ADJUDICATION OFFICER DECISION & RECOMMENDATION
Adjudication Reference: ADJ-00029527
Parties:
| Complainant | Respondent |
Anonymised Parties | A Social Care Worker | A support centre for people with intellectual disabilities |
Representatives | Self-represented | Lydia Dodd Ibec |
Complaint(s):
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-00039956-001 | 21/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00039956-002 | 21/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00039956-003 | 21/09/2020 |
Date of Adjudication Hearing: 04/11/2021
Workplace Relations Commission Adjudication Officer: Orla Jones
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 13 of the Industrial Relations Acts 1969]following the referral of the complaints/dispute to me by the Director General, I inquired into the complaints/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/dispute.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed that Testimony under Oath or Affirmation would be required, and full cross examination of all witnesses would be provided for. The Parties were also advised
that this hearing was being held in public. Owing to the sensitive nature of the details disclosed and evidence adduced in respect of the complainants mental health and having heard from the Parties in relation to same, I have exercised my discretion to anonymise this decision. All witnesses gave evidence under oath or affirmation.
Background:
The complainant was employed by the respondent from 25 July 2018 as a Social Care Worker on a Fixed Term Contract due to end on the 24 July 2021. The Complainant resigned from her position on 6 August 2020 and has submitted a claim of constructive dismissal under Section 8 of the Unfair Dismissals Act, 1977. She has also submitted a claim of discrimination and harassment on grounds of disability and of failure to provide reasonable accommodation under Section 77 of the Employment Equality Act, 1998. There is a further claim in respect of bullying lodged under Section 13 of the Industrial Relations Acts, 1969 –1990. The claims were lodged on 21st of September 2020 and so the cognisable 6-month period for the complaints dates from the 22nd of March 2020 to the 21st of September 2020. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00039956-001 | 21/09/2020 |
Summary of Complainant’s Case:
The complainant submits that she was employed by the respondent since July 2018 and had been content at work until December 2019 when she became burnt out due to lack of sleep. The complainant submits that she had previously struggled with depression but submits that prior to this she had always managed her illness rarely being off sick from work. The complainant submits that she encountered sleeping difficulties in December 2019/January 2020 which led to her feeling ‘burnt out’. The complainant submits that she went to her GP a number of times and was put on sleep medication which didn’t work and so she began struggling at work. She states that she was diagnosed with a major depressive episode due to lack of sleep. The complainant submits that she informed her manager of her consultations with her GP, and subsequent medications and the struggles she had been facing. The complainant submits that she had nearly 3 weeks of being sick before she was offered any time off. The complainant submits that on 20.1.20 prior to her shift starting she attended an informal meeting at the request of her manager Ms. R who had seen how the complainant was struggling and asked her if she needed time off, to which the complainant replied yes, and so Ms. R suggested she take a week off from the coming Friday which would have been 24.1.20. (Ms. R advised the hearing that she had during this conversation asked the complainant if she wished to take time off beginning straight away but the complainant declined that offer). The complainant submits that on 22.1.20 she was late coming into work following which her manager Ms. R reprimanded her as residents had not been given their medication, she submits that when she tried to explain things to her Ms. R got irritated and stormed off. The complainant submits that Ms. R later came back in and berated her in front of another colleague for having left work early the day before as well and also raised an issue in respect of the complainant having slept in while on a sleepover shift the previous week. Following this the complainant submits that she walked out before she said something she would regret. The complainant submits that as she walked out Ms. R picked up the phone and threatened to ring the Service Manager Ms. E. That evening Ms. R phoned the complainant and left a voicemail saying she hoped the complainant was okay and telling her to ring the unit if she needed anything. The complainant submits that she replied to Ms. R by text saying she didn't want to speak to her and that she would look for advice from Ms. E, service manager the next day. On 24.1.20 the complainant sent an email to Ms. E, Service Manager, outlining what happened and cc'd Mr. O (HR Director). Within 5 minutes of sending the email both of them rang the complainant. The complainant submits that following the phone call, Mr. O, HR Director sent her the company Dignity at Work policy by email. She states that she did not return to work, and she was officially on sick leave consulting with her GP and was referred to the company Doctor. The complainant was also advised that the company could not deal with her while she was on sick leave. The complainant submits that between March and May her mental health deteriorated. The complainant submits that she had a breakdown in March and that she saw the company doctor on a number of occasions with the last appointment on 26 May 2020 when the complainant was asked and confirmed that she was ready to return to work. On 8.6.20 the complainant emailed Ms. E asking for a meeting to discuss her return to work and was told she was liaising with Mr. O from HR and would get back to her. On 30.6.20 the complainant had a meeting with Ms. E where the January incident between the complainant and Ms. R was discussed. On 3.7.20 Ms. E emailed a copy of the meeting minutes to the complainant stating that she was going on annual leave and would contact her on her return she also stated that she was waiting on a response from Ms. R who had also been sent a copy of the meeting minutes as the complainant had made a number of references to Ms. R during the meeting. On 22.7.20 the complainant emailed Ms E and Mr. O asking why she had not yet been reinstated given that she was fit to return to work. The complainant submits that she received a call on 5.8.20 from Ms. E who advised her that having discussed the matter with HR they thought it best if the complainant went back to the company Doctor again due to her mental health and the medication she was on. The complainant submits that she did not feel the need to go back to the company doctor and told Ms. E that she had ‘had enough of this shit’. Following this Ms. E had stated that the complainant was being abusive and told her that she was terminating the call. The complainant submits that she never slept a wink that night worrying and thinking about the last eight months of dealing with this company and their managers, so she made a decision to resign for her own peace of mind. The complainant submits that on 6.8.20 sent a letter of resignation to Ms. E, Service Manager and to Mr. G and Mr. O in HR stating that she had enough of all of this because she had asked for some time off. She received an email from Mr. O stating he doesn't work for the company anymore and an email from Ms. E stating that she thought it was in the complainants best interest to take them up on their offer of seeing the company doctor again. The complainant submits that she had already resigned so there was no reason to go back to the company doctor. |
Summary of Respondent’s Case:
On 19 January 2020, the Complainant texted her manager Ms. R stating that she was not fit to attend work that day. Ms. R responded to the Complainant and advised her to contact the unit and inform them that she was unable to work. The Complainant submitted a self-certified sick leave form for that day. On 20 January 2020 at 13.40 Ms. R received a call from the Complainant asking if she was needed for her shift that was due to start at 14:00 or could she come in a bit later. Ms. R asked that the Complainant come in to work for 14:00 so that they could meet with each other and check if the Complainant was okay. The support meeting took place at 14:00 with Ms. R and the Complainant. At this meeting, the Complainant stated she was not sleeping well, was feeling depressed and requested a week off work. Ms. R suggested that the Complainant might need a break from work and should speak to her GP. She also advised the Complainant that she needed to look after her wellbeing and mental health and reminded the Complainant of the Respondent’s EAP (Employee Assistance Programmes) service. Finally, Ms. R asked the Complainant if she would like to go on sick leave straight away and the Complainant declined this offer and stated she would be ok until she met with her GP. At the end of the meeting the Complainant stated she felt a weight had been lifted off her shoulders and hugged Ms. R (meeting notes submitted). On 22 January 2020 Ms. R received a call from an agency staff worker informing her that the Complainant had not turned up for work (shift started at 8:00). The implication of this was that service users could not be given their medication or attend their day service. Ms. R informed the agency worker that she would call the Complainant. After the call with the agency worker, Ms. R rang the Complainant three times and did not receive an answer. Ms. R then contacted the agency worker to update her and was informed that that the Clamant had phoned the unit saying she was on the way. The respondent submits that Ms. R herself then came in to work early on this day to speak with the Complainant to discuss her being late for the morning shift and also to raise an issue in respect of her having left the unit early the previous day. Ms. R attempted to have an informal conversation with the Complainant. Ms. R asked the Complainant what happened this morning. The Complainant stated that she did not wake up and is not sleeping. Ms. R also informed the Complainant that upon her arrival to work she was made aware by another staff member Ms. D that there had been an incident the previous week where the complainant after a sleepover shift was still asleep when staff came on duty in the morning and that the complainant had also asked other staff members to phone her to wake her for work on occasion. Ms. R stated that the staff member has advised that she was concerned for her. Following this the Complainant got up from her seat and started raising her voice, demanding a transfer to work in the office. Ms. R explained to the Complainant that she was trying to help and support her and suggested that maybe she needed more than a week off work to get herself better. The Complainant continued to shout at Ms. R and became aggressive in her manner. Ms. R tried to calm the Complainant down, but she shouted, ‘all the staff come in late.’ Ms. R informed her other staff do not come in late but are given time back for when they have helped the unit out. The Complainant’s manner again became very volatile and aggressive. Ms. R informed the Complainant that she would like her to stop shouting at her and walked away from the situation. Sometime later the Complainant was in the utility room when Ms. R went to talk to her about the appointments and the plan for the afternoon, the Complainant turned her back to Ms. R and did not acknowledge what she was saying but made grunting noises. Ms. R asked the Complainant if she could please turn around. At this point the Complainant began shouting again and the incident ended with the complainant walking out of the unit stating, “I’m going home, I’ve had enough I can’t handle this”. As she was leaving Ms. R asked her to stop and think before leaving the workplace to which the complainant replied, “You can sack me, I don’t care I am going out sick anyway”. Following this Ms. R phoned Ms. E Service Manager to report the incident (notes of incident submitted). Another staff member Ms. K witnessed this incident (witness report). Later that evening Ms. R attempted to contact the Complainant by phone on two occasions. The first time the Complainant’s phone was switched off and the second time Ms. R left a message on the voicemail asking if the Complainant was ok and that if she wanted to ring her back, she could. The Complainant responded by text stating she did not want to talk to Ms. R and would contact Ms. E in the morning. . In response to this text message Ms. R contacted Ms. E herself. Ms. R asked Ms. E to contact the Complainant in the morning as she was not comfortable meeting the Complainant alone due to her aggressive behaviour towards her earlier that day. On 24 January 2020 Ms. E contacted the Complainant by phone and left a voicemail asking her if she was ok and said she would give her a call again on Monday. On 27 January 2020, Ms. E contacted the Complainant again by phone and they discussed the need for the Complainant to attend an Occupation Health assessment which the Complainant agreed to. On 27 January 2020 later in the day Mr. O – Employee Relations Officer contacted the Complainant by phone to discuss the recent incident. After the phone call Mr. O emailed the Complainant the ‘’Dignity at work Policy” and informed the Complainant that he would organise an assessment with the Occupational Health provider. The Complainant never submitted any complainant under the Dignity at Work Policy. On 6 February 2020, the Complainant attended an occupational health assessment and was deemed unfit for work. The Doctor advised that she expected her to remain unfit for work for at least 6 weeks but would review her again after 4 weeks. On 19 February 2020 Ms. E contacted the Complainant as there was an issue with the Complainant’s sick certificates as days were not certified, and this would impact her salary. During the phone call the Complainant stated she was feeling stronger, was concerned about the incident with Ms. R and stated she would not like to work in the same unit as Ms. R. The Complainant also stated she would like to arrange a meeting to discuss the way forward. Ms. E informed the Complainant that she would need to get advice before meeting with her as it is not standard practice to meet an employee while they are sick leave. At the end of the call the Complainant confirmed that she would drop in the sick certificates the following day. On 21 February 2020 Ms. E contacted the Complainant to inform her that the occupational health provider advised against a meeting while the Complainant was still on sick leave and that the occupational health provider would give additional guidance after the Complainant’s assessment scheduled for 6 March 2020. The Complainant was encouraged again to avail of the EAP service. On 6 March 2020, the Complainant attended an occupational health assessment and was deemed to still be unfit for work but was deemed fit to meet with the Respondent to discuss her perceived work-related issues. The Doctor also stated that the Complainant would need to be reassessed in 2 weeks after the meeting had taken place. On 24 March 2020, the occupational health report was shared with the Complainant and the email advised that Ms. E would be in touch to discuss any perceived work-related issues. On 26 March 2020, the Complainant advised Ms. E that she was not fit to work or engage with the Respondent in relation to any perceived work-related issues. This contrasts with the occupational health assessment report. At this point the Complainant could have availed of the opportunity to engage with the Respondent to resolve outstanding issues but chose not to do so. This unfortunately meant the Respondent did not have an opportunity to address the Complainant's concerns. On 30 March 2020, the Complainant attended another occupational health assessment following which she was deemed unfit to work and unfit to engage with the Respondent. A further assessment took place on 14 April 2020, and again on 26 May. On 26 May 2020, the Complainant was assessed by occupational health and was deemed fit to engage with the Respondent in relation to her perceived work issue and return to work thereafter. On 30 June 2020 Ms. E. met with the complainant. The purpose of the meeting was to allow the Complainant to expand on previous issues raised in January 2020 and to allow Ms M raise issues which were brought to her attention by Ms. R. During the meeting, the Complainant raised the following points: 1. The culture of the house is that if there is not much happening, staff came in an hour late in the morning/afternoon. 2. When the Complainant was on holidays, and she questioned Ms. R as to why she was scheduled to work 8 days in a row after returning from holidays. 3. The Complainant also stated that she was sick after Christmas and met with Ms. R who said she needed to take some time off which was agreed. In the same meeting Ms. E raised the following points to which the Complainant responded to: 1. The Complainant told her manager Ms. R that she was feeling stressed and that she submitted an uncertified sick leave form citing depression and lack of sleep. Ms. E asked the Complainant to expand on this. In response to this the Complainant informed Ms. E that she was burning the candle at both ends and it all got too much. 2. While on a sleepover shift in January, staff came on duty and found the Complainant still asleep at 8 am, leaving service users unattended. Staff also reported to Ms. R that the Complainant had asked them at times to ring her to wake her up when she was on a sleepover. The Complainants response to this was that the employees offered to do it and she did not ask them to ring her. The Complainant did admit a colleague had to wake her up for her shift one day. 3. One day in January the complainant was late for a day shift at 8am and was uncontactable. Patients could not be given their medication and another employee on their day off had to come in and administer the medication. The Complainant denied this occurred. 4. Staff reported to Ms. R that the Complainant was not in good form. The Complainant stated she told colleagues she was struggling. 5. Ms. R reported to Ms. E that the Complainant went off duty one day without locking up and left the patio door to the house ajar with the key in it. The Complainant stated that she told Ms. E she was struggling. At the end of the meeting the Complainant confirmed she was fit to return to work. On 10 July Ms. R responded to the points raised in the meeting. On 5 August 2020, Ms M contacted the Complainant to inform her that the Respondent was referring her back to occupation health for an assessment. Ms. E referred to the work issues which occurred prior to the Complainant going out on sick leave. Ms. E acknowledged that the Complainant had not been well at the time of these issues and clarified that the referral to occupational health was to confirm that the Complainant was well enough to provide the necessary care to the service users she would be working with. Following this, the Complainant became aggressive and was shouting at Ms. E. that she had ‘’had enough of this shit’. Ms. E ended the call by stating “you are being really abusive now, and I’m going to end this call, I’ll speak to you when you are calmer”. On 6 August 2020, the Complainant resigned. |
Findings and Conclusions:
The claims were lodged on 21st of September 2020 and so the cognisable 6-month period for the complaints dates from the 22nd of March 2020 to the 21st of September 2020. Section 1(b) of the Unfair Dismissals Acts, 1977 – 2015 (as amended) defines dismissal in relation to an employee as, inter alia: “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” Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test” “ an employer must be “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 further performance”. Secondly, there is an additional “reasonableness test” which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, he/she is justified in leaving. In order to prove that she was constructively dismissed I must be satisfied that the complainant meets the contract and/or the reasonableness test. The complainant when questioned at the hearing gave a number of reasons for her resignation, she stated that she had felt that the respondent didn’t want her back after her sick leave and due to her mental health issues. She also stated that she felt she had been struggling and that she was being punished for reaching out for support. The complainant also advised the hearing that she had always felt that she didn’t fit in with the team and that others had received more favourable treatment due to their being in college or due to pregnancy. The complainant stated that she had felt that it was time for a career change and advised that she was no longer working in the area of social care but was training for a new career in Reiki therapy and has plans to open her own business in that area of work. The complainant advised the hearing that she had at end of December 2019 been struggling at work due to insomnia and that the lack of sleep was due to a depressive illness. The complainant stated that she had discussed this with her manager Ms. R on the 21st of January 2019 during which Ms. R had suggested that she might want to take some time off work commencing that Friday 24th of January. The complainant advised the hearing that she was then late for work the next day the 22nd of January and was berated for this by Ms. R in front of a colleague following which the complainant had walked out. The complainant advised the hearing that Ms. R had phoned her that evening and left a voice message asking if she was okay to which the complainant replied by text stating that she did not wish to speak to Ms. R but would instead contact the service manager Ms. E in the morning. The complainant advised the hearing that she did not return to work after the incident on the 22nd of January and was deemed unfit for work by the company doctor to whom she was referred on a number of occasions between February and May before being deemed fit to return to work on 26th of May 2020. The complainant at the hearing stated that she felt that the respondent had been reluctant to deal with her issues and had allowed things to drag on without attempting to resolve them. She also stated that she felt that the respondent did not want her back. The complainant stated that it was the 30th of June 2020 before she even got to meet with the respondent to discuss her work-related issues. The respondent advised the hearing that they had told the complainant that they could not meet with her or discuss her work-related issues while she was on sick leave given that she had been deemed unfit for work and unfit to engage with the respondent on work related issues. The complainant following her assessment of the 6th of March had been deemed fit to engage with the respondent but when the respondent advised her of this, she herself stated that she was not fit for such engagement contrary to what the OH report had stated. The complainant at the hearing stated that she had had a breakdown in March and so was no in a fit state to engage with the respondent. Further OH assessments took place on 30 March 2020, 14 April 2020, and again on 26 May 2020. The complainant following the 26th of May OH report was deemed fit to engage and so a meeting was arranged by the respondent on the 30th of June to discuss work related issues. At this meeting the incident of the 22nd of January where the complainant had walked out of work after issues were raised by her manager in respect of her being late for work that day, having left work early the previous day, and having failed to wake up while on a sleepover shift and requesting staff to ring her to wake her, as well as leaving the door to the house open and leaving the key on the door, were discussed. The complainant told the hearing that she did not hear back from Ms. E for a number of weeks as Ms. E was on leave during July. Following this meeting the complainant was advised by Ms. E on the 5th of August that the respondent wanted her to return to the company doctor to ensure that she was fit to return to work. The complainant was advised of this by phone call from Ms. E to whom she replied ‘ I’ve had enough of this shit ‘ following which Ms. E advised her that she was terminating the call as she had become abusive. The complainant at the hearing admitted that she did say this to Ms. E. The complainant submitted a letter of resignation the day after this call. The respondent subsequently contacted her about a referral to the company doctor which the complainant did not avail of stating that she had resigned at that stage. The respondent advised the hearing that the complainant had been advised in January 2020 that she could make a complaint under the Dignity at Work Policy which was sent to her by email by Mr. O HR Director. The complainant did not avail of this and did not lodge any complaint. The complainant advised the hearing that she had raised issues in respect of an incident with her manager on the 22nd of January 202 before she went on sick leave and was deemed unfit for work until the 26th of May 2020. The respondent advised that it was unable to meet with the complainant or to discuss work related issues with her while she was deemed unfit to work and unfit to engage on work issues and so following her being deemed fit to engage on the 26th of May 2020 a meeting was arranged which took place on 30th of June. The respondent states that the outcome of this meeting was that the complainant was referred back to the company doctor and having been advised of this by phone of the 6th of August she became abusive telling the respondent she ‘had had enough of this shit’. The complainant then resigned by letter the following day. It is the Respondent’s position that neither the contract test nor the reasonableness test have been met by the complainant. The Respondent submits that it has at all times operated within the terms of the contract of employment between the parties and that no contractual violation occurred. In considering the ‘contract test’ I am satisfied having regard to the totality of the evidence adduced and having regard to the contract test as set out in Conway v Ulster Bank, UD474/1981 that the Respondent actions were in no manner “a repudiation of the contract of employment” and did not demonstrate “that the Respondent no longer intended to be bound by the contract.” No change occurred in the contract to make it “so radically different from what was before.” Accordingly, I am satisfied that the termination of employment by virtue of the complainants resignation fails on the contractual test to be a constructive dismissal. On the test of reasonableness, in the case of McCormack v Dunnes Stores UD 1421/2008 the Employment Appeals Tribunal noted the high burden of proof on an employee in a case of constructive dismissal, including the need to demonstrate that all internal grievance procedures had been exhausted. Thus, it is incumbent on the complainant to demonstrate that the actions of the employer were so unreasonable that she was left with no option but to resign, she must also demonstrate that she has acted reasonably and exhausted all internal procedures before taking the step of resigning her employment. It is the Respondent’s position that it always acted reasonably and fairly, in accordance with its policies, best practice, and appropriate conduct. The Respondent has established a formal and informal grievance procedure and Dignity at Work Policy which the Complainant is aware of. The Complainant did not exhaust these procedures before resigning and it is the Respondent’s position that her resignation was thus unreasonable. Several cases were cited by the Respondent’s representative including the case of Conway v Ulster Bank UD474/1981 in which it had been held that a Complainant had not acted reasonably by resigning before having substantially utilised the relevant internal procedures. The Respondent in the present case advised the hearing that it has a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed, in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000). The respondent further advised that not only did the Complainant fail to submit any grievance under this policy or a complaint under the Dignity at work Policy she did not give the Respondent the opportunity to address her concerns. As such, the respondent submits that the complainant did not act reasonably in resigning her employment as she had not “substantially utilised the grievance procedure to attempt to remedy her complaints” (Conway v Ulster Bank). The respondent advised the hearing that the Complainant’s resignation does not fulfil the test of reasonableness and thus cannot be determined to be a constructive dismissal. The respondent also cited the case of A Youth Centre Resource Person and an Education and Training Board ADJ-00022933 in which the Adjudication Officer determined that the Complainant “did not establish egregious unreasonable behaviours on the part of the Employer and was not helpful to her case by her approach to Employment Procedures” and therefore the claim for constructive dismissal was not well founded. The respondent submits s that the complainant did not behave reasonably in the circumstances and that the respondent was not given a chance to deal with her issues before she took the step of resigning. In considering whether it was reasonable for the complainant to resign in the circumstances it is worth noting that no evidence was adduced to indicate that there had been any pattern of bad relations or issues between the complainant and Ms. R and the complainant herself advised the hearing that she had been happy at work until she began to experience sleepless nights at end December /start of January which she states was due to a depressive illness. The complainant herself admits that the lack of sleep and the medication which she was on and the associated struggles led to her making mistakes at work such as sleeping through while on a sleepover shift with service users and also being late for work. It is clear from the complainants evidence that she attributed her need to take time off work to an inability to sleep which she states was brought on by a depressive disorder which she states she had struggled with for years. The complainant advised the hearing that she had already attended her GP and was on medication before the interaction with her manager on the 22nd of January. I feel it is necessary to clarify that there was no assertion made by the complainant that her ill health was brought on by her work issues or that her time off work was due to work issues but rather she appeared to have been frustrated that the work issues could not be resolved until she was deemed fit to engage. The respondent advised the hearing that it is incumbent on an employee in a constructive dismissal scenario to act fairly towards his employer, just as he is entitled to expect to be treated fairly by his employer. Part of this is that he will sufficiently notify his employer of any grievance and allow the employer a reasonable opportunity to resolve it. The respondent submits that the complainant did not do so as she resigned before allowing the respondent a reasonable opportunity to resolve any grievances. In addition, it is also noteworthy that the complainant in this case when questioned as to her reason for resigning cited a number of reasons including that she had felt that the respondent didn’t want her back after her sick leave and due to her mental health issues. She also stated that she felt she had been struggling and that she felt she was being punished for reaching out for support. The complainant also advised the hearing that she had always felt that she didn’t fit in with the team and that others had received more favourable treatment due to their being in college or due to pregnancy. The complainant stated that she had felt that it was time for a career change and advised the hearing that she was no longer working in the area of social care but was training for a new career in Reiki therapy and has plans to open her own business in that area of work. The complainant in this case outlined that she had been struggling at work due to lack of sleep and had made a decision to take time off in January 2020. The complainant walked out of her workplace on the 22nd of January 2020 and was later sent a copy of the Dignity at work policy under which she could have raised a grievance but didn’t. I also note that the complainant despite having been off sick due to mental health issues which she admits led to her making mistakes at work, was unaccepting and inflexible when the respondent advised that they wanted to refer her back to the company doctor in August 2020 and instead of discussing the matter the complainant responded negatively using abusive language and then submitted her resignation. In resigning in circumstances that a complainant asserts amount to constructive dismissal, such complainant must act reasonably. This includes affording her employer an adequate and reasonable opportunity to address and remedy any grievance/issue. I am satisfied from the totality of the evidence adduced that the complainant in this case has failed to demonstrate that the ‘’ employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.” In addition, I am satisfied that the complainant in this case failed to fully engage with her employer before submitting her resignation and did not afford the respondent the opportunity to deal with matters accordingly I find that she did not act reasonably in so doing. Accordingly, this claim pursuant to the Unfair Dismissals Acts fails. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that the complainant was not unfairly dismissed and accordingly I declare this claim to be not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00039956-002 | 21/09/2020 |
Summary of Worker’s Case:
The worker submits that she was bullied both directly and indirectly by the unit manager or more than 1 occasion. She submits that she was treated differently to the other staff members and felt picked on and singled out. The worker submits that she wasn't supported when she looked for it and could see that others were. The worker submits that on the day she walked out the Manager had berated her in front of another member of staff. |
Summary of Employer’s Case:
The employer submits that in advance of the worker furnishing her resignation, she could have given the Employer the time to address concerns she had in relation to her employment and utilised internal procedures to resolve any grievance, which she failed to do. The Employer maintains that the Worker acted in a hasty and unreasonable manner by resigning from her position before notifying the Employer of her concerns and in advance of exhausting internal procedures. The obligation to exhaust internal grievance procedures extends even in situations whereby there exists a breach of contract. The Worker failed to provide the Employer an opportunity to fully respond to her concerns by failing to utilise any of the formal channels to seek to address any issues she may have had. |
Findings and Conclusions:
The worker advised the hearing that she felt bullied by her manager. The worker told the hearing that she had been happy at work until she became unwell in January 2020. The worker added that it was only after she became unwell that she noticed she was being treated differently. The worker has also lodged a separate claim under the unfair dismissals act and a claim of discrimination under the Employment Equality Acts. When asked for details in relation to this allegation the worker cited an incident which occurred on the 22nd of January 2020 when her manager raised issues with her in respect of her performance at work. The worker walked out of work that day and has not returned to the workplace. The worker was on sick leave from 24th of January up to 26th of May 2020 with regular assessments by the employers doctor. The worker was deemed fit to return to work and fit to engage with her employer on 26th of May 2020. The worker met with her manager on 30th of June to discuss her outstanding issues and her return to work. The employer on 5th of August advised the worker that they wanted her to go back to the company doctor. The worker in response to this suggestion stated that she ‘had had enough of this shit’. The worker resigned the next day on 6th of August. The worker at the hearing stated that she was aware that the employer had a Dignity at work policy which had been sent to her by HR in February 2020. She stated that she had not made any complaint under the policy. When asked at the hearing whether she had submitted a claim in respect of an allegation of bullying the worker replied that she did not have the mental capacity to deal with making a claim at the time. It is clear that the worker in this case did not submit a claim of bullying in respect of her manager or a claim under the Dignity at work policy which was sent to her in February 2020 therefore did not give her employer an opportunity to deal with any perceived bullying before submitting her resignation and submitting a claim to the WRC. A pre-requisite for lodging a claim under Section 13 is that a worker must have raised the matter internally and sought to have the matter dealt with by the employer before referring it to the WRC it is clear that the worker in this case did not lodge any claim with her employer before lodging the claim with the WRC. Accordingly, I do not recommend in favour of the worker. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I do not recommend in favour of the worker. |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00039956-003 | 21/09/2020 |
Summary of Complainant’s Case:
The complainant submits that She was employed by the respondent from the 25th of July 2018 as a Social care worker, she was discriminated against and harassed on the ground of disability, she notified the respondent of her disability on 21 January and went on sick leave from 24 January 2020. She was berated by her manager for mistakes at work on the 22nd of January 2020 following which she walked out of work. She went on sick leave from 24th of January and was certified unfit to work or engage in relation to work issues up to the 26th of May 2020. She met with the respondent on the 30th of June 2020 to discuss work issues. The respondent sought to refer her back to the company doctor on 5th of August 2020 following which the complainant stated, ‘I’ve had enough of this shit’. The complainant resigned on 6th of August 2020. |
Summary of Respondent’s Case:
The respondent submits that There was no discrimination or harassment whatsoever, The respondent denies that it has discriminated against the complainant on the grounds of disability or at all, The conditions of her employment were no less favourable than any other employee, The complainant notified the respondent in January 2020 that she was suffering from a lack of sleep due to a depressive disorder she attended an informal meeting with her manager on 20th of January and shortly afterwards was referred to the company doctor who deemed her unfit to work until end May 2020, she met with Ms. E Service manager on 30th of June 2020 and resigned on 6th of August 2020 before returning to work, The respondent has no details of a claim that the respondent was harassing the complainant and absolutely deny that there was any harassment, There was no failure to provide reasonable accommodation as no accommodation was requested and the complainant resigned before returning to work and without requesting any accommodation to facilitate her return to work. |
Findings and Conclusions:
The issue for decision by me is, whether or not, the respondent discriminated against and/or harassed the complainant on the ground of disability in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015. I must also make a decision on whether the respondent failed to provide the complainant with reasonable accommodation for a disability contrary to Section 16 of the Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing. Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)….” Section 6(2) of the Acts defines the discriminatory ground of disability as follows – “(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"). Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of disability. Harassment Harassment is defined in section 14A(7) of the Employment Equality Act as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court and stated as follows: - “The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The complainant advised the hearing that she was treated less favourably on grounds of disability. When asked for details in relation to this allegation the complainant told the hearing that she had been happy at work until she became unwell in January 2020. The complainant added that it was only after she became unwell that she noticed she was being treated differently. She advised the hearing that she had encountered sleeping difficulties in December 2019/January 2020 which led to her feeling ‘burnt out’. The complainant submits that she went to her GP a number of times and was put on sleep medication which didn’t work and so she began struggling at work. She states that she was diagnosed with a major depressive episode due to lack of sleep. The complainant submits that she informed her manager of her consultations with her GP, and subsequent medications and the struggles she had been facing in January 2020. The complainant submits that on 20.1.20 prior to her shift starting she attended an informal meeting at the request of her manager Ms. R who had seen how the complainant was struggling and asked her if she needed time off, to which the complainant replied yes, and so Ms. R suggested she take a week off starting the coming Friday which would have been 24.1.20. (Ms. R advised the hearing that she had during this conversation asked the complainant if she wished to take time off beginning straight away but the complainant declined that offer). The complainant submits that on 22.1.20 she was late coming into work following which her manager Ms. R reprimanded her, she submits that when she tried to explain things to her Ms. R got irritated and stormed off. The complainant submits that Ms. R later came back in and berated her in front of another colleague for having left work early the day before as well and also raised an issue in respect of the complainant having ‘slept in’ while on a sleepover shift the previous week and being asleep when the day staff came in, this meant that the residents had not been woken up. Following this the complainant submits that she walked out before she said something she would regret. The complainant submits that as she walked out Ms. R picked up the phone and threatened to ring the Service Manager. That evening Ms. R phoned the complainant and left a voicemail saying she hoped the complainant was okay and telling her to ring the unit if she needed anything. The complainant submits that she replied to Ms. R by text saying she didn't want to speak to her and that she would look for advice from Ms. E, service manager the next day. On 24.1.20 the complainant sent an email to Ms. E, Service Manager, outlining what happened and cc'd Mr. O (HR Director). Within 5 minutes of sending the email both of them rang the complainant. The complainant submits that following the phone call, Mr. O, HR Director sent her the company Dignity at Work policy by email. She states that she did not return to work, and she was officially on sick leave and was referred by the respondent to the company doctor. The complainant was advised that the company could not deal with her while she was on sick leave. The complainant submits that between March and May her mental health deteriorated. The complainant saw the company doctor on a number of occasions with the last appointment on 26 May 2020 when the complainant was asked and confirmed that she was ready to return to work. On 8.6.20 the complainant emailed Ms. E asking for a meeting to discuss her return to work and was told she was liaising with Mr. O from HR and would get back to her. On 30.6.20 the complainant had a meeting with Ms. E where the January incident between the complainant and Ms. R and other work issues were discussed. On 3.7.20 Ms. E emailed a copy of the meeting minutes to the complainant stating that she was going on annual leave and would contact her on her return she also stated that she was waiting on a response from Ms. R who had also been sent a copy of the meeting minutes. On 22.7.20 the complainant emailed Ms E and Mr. O asking why she had not yet been reinstated given that she was fit to return to work. The complainant submits that she received a call on 5.8.20 from Ms. E who advised her that having discussed the matter with HR they thought it best if the complainant went back to the company Doctor again due to her mental health and the medication she was on. The complainant submits that she did not feel the need to go back to the company doctor and told Ms. E that she had ‘had enough of this shit’. Following this Ms. E had stated that the complainant was being abusive and told her that she was terminating the call. The complainant submits that she never slept a wink that night worrying and thinking about the last eight months of dealing with this company and their managers, so she made a decision to resign for her own peace of mind. The complainant submits that on 6.8.20 sent a letter of resignation to Ms. E, Service Manager and to Mr. G and Mr. O in HR stating that she had enough, all of this because she asked for some time off. The respondent advised the hearing that the first mention of depression from the complainant came in January 2020 following which the complainants manager met with her informally and asked her if she wished to take some time off. The complainants manager Ms. R advised the hearing that the complainant chose not to avail of time off straight away but stated that she would remain at work. The complainants manager stated that following this meeting the complainant the next day was late for her shift and the manager was also advised that the complainant had left early the previous day. In addition, the complainants manager Ms. R advised the hearing that she was notified by another staff member that the complainant had slept through on a sleepover shift the week before and had been asking staff to phone her to wake her for work. Ms. R stated that staff members had indicated their concern for the complainant and that she had been struggling. Ms R stated that she tried to speak to the complainant about these matters on the 22nd of January and was again offering her support when the complainant became abusive and shouted at her before walking out. The complainant submits that she was treated less favourably due to her disability. The respondent accepts that the complainant notified her manager on the 20th of January that she had been suffering from a severe lack of sleep which she stated was due to a depressive illness. The respondent stated that prior to this they were not aware of any condition or disability. The complainant does not dispute this. She told the hearing that she had suffered from depression but that she had not told the respondent as it only began to affect her work in January 2020 at which point, she notified the respondent and had an informal meeting with her manager on 20th of January 2020 in which she discussed the fact that she was struggling due to a lack of sleep and depressive illness. It is accepted by both parties that the complainant was on sick leave from 22nd of January and did not return to work. It is also accepted that up until the end of May the complainant was deemed to be unfit for work and unfit to engage with the respondent on work matters. On 6 February 2020, the Complainant had attended an occupational health assessment and was deemed unfit for work. The Doctor advised that she expected her to remain unfit for work for at least 6 weeks but would review her again after 4 weeks. On 19 February 2020 Ms. E contacted the Complainant as there was an issue with the Complainant’s sick certificates as days were not certified, and this would impact her salary. During the phone call the Complainant stated she was feeling stronger, was concerned about the January incident with Ms. R and stated she would not like to work in the same unit as Ms. R. The Complainant also stated that she would like to arrange a meeting to discuss the way forward. Ms. E informed the Complainant that she would need to get advice before meeting with her as it is not standard practice to meet an employee while they are sick leave. At the end of the call the Complainant confirmed that she would drop in the sick certificates the following day. On 21 February 2020 Ms. E contacted the Complainant to inform her that the occupational health provider advised against a meeting while the Complainant was still on sick leave and that the occupational health provider would give additional guidance after the Complainant’s assessment scheduled for 6 March 2020. The Complainant was encouraged again to avail of the EAP service. On 6 March 2020, the Complainant attended an occupational health assessment and was deemed to still be unfit for work but was deemed fit to meet with the Respondent to discuss her perceived work-related issues. The Doctor also stated that the Complainant would need to be reassessed in 2 weeks after the meeting had taken place. On 24 March 2020, the occupational health report was shared with the Complainant and the email advised that Ms. E would be in touch to discuss any perceived work-related issues. On 26 March 2020, the Complainant advised Ms. E that she was not fit to work or engage with the Respondent in relation to any perceived work-related issues. This contrasts with the occupational health assessment report. At this point the Complainant could have availed of the opportunity to engage with the Respondent to resolve outstanding issues but chose not to do so. This unfortunately meant the Respondent did not have an opportunity to address the Complainant's concerns. The complainant at the hearing stated that despite the OH report she herself felt unfit to engage at this point and she advised the hearing that she had suffered a breakdown in March. On 30 March 2020, the Complainant attended another occupational health assessment following which she was deemed unfit to work and unfit to engage with the Respondent. A further assessment took place on 14 April 2020, and again on 26 May. The respondent advised the hearing that the complainant was offered time off as soon as they became aware of her depression, and she was referred to the company doctor. The complainant did not deny this and accepts that she was offered time off by Ms. R at the meeting of 20th of January which she declined. The complainant also accepts that she was referred to the company doctor following the events of the 22nd of January when she had walked out of work, and that she was deemed unfit to work and unfit to engage with the respondent until the end of May 2020. The respondent advised the hearing that following the meeting of 30th of June the respondent had tried to refer the complainant back to the company doctor as they needed to be sure that she was fit to return to work, the respondent stated that the complainants role required her to be responsible for 5 adults with complex needs. The respondent advised the hearing that they were not asked or given a chance to consider any reasonable accommodation for the complainants return to work as the complainant resigned once they sought to refer her back to the company doctor. As regards the claim of harassment no specific examples of harassment on grounds of disability were provided by the complainant. Reasonable accommodation Section 16(3) of the Acts sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in, or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability (my emphasis) – this approach was endorsed in Humphries v Westwood Fitness Club[1]. The complainant in this case resigned after a period of sick leave and before returning to work and at the stage where she was being referred back to the company doctor. The complainant when questioned as to whether she had requested any reasonable accommodation submitted that she had on a previous occasion requested a move to a day service but that the request was just brushed aside by her manger Ms. R. The complainant stated that she had felt that others were accommodated for reasons such as college and pregnancy but that she herself was always filling in for shifts. The complainant added that the reason for this was that she found it hard to say no when asked and always covered shifts. The complainant when asked if she felt discriminated against due to a disability stated that she felt that she didn’t fit in with the team and stated that others were treated more favourably. The complainant did not provide any evidence in support of these assertions to the hearing. The reference to requesting a move to a day shift relates to the period before the complainant had disclosed any illness or disability to the respondent. The respondent advised the hearing that the complainant had requested a move to a day shift prior to January 2020 before the respondent was aware that the complainant had any condition or disability. The respondent stated that this request was in no way linked to a disability nor was any suggestion made at the time that the complainant had a disability. The respondent added that the complainant was offered time off as soon as they became aware of her depression and was referred to the company doctor. The complainant did not deny this and accepts that she was offered time off by Ms. R at the meeting of 20th of January which she declined. The complainant also accepts that she was referred to the company doctor and that she was deemed unfit to work and unfit to engage until the end of May 2020. The respondent advised the hearing that following the meeting of 30th of June the respondent had tried to refer the complainant back to the company doctor in order to be sure that she was fit to return to work, the respondent stated that it wasn’t asked or given a chance to consider any reasonable accommodation as the complainant resigned once they sought to refer her back to the company doctor. In all of the circumstances of the within complaints and having considered the totality of the evidence adduced I find that the complainant was not discriminated against or harassed on the grounds of disability in relation to the issues raised. I am also satisfied that the respondent did not fail or refuse to provide the complainant with reasonable accommodation for a disability. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find that the complainant was not discriminated against or harassed on the grounds of her disability in relation to the issues raised. I am also satisfied that the respondent did not fail or refuse to provide the complainant with reasonable accommodation for a disability. |
Dated: 16th February 2020
Workplace Relations Commission Adjudication Officer: Orla Jones
Key Words:
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