UDD2265

1.Appeal Of Adjudication Officer Decision No(S)ADJ-00027459, CA-00035170-003


BACKGROUND:

2.This is an appeal by Ms Diana Iosif (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00027459/CA-00035170-003, dated 22 March 2022) under the Unfair Dismissals Act 1977 (‘the Act’). Notice of Appeal was received on 24 April 2022. The Court heard the appeal in Dublin on 17 November 2022.




THE FACTUAL MATRIX

The Complainant was employed by Noonan Services Group Limited (now Bidvest Noonan (ROI) Limited) (‘the Respondent’) as a cleaning operative from 5 July 2011 until her resignation on 13 September 2019. At all material times, the Complainant was placed by the Respondent on the St. Vincent’s University Hospital site where she worked in the Emergency Room within the Hospital. Between 2011 and approximately September 2018, the duties performed by the Complainant included removing bodily fluids from surfaces using chlorine powder. She had assumed this task formed part of her contractual duties as she had been trained how to do it at the commencement of her employment. However, when she discovered in September 2018 that it was in fact a task that should be done by a healthcare assistant she ceased to do it.

The Complainant commenced a period of extended certified sick leave on 2 October 2018 from which she did not return. By letter sent to the Respondent on 17 June 2019, the Complainant outlined the circumstances in which she had been led to believe that the task of cleaning and removing bodily fluids was part of her job. She also referred to an interaction she had had in April 2018 with her then supervisor who instructed her to discontinue the use of chlorine powder. She said she was subsequently informed by her supervisor in September 2018 that the healthcare assistants were responsible for removing and cleaning bodily fluids. The letter of 17 June 2019 also made reference to other work-related issues that are not relevant to the within appeal. The Complainant concluded her letter by requesting that the Respondent furnish her with a “formal procedure (investigations) in writing or email”.

The Complainant wrote a second letter, dated 10 July 2019, to the Respondent in which she re-iterated much of the contents of her earlier letter and also raised a number of additional issues (e.g. absence of rest breaks during the first six months of her employment; alleged non-payment of Sunday premium).

It appears from the papers before the Court that a Mr Niall Loughran – then HR Manager with the Respondent – replied on at least two occasions by email to the Complainant’s letters: on 29 August 2019 and on 17 September 2019. The thrust of Mr Loughran’s emails was that any discussion about the Complainant’s return to work and the role she would be employed in at that stage would be best undertaken when her return to work was imminent as any such discussion would be “hypothetical” in circumstances where she remained certified unfit to return to work.

As stated above, the Complainant did not return to work for the Respondent. She resigned her employment on 13 September 2019. Thereafter, she was in receipt of illness benefit for approximately one year. She commenced a job in the catering sector on 14 September 2020 on a slightly lower rate of pay than she had had with the Respondent.

SUBMISSIONS

Counsel for the Complainant submits that it was reasonable for the Complainant to resign her employment and regard herself as constructively dismissed in circumstances where she had a raised a grievance (about having been compelled by her supervisors to clean and remove bodily fluids, using a dangerous chemical, although this task did not form part of her contractual duties and should have been undertaken by healthcare assistants) which the Respondent declined to address until such time as she was certified to return to work from an extended period of sick leave.

The Respondent submits that the Complainant was certified as unfit for work because she had suffered a back injury. It also submits that it is common practice in the cleaning industry to defer dealing with grievances while an employee is on sick leave as there was no guarantee that an employee would be placed at the same site on their return to work and, therefore, any discussion (e.g. about their duties on so returning) would be premature. Finally, it is submitted on behalf of the Respondent that it understood that the substance of the Complainant’s grievance related to non-payment of holiday pay and not the issue of cleaning up bodily fluids.

DISCUSSION AND DECISION

A Complainant alleging that he or she was constructively dismissed from their employment within the meaning of the Act bears a high burden of proof. He/she must establish that it was reasonable for him/her to resign their employment in circumstances where their employer had behaved unreasonably towards him/her or had breached a fundamental term of his/her contract such that the employee could not be expected to tolerate the impugned behaviour any longer. Normally, a Complainant is also expected to demonstrate that he/she brought the issue to the employer’s attention before resigning (e.g. through the employer’s formal grievance procedure) but that the employer failed to address the problem or did so only in an unsatisfactory manner.

The Court has had the benefit of reading both letters of complaint sent by the Complainant to the Respondent during her period of extended sick leave. It is fair to say that the Complainant complains about a multitude of issues in that correspondence, many of which were the subject of litigation elsewhere. It is equally fair to say that there is no evidence that the Respondent declined to deal with the outstanding issues such as the tasks properly performable by the Complainant under her contract of employment. On at least two occasions, the Respondent set out in writing to the Complainant that its preference, for practical reasons, was to address those outstanding issues when her return to work from certified sick leave was imminent and it would be in a position to make a decision about which site or sites she could be assigned to.

DETERMINATION:

In all of the circumstances, therefore, the Court finds that the Complainant has not established that her decision to resign her employment meets the bar to establish a claim of constructive unfair dismissal. There was nothing unreasonable, in the Court’s judgment, in the Respondent’s proposal to defer a discussion about any outstanding issues raised in the Complainant’s correspondence not dealt with in litigation in other fora until a date closer to her return to work.

The appeal, therefore, fails and the decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
NCL	______________________
6 December 2022	Deputy Chairman