Complainant

Respondent

Anonymised Parties

Manager

Drugs Rehabilitation Service Provider

Representatives

MichelleCronin                            Michelle Cronin & Co Solicitors

 Tommy Cummins

Adare HR Management

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-00023121-001

09/11/2018

The Complainant has brought a claim for Unfair Dismissal arising out of a decision made by her Employer which allowed the Employer to interpret a set of circumstances to have given rise to a resignation on the part of the Complainant. The Complainant’s complaint issued by way of Workplace Relations Complaint Form dated the 6^th of November 2018.

The Complainant utterly rejects that she ever intended to resign her position and challenges her Employer’s entitlement to have extracted this intention from a set of circumstances of which the Complainant says she knew nothing. The Complainant was represented at the hearing and I was provided with a comprehensive written submission and I heard the Complainant’s evidence which was challenged by the other side.

The Respondent maintained that a long and protracted correspondence (in the context of long-term sick leave) culminated with a fair and reasonable understanding that the Complainant had no intention of returning to the workplace.

I have carefully considered the evidence adduced over the course of two days of hearing. A considerable amount of time went into outlining and explaining the pre-history to the termination in this case. I accept that there was a long and protracted history leading up to the final events. In particular, I have to bear in mind that the Complainant has worked with this not for profit organisation for upwards of 24 years.

The Complainant moved at her own request to a position of Management of a residential unit in March 2014. In her evidence the Complainant told me that with the right support she would have been well able to handle this role but that a confluence of a number of negative factors (including suicides and overdoses in this vulnerable community), coupled with a lack of support made the role particularly difficult.

Quite apart from the on-site difficulties it is clear that the Complainant and her line Manager (who was the CEO of the company) simply did not form a working relationship. The CEO explained that they were all under an intense scrutiny because of the on-site deaths and that there was a radical and urgent need to overhaul systems and provide support to staff. By mid-2015 the CEO had identified that the Complainant was under performing because she was not implementing the recommendations and directives that were now being insisted upon.  To her mind the Complainant was either resisting or refusing to engage with fundamental day to day processes such as correct rostering and detailed recording.

By the end of 2015 the CEO had identified a need for a Performance Review and a performance improvement plan to be implemented in 2016. I understand that such a step had never before been taken against a Manager. In listening to both sides of this case, I cannot determine what intractability and lack of reason brought the parties to this point but it is clear that by the start of 2016 the relationship between the Complainant and the CEO was almost beyond repair and there would never be any amelioration of that situation for the balance of this employment.

The Complainant brought a Grievance to the attention of the Board of Management which was not upheld. It is worth noting that on Appeal to an independent third party it was not upheld either. I probed into this process a little bit with the Complainant who had said in the course of this Grievance process that whilst she could have done with Supervision and support in her new role, she never actually asked for it.

The Appeals process did recommend that the Complainant and the CEO attend a conciliation workshop which they attended in December of 2016. This was not completed, and the Complainant said this was because it was not going anywhere.

It seems to me that the animosity between the CEO and the Complainant had become almost insurmountable at this stage and whether the demands made of the Complainant by her Line Manager were unreasonable or not I cannot say, but the Complainant certainly perceived them to be unreasonable in the extreme and all efforts by the CEO to address performance were met with hostility on the part of the Complainant  which could easily be perceived to be insubordination within the workplace. Of course, it begs the question why the CEO did not step back from trying to supervise the Complainant herself when she understood how antagonistic she had become to the Complainant. I understand the CEO believed she was at all times doing her job, but I do find that she knew or ought to have known that diffusing the situation by having someone else manage her, would have been preferable to her being the person constantly trying to exert control.

In any event, this did not happen - and the Complainant went out on sick leave in the middle of December 2016 and remained on sick leave until the termination of her employment in May/June of 2018. An 18-month period.

Again, much was made of the on-again off-again and sporadic nature of the communications between the Complainant (through her TU rep and a Solicitor for a short period) and her Employer. It is noted that the Complainant did attend her medical appointments and that the Employer was always fully notified of the Complainant’s updated medical condition and in particular knew that the Complainant had work related stress which was identified as having the CEO as the root cause. I accept that the Complainant was not particularly pro-active about keeping in touch with her employer, leaving it instead to her TU representative who was not as diligent as he might have otherwise been.

I think the Complainant was not unreasonable in asking that any meeting she have for the purpose of discussing a return to the workplace should be had in the absence of the CEO. The particular point which I am noting here is that the Complainant after a year and a half was positively exploring the option of returning to the workplace.

It is the sequencing of the events that led to the termination of this employment and which are resolutely clung to by the Respondent and which demands the greatest scrutiny by me.

It is my function to determine whether a dismissal is in fact a dismissal and whether, having determined it was a dismissal, it was fair or unfair in all the circumstances.

What is clear is that on the 30^th of April 2018 the TU rep wrote confirming his members willingness to meet albeit without the CEO being present. In support of this request, the Complainant and her TU Representative were able to rely on the medical report which stated that the Complainant was fit to meet with a HR person but not with the CEO. To her credit, the CEO did acquiesce at this late stage and said that she would set up a meeting for the Complainant and her TU Rep with the engaged HR Consultant, and this meeting was set up for the 9^th of May. The details of the proposed 9^th of May meeting were sent to the Complainant’s Trade Union representative.

Nobody turned up to the meeting on the 9^th of May and no contact was made. It is the Complainant’s case that she was unaware of the proposed meeting on the 9^th of May as her TU representative never contacted her. It is also the Complainant’s case that she was away for most of May 2018 and, having heard nothing from her own Trade Union Rep, had no reason to think any progress was being made. It was also in these circumstances that the Complainant never received the next letters sent directly to her on the 9^th and 21^st of May 2018 requesting that she contact the workplace on or before given dates or to advise her Employer of her intentions regarding a return to work. In the 21^st of May letter the CEO states that if no contact was made by the end of the month the Employer will consider the Complainant to have resigned her employment. Despite the seriousness of the proposed outcome, it is worth noting that these letters were not registered and therefore the Employer was not to know if they were delivered safely into the hands of the proposed recipient. In the Complainant’s case, she said the letters could not be received by her as she was away.

Needless to say, therefore, the Complainant did not contact the workplace before the 31^st of May and had no knowledge that her Trade Union Representative was also not communicating with the Employer. I note and accept that no explanation was ever given to this hearing or to the Complainant as to why her TU Rep had fallen out of the picture and with such devastating consequences.

The lack of communication was to prove to be the undoing of this Employment, when on the 1^st of June the Employer (understandably peeved at the perceived wall of silence) wrote to the Complainant stating that there was “…no reasonable option other than to conclude that you have resigned your employment from our organisation.”

Surprisingly, it was not until the 28^th of June (3 to 4 weeks later) that the Complainant communicated with her former Employer stating that she had not resigned and that the action amounted to a dismissal which she wanted to Appeal.

On the 11^th of July 2018 the right to Appeal was refused in circumstances where the Employer refused to accept that this was a dismissal. This was the final decision of the Employer outlined in the letter of the Chair of the Board Mr. JC.

On balance I reject this last finding of the Respondent. Whatever language or spin they seek to couch it in, the Complainant’s employment was actively terminated by the Employer on the 1^st of June 2018. There is no such thing as an absolute default termination. This employment was terminated at a time when the Employer was heedless as to whether or not the Complainant was on notice of the content of the letter of the 1^st of June. I am absolutely satisfied that the proposed decision should have been expunged (not even reversed on Appeal) as soon as it became apparent that the Complainant had (through no fault of her own) been unaware of the fact that her Representative had gone AWOL and her employment was in jeopardy.

In assessing losses, I have to have regard to the likelihood of the Complainant ever having returned into this workplace. It was clear to me that there was a visceral dislike and distrust of the CEO and on balance I am satisfied that the Complainant was probably not going to return to this workplace.  Whilst in the workplace, the Complainant had not been inclined to take instruction or guidance from the CEO and was dismissive of any third-party intervention. It seems to me that the Board had and has confidence in its CEO and while the CEO continued in that position the Complainant was probably not going to return. The remunerative losses are therefore limited.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00023121-001

I am satisfied that the facts disclose that the complainant was Unfairly dismissed, and I award compensatory loss in the sum of €12,000.00.