ADJ-00027459

Complainant

Respondent

Parties

Diana  Iosif

Noonan Services Group Limited

Representatives

  Self

Hugh Hegarty Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00035170-001

11/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00035170-002

11/03/2020

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

CA-00035170-003

11/03/2020

The complainant was employed by the respondent from 5th July 2011 , as a Cleaning Operative and was placed on a Hospital Site.   The Claimant worked in the Emergency Room department within the Hospital.    The claimant went on certified sick leave on the 20th of October 2018, and never returned to work.     In or around March 2019, the claimant settled a Personal Injury Claim without insurance company.    The complainant did not return to work from her sick leave but resigned her position on 13th of September 2019.

The complainant has submitted a claim of constructive dismissal under Section 8 of the Unfair Dismissals Act, 1977 and two claims under the Organisation of Working Time Act in reference to Public Holidays and Annual leave entitlements.

The claims were lodged on the 11th of March 2020 and so the cognisable 6-month period for the complaints dates from the 12th of September 2019.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00035170-001

11/03/2020

The complainant submits that she was not paid her entitlement for annual leave accrued while on sick leave.

The claimant has alleged that she has not received her holiday pay/annual leave entitlement, The respondent in its prehearing submissions submits that there is merit in this claim but adds that despite attempts to settle this claim the outstanding amount cannot be agreed between the parties and as such that fact is still in dispute.  It is also however the respondent's position that all claims including outstanding holiday pay were part of the settlement agreement, made between the claimant and the respondent in March 2019 as part of the personal injuries settlement.

The respondent submits that as part of the complainants’ personal injuries settlement, all losses including future losses were calculated into the settlement agreement and as such the matter of outstanding holiday entitlement has been settled, and that this claim before the WRC is an attempt by the claimant to be doubly compensated for loss of earnings.    

It is submitted that as the claimant has chosen to proceed with this matter via the civil law the WRC is precluded from dealing with these matters, and thus providing the claimant with an avenue to compensated twice, for the same loss.   It is further submitted that there is a contractual agreement between the claimant and the respondent, and if the claimant is unhappy with the contract the correct venue for addressing such concerns is via the Four Courts and not the WRC.

Firstly, I note the respondent’s submission that there is some merit in this claim but that attempts to reach agreement on the amount owed have to date been unsuccessful.   Both parties advised the hearing that discussions had taken place between them regarding outstanding annual leave.  

The Respondent advised the hearing that the complainant signed a settlement agreement on the 9th of March 2019 in relation to personal injuries claim and so submits that the complainants outstanding annual leave entitlement was comprehended in this settlement.   The respondent argued that as part of her personal injuries settlement that all losses including future losses were calculated into the settlement agreement and as such the matter of outstanding holiday entitlement has been settled. 

The complainant advised the hearing that the settlement was only a settlement of her personal injuries claim and that it did not cover annual leave accrued or to be accrued going forward as she remained in the respondent’s employment post the signing of the settlement agreement and continued to accrue annual leave until her resignation in September 2019.

In considering these arguments I note that both parties have engaged in discussions regarding the complainants outstanding annual leave entitlements and that such discussions took place post the PI settlement agreement with correspondence between the parties in July 2019 on the issue of outstanding annual leave which leads me to infer that the settlement agreement did not comprehend a payment for annual leave accrued and not yet taken nor am I satisfied that it could be said to be a settlement of annual leave yet to be accrued.  I also note that the complainant’s final payslip dated 29th of September 2019 contains an amount of €777.18 in respect of 68.96 hours holiday pay.

Having considered all of the evidence adduced I am satisfied that outstanding annual leave was not provided for in the personal injury settlement agreement of March 2019.

Having arrived at that conclusion I must now form an opinion on the amount of annual leave due to the complainant.

In the matter of Waterford County Council v O’DonoghueDWT0963, the Labour Court stated that,

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

Having examined the evidence adduced and taking consideration of emails and correspondence exchanged between the parties, it appears that both sides agree that the complainant works 12 hour shifts and accrues 168 hours of annual leave per year given her work pattern of 7 days over 2 weeks. 

The present claim relates to Annual leave accrued while on sick leave.  The complainant submits that the respondent failed to provide her with her annual leave accrued while she was on sick leave from 20th of October 2018.   Thus, her claim relates to annual leave accrued from 20th of October 2018 to the 13th   of September 2019.

The complainant accrued annual leave from 20th of October 2018 to 1st of April 2019 and from 1st of April 2019 to 13th of September 2019 amounting to 152 total hours accrued in this time period.

In addition, correspondence between the parties indicates that the complainant was also owed 11.5 hours annual leave for the period prior to 20th of October 2018 which gives a total of 163.5 hours.

The complainant’s final payslip indicates that the complainant was paid 68.96 hours of holiday pay when leaving her employment.  163.5 less 68.96 gives an outstanding amount of 94.9 hoursand at a rate of €11.27 gives an amount of €1,069.50 outstanding.

Accordingly, I am satisfied that this claim is well founded, and I direct the respondent to pay the complainant the sum of €1,069.50 in respect of outstanding annual leave/holiday pay.

I declare this claim to be well founded and I direct the respondent to pay the complainant the sum of €1,069.50 in respect of outstanding annual leave/holiday pay.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00035170-002

11/03/2020

I have not received my Public Holiday entitlements accrued while on sick leave

The respondent submits that this claim has been referred to the Workplace relations Commission outside of the allowable 6 months' time limit as prescribed in the Act,

The Claimant began her employment with the respondent on or about the 5th of July 2011 , as a Cleaning Operative and was placed on the St. Vincent's University Hospital Site.

The Claimant worked in the Emergency Room department within the Hospital.   In or around 9th March 2019, the claimant settled a Personal Injury Claim without insurance company.  

This complaint refers to the non-payment of Public Holiday entitlements while on sick leave. It is the respondent's position that this claim is out of time, as it was referred to the WRC outside the 6-month time frame for submitting claims to the WRC.  The respondent also submits that the complainant is not entitled to be paid for public holidays in circumstances where she was absent for work on certified sick leave for more than 26 weeks.

The complainant lodged this claim with the WRC on the 11th of March 2020 therefore the cognisable time period for the complaint dates from the 12th of September 2019 to the 11th of March 2020.

The claim only covers public holidays which fall during the cognisable period of the claim i.e., between the 12th of September and 11th of March.    The complainant resigned her employment on the 13th of September 2019.

I am thus satisfied that the claimant has not established that the respondent failed to pay her for outstanding bank holidays during the cognisable period of this claim.   Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded.

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

CA-00035170-003

11/03/2020

The complainant submits that she had to leave her job due to the conduct of her employer or others at work. 

 She submits that she ended up with work related stress conditions and had to do counselling.   

She also submits that she raised a grievance with her employer which she states was left unresolved as no investigation was done.

The complainant also submits that her employer refused to pay her for annual leave entitlements accrued while on sick leave and for Public Holiday while on sick leave. 

These claims in relation to annual leave and public holidays are dealt with separately in other decisions in respect of additional claims lodged by the complainant (CA-00035170-001 & CA-00035170-002).

The Claimant began her employment with the respondent on or about the 5th of July 2011 , as a Cleaning Operative and was placed on the St. Vincent's University Hospital Site.  The Claimant worked in the Emergency Room department within the Hospital.  In or around March 2019, the claimant settled a Personal Injury Claim without insurance company.  The settlement was made without admission of any wrongdoing or liability.

During this time the claimant was on long term certified sick leave.  The claimant went on certified sick leave on the 20th of October 2018, and never returned to work.

In or around July 2019, the claimant began correspondence with the respondent. The substance of the Grievances was based around historical issues to do with the claimants ' duties. While a few issues were raised the primary grievance was about the cleaning of blood in the emergency room and use of certain equipment. It needs to be noted that at the time the grievances were raised, the claimant was on certified sick leave.

The response issued to the claimant by Mr. L, HR Business Partner outlined to the complainant that he could not investigate any issue that was directly connected to the personal injury claim. Further it was explained that as the claimant was still on sick leave these issues would be better dealt with when the claimant would be ready to return to work. The claimant’s grievance related directly to role in which she was assigned. In particular her grievance referenced the use of some equipment and the cleaning of blood. The issues to which were the primary subject of the grievance were integral to the position of cleaner in the Emergency department to which the claimant was assigned. As such it was the most prudent course of action to wait until such a time as the claimant was fit to return to work to see what alternative roles were available.

On or around the 13th of September 2019 the claimant resigned her position. Her resignation was accepted, and no issues were raised at that time, and she did not mention that she felt she had no alternative but to leave. The e-mail to the company simply stated that she was informing the company of her intention to resign from her position as a cleaner at Noonan company Cleaning and advised that he last day of employment will be 13.09.2019.   The resignation was accepted, and the claimant's final payments were issued to her in accordance with her terms and conditions of employment.

Subsequent to her resignation, the respondent received communication from SIPTU on behalf of the claimant seeking payment for annual leave, and public holiday entitlements. During this correspondence there was again no indication of any type that the claimant felt that she had no alternative but resign.    The respondent entered discussions regarding the issue of annual leave, and Public holidays with the claimant's SIPTU union official, and at no time was the decision to resign part of the discussions.

In relation to holidays both annual and public it the position of the respondent that at no time during her employment did she raise these as a concern in order that they could be addressed by respondent.

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 not been paid her annual leave or public holiday entitlements during her sick leave.  The complainant also stated that she had tried to lodge a grievance but that the matters raised by her were not investigated by the respondent and were left unresolved.  The complainant also advised the hearing that she had resigned from work as she was not fit to return for health reasons and had resigned following advice from her doctor and therapist.

The respondent advised the hearing that the claimant was not ever in a position whereby her grievance was left unresolved.    The respondent stated that the claimant wrote a letter to the respondent, raising a number of grievances while she was on sick leave.    The grievance dealt with issues the claimant had working in the Emergency Department of St Vincent's Hospital.

The response which issued from the respondent stated that as the complainant was on sick leave, these issues were best left until the claimant was fit to return to work, and these matters could be dealt with then.   The respondent stated that the claimant's grievances primarily related to specific tasks that are part of the duties in the Emergency Department as such it would make the most sense to deal with those issues at a time when available alternatives could be discussed.   The respondent advised the hearing that there was certainly no indication from the respondent that the matters raised would not be dealt with, simply that while the claimant was on sick leave it was better to hear the grievance at a time when the claimant was fit to return.   

In relation to her other reasons for leaving the respondent submits that the claimant was not entitled to public holiday pay after 26 weeks absent from work in line with the Organization of Working Time Act.   As regards the claim that she left her employment after she was refused annual leave; the respondent advised the hearing that the claimant was not entitled to annual leave until she either returned to work or terminated her employment.   Therefore, it cannot be a valid reason to have terminated her employment, in circumstances where she was not entitled to be paid for annual leave, or in a position to avail of her entitlement.

In relation to holidays both annual and public it is the position of the respondent that at no time during her employment did she raise these as a concern in order that they could be addressed by respondent.

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 Respondents 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 complainant’s contract to make it “so radically different from what was before.” 

Accordingly, I am satisfied that the termination of employment by virtue of the complainant’s resignation fails on the contractual test to be a constructive dismissal.

In looking at the reasonableness test I must examine to what extent the parties behaved reasonably.    It is the Respondent’s position that it always acted reasonably and fairly, and that the complainant failed to act reasonably and failed not only to exhaust all internal procedures but in relation to the public holiday and annual leave had failed to invoke them at all.

The respondent refers to the definition as outlined in section 2(1) of the Act stating that it is clear that the conduct of the employer must be of nature to justify the employee terminating the contract.   The respondent also refers to the test set out in An Employee v An Employer (UD 1421/2008) which states

"In advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. In effect the relevant section reverses the burden of proof for an employer set out in section 6(1) of the Act. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable."

The respondent in citing this case reiterates that the claimant must act reasonably and exhaust all internal procedures.   The respondent adds that in this case the claimant was well aware of the grievance procedure, she was issued a company handbook and was a member of SIP TU and was clearly aware as to how to address concerns within her workplace, yet she chose not to.

The respondent states that the claimant did engage with the company, when she raised a number of grievances in relation to her work a few weeks prior to her resignation, yet the entire grievance is silent on what she claims are the reasons she felt she had '*no other option" but to leave.

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 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.

 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 examining the issue, the test of reasonableness, I am mindful of the finding in the case of McCormack v Dunnes Stores UD 1421/2008 where 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.

In addition, I note the finding in 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.      Similar to that case the respondent submits that the complainant in this case 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).

In resigning in circumstances that a complainant asserts amount to constructive dismissal, I am satisfied that such a 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 here 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 claims pursuant to the Unfair Dismissals Acts fails.

I find that the complainant was not unfairly dismissed and accordingly I declare this claim to be not well founded.