Complainant

Respondent

Anonymised Parties

Warehouse Operative

A Distribution Centre

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-00027458-001

02/04/2019

The issue in contention was the alleged constructive Dismissal of the Complainant by a Warehouse and Distribution Depot.

The Complainant made a lengthy Verbal submission supported by some relevant documents.

The Complainant began employment in October 2017. All went well until July 2018 when the Complainant raised a query with the Respondent regarding the operational accuracy of the computerised Pick System in use in the Warehouse. The Complainant felt strongly that the IT System was inaccurate, was reducing his earnings and all his queries to local Supervisors were ignored or dismissed casually. He was being Bullied and Harassed at work.

The Respondent HR Manger, Ms.Xa ,met with him on the 2nd August to discuss his complaint. It was completely unsatisfactory, he was unaccompanied and Ms.Xa wrongly accused him of being aggressive and personally threatening. A further meeting with the Line Manager and the Operations Manager was arranged and took palce on the 29th August 2018. This was again unsatisfactory and no real answer was provided to the Complainant.

He now felt so stressed and upset that he decided to Resign which he did verbally on the night of the 29th August. At the instigation of his Sister this resignation was set aside. She had contacted Ms.Xa directly to inform her that her brother had suffered a serious psychiatric illness. Ms. Xa agreed to let the resignation lapse. He had to take sick leave as the situation was so bad. He had to go home to Croatia to seek medical care. He received correspondence from the Respondent in October 2018 .

At this time , he was suffering from a Psychiatric illness and wrote a Resignation letter dated the 22nd October 2018. They had also refused to pay him sick pay. He had been forced into this position by the unreasonable behaviours of the Respondent Company in their attitude to his legitimate Complaints regarding the IT System.

The basic facts of the case were not disputed. However, the Respondent put an entirely different interpretation on them. The Complainant had raised his first query on the 27th July under the Bullying and Harassment heading . On examination it was a complaint regarding the accuracy of the Pick system and the differences between the Headsets worn by Operatives and the master IT system. The readings on the master system determined the bonus payments. Ms Xa ,the HR Manager, met one to one ,with the Complainant on the 2nd of August to establish the basic details of the Complaint. Ms.Xa became concerned for her personal safety during the meeting and it was ended by her. A later meeting was arranged with Operational Mangers and herself and the Complainant on the 29th August. The minutes of this meeting clearly demonstrate that the Complainant had behaved somewhat erratically, to be polite, during the meeting which had ended by his walking out in a very aggressive manner. Later that night he had resigned verbally to his immediate Supervisor. Ms. Xa was concerned that the Complainant was behaving erratically and sought clarification from him as to his exact intentions.

Correspondence followed early the next week from the Complainant’ss sister asking that the Resignation be set aside as her brother had been taken very unwell with a Psychiatric condition. Ms Xa agreed to this and the Complainant remained on Sick leave from this date.

He returned to home to Croatia as part of his recovery process. The originally IT complaint was fully investigated, and the results communicated to the Complainant by an e mail of the 4th October. Nothing untoward was found. In separate correspondence the Operations Manager, Mr.Xb, wrote to the Complainant regarding the Sick Pay scheme and the procedures involved. He was invited to a meeting on the 11th October 2018. On that date the Respondent received an e mail from the Complainant enclosing an Irish HSE Report detailing that he would be off on sick leave for at least a period of two months.

The Respondent replied by e mail of the 15th October 2018 and requested that the Complainant provide them by, the 16th November 2018, with an update on his progress.

The Complainant replied on the 22nd October refuting Mr Xb analysis on the IT system and formally tendering his resignation.

This was accepted by the Respondent on the 26th October.

In arguments the Respondent pointed to the Two Tests standard in a Constructive Dismissal , Breach of Contract and Unreasonable Behaviour. On both headings the Respondents maintained that they had acted properly. Regarding behaviours they had been absolutely reasonable, had accepted his sister’s intervention regarding his first resignation and had fully investigated his IT complaints. The final e mail from the Respondent to the Complainant had acknowledged his illness and simply asked for an update in November. The Complainant had resigned of his own volition and no question of Constructive dismissal can apply.

3:1       The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation, the body of Legal precedents, the Mental health   - “Sound mind” of the Complainant.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, 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,…”

As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows:

“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 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.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

“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 the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a constructive Dismissal.

3:2       Mental capacity of the Complainant.

A major note of caution must be entered in this case – the Complainant was seriously psychiatrically unwell and his actions/decisions must be weighed in this light. In the normal run of the mill “Being of Sound mind ” in any legal situation, employment or otherwise is a fundamental necessity.

3:3       Notwithstanding the legal precedents all cases must be considered on their own facts and specific evidence.

I will consider these now.

3:4         Consideration of the Evidence.

From all the evidence both Oral and Written it was clear that the Complainant had suffered a serious Psychiatric breakdown in late August 2018. This situation was well known to all involved. The Complainant’s sister had communicated this to Ms Ax by e mail of the 11th September . Ms Xa had agreed to set aside the verbal resignation and allow the employment to continue albeit that the Complainant was now on extended sick leave.

By E mail of the 11th October the Complainant forwarded a HSE note dated the 9th October 2018 to the Respondent. In this note the HSE Psychiatrist stated that the Complainant was

“suffering from a significant mental health condition and will be unfit for work for 2 months at which time the situation will be reviewed”

This would have covered the Complainant until December 2018.

In this context the question is how to consider the resignation e mail of the 22nd October 2018.

In oral evidence the Complainant advised that he had been advised by his doctor to “take his time” over any major decisions , employment or otherwise . He had consulted his family prior to sending the e mail. It was his decision and he now stood strongly over it.

The Respondent employer was happy to have him remain as an employee until the 16th November with a review at that date.

In this situation the e mail of Resignation ,while obviously welcome to the Respondent , was also a problem. Put bluntly was an employee “suffering a significant mental health condition” as per the HSE Psychiatrist capable of writing a legally enforceable document of any nature. ?

In Oral questioning the Respondent indicated that they had not thought of seeking a medical /Occupational health review of the Complainant at this stage - essentially to see if he was of “sound mind”. In the absence of this Medical assessment the acceptance of the Resignation was problematic. All EAT and Labour Court precedents point to the need for extensive Medical evidence in situations where employment is being ended.

Obviously, there is no legal requirement on an employer to set aside / refuse to accept a resignation but in a situation of a “significant Psychiatric illness” major caution is warranted.

An Occupational Health report from an Independent Medical Agency ,most of whom are well known in Employer circles, would have very properly “closed the file” and allowed an acceptance /refusal decision to be made. The acceptance of the Resignation letter was too hasty.

On the balance of probability and the HSE letter I had to err on the side of the Complainant “not being of sound mind”.

Technically the acceptance of the Resignation letter in these circumstances, prior to a Mental Health report, has to be construed as a Dismissal. Very little fault can be attributed to the Respondent save this technical breach.

3:5       Final Conclusions

I must draw the following conclusions .

In the context of the two Legal Tests of Breach of Contract and Unreasonable Behaviour the acceptance of the Resignation, without “Sound mind” medical evidence is technically Unreasonable Employer Behaviour. At the very least a letter/e mail might have gone to the Complainant requesting a medical report as to his condition.

However, it is important note that the Complainant did not nor did any of his family seek to rescind the decision to resign as had happened with the earlier Resignation in August. His sister was present at the Oral Hearing and did not comment on this point. The Resignation had been ,in his Oral evidence , “discussed with them”.

Taking all the evidence ,both Oral and Written into account the claim for Unfair Dismissal based on a Constructive Dismissal basis therefore must stand.

Act

Complaint/Dispute Reference No.

Summary Decision /Please refer to Section Three above for reasoning.

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

CA-00027458-001

On Technical grounds the claim for Constructive Dismissal is allowed. Redress in the amount of € 1,000 is awarded.