Complainant

Respondent

Parties

Geraldine  Kubernat

Health Service Executive

Complainant

Respondent

Anonymised Parties

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Representatives

  Self

Emily Sexton Comyn Kelleher Tobin Solicitors

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-00041697-001

23/12/2020

The complainant commenced employment with the respondent on 19/03/1996.  She was employed as a Senior Occupational Therapist. She was paid €1,444.00 nett per fortnight.  She worked four days per week and provided a service to adult clients with a physical disability.  This service was delivered in the client’s own home.  For approx. 20 years she was based in the same centre (Location A).  In January 2018 she was to transfer to one of the new Primary Care Centres (Location B).  After a short time, she was unwell, and she attributed this to issues associated with the new building. The complainant was on sick leave from 15/10/2019.  Following various reviews and her utilisation of the respondent’s grievance procedure she felt that she had no option but to submit her resignation on 27/11/2020.  The respondent denies that she was constructively dismissed.  She submitted her complaint to the Workplace Relations Commission on 23/12/2020.

At the outset of the hearing the respondent raised a preliminary legal point in relation to the complainant’s locus standi to bring a complaint of constructive dismissal while she was still employed by the respondent.  This matter is fully addressed in the “Findings and Conclusions” section below.

The complainant is a Senior Occupational Therapist who commenced employment with the respondent on 19/03/1996.  She was based as a location (Location A) for approximately 20 years. With the roll out of the Primary Care Model, as part of the Government health strategy, the complainant would move to a new purpose built Primary Care Centre (PCC) at Location B.  This move took place in January 2018.  The complainant and her colleagues raised issues associated with this move. These included the use of shared open plan offices, location of store room not convenient to car park, odour in the building and a lot of teething issues associated with a new building, e.g. heat regulation, air quality, door closing.

The complainant developed headaches, dizziness, nausea and a feeling of being light headed.  She reported these to her manager, Ms A.  The then General Manager, Ms B, undertook to investigate the air quality and it was felt that the odour came from new equipment and some of the new furnishings were also removed.  The complainant engaged with the Occupational Health Department.  The complainant tried to manage the situation by staying out of the building and using her car for work.  The issues continued and in March 2018 Ms B suggested that the complainant consider a move to Location C.  As this would involve additional driving the complainant did not view this as feasible in view of her history of back issues.  In practical terms that would involve driving an additional 30 km twice per day. Her GP had also advised against undertaking any additional driving duties as, at that stage, she was driving approximately 700 km each month and the proposed relocation would increase this by an additional 960 per month.

The complainant’s manager, Ms A completed the risk assessment and other locations were mentioned but her manager did not have the authority to authorise such a move.  During this meeting Ms A mentioned to the complainant that she could be the subject of disciplinary action but was not informed on what grounds.  The complainant submitted that this was a turning point in her relationship with her manager and the mention of a disciplinary left her “feeling confused, intimated and unsupported.”

The complainant continued to liaise with her manager in relation to ongoing issues. The complainant suggested EMF testing [Electromagnetic Testing] to see if that would identify the cause of the symptoms.  Her manager informed her that the air quality test was completed but did not know the results.  The complainant continued her ongoing engagement with her manager in relation to ergonomic assessment, occupational health, environmental issues and any guidance that she could offer.  Over the following months the complainant tried to progress her issues and spoke with the Estates Department, the National Health & Safety, the Ergonomic assessment provider and Occupational Therapy colleagues who were qualified in ergonomics.  Around this time the complainant also had issues in relation to the administrative support worker who was assigned to her.  This person was now redirected to other duties such as reception without any discussion with the complainant in relation to the impact on the Occupational Therapy service.  The issues continued throughout the rest of the year and in January 2019 she decided to work from home.  At a meting with her manager in March 2019 she was told that she could be disciplined for being away from the office.  The complainant outlined to her manager that she was not absent but working and her manager confirmed that she was an excellent worker and her work statistics were without fault. 

In October 2019 the complainant was instructed by her manager to cease working from home and that a building, referred to as “The Stone Building”, was being refurbished and that pending this she could work from Location B or Location C.  Her manager also informed her that when “The Stone Building” was complete the administrative support would remain in Location B.  The complainant did not see how this would work and was informed by her manager that she was direct to so inform her.

These issues continued and on 15/10/2019 the complainant was signed off work on sick leave by her GP.  She was referred to the Occupational Health and continued to engage with the Employee Support Service. 

On 01/01/2020 the complainant lodged a formal grievance under stage 1 of the respondent’s grievance procedure.  A meeting took place on 15/01/2020 and a response received on 23/01/2020.  The complainant escalated her grievance to stage 2 on 26/01/2020. The stage 2 grievance hearing took place on 28/02/2020 and she did not receive a response until 13/03/2020.  The response did not resolve the issues.  Around the same time the complainant received a response to an FOI request and noted that the air quality test was received and incorrectly stated that it was sent to her.  Shortly thereafter the complainant submitted a stage 3 grievance.  Due to COVID-19 and other delays the meeting in relation to the stage 3 grievance did not take place until 02/07/2020.  The complainant attended this meeting with her husband and trade union representative.  A response was received on 10/07/2020 and her grievance was not upheld.

A meeting was subsequently scheduled for 19/10/2020 with a new general manager, Mr B.  The purpose of this meeting was to look at another location, location D in response to the recommendation following the stage 3 grievance.  There was a lot of discussion at that meeting in relation to the Occupational Therapy requirements, including clinical files, storage and related matters.

A further meeting took place at “The Stone Building” and the complainant was told that the files would remain in Location B.  There was further discussion in relation to equipment storage and the administrative support issue.  The complainant received a letter following this meeting and it is her view that this was different from what was agreed and in particular the administration support.

Meanwhile the complainant was looking for details about retiring on ill health grounds, but this did not come to a conclusion. 

On 27/11/2020 the complainant submitted a letter of resignation.  She met with the general manager on 23/12/2020 along with her husband.  She was offered a storeroom in an adjoining building but did not know if it was suitable.  At the end of the meeting the general manager said the would process her resignation and on 14/01/2021 she signed and returned the various forms.

The complainant provided details of her attempts to mitigate her loss and details of her private Occupational Therapy work and other work that she has undertaken.

The complainant submitted her complaint to the WRC on 23/12/2020 and is seeking reinstatement.

During cross examination the complainant confirmed that the travel time from her home to Location A was 25 mins and to Location B was 30 minutes.  The complainant confirmed that she had no sick leave until 2019.  It was put to the complainant that CORU were asked to provide an opinion in relation to confidentiality in a shared office scenario and they did not have an issue if the situation was appropriately managed.  The complainant was asked if it was correct that she did not engage with the process around the move to Location B.  She confirmed that she was on leave when the meetings were arranged, and she did visit the site on her own.  The respondent viewed this as an unauthorised visit.  The complainant confirmed that she informed her manager about the fumes and odour issues.  She also confirmed that she engaged with the Occupational Health department in relation to the symptoms.  The complainant was asked if there was any objective evidence in any of her occupational health reports in relation to the issues associated with the building.  The complainant noted that the occupational health physician did not have access to the reports that were undertaken and so could not make any reference to these in his reports.  The complainant was asked if she agreed that there was nothing found in the air quality report and the ergonomic assessment that would confirm that there was an issue.   The complainant did not agree and noted that she had frequently requested the air quality report and was not given this.

The complainant was asked if it was correct that the respondent had tried to accommodate her at other buildings but on these occasions, she declined because she did not want to have additional mileage.  The complainant confirmed that the extended driving was an issue.  The complainant was asked if she accepted that there was a National Strategy in which the establishment of the Primary Care Centres was a priority and she accepted that it was.

The complainant was asked about a number of locations that were offered to her and she explained that she declined these on health grounds and in one centre there was a Doc on Call practice located there and it did not seem suitable.

In relation to the office at Location B the complainant was asked if she ever tried to use the office and said that she did not as she felt sick in the building.  She also confirmed that she did not provide any medical evidence in relation to this.  The complainant confirmed that she did not inform her manage that she would be working from home.  She denied that this was “unauthorised” as she had been told to “do what works for you” by her manger.  The complainant also confirmed details of her grievances and the dates of the various meetings.

The complainant raised a preliminary legal point in relation to this case.  It was submitted on behalf of the respondent that the complainant did not have the locus standi to bring a complaint of constructive dismissal in circumstances where she lodged her complaint with the WRC prior to her last day of employment.  This matter is addressed in the Findings and Conclusions section below.

Constructive Dismissal:

The complainant was employed by the respondent as an Occupational Therapist from 19/03/1996.  She submitted her notice of resignation on 27/11/2020 and her last day of employment was 14/01/2021.

A primary care centre was to be built at Location B as part of the development of the National Primary Care Infrastructure programme.  All staff who were due to move to this location were informed and they were invited to a site meeting.  The complainant did not participate in the site visit.  She did organise a visit on her own volition and this was not authorised. The complainant highlighted issues about the shared offices and was looking for a two-person office which would accommodate her and an administrative assistant. She was advised that this would not be facilitated.  The move to Location B took place around 09/01/2018 and 11/01/2018.  A week prior to the move the complainant sent an e mail to management indicating that she had to take painkillers as a result of a smell in the new premises.  This was followed by a long list of issued regarding the premises. Some of these were teething issues and other practical matters associated with a new building.  In view of the complaints about the issues that were making the complainant unwell the respondent organised number of assessments to investigate the issues raised and also liaised with the maintenance provider in relation to any environmental/health issues raised. As this was a new building all appropriate building maintenance was planned and in accordance with good industry practice.  Some items were removed along with some equipment.  An ergonomic assessment did not raise any issues of concern.

As the complainant continued to assert concerns about the premises and on the advice of the occupational health department an EMP (Electric Magnetic Frequency) assessment was not done and no particular vulnerability issues emerged in terms of underlying medical conditions which would give rise to such a survey.  Despite this the complainant continued to assert difficulties and refused to work in that location.  The complainant was advised that her working from home was unauthorised and was advised to stop doing so.  The complainant went on sick leave on 19/10/2020 and did not return to work since then.

The respondent provided details of the air quality testing which was deemed to be safe and compliant. The respondent submits that no issues of concern were detected in relation to the premises at Location B.  Management utilised all reasonable endeavours to identity and address the cause of the complainant’s complaints but no substantive cause for her complaints were found on the premises.  It is the respondent’s position that, although the complainant complained of feeling nauseous, headaches and dizziness whenever she was in the building, she did not present any medical evidence to confirm that the cause of these complaints was the building.  The respondent notes that no other employee has highlighted any health or medical concerns arising from working on the premises.

The respondent notes that it dealt with the complainant’s complaints which she then progressed through the grievance procedure.  The first meeting took place under stage 1 on 22/01/2020.  The outcome of this was appealed and the outcome of that stage was issued on 11/03/2020.  This outcome was appealed under stage 3 and the decision in relation to that stage was issued on 08/07/2020. 

Arising from this the General Manage met with the complainant with a view towards facilitating the complainant work from a building, ““The Stone Building”” which the respondent submits was a reasonable option notwithstanding that no issued were identified in relation to the premises at Location B.  At that meeting every effort was being made to facilitate the complainant returning to work.  The outcome of the meeting was communicated to the complainant by letter dated 23/10/2020.  The complainant then submitted a letter of resignation on 27/11/2020.   The general manager then met the complainant on 23/12/2020 to explore alternatives to resignation.  The complainant confirmed that she was proceeding with her resignation.  The general manager accepted the complainant’s resignation on 08/01/2021.

It was submitted on behalf of the respondent that at all times they sought to address the issues and concerns raised by the complainant.  These included investigations, assessments, occupational health reviews and the processing of the complainant’s grievances in a reasonable manner. Her grievance was upheld in relation to certain matters and not upheld in relation to others. Despite these exhaustive inquiries and investigations no substantive cause was objectively identified for the health difficulties complained of.  In seeking to address the concerns the respondent was guided by the various assessments on the building and the occupational health reports.

It is the respondent’s view that the complainant was unhappy about the move to Location B. The respondent asserts its right to assign the complainant to any relevant work location as required by the service.  It was also a matter for the respondent to decide and implement appropriate workplace layouts.  The respondent did make staff aware of the plans and consulted with staff appropriately.

It was also submitted on behalf of the respondent that it acted as any reasonable employer would have in similar circumstances and it took all appropriate steps to investigate the issues raised.  The respondent notes that the complainant submitted her resignation one month after her grievance was determined.

In all the circumstances it is the respondent’s position that the complainant has not reached the high bar set by caselaw to demonstrate that she was constructively dismissed.

A number of witnesses gave evidence on behalf of the respondent.  Ms A was the complainant’s former manager. She gave evidence of her role and details of the complainant’s reporting relationship to her.  Ms A confirmed that the new premises at Location B was the first building in the new model of Primary Care Centres in that area.  Prior to the move there were site visits, but the complainant was not part of this.  She arranged her own visit.  Ms A confirmed that there were four Occupational Therapists in the area and the complainant was the only one moving to Location B. The others were moving to other locations in the area.  Ms A was asked about the complainant’s attitude to the move and she confirmed that the complainant was not excited about it.  She complained about the shared offices about six months prior to the move.  Ms A confirmed that she received an e mail at the end of January 2018 about a smell in the premises.  This was investigated, and a plinth was removed. Ms A gave evidence that some issues were outside the control of the respondent and were the responsibility of the facilities provider.  This included phone issues and printer issues.  Ms A also gave evidence that there were teething issues and while some took longer than expected to resole they were dealt with.  Ms A confirmed that the complainant did not highlight her use of a standing desk in advance of the move.  The only space for such a desk was behind reception.  Ms A confirmed that all the issues raised by the complainant were taken seriously.  Ms A escalated these to the general manager level and these were responded to.  Ms A did not know that the complainant was working from home and it would not have been an option at that time.  There were suggestions made by the head of service about changing location, but this was not taken up.  Ms A also said that if driving was an issue the complainant could attend later, and allowances could be made if she needed to stop while on a journey.  In relation to her understanding about the follow up to the issues Ms A said that she was an advocate for the complainant.  Nothing obvious was found in relation to the symptoms complained of.  Ms A felt that she was concerned for the complainant as what was happening was out of character for the complainant as she knew her. As there was not another building there was a lot of emphasis on looking for somewhere that would be suitable for the complainant.  Ms A was asked to clarify the issue about the disciplinary process which she mentioned in her e mail to the complainant on 26/07/2020.  Ms A gave evidence that the context of this e mail was that if after all the investigations and nothing was found if the complainant refused to attend for work at Location B and continued to work from home despite being instructed not to then she could find herself in a disciplinary situation.

Ms A gave further evidence in relation to the refurbishment of other buildings.  Ms A also confirmed that she was the person who held the meeting in relation to stage 1 of the complainant’s grievance.  Ms A was asked to clarify one of the outcomes of the stage 3 process in relation to the recommendation about meeting with the line manager.  Ms A said that she met the complainant on October 29th and looked at “The Stone Building” as a solution.  Ms A clarified the issues in relation to the storage of documents on the “P” Drive.  Ms A said that at that time the occupational therapy service was working through a standardisation process.  It was arranged that all files would be moved to this drive.  Ms A was told that this was happening and if it was not or if there were issues then she was not told.  Ms A also give evidence in relation to the change management support that was available to the complainant.  A nominated change management person was available to support the complainant but as this was a confidential service Ms A would not know if the complainant availed of this support.

Ms A also clarified that the change to the new premises was part of a national policy and the complainant was not singled out to move.  All other disciplines moved to the premises at Location B and she was not aware of any employee raising health related issues associated with the building.

During cross examination by the complainant Ms A was asked if after the visit to “The Stone Building” she checked if all the files were then on the “P” drive.  Ms A said that the moving of the files was a process and if there were issues these should be highlighted to her.  Ms A was asked if there was a written policy in relation to this process and she confirmed that there was and that this was available in the Occupational Therapy notes.  Ms A could not recall if she received an e mail from the complainant on 27/4/2018.

The former head of service, Ms B, gave evidence in relation to the Primary Care Model and the plan to co-locate all services in one building in order to provide a multidisciplinary approach to service delivery.  There were three new centres to be build and one of these was in Location B.  Ms B said she was aware from an e mail from Ms A that there was a reluctance in relation to the move.  She consulted with HR and there was a meeting with the Occupational Therapists who agreed to move under protest and utilise the grievance procedure.  Ms B was made aware that the complainant had complained about being sick when in the building and that as result of this the occupational health, employee support and building maintenance were involved.  Ms B confirmed that no issues were found arising from the assessment.  Ms B was the person who heard the stage 2 grievance.  Ms B also confirmed that it was she who advised Ms A to instruct the complainant not to work from home and she confirmed this in an e mail to Ms A.  Ms B gave evidence that she felt that they had addressed the issues raised and were concerned about the complainant.  While there were some teething problems associated with a new building these were addressed as quickly as possible.  It was Ms B view that they went over and above what was required in trying to address the issues raised by the complainant and to accommodate her.

Under cross examination by the complainant Ms B asked how she became aware of her issues.  Ms B confirmed that Ms A had advised her of the concerns.  Ms B was asked to confirm how she was aware the complainant was working form home.  Ms B confirmed that she was told this by Ms A who was the complainant’s line manager.  Ms B also confirmed that she never said that it was ok for the complainant to work from home.  Ms B was asked if she considered that the complainant had agreed to work in “The Stone Building”.  Ms B said that she did not think so and that “The Stone Building” was put out there as an option.  At that stage they did not even consider the cost.

Ms C who was assisting with the transfer of staff to the new building at Location B gave evidence in relation to her role.  She organised a number of site meetings with staff.  The complainant was not available on those dates and she organised her own visit.  In relation to the new building Ms C confirmed that the two-person office was already allocated.  The issues in relation to the shared offices and printing were a matter of National Policy.  Ms C confirmed that after the move in January 2018 she was the link person.  The building at Location B was the first building and there were teething problems.  Ms C gave evidence that she was aware of the health related issued raised by the complainant.  The building was checked, and no issues found.  She only received verbal confirmation of this.  Ms C gave evidence that no other member of staff had highlighted similar issues to that raised by the complainant.

A representative from the respondent Estates Department, Mr P, gave evidence in relation to his role with the respondent.  He is in post since 2017 and the handover of the building in Location B took place in late 2017.  His role involved liaising with services to ensure compliance with contract and inspecting the building in relation to contract specifications.  Mr P confirmed that the building is now fully occupied.  Mr P was asked how and when he became aware of the issued highlighted by the complainant.  Mr P explained that he had monthly meetings with managers and undertook regular walkarounds in the building.  He was aware of the issues from one of those meetings.  He gave the examples of a fire door not closing properly and issues in relation to room temperature.  He linked with the building maintenance provider in relation to these and requested that they explain the temperature codes and settings to the building users.  In relation to the smell Mr P described it as a “new room smell”.  The rooms in this building were standardised across all 14 sites where similar buildings were built.  Mr P also confirmed that the ventilation was examined and found that it conformed to the required standard.  In that context Mr P explained that as part of the public/private partnership infrastructure programme there was a 25-year contract associated with the building.  During all the investigations there was nothing untoward found.

Mr P clarified that the air quality report was not part of the building maintenance contract and the centre had to commission its own review.  Mr P gave evidence that this review found “nothing to suggest that the building was not constructed according to the contract”.  Mr P was asked to address the complainant’s issue in relation to not being given a key to the building.  Mr P explained that there is no key given to anyone.  The building operates on the basis of no keys and the maintenance of a clean desk policy.

Under cross examination by the complainant Mr P was asked how the 25-year contract would impact on the fire door.  Mr P explained that it was not the door that was the issue in this case.  It was the self-losing mechanism that needed to be sorted and he confirmed that it was sorted.

Mr P was asked to explain what the “standardisation” meant in relation to his earlier evidence.  He explained that specification for all the buildings had the same standard and in that context the room designated for Occupational Therapy in Location B was the same as in all the other 14 centres.  The only difference would be in relation to the “aspect” depending on the Location and how the building was facing.  Mr P was asked about the air quality report and he explained that he got an e mail from Ms B in relation to this.  He also explained that he was told that there were no issues of concern found during the investigations.  He was asked why the building maintenance providers refused to perform the air quality test and he explained that there was a contract in place and this was outside the scope of that contract.  It was put to Mr P that there were a lot of issues with this building in Location B and Mr P confirmed that this building was designed, build and commissioned in accordance with the plans.

A former HR manager with the respondent, Ms D, gave evidence.  She was responsible for hearing the stage 3 grievance submitted by the respondent.  The main issues were building related matters, relationship with line manager, lack of contact when out sick and the unwillingness of the respondent to provide her with the solutions she wanted.  Ms D said that the complainant said that “The Stone Building” was not workable for her.  The complainant also highlighted difficulties with the administration support provided to her and how this was managed.  In relation to her recommendations Ms D said that she wanted to be solution focussed in her approach.  She confirmed that she felt the complainant was willing to compromise and the complainant confirmed to her that this was the first occasion she felt that she was heard.  Ms D said that her recommendations were purely focussed on restoring or repairing a long-standing relationship and looking at the best option to get the complainant back to work.  Ms D was asked to clarify what she meant by the reference to medical evidence provided at the hearing and she confirmed that this related to the Occupational Health recommendations.  Ms D was asked what these recommendations included, and she said that phased return to work and the length of the working week were the main ones and they should look to HR for guidance in relation to this.

Mr H was the general manager and he gave evidence in relation to his roles with the respondent.  He took up his current role in Oct 2020 and at that stage the complainant’s grievance was being dealt with at stage 2.

Mr H was asked about the meeting on 19/10/2020.  Mr H explained that his objective was to look practically at the recommendations in the stage 3 outcome.  These were a return to work, look at the feasibility of “The Stone Building”.  While the complainant expressed satisfaction at the outcome of the stage 3 process Mr H was clear that he was not going to have a re-hearing of the stage 3 grievance.  He confirmed that he recalled saying that he was dealing with “bricks and mortar”.

Mr H confirmed that the complainant was represented by her trade union at the meeting.  Mr H also confirmed that they met at the site of “The Stone Building” in order to assess its suitability as a place of work for the complainant. Mr H confirmed that he mentioned the ill health option to the complainant at the meeting as he had previous experience of such matters.  He confirmed to the complainant that if she went for that option and there was a positive recommendation on the matter from the occupational health physician he wanted to assure her that he would be endorsing the recommendation.

Mr H said that there was a second meeting at the site and he felt that this was positive and that the room would be suitable.  It had easy access and the administrative support, while based in Location B, was within easy access.  He estimated this as being a quarter of a mile. In relation to the storage of items Mr H confirmed that there was a suitable cabinet available and larger items could be delivered directly to the clients by the provider.  Mr H was asked how he felt the complainant responded at this meeting. It was his view that she was receptive and focussed on returning to work.  He undertook to provide details of their meeting in writing to the complainant.

Mr H gave evidence that he subsequently received a letter of resignation from the complainant on 01/12/2020.  He confirmed that he was surprised and taken aback at this development.  He felt that progress was made and in order to consider the matter he felt that it would be best to meet with the complainant.  He later arranged to meet with the complainant and was accompanied by her husband.  At this meeting she confirmed that she wanted to resign.  Mr H confirmed that he accepted this resignation on 08/01/2021.

Under cross examination by the complainant Mr H was asked if he recalled that at the first meeting with the complainant she told him that she was sick because of issues associated with her job.  Mr H confirmed that he did recall that being said.  Mr H said wished to clarify that he was not qualified to make any judgements in relation to medical matters and he wanted to get a work environment that the complainant would be satisfied with.

Mr H was asked about other locations that were mentioned and the lack of access from the car park was an issue for the complainant.  He said that this was the case and that the complainant said that the store room was “a deal breaker”.  It was put to Mr H that the administrative support was also raised as an issue and its alignment to the days the complainant was due to work.  Mr H said that he was aware of this but that he was not involved in day-to-day matters.  His role was an overarching one and while he might have some familiarity with specific matters it was the role of local and service managers to deal with the day-to-day provision of services.

Mr H was asked why she was not contacted in relation to a number of occupational therapy roles that were advertised after her resignation and in particular why some of those which appeared to be suitable to her were not offered to her.  Mr H explained that in his area there are a significant number of staff.  The advertising of posts is something he would be appraised of from line mangers, but he would not be familiar with the specifics or requirements of each post.

Preliminary Legal Point:

The respondent submitted that the complainant lodged her complaint with the WRC on 23/12/2020 at which time she was still in the employment of the respondent.  While she had submitted her notice of resignation her employment has not ceased, and she had a meeting the General Manager on 23/12/2020.  It was submitted on behalf of the respondent that the complainant’s last day of employment was 14/01/2021.  This occurred in circumstances where the complainant was paid for outstanding annual leave.

The complainant in response to this point noted that she was unrepresented as her legal representative was no longer on record and she had ceased using her trade union.  She understood that she had submitted her complaint as she had given prior notice of her intention to terminate her employment.

I advised the parties post hearing that the case of Alan Brady v EAT, [2015] 16. E.L.R. 1 may be of assistance and I invited the parties to outline their views on this matter.  The complainant having reviewed that decision requested that I take it into account when deciding on this matter.

The respondent submitted that the Brady case could be distinguished from the within case as it was not a constructive dismissal case. In that case the employee was dismissed immediately and that does not arise in this case.  The respondent noted that the case of Caragh Neeson v John O’Rourke & Sean O’Rourke Chartered Accountants UD2049/2011 was a case after the decision in the Brady case and this was a constructive dismissal claim and a similar preliminary point was made in that case.  The EAT in that case that Section 8(2) amended the previous wording of that section which required a claim to be lodged “within 6 months of the date of the relevant dismissal”.  The EAT stated that this amendment “demonstrated a manifest intention by the legislature to preclude claims being ledged before the dismissal date”. It was the finding of the EAT that a claim lodged before the dismissal was not validly before the Tribunal.

The main issue which I have to decide is whether the complainant is covered by the provisions of the Unfair Dismissals Act in circumstances in which, according to the respondent, the complainant referred the constructive dismissal complaint before the date of the actual dismissal.  The Unfair Dismissals Act defines dismissal in Section 1 as, including a situation where the employee terminates her/his contract with the employer,

““ dismissal”, in relation to an employee, means—

…

(b) 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”

The definition of ‘date of dismissal’, is contained section 1 of the Minimum Notice and Terms of Employment Act, 1973 - 2001 Act as follows:

““ date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973 - 2001, 1973, the date on which that notice expires.”

It is important to emphasise that the giving of the notice must comply with both, the contract and the provisions of Minimum Notice and Terms of Employment Act, 1973 - 2001.

In this regard, the complainant’s contract of employment of 2005 states, in clause 22, that the employee is required to give at least two weeks’ notice of her intention to terminate the contract with her employer, the respondent. Additionally, section 6 of Minimum Notice and Terms of Employment Act, 1973 - 2001 states as follows:

“Right of employer to notice.

6.— An employer shall, subject to the right of an employee to give counter-notice under section 10 of the Act of 1967 or to give notice of intention to claim redundancy payment in respect of lay-off or short-time under section 12 of that Act, be entitled to not less than one week’s notice from an employee who has been in his continuous employment for thirteen weeks or more of that employee’s intention to terminate his contract of employment.”

It is clear that this case within the Section 1 (a) scenario of the definition of ‘date of dismissal’ – a notice has been given by the employee and it complies with the provisions of the contract and it also complies with the provisions of the Minimum Notice and Terms of Employment Act, 1973 - 2001. Therefore, the date of dismissal is the date on which the one month’s notice given by the employee expires, which is the 26th December 2020 not the 27th December 2020. As the complaint was referred to the WRC on the 23rd December 2020, it is not disputed that the complaint was referred before the date of dismissal. It follows from the foregoing that the respondent was right to assert that the complainant was still an employee of the respondent when referring the complaint to the WRC. However, the question whether the complainant had “locus standi” to bring a claim for constructive dismissal at that time as she was still an employee” remains. In this respect, section 8(2) of the UDA states as follows:

“(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General —

(a) within the period of 6 months beginning on the date of the relevant dismissal…”

The decision of Mr Justice Barrett in Brady v EAT, was brought to the attention of the parties.  In that case Mr Justice Barrett noted:

“It seems to the court that in the particular circumstances of this case it would be absurd to hold that where the Employment Appeals Tribunal had notice of the claim at the commencement of, and throughout, the six-month period, that Mr Brady should be denied the opportunity to bring his claim because the Tribunal, through no fault of Mr Brady, may also have had notice of the claim immediately prior to the applicable six-month period.  The court finds support for this conclusion in the purpose that typically underpins prescribed time periods and in the equitable principle propounded in Smith v Clay and referred to above. “Equity aids the vigilant, not the indolent”, Smith v Clay (1761) Bro CC.”

The case of Barry v Newbridge Silverware UD 1517/2012 is another case where a complainant submitted her form too early and the Tribunal decided that it had no jurisdiction to proceed with the claim.

In view of the findings of the EAT and Superior Courts I find that the complainant did not have the locus standi to bring a claim for constructive dismissal against the respondent. Accordingly, I find that I do not have jurisdiction to deal with this matter under the Unfair Dismissals Acts, 1977 to 2015.

I find that the complainant did not have the locus standi to bring this complaint and in those circumstances, I do not have jurisdiction to deal with this matter.

Constructive dismissal.  reasonableness test.