Complainant

Respondent

Parties

Daniel  Hughes

Action Alarm Control 24 Limited

Complainant

Respondent

Anonymised Parties

Representatives

Joseph Shannon B.L.

Grahame Pickett of Grahame Pickett Consultancy

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-00044397-001

29/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00044397-002

06/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00044397-003

06/10/2021

The hearing was held over two days on 11 October 2022 and 25 April 2023.

The complainant submits that around mid to late November 2020 he and another colleague applied for a supervisor position that had become available. They were both advised they would be given an 8 week trail, to see which operator was more suitable for the position. It was agreed the colleague would take the first period as acting supervisor.

On 21 December the complainant was advised he was a close contact to someone in the control room where he worked and he immediately sought the advice of his GP. He received authorisation to leave his workplace. His GP advised him that by law he was required to self-isolate for 14 days and supplied his employer with a medical certificate to this effect.

The complainant told the respondent of the legal requirement to isolate for 14 days and that he felt unsafe returning to work as he may have an infectious disease. On 23 December 2020 he contacted the Health and Safety Authority (HSA) who explicitly stated to him that he was to self-isolate for 14 days and not to go to work.

The complainant offered to work from home but his request was denied.

On 4 January the respondent requested a meeting with the complainant regarding him leaving the workplace on 21 December, without authorisation or justification and unreasonably refusing a lawful request to return to work. On 13 January the respondent wrote to the complainant with the outcome of the disciplinary hearing and he was issued with a final written warning, which was to remain on his file for 12 months. The complainant appealed the outcome stating “I was merely concerned about my health and wellbeing and that of my colleagues having worked a shift with the employee who was confirmed as having Covid-19”. He also pointed he was asked if he would take a computer home, to which he said yes, but this was subsequently refused. The complainant submits there was no investigation into his appeal but the initial disciplinary process was rubberstamped. An appeal hearing took place on 20 January. The final written warning was upheld but the time on his file was reduced to 6 Months. The complainant submits the disciplinary procedure amounts to unfair treatment for raising a Health and Safety concern and a Protected Disclosure.

The complainant returned to work on his next rostered shift after the end of his 14 day isolation, which was 7 January 2021. He was asked to work upstairs in a separate area and he was not allowed in the control room. He noted that on certain days there could be 6 or 7 people in the control room.

On one day he was stopped from entering the control room by a supervisor from the day shift who stated he had been told by management not to let him in.

On 10 February his manager spoke to the complainant in the upstairs kitchen. The manager said it was just an informal chat and said he could see how stressed the complainant was by his final written warning. The complainant asked when he would take over as acting supervisor. He was told he would not be considered for the role because of the final written warning.

On 5 March he spoke to another manager saying how unfair he considered his treatment to be, in not being given the chance for the supervisor position. The manager said he could get another chance when the final written warning had expired. The complainant submits this and being moved from his usual workplace amounts to penalisation. 

The complainant raised a grievance but, despite providing more information, this was not investigated by the respondent.  Due to the stress of the entire situation the complainant went to a medical professional who concluded he was suffering symptoms of work-related stress and was advised to seek a psychological report.

The complainant submits that he had exhausted all internal procedures, right up to appealing his grievance, and had been penalised at work for raising a Health and Safety concern and did not believe it was a safe work environment for him, and he had no choice but to terminate his own employment in writing on 9 April 2021.

The respondent submits the complainant commenced employment as an Alarm Control Operator with them on 17 January 2019. The complainant was regarded as a valued employee and both he and another employee were being considered for a supervisory position. As they did not have the required skills set the respondent was prepared to give them both a trial period for a few months to see if this was a role they would be interested in applying for. The other employee commenced the trial period first on 23 November 2020.

On 21 December 2020 the Technical Operations Manager (SL) was informed by one of the control room staff that he had tested positive for Covid-19. Three others, including the complainant, were reported as close contacts. SL advised the complainant he would be contacted by the HSE as he had been reported as a close contact. Later that morning there was a virtual management meeting to discuss the situation. During the meeting the complainant entered the room abruptly and told SL he had spoken to his doctor and he had told him to leave work and go home.

At the meeting it was decided that all staff (approx. 60) would be tested for Covid-19 at a private test centre that day or the next. The complainant and his colleague arrived together after the test centre had closed. When he was tested the result was negative but he questioned the professionalism of the test centre. He said he was getting an HSE test, which was also negative, as was a second HSE test taken seven to ten days later.

Over 22, 23 and 24 December three managers of the respondent made numerous calls and texts encouraging and pleading with the complainant to return to work, advising him that it was a safe environment and they were an essential service. The complainant informed them he was certified sick. The CEO spoke with the HSE on or around 23 December and the complainant was then advised that, as an essential service, once a staff member has tested negative, had no symptoms and could be provided with a safe and isolated workplace that it was acceptable to continue coming into work. The respondent advised the complainant he could not be regarded as sick, but as a close contact, and as he and all other staff could be provided with a safe environment be expected to turn up for work. 

The complainant was due to work night shifts on 24 and 25 December but he sent in a doctor’s certificate stating that he was unfit for work from 21 December 2020 to 4 January 2021. He did not return to work until 7 January, even though he was rostered to work the night shift on 4 January 2021.

On 4 January 2021 the respondent asked the complainant to come to an interview regarding leaving the workplace on 21 December without authorisation or justification, and unreasonably refusing a lawful request to return to work. The disciplinary meeting was held on 7 January. The complainant was informed of the outcome on 13 January, that he was being issued with a final written warning which was to remain on his file for 12 months.

 Following an appeal by the complainant the “shelf life” of the final written warning was reduced to 6 months.

In early February SL informed the complainant there would be 2 more supervisor positions later that year and he would be considered when the final written warning had expired.

On 10 February 2021 the complainant raised a grievance on the outcome of the disciplinary hearing and the appeal hearing, and the process itself. He also included a grievance in relation to not “being afforded the opportunity to perform in the acting supervisor role as planned”. SL asked the complainant to outline the basis of each of his grievances within 3 working days, stating clearly the grounds for each grievance and against whom the grievance was being made. SL also pointed out that the complainant had appealed the outcome of the disciplinary hearing and accepted the outcome of the appeal. The complainant did not reply until 24 February with ten points. SL replied the same day saying he deemed eight points were closed. However, as the complainant had raised a new allegation of bullying he asked the complainant to detail this complaint within seven days.

On 7 March the complainant requested a formal appeal by someone “completely impartial and unconflicted”. As the complainant had not provided any additional information, as requested, SL said the matter was deemed closed.

On 7 April 2021, unbeknownst to the respondent, the complainant cleared his locker. On 9 April he resigned by email citing “breach of contract”, “feeling unsafe” and believing “this to be a constructive dismissal”.

The respondent submits they followed HSE guidelines in relation to them being an essential service and put in place processes, facilities and arrangements in accordance with the guidelines to provide a safe working environment.

Only staff who had contracted Covid-19 worked from home, as there was a limited number of remote kits at this time.  Furthermore, because of the nature of its work, it cannot operate a monitoring centre remotely.

The respondent submits the complainants made under the Safety, Health and Welfare at Work Act and the Protected Disclosures Act are out of time as they were referred to the WRC on 12 October 2021 and the complainant left their employment on 9 April 2021.

Safety, Health and Welfare at Work Act: Penalisation:

The complainant says he was penalised under the Safety, Health and Welfare at Work Act.

He says he complied with the legislation when he was advised by the respondent he was a close contact and sought medical advice and backed it up with confirmation from the HSA. In accordance with this advice he self-isolated for 14 days and he offered to work from home. He says he complied with the legislation and was happy to receive a Social Welfare payment. He notified the respondent he was self-isolating to protect his own health and safety and that of his colleagues. He returned to work when his self-isolation was complete.

He says he was subject to a disciplinary sanction for raising a health and safety concern. He was made to work in a different location, he was also penalised by being overlooked for promotion and moved from his usual workplace, and by the way the respondent responded to a Data Access Request. Then, based on medical advice and symptoms of workplace stress the complainant felt he had no choice but to terminate his employment.

The respondent says they did not fail to follow close contact guidelines. They contacted the HSE and were advised, that as an essential service, once the staff member has tested negative, had no symptoms and could be provided with a safe and isolated workplace that it was acceptable to continue coming into work. They also put in place the following: private testing for any employee, entry and exit without any contact with any other member of staff, temperature checking cameras, plastic screening and enhanced deep cleaning. The respondent says that with these measures in place they could expect the complainant to attend work; as his colleagues did.

The complainant made his complaint to the WRC under the Safety, Health and Welfare at Work Act on 6 October 2021. The disciplinary process he alleges was penalisation was initiated on 4 January 2021, some 9 months before the complaint was referred. He was put in a different location to work when he returned to work on 7 January, again some 9 months after the complaint was referred. The complainant asked about his trial as acting supervisor on 10 February 2021 and was told he was not being considered for the trial until his final written warning had expired. This was more than 7 months before this complaint was referred. He asked another manager about this on 5 March, the answer was the same, and again more than six months before the complaint was referred. The complainant also says the limited response to a Data Request made on 20 April 2021 also amounted to penalisation. However, this aspect of the complaint was not included in the complaint referral on 6 October 2021 and only mentioned for the first time at the first hearing day on 11 October 2022. This is over one year from the alleged act of penalisation.

Section 41 of the Workplace Relations Act 2015 gives the Workplace Relations Commission jurisdiction to consider complaints of penalisation under the Health Safety and Welfare at Work Act. Section 41(6) and 41 (8) of the Workplace Relations Act, 2015 provides as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

In asking for consideration of the time limits the complainant submitted that the limited response to the data access request was made on 20 April 2021, which is within the six months’ time limit. However, as I stated above this was not included in the referral made on 6 October 2021. Thus, no event of alleged penalisation falls within six months of referral. In asking for consideration of an extension of time limits the complainant said he had to undertake counselling as a result of his treatment at work. He gave no details of this and therefore, I conclude, has failed to demonstrate “reasonable cause” for the delay in submitting this complaint. I therefore conclude this complaint is out of time and I do not have jurisdiction to investigate.

Protected Disclosures Act – Penalisation:

The complainant put forward the same evidence in respect of his claim of penalisation under the Protected Disclosures Act as he did for penalisation under the Safety, Health and Welfare at Work Act. He also made this complaint on 6 October 2021. Section 41 of the Workplace Relations Act 2015 also gives the Workplace Relations Commission jurisdiction to consider complaints of penalisation under the Protected Disclosures Act.

Therefore, for the reasons set out above, I conclude this complaint is out of time and I do not have jurisdiction to investigate.

Unfair Dismissals Act – constructive dismissal:

The Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating his employment. The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

““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 legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp[1]. It comprises of two tests, referred to as the “contract” and the “reasonableness” tests. It summarised the “contract test” as follows: “If the employer is 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 other performance.” The “reasonableness test” assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

In both types of situation, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment. In reaching my decision I have taken into account all of the evidence, both written and oral, submitted by the parties.

The complainant says that, when he told he would only be considered for the Supervisor role when his final written warning had expired he raised a grievance. Despite providing more information that he had been asked for he claims his grievance was not investigated by the respondent.  Then ,due to the stress of the entire situation he went to a medical professional who concluded he was suffering symptoms of work-related stress and was advised to seek a psychological report.

The complainant submits that he had exhausted all internal procedures, right up to appealing his grievance, and had been penalised at work for raising a Health and Safety concern and did not believe it was a safe work environment for him, and he had no choice but to terminate his own employment in writing on 9 April 2021.

The respondent says that following an appeal by the complainant the “shelf life” of the final written warning was reduced to 6 months. Then, in early February the complainant was told they would be filling 2 more supervisor positions later that year and he would be considered when the final written warning had expired.

On 10 February 2021 the complainant raised a grievance on the outcome of the disciplinary hearing and the appeal hearing, and the process itself. He also included a grievance in relation to not “being afforded the opportunity to perform in the acting supervisor role as planned”. The complainant was asked to outline the basis of each of his grievances. He was also told that he had appealed the outcome of the disciplinary hearing and accepted the outcome of the appeal. Because of this the complainant was told that most of the points in his grievance were deemed to be closed. He was asked to detail a new grievance he had made of bullying, within seven days. The complainant did not comply with this and the respondent told the complainant they deemed the matter closed.

Subsequently, on 7 April 2021, unknown to the respondent, the complainant cleared his locker, and on 9 April he resigned by email citing “breach of contract”, “feeling unsafe” and believing “this to be a constructive dismissal”.

In relation to the “reasonableness test” the complainant contends that his issues were not addressed properly. However, the respondent contends they operated the disciplinary process in accordance with their procedures and dealt with his grievances appropriately but it was the complainant who failed to comply with their request for clarification.

It is well established that in advancing a claim for constructive dismissal an employee is required to show they had no option in the circumstances of their employment other than to terminate their employment. This requirement places a high burden of proof on an employee to demonstrate they acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve their grievances with their employer.

Having regard to the totality of the evidence adduced, I find that the standard of reasonableness required to substantiate a claim of constructive dismissal has not been met, where the Complainant did not provide the clarification requested by the respondent, in order to pursue his grievance.

In relation to the “contract test” the Complainant contends the respondent failed to provide a safe working environment The respondent contends they followed HSE guidelines in relation to them being an essential service. They put in place private Covid-19 testing for any employee, entry and exit facilities without contact with another member of staff, temperature checking cameras, plastic screening and enhanced deep cleaning. The respondent says that with these measures in place they could expect the complainant to attend work; as his colleagues did.

Having regard to the two tests identified above, I find that the Complainant has failed to establish that the Respondent’s conduct was so unreasonable or was such that he had no option but to resign or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract. In the circumstances, I find that the Complainant left his employment of his own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that the complaint cannot succeed.

Safety, Health and Welfare at Work Act: Penalisation: for the reasons given above I find this claim is out of time and is therefore not well founded.

Protected Disclosures Act – Penalisation: for the reasons given above I find this claim is out of time and is therefore not well founded.

Unfair Dismissals Act: for the reasons given above I find that the complainant resigned from his employment of his own volition and was not constructively dismissed and the complaint is not well founded.

Penalisation – out of time

Constructive dismissal not well founded.