ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00022478

Parties:

Complaint(s):

Date of Adjudication Hearing: 17/10/2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute

Background:

Claimants Position:

The claimant has been involved with the respondent since 2006 and was working since 2012/13 on a meals on wheels service the respondent operated. During that time the claimant expanded the service in terms of quality, coverage and volume, and had built up a dedicated coterie of supporters and helpers. The claimant was remunerated at a rate of @€300 for 20hours per week. The claimant resigned her position in April 2019.

In 2016 the claimant had raised a grievance against the co-ordinator at the time for breach of confidentiality and breach of dignity at work due to the sharing of the claimant’s medical condition and issues in the workplace being attributed to the claimant’s pregnancy and its inconvenience to the organisation. The claimant was told this would be resolved on her return to work.

The claimant returned to work in March 2017 and was told by her line manager, “not to rake up old wounds” and “it would be best to leave it”. On her return from maternity leave the claimant was informed that the individual who was employed to cover her (maternity leave), would be remaining in that role for 15 hours per week and would be taking the social centre and development work aspect of the claimant’s role. The claimant felt that this devalued the role which she was employed to carry out.

The claimant stated that this was a change to her job description:

1)            At no point was she consulted about the change to her role.

2)            The new role was not advertised.

3)            She was given no opportunity to apply for the additional hours.

4)            This was a change in terms and conditions of employment while on maternity leave.

The claimant stated that this was a breach of her contract of employment of which the job description is a specified aspect.

The claimant had repeatedly requested additional hours for the MOW and Social Centre service in supervision prior to going on maternity leave and made it clear that she would want to work those extra hours but was told no funding was available.

In October 2018 the individual employed to cover the claimants maternity leave, left the respondents employment. The claimant stated that there was no meeting offered or arranged during the employees notice period to plan for how her work would be covered or to discuss the replacement of her role. The claimant was subsequently informed that the leaving employee was informed to give all her work to the claimant by her line manager. The claimant stated that once again there was no consultation, no remuneration for the additional workload and this utter lack of management was a fundamental contributing factor to the claimants work related stress. This was further added to by the threat of disciplinary action when the claimant enquired as to how to respond to MOW volunteers and service users affected by the dispute with respondent and this was done in an open meeting and in a threatening manner.

The claimant submitted an extensive list of poor treatment by the respondent which led her to resignation.

The claimant cited that her career progression was severely curtailed as requested training was repeatedly denied, furthermore she felt that her professional qualifications and experience were undermined by awarding the same pay increase to less qualified and less experienced staff. No due process in recruitment which denied the claimant an opportunity to apply for increased hours. Changes to her job description and contract of employment without consultation or due process.

The claimant also highlighted instances of poor treatment while on sick leave:

1. Occupational Health appointment was made without any notification from the respondent about their intent to do this.
2. 1st correspondence in relation to the Occupational Health appointment was a text message 2 days before the original appointment was due to take place.
3. Harassment by the respondent’s Manager of the respondent with regards to attending the occupational health appointment in Christmas week. (supporting evidence supplied in written statement)
4. No information provided to the claimant about the appointment with regards to its purpose and anything she needed to prepare for the appointment. Occupational Health Dr stated that this should have been provided to the claimant by the respondent prior to the appointment. (supporting evidence supplied in written statement)
5. Inaccurate statements in the report sent to the occupational Health Dr by the respondent.
6. The respondent did not give the claimant a copy of the Occupational health report until it was requested in a S.A.R.
7. No response to written letters and when a response was received it failed to address the issues raised.
8. Personal items belonging to the claimant were disposed of before she was given an opportunity to collect them.
9. Repeated requests for counselling ignored by the respondent.
10. Evidence and emails supporting the claimants ongoing issues were deleted.
11. Hand delivered post by the VBOM and manager which caused stress. (supporting evidence supplied in written statement)
12. Harassment by the VBOM while shopping.
13. Text messages late at night and at weekends from VBOM. (supporting evidence supplied in written statement)
14. The claimants request to be told who she would be meeting when she handed back her keys was ignored. (supporting evidence supplied in written statement).
15. Continued insistence by the co-ordinator that the claimant contact her regarding the return of keys and collection of personal belongings despite the claimants request to the VBOM not to be contacted by the Manager.
16. Malicious statements on the respondents Facebook page calling for “us” (it referred to ex members of staff) to be ostracised, not employed etc, these comments were made by an individual who said they represented the respondent. The administrator of the page was asked to remove the comments but refused. They have since been removed but were widely shared before that happened. (supporting evidence supplied in written statement)

The claimant also highlighted 21(twenty-one) breaches of the respondent’s employee handbook by the respondent.

The claimant is seeking compensation.

Respondents Position:

1. The respondent has always acted in a reasonable manner. The reasonable actions included;

(a)Contacting the claimant and expressing concern when the respondent became aware that the claimant’s doctor had diagnosed work related stress as the cause of her illness. The contact letter advised that the respondent was not aware of any difficulties that may have caused the illness and offered to assist in any way the respondent could.

(b)Following the claimants visit to an occupational health specialist, a meeting was organised with the claimant on January 28th, 2019. The respondent wrote to the claimant on February 20th, 2019 outlining their intention to put a plan in place both before the claimants return and during the initial period while the claimant transitioned back into her role, which was unchanged.

2. The claimant chose to resign and had not initiated a formal grievance under the respondents Grievance Policy. In correspondence from the claimant, she acknowledged that she had and was aware of the contents of the Employee Handbook.
3. The respondent acted in a proactive manner to address the issues raised.
4. The claimant had not exhausted all internal procedures before resigning on March 8th, 2019 and subsequently claimed constructive dismissal.
5. Section 1 of the Unfair Dismissals Act 1977 defines dismissal in relation to an employee as: “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”

Considering the definition and in accordance with the principles adopted by the WRC and the labour Court, the employee must demonstrate that:

1. The employer had acted in such a manner to breach a fundamental term of the employment contract, or
2. The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

The respondent submits that it has not acted in a manner to breach a fundamental term of the contract of employment. Neither has the respondent acted unreasonably to make the continuation of employment intolerable.

Considering the foregoing, the respondent respectfully requests the Adjudicator to confirm that the respondent’s actions were the actions of a reasonable employer and that no case of constructive dismissal arises.

Findings:

Both parties made written and verbal submissions at the hearing.

When dealing with claims of constructive dismissal, it has long been established, that the onus and burden of proof rests with the claimant.

I note that the claimant in her submission is seeking a letter from the respondent restoring her reputation and saying that the allegations of wrongdoing made against her on Social Media accounts of the respondent and moderated by the respondent are untrue and without foundation, it is also noted that the claimant is seeking an award of punitive damages and would ask that such an award takes account of the respondents breaches of its own procedures, its failure to assist in complying with F.O.I. requests, failure to safeguard personal belongings, untrue allegations made on the respondents social media accounts and general failure to address her grievance causing avoidable stress and anxiety.

I find it is beyond the remit of this court to order the respondent to issue a letter restoring the claimant’s reputation or in relation to social media allegations.

I find the claimant, on the W.R.C complaint form, indicated that the redress she is seeking, as one of three options available to her, compensation. It is beyond the scope of the Act that this complaint was brought under to award punitive damages.

I find the claimant had raised a grievance against the previous Manager, in accordance with the respondent’s policies, which remained unresolved. And when she inquired as to its progression, she was informed by the current co-ordinator, not to rake up old wounds and it would be better left. I find this interaction contributed significantly to the breakdown in the relationship and completely disregards the claimant’s rights and is a clear breach of the respondent’s own policies.

I find that that the changes to the claimant’s job description and the removal of certain aspects of her role was done without consultation and while the claimant was on maternity leave and was clearly in breach of the claimant’s contract of employment. The lack of support, communication and management during this process was instrumental in escalating issues that concerned the claimant.

I find the respondent has more than adequate policies in place to deal with issues that arose, but the respondent’s failure to follow its own procedures and policies contributed significantly to the distress and work-related anxiety the claimant felt. This was further compounded by the issuing of a threat of disciplinary action against the claimant in an open meeting, when she sought clarity on how to answer questions she faced from volunteers with regards to a dispute between the volunteers and the respondent. This was witnessed by other employees and VBOM members and the subsequent failure of the VBOM to even recognise that the manner and issuing of such threat in those circumstances was completely incorrect and not in accordance with any of the respondents’ policies.

I find the respondents actions or inaction only served to isolate the claimant and create an atmosphere that was not conductive to a good working environment.

I find that the assessment referral to CHI (cork) was grossly inaccurate, given the information that was available to the respondent at that time.

Taking into consideration the above I find that the respondent had acted in a manner as to breach the fundamental terms and conditions of the claimants Contract of Employment, furthermore the way the respondent could use the threat of disciplinary action (and this was done in front of the VBOM) was unreasonable degrading and would certainly leave the claimant in a position of vulnerability.  

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act

I find given the circumstances and evidence before me that the claimant was constructively dismissed by reason of the actions of the respondent. I award the claimant €2500 in compensation

Dated:   30/04/2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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