Complainant

Respondent

Parties

Thomas  O'Brien

E. C. S. C. Ltd Enniscorthy Community Services

Representatives

Kate Breen Julie Breen Solicitor

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-00052475-001

29/08/2022

The Complainant alleges that due to the unsafe environment he had to work in during the pandemic, he had no option but to resign his position. The Respondent alleges that everything, that could be done to protect their staff from infection was done, and the Complainant’s decision to leave was unreasonable in the circumstances.

The Complainant gave evidence after taking the affirmation.

He was an Information Officer with the Respondent and he used to do meals on wheels as part of his duties.

In 2019 his hours changed to Monday / Wednesday and Friday afternoon. The man who had those hours left. He did that man’s shifts, and the new lady did his hours. November/December news was coming in about what we now know was Covid 19. In 2020 The Department of Health started to give guidelines on how to protect yourself. The building he worked in was very old and very cold. As you enter the building the lobby was 12 x 8. The length of the hall was 30 x 3 . There are three offices off it. At the back of the building is the toilet and kitchen. There are no windows. Mary’s office and the back office had a velux window. The toilet and kitchen area and the complainant’s office had no windows. The ventilation was very poor. There was no hot water. The Respondent said that employees could boil a kettle if we needed hot water. The complainant found that suggestion insulting. The Respondent also stated that very few members of the public were ever in the building.  The Complainant does not accept that. He gave the example where one day a lady and her son came in with an insurance query. They needed the son’s father there. He then arrived in. That meant that there were three people and the Complainant in the office with no ventilation.

During lockdown the office was closed during periods of lockdown. When staff came back to work the office was not open to the General Public. In 2021 it became more challenging because they started to open to the public. However, people had to knock on the door. They couldn’t just walk in. Those who needed forms etc would just wait outside. Others came in to discuss more sensitive matters. More often than not, people who needed to come into the building came into the Complainant’s office. By January 2022 things started to unravel. Mary Carroll went to a wedding. While she was away there was an issue with the drivers for the meals on wheels. The Complainant had to try and resolve it. One of the girls in the office said she would cover for the missing driver. When MS. Carroll came back and heard about it, she was annoyed with the Complainant. She said there was an issue with insurance. She shouted at him through the wall of her office.

2nd January 2022 the Complainant noticed that he had been overpaid. The Complainant spoke to Mary Carroll about it. She said she had not overpaid him, and she was very abrupt about it. He accepted what she said even though he really felt he had been overpaid. Sometime later there was an investigation on payments in CE schemes carried out by the Department of Social Protection. That disclosed that the Complainant had in fact been overpaid. The Complainant spoke to Ms. Carroll about it. She said she felt like she was being blamed. The Complainant then had to repay the money. He didn’t mind repaying it as he knew it had been overpaid. 

He raised the issue of no hot water in mid-2022.  He spoke to Pat O’ Shea and Mary Carroll about it. He told them he was considering handing in his notice as he was not happy there. No ventilation and no hot water in a pandemic, was just not acceptable.  He contacted the Department of Social Protection in relation to funding for building upgrades. There should have been funds available to upgrade the building, but he found out there was no request for funding made by the Respondent.  

The complainant accepted that masks and hand sanitizers and screens were made available for all employees.

The Complainant felt that he had no option but to leave as he did not feel safe. He handed in his notice in early May, probably around the 5th. It could have been earlier than that. He doesn’t accept the Respondent’s evidence that he handed in his notice on 13th April.  He did not raise a grievance. He didn’t because, Ms. Carroll had put him in his place twice before, once in relation to the overpayment issue and once when she told him she didn’t need his permission. His contract doesn’t have a staff handbook. He didn’t know how to raise a grievance. He did have general conversation with Mary Carroll over the years about the state of the old building and lack of ventilation but was as far as he took it.  

The Complainant accepted that he spent the entirety of his employment purposing other opportunities.

When the Complainant left his employment, he lost his supplementary payment of €22.50 and reverted back to his social welfare payment only.  He has yet to get new employment.

Pat O’ Shea gave evidence after taking the affirmation.

He is involved with the care of the elderly scheme and the information office. He didn’t really have any dealings with the Complainant. Mr. O’ Shea does not recall the Complainant ever mentioning the hot water or ventilations issue. He does recall having a conversation with him in 2022 about how Mary Carroll had spoken to him abruptly. He asked him if he wanted him to talk to Mary about it for him and he said “No”.  The Complainant spoke to Mr O’ Shea in 2022 about leaving the organisation. He told him that he had applied for another job and was successful and he asked him to act as a referee for him.

Mary Carroll gave evidence after taking the affirmation.

She is a supervisor of the scheme. The Complainant worked in the information office. Ms Carrol felt like they had a good relationship and very often had normal everyday conversations. She recalls the issue in relation to the driver. She did have a conversation with him about that. She stood at the door of his office whilst conversing with him. She also recalls having a conversation with him about the ventilation in the building. She told him to leave the door open as the other rooms had skylights and were ventilated. During covid, members of the public could not just walk into the building. They had to knock at the door. If they needed to come in, it was up to the employee to decided who and how many came in at any one time.

Before Ms. Carroll went on holidays, the Complainant told her he wanted to leave. She went on Holidays the last week in April. The conversation took place about one week before that. She asked him to stay and he said he wanted to go because the girls were coming back into the Office and he didn’t want to be there when they came back.

The Complainant’s evidence that no application was made for funding to upgrade the building isn’t relevant as all of the government guidelines in relation to Covid were adhered to. Masks, Screens Hand Sanitisers were all made available, the door was closed and members of the public could only enter the building upon invitation.

The Complainant did not raise a grievance in relation to any of the issues outline in his evidence.   

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“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 the 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 burden of proof, which is a very high one, lies on the Complainant. He must show that his resignation was not voluntary.  As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“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 further performance”

If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“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 importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair”

The Complainant made no efforts to raise a grievance in relation to any of his issues. He did have general conversations about his concerns but never said that he wanted to raise a grievance and never asked how he might do that. Furthermore, I find that his decision to leave his employment had very little to do with the poor ventilation in the building or the lack of hot water. He worked there for the vast majority of the pandemic and didn’t really make much of an issue about it. The Respondent on the other hand did everything they were obligated to do, to protect their employees. They provided screens, masks and hand sanitisers. They also placed restrictions on members of the public entering the building without first being invited to by a member of staff.

In all of the circumstances I find that the complaint is not well founded and accordingly fails.

The complaint fails.

Constructive Dismissal. Pandemic. Grievance.