Complainant was not unfairly dismissed from her employment, she could have gone back to a job where she was liked and viewed as a valued member of staff.

The complaint as submitted under section 8 of the Unfair Dismissals Act, 1977 fails.

CA – 00026761 – 003 / 004.

The complaint submitted under section 11 of the Minimum Notice and Terms of Employment Act, 1973 must also fail, if there was no unfair dismissal there was no breach of this legislation.

The complaint as presented is not well founded and therefore fails.

Unfair Dismissals Act.