ADJ-00032872

Complainant

Respondent

Parties

Susan  Hegarty

Valeo Foods

Representatives

Barry Crushell                                        Crushell & Co Solicitors

Judy McNamara

IBEC

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-00043633-001

17/04/2021

The Complaint is one of constructive Dismissal and, in particular, an assertion by the Complainant that she could not continue in the workplace which she says did not adequately protect her health and safety.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the  Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.  I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Complainant was fully represented. At the outset, the Complainant was happy to swear an Oath/ make an Affirmation to tell the truth. I was provided with a comprehensive submission setting out the facts and the law from the Complainant’s perspective. The Complainant was additionally entitled to rely on the submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that she was unfairly dismissed. As the Dismissal was Constructive, the burden of proof rests with the Complainant to show that her action in tendering her resignation was reasonable.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent entity was professionally represented. The Respondent provided me with a comprehensive written submission. I have additionally heard from a number of witnesses for the Respondent. All evidence was heard following an Affirmation/Oath. The Respondent witness were  cross examined by the Complainant representative..

The Respondent rejects that there has been a Constructive Dismissal or any dismissal. The Complainant, they say, tendered her resignation for a reason that was  a non-issue at the time of the resignation.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to the evidence adduced in the course of the hearing. The Complainant commenced her employment with the Respondent company back in 2013, though at that time it traded under a different name. The Complainant described her role as that of Bond Administrator.

In order to fully understand the nature of this case it is necessary to reference the fact that the Complainant’s 10-month-old son had had meningitis and/or severe septic shock in December of 2019. This little boy was hospitalised and although he made a full recovery, I fully accept that he was not only poorly when the covid pandemic appeared on the horizon, but he was also having ongoing respiratory issues.

In the circumstances, I fully understand the heightened and natural concerns that the Complainant had regarding the potentially disastrous outcome if the covid flu came into her home.

In March of 2020 the Respondent was identified as providing an essential service as it provided continuity in the food supply chain.

The Complainant at that time, worked in an office setting with close proximity to the warehouse/distribution centre. The Complainant said that she had a constant stream of warehouse pickers and other employees traipsing through the office past her desk, which became more worrisome to her when the pandemic broke out.

I note that the Complainant had previously asked about working from home when her Maternity leave was coming to an end, and that this had been refused at that time as the Company believed there was an ongoing need to have the warehouse administrator based in the Warehouse site. This was not challenged by the Complainant at that time, though I am sure she was disappointed. In March of 2020, the Complainant re-opened the issue of being allowed to work from home and requested to be allowed to work form home. The Complainant was prepared to take home a desk top or use her own laptop or otherwise adapt to whatever would be required of her to allow her work away from this office environment – which she now perceived to be a challenging place of work.  This request was refused by the HR Manager in the first instance.              

The complainant followed up with a detailed email to HR  sent on the 31st of March. The Complainant set out the tasks she believed she could complete from home and outlined the personal facts concerning her baby who was considered by her GP to be high risk. The Complainant says that she was told by line Manager MN that this was not going to be possible. The Complainant’s anxiety grew, and she attended her own GP who noted that the risk to her son was causing her stress and suggested in a report of the 10th of April 2020 that

“…She would greatly appreciate if it were possible to facilitate her to work from home.”

The Complainant stayed out on certified sick leave for three months until the middle of June 2020. At that time, she was certified by her own Doctor as fit to return to work and was also reviewed by the Company Doctor who noted that her anxiety:

“…was precipitated by her young baby boy suffering from meningitis which required admission into intensive care and fortunately made a good recovery after treatment… the anxiety has abated”

In addition, the Company Doctor recommended

“… that if possible she [the Complainant] would work from home and if not possible that she would be afforded as much social distancing as is practicable in the work environment.”

The Respondent has suggested that this was not medical direction, but an assertion of the Complainant’s preference articulated through the voice of an obliging Doctor.

I understand that the Complainant returned to a workplace that was, by then, fully Covid compliant. The Respondent witness AF gave great detail on all the installations and changes made to the workplace. Hand sanitizers, signage, deep cleaning, antigen testing, and social distancing were all in operation. There were screens around work spaces, and a hatch was subsequently inserted to stop personnel from entering the office. There was a workforce of some 200 people to cater to in the Ballymount building where the Complainant worked. A lot of work went into making the workplace safe for everyone. The Complainant says she got on with it but was never entirely comfortable. She did put a further request to work from home in to her Employer in and around August of 2020, and this was again refused by DM the Warehouse Supervisor who wrote to the complainant on the 26th of August 2020. The letter outlined the various measures already put in place to fully protect and respect the health and safety of all the employees. In short, the Company insisted that the complainant’s role needed to be based on site.

The Complainant in her evidence contradicted this assertion and believed she could have performed her role from home just as effectively as she did from the warehouse-based office. I heard a lot of evidence concerning whether or not the Complainant could have worked from home, and I have to acknowledge that whilst most of the work probably could be done from home, the Employer retains the prerogative (at least in ordinary non-pandemic times) to direct where the Employee’s workplace should be. The Employer was not obliged to allow the Complainant to work from home just because she requested it. In the context of the pandemic, the Employer put up a robust defence of having made provision for the Complainant’s concerns.

The Complainant says that she asked her Union Representative to approach the company on her behalf. The Complainant believes that this approach triggered an unexpected response in the form of an invitation to attend an investigation meeting concerning an ongoing pattern of being late and being absent. This was sent to the Complainant by letter dated the 2nd of September 2020.

I do have to note that whilst the timing may seem surprising, the Complainant was on notice of a company issue with her pattern of turning in late and taking time off work at short notice. This had already been addressed with her informally on the 16th of July 2020, at which time she was asked to improve her attendance. In her evidence, the Complainant stated that she engaged with the Investigation and Disciplinary process and was finally issued with a verbal warning on the 18th of September. The Respondent has asked that I note that this was not Appealed, and therefore was a non-issue for subsequent events.

I understand from her evidence that the complainant was moved into an office on her own soon after this event. The Respondent has also asserted that the Complainant had her own kitchen facilities away from the staff canteen.

I note that the Complainant was out of work for a period at the end of January 2021.

Six months after the disciplinary outcome, on St Patrick day in March of 2021, an incident occurred wherein the Complainant says that she was getting blamed for failing to send orders out to pickers to load containers for delivery. The Complainant believed that the fault did not lie with her and was upset when she received an email critical of her performance. In her evidence she stated that there was no point in pushing back against this issue as her previous attempt at push back had resulted in her getting slapped with an investigation (the outcome of which was not appealed). It seems therefore that the Complainant never took issue with the workplace incident and never sought to explain or defend herself. However, such was the level of stress which she felt under at this time, that she consulted her G.P.. She was, thereafter, certified as being out on work related stress from the 19th of March to the 4th of April.

On the 30th of March, the Complainant wrote a letter to HR resigning with immediate effect. I note that the reason being given was the failure of the company to accommodate (or to consider accommodating) her working from home. The Complainant indicates an ongoing need to protect her health and the health of her son in this regard. On the 1st of April the HR Operations Manager writes to the Complainant refusing to accept the resignation as the issues raised were of concern to the company. The company ventured to set out the steps it had taken to ensure her safety but, in any event, asked that the Complainant might think about other alternatives to the decision to resign. These include formally applying for some leave or indeed raising a Grievance which would allow the issue to be explored. This was a correct response to  the resignation of a long-standing and valued employee.

The Complainant opted not to engage in any process.

Before me, the Respondent challenged the Complainant’s reasonableness in purporting to resign over an issue that had not been raised or referenced for six months prior to the resignation. On balance, I agree with the Respondent that the Complainant had no basis for saying, in March of 2021, that continuing to work in the Warehouse environment was or could be injurious to her health and wellbeing. The Complainant had been given a standalone office as well as the comfort of having all the other interventions being used on site (social distancing, ventilation etc etc.). To my mind the company had ensured that the Complainant had been given every appropriate accommodation in the workplace in accordance with Government guidelines and in accordance with her own specific demands in light of her child’s health. 

On the evidence it seems to me that the Complainant tendered her resignation in the aftermath of the workplace issues that arose on St Patrick’s day 2021. The Complainant reacted badly to the fact that management was blaming her. If this was the real reason for tendering her resignation, I cannot find that the Complainant was reasonable in so doing. Had the Complainant defended herself or raised a grievance or otherwise engaged with her Employer then the outcome could have been different. As previously stated, the burden rests with Complainant to show that she acted reasonably and in this regard, I believe, that she must be able to establish that her Employer knew or ought to have known that they had created a set of circumstances which left her no option other than to resign. I can find no evidence that the Employer could possibly have known that the Complainant was going to resign for the reason stated or even the reason not stated. The Complainant needed to engage with her Employer. In this regard, I note the Employer in it’s letter dated April 1st invited, implored even, the Complainant to engage and she opted not to do so.

In the circumstances outlined, I cannot find the Complainant was Unfairly dismissed.

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

CA-00043633-001 – The Complainant was not Unfairly Dismissed.